COMMITTEE ON HEALTH

BILL NO. 28-0085 Twenty-Eighth Legislature of the Virgin Islands

July 6, 2009

An Act amending 19 V.I.C., chapter 20, to establish the Virgin Islands Revised Uniform Anatomical Gift Act PROPOSED BY:

Senator Neville A. James

Be it enacted by the Legislature of the Virgin Islands: 1

SECTION 1. Title 19, Part II, Chapter 20 is repealed and reenacted with 2

amendments that read as follows: 3

“Chapter 20 Virgin Islands Revised Uniform Anatomical Gift 4

§401. SHORT TITLE 5

This chapter may be cited as “The Revised Virgin Islands Uniform Anatomical Gift 6

Act”. 7

§402 DEFINITIONS 8

In this chapter 9

(1) “Agent” means an individual: 10

2

(A) authorized to make health-care decisions on the principal’s behalf by a 1

power of attorney for health care; or 2

(B) expressly authorized to make an anatomical gift on the principal’s behalf 3

by any other record signed by the principal. 4

(2) “Anatomical gift” means a donation of all or part of a human body to take effect 5

after the donor’s death for the purposes of transplantation, therapy, research, or education. 6

(3) “Decedent” means a deceased individual whose body or part is or may be the 7

source of an anatomical gift. The term includes a stillborn infant, and, subject to restrictions 8

imposed by law other than this chapter, a fetus. 9

(4) “Disinterested witness” means a witness other than the spouse, child, parent, 10

sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, 11

or refuses to make an anatomical gift, or another adult who exhibited special care and 12

concern for the individual. The term does not include a person to which an anatomical gift 13

could pass under Section 411. 14

(5) “Document of gift” means a donor card or other record used to make an 15

anatomical gift. The term includes a statement or symbol on a driver’s license, identification 16

card, or donor registry. 17

(6) “Donor” means an individual whose body or part is the subject of an anatomical 18

gift. 19

(7) “Donor registry” means a database that contains records of anatomical gifts and 20

amendments to or revocations of anatomical gifts. 21

(8) “Driver’s license” means a license or permit issued by the Virgin Islands Bureau 22

of Motor Vehicles to operate a vehicle whether or not conditions are attached to the license 23

or permit. 24

3

(9) “Eye bank” means a person that is licensed, accredited, or regulated under federal 1

or state law to engage in the recovery, screening, testing, processing, storage, or distribution 2

of human eyes or portions of human eyes. 3

(10) “Guardian” means a person appointed by a court to make decisions regarding 4

the support, care, education, health, and welfare of an individual. The term does not include a 5

guardian ad litem. 6

(11) “Hospital” means a facility licensed as a hospital under the law of any state or a 7

facility operated as a hospital by the United States, a state, or a subdivision of a state. 8

(12) “Identification card” means an identification card issued by the Virgin Islands 9

Bureau of Motor Vehicles or any other governmental agency authorized to issue 10

identification cards. 11

(13) “Know” means to have actual knowledge. 12

(14) “Organ procurement organization” means a person designated by the United 13

States Secretary of Health and Human Services as an organ procurement organization. 14

(15) “Parent” means a parent whose parental rights have not been terminated. 15

(16) “Part” means an organ, an eye, or tissue of a human being. The term does not 16

include the whole body. 17

(17) “Person” means an individual, corporation, business trust, estate, trust, 18

partnership, limited liability company, association, joint venture, public corporation, 19

government or governmental subdivision, agency, or instrumentality, or any other legal or 20

commercial entity. 21

(18) “Physician” means an individual authorized to practice medicine or osteopathy 22

under the law of any state. 23

4

(19) “Procurement organization” means an eye bank, organ procurement 1

organization, or tissue bank. 2

(20) “Prospective donor” means an individual who is dead or near death and has 3

been determined by a procurement organization to have a part that could be medically 4

suitable for transplantation, therapy, research, or education. The term does not include an 5

individual who has made a refusal. 6

(21) “Reasonably available” means able to be contacted by a procurement 7

organization without undue effort and willing and able to act in a timely manner consistent 8

with existing medical criteria necessary for the making of an anatomical gift. 9

(22) “Recipient” means an individual into whose body a decedent’s part has been or 10

is intended to be transplanted. 11

(23) “Record” means information that is inscribed on a tangible medium or that is 12

stored in an electronic or other medium and is retrievable in perceivable form. 13

(24) “Refusal” means a record created under section 407 that expressly states an 14

intent to bar other persons from making an anatomical gift of an individual’s body or part. 15

(25) “Sign” means, with the present intent to authenticate or adopt a record: 16

(A) to execute or adopt a tangible symbol; or 17

(B) to attach or logically associate with the record an electronic symbol, 18

sound, or process. 19

(26) “State” means a state of the United States, the District of Columbia, Puerto 20

Rico, the Virgin Islands, or any territory or insular possession subject to the jurisdiction of 21

the United States. 22

5

(27) “Technician” means an individual determined to be qualified to remove or 1

process parts by an appropriate organization that is licensed, accredited, or regulated under 2

federal or state law. The term includes an enucleator. 3

(28) “Tissue” means a portion of the human body other than an organ or an eye. The 4

term does not include blood unless the blood is donated for purposes of research or 5

education. 6

(29) “Tissue bank” means a person that is licensed, accredited, or regulated under 7

federal or state law to engage in the recovery, screening, testing, processing, storage, or 8

distribution of tissue. 9

(30) “Transplant hospital” means a hospital that furnishes organ transplants and other 10

medical and surgical specialty services required for the care of transplant patients. 11

§403 APPLICABILITY 12

This chapter applies to an anatomical gift or amendment to, revocation of, or refusal 13

to make an anatomical gift, whenever made. 14

§404 WHO MAY MAKE ANATOMICAL GIFT BEFORE DONOR’S DEATH 15

Subject to section 408, an anatomical gift of a donor’s body or part may be made 16

during the life of the donor for the purpose of transplantation, therapy, research, or education 17

in the manner provided in section 405 by: 18

(1) the donor, if the donor is at least 18 years of age or is under 18 years of age and 19

is: 20

(A) an emancipated minor; or 21

(B) authorized under state law to apply for a driver’s license because the 22

donor is at least 16 years of age; 23

6

(2) an agent of the donor, unless the power of attorney for health care or other record 1

prohibits the agent from making an anatomical gift; 2

(3) a parent of the donor, if the donor is under 18 years of age and not emancipated; 3

or 4

(4) the donor’s guardian. 5

§405 MANNER OF MAKING ANATOMICAL GIFT BEFORE DONOR’S 6

DEATH 7

(a) A donor may make an anatomical gift: 8

(1) by authorizing a statement or symbol indicating that the donor has made 9

an anatomical gift to be imprinted on the donor’s driver’s license or identification 10

card; 11

(2) in a will; or 12

(3) during a terminal illness or injury of the donor, by any form of 13

communication addressed to at least two other individuals who are at least 18 years of 14

age, one of whom is a disinterested witness. 15

(b) A donor or other person authorized to make an anatomical gift under section 404 16

may make a gift by a donor card or other record signed by the donor or other person making 17

the gift or by authorizing that a statement or symbol indicating that the donor has made an 18

anatomical gift be included on a donor registry. If the donor or other person is physically 19

unable to sign a record, the record may be signed by another individual at the direction of the 20

donor or the other person and must: 21

(1) be witnessed by at least two other individuals who are at least 18 years of 22

age, one of whom is a disinterested witness, who have signed at the request of the 23

donor or the other person; and 24

7

(2) state that it has been signed and witnessed as provided in paragraph (1). 1

(c) Revocation, suspension, expiration, or cancellation of the driver’s license or 2

identification card issued to a donor does not invalidate an anatomical gift. 3

(d) An anatomical gift made by will takes effect upon the donor’s death whether or 4

not the will is probated. Invalidation of the will after the donor’s death does not invalidate the 5

gift. 6

§406 AMENDING OR REVOKING ANATOMICAL GIFT BEFORE 7

DONOR’S DEATH 8

(a) Subject to section 408, a donor or other person authorized to make an anatomical 9

gift under section 404 may amend or revoke an anatomical gift by: 10

(1) a record signed by: 11

(A) the donor; 12

(B) the other person; or 13

(C) subject to subsection (b), another individual acting at the direction 14

of the donor or the other person if the donor or other person is physically 15

unable to sign; or 16

(2) a later-executed document of gift that amends or revokes a previous 17

anatomical gift or portion of an anatomical gift, either expressly or by inconsistency. 18

(b) A record signed pursuant to subsection (a)(1)(C) must: 19

(1) be witnessed by at least two other individuals who are at least 18 years of 20

age, one of whom is a disinterested witness, who have signed at the request of the 21

donor or the other person; and 22

(2) state that it has been signed and witnessed as provided in paragraph (1). 23

8

(c) Subject to section 408, a donor or other person authorized to make an anatomical 1

gift under section 404 may revoke the gift by the destruction or cancellation of the document 2

of gift, or a portion of the document of gift used to make the gift, with the intent to revoke the 3

gift. 4

(d) A donor may amend or revoke an anatomical gift that was not made in a will by 5

any form of communication during a terminal illness or injury addressed to at least two other 6

individuals who are at least 18 years of age, one of whom is a disinterested witness. 7

(e) A donor who makes an anatomical gift in a will may amend or revoke the gift in 8

the manner provided for amendment or revocation of wills or as provided in subsection (a). 9

§407. REFUSAL TO MAKE ANATOMICAL GIFT AND EFFECT OF 10

REFUSAL 11

(a) An individual may refuse to make an anatomical gift of the individual’s body or 12

part by: 13

(1) a record signed by: 14

(A) the individual; or 15

(B) subject to subsection (b), another individual acting at the direction 16

of the 17

individual if the individual is physically unable to sign; 18

(2) the individual’s will whether or not the will is admitted to probate or 19

invalidated after the individual’s death; or 20

(3) any form of communication made by the individual during the 21

individual’s terminal illness or injury addressed to at least two other individuals who 22

are at least 18 years of age, one of whom is a disinterested witness. 23

(b) A record signed pursuant to subsection (a)(1)(B) must: 24

9

(1) be witnessed by at least two other individuals who are at least 18 years of 1

age, one of whom is a disinterested witness, who have signed at the request of the 2

individual; and 3

(2) state that it has been signed and witnessed as provided in paragraph (1). 4

(c) An individual may amend or revoke a refusal: 5

(1) in the manner provided in subsection (a) for making a refusal; 6

(2) by subsequently making an anatomical gift pursuant to section 405 that is 7

inconsistent with the refusal; or 8

(3) by the destruction or cancellation of the record evidencing the refusal, or 9

the portion of the record used to make the refusal, with the intent to revoke the 10

refusal. 11

(d) Except as otherwise provided in section 408(g), in the absence of an express, 12

contrary indication by the individual set forth in the refusal, an individual’s unrevoked 13

refusal to make an anatomical gift of the individual’s body or a part bars all other persons 14

from making an anatomical gift of the individual’s body or the part. 15

§408 PRECLUSIVE EFFECT OF ANATOMICAL GIFT, AMENDMENT, OR 16

RETROACTIVE 17

(a) Except as otherwise provided in subsection (f), and subject to subsection (e)(2), in 18

the absence of an express, contrary indication by the donor, a person other than the donor is 19

barred from making, amending, or revoking an anatomical gift of a donor’s body or a part if 20

the donor made an anatomical gift of the donor’s body or the part under section 405 or an 21

amendment to an anatomical gift of the donor’s body or the part under Section 406. 22

10

(b) A donor’s revocation of an anatomical gift of the donor’s body or a part under 1

section 406 is not a refusal and does not bar another person specified in section 404 or 409 2

from making an anatomical gift of the donor’s body or a part under section 405 or 410. 3

(c) If a person other than the donor makes an unrevoked anatomical gift of the 4

donor’s body or a part under section 405 or an amendment to an anatomical gift of the 5

donor’s body or a part under section 406, another person may not make, amend, or revoke 6

the gift of the donor’s body or part under section 410. 7

(d) A revocation of an anatomical gift of the donor’s body or a part under section 406 8

by a person other than the donor does not bar another person from making an anatomical gift 9

of the body or a part under section 405 or 410. 10

(e) In the absence of an express, contrary indication by the donor or other person 11

authorized to make an anatomical gift under section 404: 12

(1) an anatomical gift of a part is neither a refusal to give another part nor a 13

limitation on the making of an anatomical gift of another part at a later time by the 14

donor or another person under section 405 or 410; and 15

(2) an anatomical gift of a part for one or more of the purposes set forth in 16

section 404 is not a limitation on the making of an anatomical gift of the part for any 17

of the other purposes by the donor or any other person under section 405 or 410. 18

(f) If a donor who is an unemancipated minor dies, a parent of the donor who is 19

reasonably available may revoke or amend an anatomical gift of the donor’s body or part. 20

(g) If an unemancipated minor who signed a refusal dies under 18 years of age, a 21

parent of the individual who is reasonably available may revoke the individual’s refusal. 22

§409 WHO MAY MAKE ANATOMICAL GIFT OF DECEDENT’S BODY OR 23

PART 24

11

(a) Subject to subsections (b) and (c) and unless barred by subsection (d), an 1

anatomical gift of a decedent’s body or part for purposes of transplantation, therapy, 2

research, or education may be made, in the order of priority listed, by any member of the 3

following classes of persons who is reasonably available: 4

(1) an agent of the decedent at the time of death who could have made an 5

anatomical gift under section 404(2) immediately before the decedent’s death; 6

(2) the spouse of the decedent; 7

(3) adult children of the decedent; 8

(4) parents of the decedent; 9

(5) adult siblings of the decedent; 10

(6) adult grandchildren of the decedent; 11

(7) grandparents of the decedent; 12

(8) an adult who exhibited special care and concern for the decedent; 13

(9) the persons who were acting as the [guardian] of the person of the 14

decedent at the time of death; and 15

(10) any other person having the authority to dispose of the decedent’s body. 16

(b) If there is more than one member of a class listed in subsection (a)(1), (3), (4), 17

(5), (6), (7), or (9) entitled to make an anatomical gift, an anatomical gift may be made by a 18

member of the class unless that member or a person to which the gift can pass under section 19

411 knows of an objection by another member of the class. If an objection is known, the gift 20

may be made only by a majority of the members of the class who are reasonably available. 21

(c) No person may make an anatomical gift if, at the time of the decedent’s death, a 22

person in a prior class under subsection (a) is reasonably available to make or to object to the 23

making of an anatomical gift. 24

12

(d) An anatomical gift may not be made if doing so is barred by section 407 or 408. 1

§410..MANNER OF MAKING, AMENDING, OR REVOKING ANATOMICAL 2

GIFT OF DECEDENT’S BODY PARTS 3

(a) A person authorized to make an anatomical gift under section 409 may make an 4

anatomical gift by a document of gift signed by the person making the gift or that person’s 5

oral communication that is electronically recorded or is contemporaneously reduced to a 6

record and signed by the individual receiving the oral communication. 7

(b) Subject to subsection (c), an anatomical gift by a person authorized under section 8

409 may be amended or revoked orally or in a record by any member of a prior class who is 9

reasonably available. If more than one member of the prior class is reasonably available, the 10

gift made by a person authorized under section 409 may be. 11

(1) amended only if a majority of the reasonably available members agree to 12

the amending of the gift; or 13

(2) revoked only if a majority of the reasonably available members agree to 14

the revoking of the gift or if they are equally divided as to whether to revoke the gift. 15

(c) A revocation under subsection (b) is effective only if, before an incision has been 16

made to remove a part from the donor’s body or before invasive procedures have begun to 17

prepare the recipient. 18

§411..PERSONS THAT MAY RECEIVE ANATOMICAL GIFT; PURPOSE 19

OF ANATOMICAL GIFT 20

(a) An anatomical gift of a body or part may be made to the following persons named 21

in the document of gift: 22

13

(1) a hospital, accredited medical school, dental school, college, university, or 1

organ procurement organization, or other appropriate person for research or 2

education; 3

(2) subject to subsection (b), an individual designated by the person making 4

the anatomical gift if the individual is the recipient of the part; 5

(3) an eye bank or tissue bank. 6

(b) If the part for any reason cannot be transplanted into the individual, the part 7

passes in accordance with subsection (f) in the absence of an express, contrary indication by 8

the person making the anatomical gift; 9

(c) If an anatomical gift of one or more specific parts or of all parts is made in a 10

document of gift that does not name a person described in subsection (a) but identifies the 11

purpose for which an anatomical gift may be used, the following rules apply: 12

(1) If the part is an eye and the gift is for the purpose of transplantation or 13

therapy, the gift passes to the appropriate eye bank. 14

(2) If the part is tissue and the gift is for the purpose of transplantation or 15

therapy, the gift passes to the appropriate tissue bank. 16

(3) If the part is an organ and the gift is for the purpose of transplantation or 17

therapy, the gift passes to the appropriate organ procurement organization as 18

custodian of the organ. 19

(4) If the part is an organ, an eye, or tissue and the gift is for the purpose of 20

research or education, the gift passes to the appropriate procurement organization. 21

(d) For the purpose of subsection (c), if there is more than one purpose of an 22

anatomical gift set forth in the document of gift but the purposes are not set forth in any 23

priority, the gift must be used for transplantation or therapy if suitable for those purposes 24

14

and, if the gift cannot be used for transplantation or therapy, the gift may be used for research 1

or education. 2

(e) If an anatomical gift of one or more specific parts is made in a document of gift 3

that does not name a person described in subsection (a) and does not identify the purpose of 4

the gift, the decedent’s parts may be used only for transplantation or therapy, and the gift 5

passes in accordance with subsection (g). 6

(f) If a document of gift specifies only a general intent to make an anatomical gift by 7

words such as “donor”, “organ donor”, or “body donor”, or by a symbol or statement of 8

similar import, the decedent’s parts may be used only for transplantation or therapy, and the 9

gift passes in accordance with subsection (g). 10

(g) For purposes of subsections (a)(2), (c), and (f), the following rules apply: 11

(1) If the part is an eye, the gift passes to the appropriate eye bank. 12

(2) If the part is tissue, the gift passes to the appropriate tissue bank. 13

(3) If the part is an organ, the gift passes to the appropriate organ 14

procurement organization as custodian of the organ. 15

(h) An anatomical gift of an organ for transplantation or therapy, other than an 16

anatomical gift under subsection (a)(2), passes to the organ procurement organization as 17

custodian of the organ. 18

(i) If an anatomical gift does not pass pursuant to subsections (a) through (h) or the 19

decedent’s body or part is not used for transplantation, therapy, research, or education, 20

custody of the body or part passes to the person under obligation to dispose of the body or 21

part. 22

(j) A person may not accept an anatomical gift if the person knows that the gift was 23

not effectively made under section 405 or 410 or if the person knows that the decedent made 24

15

a refusal under section 407 that was not revoked. For purposes of this subsection, if a person 1

knows that an anatomical gift was made on a document of gift, the person is deemed to know 2

of any amendment or revocation of the gift or any refusal to make an anatomical gift on the 3

same document of gift. 4

(k) Except as otherwise provided in subsection (a)(2), nothing in this chapter affects 5

the allocation of organs for transplantation or therapy. 6

§412 SEARCH AND NOTIFICATION 7

(a) The following persons shall make a reasonable search of an individual who the 8

searcher reasonably believes is dead or near death for a document of gift or other information 9

identifying the individual as a donor or as an individual who made a refusal: 10

(1) a law enforcement officer, firefighter, paramedic, or other emergency 11

rescuer finding the individual; and 12

(2) if no other source of the information is immediately available, a hospital, 13

as soon as practical after the individual’s arrival at the hospital. 14

(b) If a document of gift or a refusal to make an anatomical gift is located by the 15

search required by subsection (a)(1) and the individual or deceased individual to whom it 16

relates is taken to a hospital, the person responsible for conducting the search shall send the 17

document of gift or refusal to the hospital. 18

(c) A person is not subject to criminal or civil liability for failing to discharge the 19

duties imposed by this section but may be subject to administrative sanctions. 20

§413 DELIVERY OF DOCUMENT OF GIFT NOT REQUIRED; RIGHT TO 21

EXAMINE 22

(a) A document of gift need not be delivered during the donor’s lifetime to be 23

effective. 24

16

(b) Upon or after an individual’s death, a person in possession of a document of gift 1

or a refusal to make an anatomical gift with respect to the individual shall allow examination 2

and copying of the document of gift or refusal by a person authorized to make or object to the 3

making of an anatomical gift with respect to the individual or by a person to which the gift 4

could pass under section 411. 5

§414. RIGHTS AND DUTIES OF PROCUREMENT ORGANIZATION AND 6

OTHERS 7

(a) When a hospital refers an individual at or near death to a procurement 8

organization, the organization shall make a reasonable search of any donor registry and 9

records of the Virgin Islands Bureau of Motor Vehicles in the geographical area in which the 10

individual resides to ascertain whether the individual has made an anatomical gift. 11

(b) A procurement organization must be allowed reasonable access to information in 12

the records of the Virgin Islands Bureau of Motor Vehicles to ascertain whether an individual 13

at or near death is a donor. 14

(c) When a hospital refers an individual at or near death to a procurement 15

organization, the organization may conduct any reasonable examination necessary to ensure 16

the medical suitability of a part that is or could be the subject of an anatomical gift for 17

transplantation, therapy, research, or education from a donor or a prospective donor. During 18

the examination period, measures necessary to ensure the medical suitability of the part may 19

not be withdrawn unless the hospital or procurement organization knows that the individual 20

expressed a contrary intent. 21

(d) Unless prohibited by law other than this chapter, at any time after a donor’s 22

death, the person to whom a part passes under section 411 may conduct any reasonable 23

17

examination necessary to ensure the medical suitability of the body or part for its intended 1

purpose. 2

(e) Unless prohibited by law other than this chapter, an examination under subsection 3

(c) or (d) may include an examination of all medical and dental records of the donor or 4

prospective donor. 5

(f) Upon the death of a minor who was a donor or had signed a refusal, unless the 6

procurement organization knows the minor is emancipated, the procurement organization 7

shall conduct a reasonable search for the parents of the minor and provide the parents with an 8

opportunity to revoke or amend the anatomical gift or revoke the refusal. 9

(g) Upon referral by a hospital under subsection (a), a procurement organization shall 10

make a reasonable search for any person listed in section 409 having priority to make an 11

anatomical gift on behalf of a prospective donor. If a procurement organization receives 12

information that an anatomical gift to any other person was made, amended, or revoked, it 13

shall promptly advise the other person of all relevant information. 14

(h) Subject to sections 411(h) and 423, the rights of the person to which a part passes 15

under section 411 are superior to rights of all others with respect to the part. The person may 16

accept or reject an anatomical gift in whole or in part. Subject to the terms of the document 17

of gift and this chapter, a person that accepts an anatomical gift of an entire body may allow 18

embalming or cremation and use of remains in a funeral service. If the gift is of a part, the 19

person to which the part passes under section 411, upon the death of the donor and before 20

embalming or cremation, shall cause the part to be removed without unnecessary mutilation. 21

(i) Neither the physician who attends the decedent at death nor the physician who 22

determines the time of the decedent’s death may participate in the procedures for removing 23

or transplanting a part from the decedent. 24

18

(j) A physician or technician may remove a donated part from the body of a donor 1

that the physician or technician is qualified to remove. 2

§415. COORDINATION OF PROCUREMENT AND USE 3

Each hospital in the Virgin Islands, after consultation with procurement 4

organizations, shall establish agreements or affiliations for coordination of procurement and 5

use of human bodies and parts. 6

§416. SALE OR PURCHASE OF PARTS PROHIBITED 7

(a) Except as otherwise provided in subsection (b), a person that knowingly, for 8

valuable consideration, purchases or sells a part for transplantation or therapy if removal of a 9

part from an individual is intended to occur after the individual’s death commits a felony and 10

upon conviction is subject to a fine not exceeding $100,000 or imprisonment not exceeding 11

five years, or both such fine and imprisonment. 12

(b) A person may charge a reasonable amount for the removal, processing, 13

preservation, quality control, storage, transportation, implantation, or disposal of a part. 14

§417. PENALTY 15

Any person that, in order to obtain financial gain, intentionally falsifies, forges, 16

conceals, defaces, or obliterates a document of gift, an amendment or revocation of a 17

document of gift, or a refusal in order to obtain a financial gain commits a felony and upon 18

conviction is subject to a fine not exceeding $50,000 or imprisonment not exceeding five 19

years, or both such fine and imprisonment. 20

§418. IMMUNITY 21

(a) A person that acts in accordance with this chapter or with the applicable 22

anatomical gift law of another state or attempts in good faith to do so is not liable for the act 23

in a civil action, criminal prosecution, or administrative proceeding. 24

19

(b) Neither the person making an anatomical gift nor the donor’s estate is liable for 1

any injury or damage that results from the making or use of the gift. 2

(c) In determining whether an anatomical gift has been made, amended, or revoked 3

under this chapter, a person may rely upon representations of the individuals listed in section 4

409(a)(2), (3), (4), (5), (6), (7), and (8) relating to the individual’s relationship to the donor or 5

prospective donor, unless the person knows that the representation is untrue. 6

§419. LAW GOVERNING VALIDITY; CHOICE OF LAW AS TO 7

EXECUTION OF DOCUMENT OF GIFT; PRESUMPTION OF VALIDITY 8

(a) A document of gift is valid if executed in accordance with: 9

(1) this chapter; 10

(2) the laws of the state or country where it was executed; or 11

(3) the laws of the state or country where the person making the anatomical 12

gift was domiciled, has a place of residence, or was a national at the time the 13

document of gift was executed. 14

(b) If a document of gift is valid under this section, the law of the Virgin Islands 15

governs the interpretation of the document of gift. 16

(c) A person may presume that a document of gift or amendment of an anatomical 17

gift is valid, unless that person knows that it was not validly executed or was revoked. 18

§420. DONOR REGISTRY 19

(a) The Department of Health may establish or contract for the establishment of a 20

donor registry. 21

(b) The Virgin Islands Bureau of Motor vehicles shall cooperate with any donor 22

registry that the Department of Health establishes, contracts for, or recognizes for the 23

20

purpose of transferring to the donor registry all relevant information regarding a donor’s 1

making, amendment to, or revocation of an anatomical gift. 2

(c) A donor registry must: 3

(1) allow a donor or other person authorized under section 404 to include on 4

the donor registry a statement or symbol that the donor has made, amended, or 5

revoked an anatomical gift; 6

(2) be accessible to a procurement organization to allow it to obtain relevant 7

information on the donor registry to determine, at or near death of the donor or a 8

prospective donor, whether the donor or prospective donor has made, amended, or 9

revoked an anatomical gift; and 10

(3) be accessible for purposes of paragraphs (1) and (2) seven days a week on 11

a 24-hour basis. 12

(d) Personally identifiable information on a donor registry about a donor or 13

prospective donor may not be used or disclosed without the express consent of the donor, 14

prospective donor, or the person that made the anatomical gift for any purpose other than to 15

determine, at or near death of the donor or a prospective donor, whether the donor or 16

prospective donor has made, amended, or revoked an anatomical gift. 17

(e) This section does not prohibit any person from creating or maintaining a donor 18

registry that is not established by or under contract with the Department of Health. However, 19

the registry must comply with subsections (c) and (d). 20

§421. EFFECT OF ANATOMICAL GIFT ON ADVANCE HEALTH-CARE 21

DIRECTIVE 22

(a) In this section: 23

21

(1) “Advance health-care directive” means a power of attorney for health care 1

or a record signed or authorized by a prospective donor containing the prospective 2

donor’s direction concerning a health-care decision for the prospective donor. 3

(2) “Declaration” means a record signed by a prospective donor specifying 4

the circumstances under which a life support system may be withheld or withdrawn. 5

(3) “Health-care decision” means any decision made regarding the health care 6

of the prospective donor. 7

(b) If a prospective donor has a declaration or advance health-care directive and the 8

terms of the declaration or directive and the express or implied terms of a potential 9

anatomical gift are in conflict with regard to the administration of measures necessary to 10

ensure the medical suitability of a part for transplantation or therapy, the prospective donor’s 11

attending physician and prospective donor shall confer to resolve the conflict. If the 12

prospective donor is incapable of resolving the conflict, an agent acting under the prospective 13

donor’s declaration or directive, or if none or the agent is not reasonably available, another 14

person authorized by law other than this chapter to make health-care decisions on behalf of 15

the prospective donor, shall act for the donor to resolve the conflict. The conflict must be 16

resolved as expeditiously as possible. Information relevant to the resolution of the conflict 17

may be obtained from the appropriate procurement organization and any other person 18

authorized to make an anatomical gift for the prospective donor under section 409. Before 19

resolution of the conflict, measures necessary to ensure the medical suitability of the part 20

may not be withheld or withdrawn from the prospective donor if withholding or withdrawing 21

the measures is not contraindicated by appropriate end-of-life care. 22

§422. COOPERATION BETWEEN MEDICAL EXAMINER AND 23

PROCUREMENT ORGANIZATION 24

22

(a) A medical examiner and a procurement organization shall cooperate to maximize 1

the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, 2

research, or education. 3

(b) If a medical examiner receives notice from a procurement organization that an 4

anatomical gift might be available or was made with respect to a decedent whose body is 5

under the jurisdiction of the medical examiner and a post-mortem examination is going to be 6

performed, unless medical examiner denies recovery in accordance with section 423, the 7

medical examiner or designee shall conduct a post-mortem examination of the body or the 8

part in a manner and within a time period compatible with its preservation for the purposes of 9

the gift. 10

(c) A part may not be removed from the body of a decedent under the jurisdiction of 11

a medical examiner for transplantation, therapy, research, or education unless the part is the 12

subject of an anatomical gift. The body of a decedent under the jurisdiction of the medical 13

examiner may not be delivered to a person for research or education, unless the body is the 14

subject of an anatomical gift. This subsection does not preclude a medical examiner from 15

performing the medicolegal investigation upon the body or parts of a decedent under the 16

jurisdiction of the medical examiner. 17

§423. FACILITATION OF ANATOMICAL GIFT FROM DECEDENT 18

WHOSE BODY IS UNDER JURISDICTION OF MEDICAL EXAMINER 19

(a) Upon request of a procurement organization, a medical examiner shall release to 20

the procurement organization the name, contact information, and available medical and 21

social history of a decedent whose body is under the jurisdiction of the medical examiner. If 22

the decedent’s body or part is medically suitable for transplantation, therapy, research, or 23

education, the medical examiner shall release post-mortem examination results to the 24

23

procurement organization. The procurement organization may make a subsequent disclosure 1

of the post-mortem examination results or other information received from the medical 2

examiner only if relevant to transplantation or therapy. 3

(b) The medical examiner may conduct a medicolegal examination by reviewing all 4

medical records, laboratory test results, x-rays, other diagnostic results, and other information 5

that any person possesses about a prospective donor or a donor whose body is under the 6

jurisdiction of the medical examiner which the medical examiner determines may be relevant 7

to the investigation. 8

(c) A person that has any information requested by a medical examiner pursuant to 9

subsection (b) shall provide that information as expeditiously as possible to allow the 10

medical examiner to conduct the medicolegal investigation within a period compatible with 11

the preservation of parts for purposes of transplantation, therapy, research, or education. 12

(d) If an anatomical gift has been or might be made of a part of a decedent whose 13

body is under the jurisdiction of the medical examiner and a post-mortem examination is not 14

required, or the medical examiner determines that a post-mortem examination is required but 15

that the recovery of the part that is the subject of an anatomical gift will not interfere with the 16

examination, the medical examiner and procurement organization shall cooperate in the 17

timely removal of the part from the decedent for purposes of transplantation, therapy, 18

research, or education. 19

(e) If an anatomical gift of a part from the decedent under the jurisdiction of the 20

medical examiner has been or might be made, but the medical examiner initially believes that 21

the recovery of the part could interfere with the post-mortem investigation into the 22

decedent’s cause or manner of death, the medical examiner shall consult with the 23

procurement organization or physician or technician designated by the procurement 24

24

organization about the proposed recovery. After consultation, the medical examiner may 1

allow recovery. 2

(f) Following the consultation under subsection (e), in the absence of mutually 3

agreed upon protocols to resolve conflict between the medical examiner and the procurement 4

organization, if the medical examiner intends to deny recovery, the medical examiner or 5

designee, at the request of the procurement organization, shall attend the removal procedure 6

for the part before making a final determination not to allow the procurement organization to 7

recover the part. During the removal procedure, the medical examiner or designee may allow 8

recovery by the procurement organization to proceed, or, if the medical examiner or designee 9

reasonably believes that the part may be involved in determining the decedent’s cause or 10

manner of death, deny recovery by the procurement organization. 11

(g) If the medical examiner or designee denies recovery under subsection (f), the 12

medical examiner or designee shall: 13

(1) explain in a record the specific reasons for not allowing recovery of the 14

part; 15

(2) include the specific reasons in the records of the medical examiner; and 16

(3) provide a record with the specific reasons to the procurement 17

organization. 18

(h) If the medical examiner or designee allows recovery of a part under subsection 19

(d), (e), or (f), upon request the procurement organization shall cause the physician or 20

technician who removes the part to provide the medical examiner with a record describing 21

the condition of the part, a biopsy, photograph, and any other information and observations 22

that would assist in the post-mortem examination. 23

25

(i) If a medical examiner or designee is required to be present at a removal procedure 1

under subsection (f), upon request the procurement organization requesting the recovery of 2

the part shall reimburse the medical examiner or designee for the additional costs incurred in 3

complying with subsection (f). 4

§424. UNIFORMITY OF APPLICATION AND CONSTRUCTION 5

In applying and construing this uniform act, consideration must be given to the need 6

to promote uniformity of the law with respect to its subject matter among states that enact it. 7

§425. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND 8

NATIONAL COMMERCE ACT 9

This act modifies, limits, and supersedes the Electronic Signatures in Global and 10

National Commerce Act, 15 U.S.C. Section 7001 et. seq., but does not modify, limit, or 11

supersede section 101(a) of that act, 15 U.S. C. Section 7001, or authorize electronic delivery 12

of any of the notices described in section 103(b) of that act, 15 U.S.C. Section 7003(b). 13

§426. EFFECTIVE DATE 14

This Act takes effect 60 days after enactment. 15

16

Bill Summary 17

This bill repeals the chapter 20 of the Virgin Islands Code known as the “Virgin 18

Islands Anatomical Gift Act” and reenacts it as the “Virgin Islands Revised Uniform 19

Anatomical Gift Act.” 20

Section 401 provides for the short title. 21

Section 402 provides for various definitions used throughout the chapter. 22

Section 403 sets forth the applicability of the chapter to an anatomical gift, 23

amendment to, revocation of, or refusal to make an anatomical gift, whenever made. 24

Section 404 indicates who may make an anatomical gift before a donor’s death. It 25

provides that, subject to section 408 (relating to the preclusive effect of an anatomical gift, 26

26

amendment or revocation), an adult, emancipated minor or minor who is 16 and otherwise 1

able to apply for a drivers license in the territory, agent of the donor, parent of a minor, if the 2

minor is unemancipated, or the donor’s guardian may make a gift for the purpose of 3

transplantation, therapy, research or education. 4

Section 405 relates to the manner of making anatomical gift before a donor’s death. 5

Subsection (a) provides for the various means an anatomical gift can be made, including an 6

authorized symbol or statement on a donor’s driver’s license or identification card, in a will, 7

during a terminal illness or injury communicated to at least two adults, one of whom is 8

disinterested, or as provided in subsection (b). 9

Subsection (b) provides for an additional manner to make an anatomical gift by a 10

signed donor card or other record. It indicates the necessary requirements to effectuate a 11

donor card or other record. The card or record can be signed by any person (donor, agent, 12

parent, or guardian) authorized to make an anatomical gift under Section 405. If the person 13

making the gift is physically unable to sign the card or record, the record can be signed by 14

another individual acting at the direction of the donor or other person making the gift. In this 15

case, the record must be witnessed by at least two adult witnesses, at least one of whom is a 16

disinterested witness. Furthermore, the record must state that it was signed and witnessed at 17

the request of the donor or other person. 18

Subsection (c) provides for the effect of a revocation, suspension, expiration, or 19

cancellation of a license or identification card on an anatomical gift. In this case, it will not 20

invalidate such gift. 21

Subsection (d) provides for effect of the death of the donor on an anatomical gift 22

made in a will, whether probated or not, and whether the subsequent invalidation of the will 23

after the death of the donor affects the anatomical gift. 24

27

Section 406 relates to amending or revoking an anatomical gift before a donor’s 1

death. Subsection (a) provides for the means by which an anatomical gift can be amended 2

revoked, including a record or a later executed document of gift which amends or revokes a 3

previous gift expressly or by inconsistency. 4

Subsection (b) sets forth the requirements for a record signed pursuant to subsection 5

(a) where a donor or other person authorized person is unable to sign the document of gift. 6

Subsections (c), (d) and (e) further provide for the manner and means to revoke or amend an 7

anatomical gift under various circumstances. 8

Section 407 relates to the refusal to make an anatomical gift. Subsection (a) provides 9

for the manner and means by which an individual may refuse to make an anatomical gift, 10

which includes a signed record. 11

Subsection (b) sets forth the requirements for the signed record in the case where an 12

individual is unable physically sign for himself and where another is acting at the 13

individual’s behest. 14

Subsection (c) provides for the manner and means by which an individual may amend 15

or revoke his refusal. 16

Subsection (d) indicates, subject to section 408(h), the effect of an individual’s 17

unrevoked refusal on other persons’ ability to make an anatomical gift of that individual’s 18

body or body part. 19

Section 408 relates to the preclusive effect of an anatomical gift, amendment or 20

revocation. Subsection (a) provides, subject to subsections (g) and (f), for the effect of a 21

donor’s proper anatomical gift or amendment and another person’s ability, or in this case, 22

inability to make, amend or revoke the donor’s gift of his anatomical body or body part. 23

28

Subsection (b) provides that a donor’s proper revocation of an anatomical gift does 1

not constitute that donor’s refusal and indicates the resulting ability of other persons to make 2

an anatomical gift of the donor’s body or body part pursuant to sections 405 or 410. 3

Subsection (c) provides for the effect of a person’s, other than a donor’s, unrevoked 4

anatomical gift or amendment pursuant to section 405 and another person’s ability, or in this 5

case, inability to make, amend or revoke the anatomical gift pursuant to section 410. 6

Subsection (d) provides that a person’s, other than a donor’s, revocation of an 7

anatomical gift does bar the ability of other persons to make an anatomical gift of the donor’s 8

body or body part pursuant to section 405 or 410. 9

Subsection (e) provides for the effect of an anatomical gift of a body part by donor or 10

other authorized person as to whether it constitutes a refusal or limit on the making of a 11

subsequent gift of another body part. Additionally, it indicates whether of an anatomical gift 12

of a body part by a donor or other authorized person for one or more purposes would affect 13

the ability to make a gift the part for other purposes. 14

Sections (f) and (g) cover the whether the parent of an unemancipated donor who dies 15

can revoke or amend the donor’s gift or revoke such a donor’s refusal. 16

Section 409 relates to who can make an anatomical gift of a decedent’s body or part 17

for the purpose of transplantation, therapy, research or education. Subsection (a) indicates the 18

specific classes of persons who may make an anatomical gift of a decedent’s body or part. 19

Subsection (b) provides for the ability of certain persons under subsection (a) to make 20

an anatomical gift when there are multiple members of a class available, when an objection is 21

made by someone in the class or the objection is known by a member of the class or a person 22

under section 411. 23

29

Subsection (c) establishes a prohibition against making an anatomical gift by a 1

member of a class at the time of a decedent’s death if there are members of a prior class (i.e., 2

higher in priority) reasonably available to make or object to the gift. 3

Section 10 relates to the manner of making, amending or revoking an anatomical gift 4

of a decedent’s body or part. Subsection (a) indicates the manner and means a person can 5

make an anatomical gift of a decedent’s body or part. 6

Subsection (b), subject to subsection (c), indicates the manner a person can amend or 7

revoke an anatomical gift. 8

Subsection (c) sets forth the standard for an effective revocation of a decedent’s 9

anatomical gift. 10

Section 411 relates to persons that may receive an anatomical gift and the purpose of 11

an anatomical gift. Subsection (a) indicates the persons who may receive an anatomical gift 12

by document of gift. 13

Subsection (b) indicates the rules to apply via subsection (g) to determine how an 14

anatomical gift should pass if a gift pursuant to (a)(2) should fail. 15

Subsection (c) indicates the rules to apply to an anatomical gift when the purpose is 16

specified, but the person designated to receive the gift is unspecified in a document of gift. 17

Subsection (d) augments subsection (c) in that it indicates the priority of the 18

anatomical gift when there are multiple gift purposes indicated in the document of gift, but 19

no gift priority is indicated. 20

Subsection (e) indicates the rules to apply via subsection (g) to an anatomical gift 21

when the there are multiple gifts and neither persons who may receive the gift nor the 22

purposes of the gift is mentioned in the document of gift. 23

30

Subsections (f) through (i) further indicate how to treat anatomical gifts when certain 1

enumerated circumstances are present. 2

Subsection (j) contains a prohibition against the acceptance of an anatomical gift 3

when a person knows the gift was not in compliance with the law or a decedent made a 4

refusal which was not revoked. 5

Subsection (k) contains a statement of limitation regarding the applicability of the 6

chapter to the allocation of organs for transplantation or therapy. 7

Section 412, subsections (a) and (b) relate to the search and notification requirements 8

that must be undertaken when a donor or prospective donor is believed to be dead or is near 9

death. Subsection (c) sets forth the scope of the penalty for a violation of section 412. 10

Section 413 relates to the effectiveness of an anatomical gift when the document of 11

gift is not delivered as well as the right to examine a document of gift or refusal to make an 12

anatomical gift. 13

Section 414 relates to the rights and duties of organ procurement organization as well 14

as others who fall under this chapter. Subsections (a) and (b) provide for the duty of a 15

procurement organization to engage in a reasonable search of the V.I. Bureau of Motor 16

Vehicles’ records to determine the donor status of anyone referred to it by a hospital as well 17

as the bureau’s obligation to permit such search. 18

Subsection (c) provides for the qualified right of a procurement organization, upon a 19

referral of a prospective donor by a hospital, to conduct an examination to determine the 20

medical suitability of a body part as an anatomical gift. 21

Subsection (d) provides for the right of a person entitled to receive a body part 22

pursuant to Section 411 to examine the part for medical suitability or intended purpose after a 23

donor’s death. 24

31

Subsection (e) provides, where permitted, for any examination under this section to 1

include the medical and dental records of a donor or prospective donor. 2

Subsection (f) sets forth the obligation of a procurement organization, upon the death 3

of a minor donor, to search for the donor’s parents, and provide them an opportunity to 4

amend the anatomical gift or in the case where the minor signed a refusal, to revoke the 5

refusal. 6

Subsection (g) sets forth the obligation of a procurement organization, upon a referral 7

by a hospital, to search for any person listed in Section 409 having the priority to make an 8

anatomical gift on behalf of a donor and to provide notice of gifts, amendments to gifts or 9

revocations under certain circumstances. 10

Subsection (h), subject to certain provisions of the chapter and any applicable 11

document of gift, sets forth the paramount rights of persons who may receive body or part 12

pursuant to section 411 as against all others with respect to a body or part. 13

Subsection (i) provides for a prohibition against physicians who attend or determine 14

the death of a decedent from participating in the procedures for removing or transplanting a 15

part from the decedent. 16

Subsection (j) requires a physician or technician who removes a donated, specific 17

part of a body to be qualified to do so. 18

Section 415 requires hospitals to form relationships with procurement organizations 19

to facilitate the procurement and use of anatomical gifts. 20

Section 416 establishes the prohibition against the knowing sale or purchase of body 21

part that is intended to be removed from an individual after his death, except that a 22

reasonable amount may be charged incident to the part’s removal, preservation, quality 23

control, storage transplantation, implantation or disposal. 24

32

Section 417 relates to other prohibited acts relating to documents of gift. 1

Section 418 provides immunity for certain persons and acts relating to anatomical 2

gifts. 3

Section 419 relates to the law governing the anatomical gift’s validity, the choice of 4

law as to the execution of a document gift and its interpretation, and the circumstances in 5

which the presumption of validity arises. 6

Section 420 relates to donor registries. Subsections (a) and (b) empowers the 7

Department of Health to establish a donor registry and requires the Bureau of Motor Vehicles 8

to cooperate with it to transfer relevant information to the registry. 9

Subsection (c) sets forth the requirements for the donor registry. 10

Subsection (d) places certain restrictions on the personally indentifiable information 11

on the donor registry about a donor or prospective donor. 12

Subsection (e) provides for a donor registry to be established which is unaffiliated 13

with the territorial government as long as it otherwise comports with requirements of 14

subsections (c) and (d). 15

Section 421 relates to the effect of an anatomical gift in an advance health care 16

directive. 17

Subsection (a) provides for definitions relevant to the section. 18

Subsection (b) provides for the manner and means of resolving conflicts between the 19

terms of a health care directive or declaration concerning a prospective donor’s request for 20

life support and an anatomical gift and the ability to ensure the suitability of a body part for 21

transplantation or therapy. 22

Section 422 relates to the cooperation between a medical examiner and a procurement 23

organization to maximize the opportunity to recover anatomical gifts. 24

33

Subsection (b) places restrictions on a medical examiner’s post-mortem examination 1

of a body or part once he receives notice from a procurement organization that an anatomical 2

gift might be available or was made. These restrictions apply unless the medical examiner 3

denies recovery in accordance with section 423. 4

Subsection (c) restricts the removal of a part or body of a decedent for 5

transplantation, therapy, research or education if the body is under the jurisdiction of a 6

medical examiner unless it is the subject of an anatomical gift. 7

Section 423 relates to the facilitation of an anatomical gift from a decedent whose 8

body is under the jurisdiction of a medical examiner. Subsection (a) requires a medical 9

examiner to release certain information about a decedent to a procurement organization, 10

including post-mortem examination results if the body or body part is deemed medically 11

suitable for transplantation, therapy, research or education, which may then also be released 12

by the organization if relevant to transplantation or therapy 13

Subsection (b) permits the medical examiner to make a medicolegal examination. 14

Subsection (c) requires a person, upon the medical investigator’s request, to provide 15

information relevant to a medical examiner’s medicolegal investigation as expeditiously as 16

possible to preserve body parts for transplantation, therapy, research or education. 17

Subsection (d) requires the timely cooperation of a medical examiner and a 18

procurement organization for the removal of an anatomical gift where a post-mortem 19

examination is not required or recovery of the part will not interfere with the examination. 20

Subsection (e) provides that a medical examiner consult with a procurement 21

organization if an anatomical gift has been or might be made and the medical examiner 22

believes that the recovery of the gift could interfere with the post-mortem investigation. The 23

medical examiner may, thereafter, still permit the part’s recovery. 24

34

Subsection (f) proscribes the protocol for the recovery of a part where, after 1

consultation between the medical examiner and the procurement organization, there is a 2

conflict as to whether the medical examiner will allow or deny recovery. 3

Subsection (g) proscribes the protocol to be followed by a medical examiner when he 4

has denied recovery of a part to a procurement organization pursuant to subsection (f). 5

Subsection (h) describes the protocol to be followed by a procurement organization 6

when the medical examiner allows recovery pursuant to subsections (d), (e) or (f). 7

Subsection (i) requires the procurement organization to reimburse the medical 8

examiner for additional costs incurred if the medical examiner or his designee is required to 9

be present during the removal procedure pursuant to subsection (f). 10

Section 424 relates to the application and construction of this uniform act with other 11

jurisdictions that enact the uniform law relating anatomical gifts. 12

Section 425 indicates the relationship of this Act to federal the Electronic Signatures 13

in Global and National Commerce Act. 14

Section 426 indicates the effective date of this Act. 15

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BR09-0318 / June 25, 2009 / TMH 17

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