Registries as Advance Directives
For some states, one goal of donor registries is to provide medical and/or procurement personnel easy access to the donation wishes of brain-dead patients, thereby allowing such personnel to act on those wishes as an advance directive. The primary method by which individuals make their wishes known is by indicating a preference on a driver’s license or signing a donor card. In those states having a donor registry, this also enters that individual into the registry database. However, designation on a driver’s license or other donor documentation, or documented donation wishes in a state registry (if applicable), are rarely implemented as legally binding. This remains an important issue in a number of states, and many have taken legislative actions to affirm the legal strength of such documentation as advance directives. In most states, however, this issue remains unresolved.
- States with legislation that reaffirms a signed license as an advance directive or more specifically protects OPOs, hospitals, and tissue and eye banks in carrying out individuals’ advance directives without further consent include: Colorado, Connecticut, Delaware, Florida, Iowa, Illinois, Maryland, Missouri, Pennsylvania, and Tennessee.
- In 1996, California implemented legislation allowing hospitals to use a decedent’s organs, tissues, or corneas for transplantation without next of kin consent after a "reasonable," yet unsuccessful, search for the next of kin. In 1998, the state revised the law by requiring consent for corneal donation, but not for organs or tissues.
- Arkansas expanded the method of donation consent to include a documented telephone message witnessed by at least two people.
- States with legislation that officially created donor registries through the divisions of motor vehicles include: Arkansas, Connecticut, Delaware, Florida, Illinois, Louisiana, Missouri, New Jersey, Pennsylvania, and Tennessee.
- California created a donor registry through its Department of Health and Human Services.
- Colorado, Delaware, the District of Columbia, Illinois, Maryland, Pennsylvania, and South Carolina indicate willingness, but not a refusal, to donate on their licenses.
- Texas recently passed legislation to eliminate donor status from licenses.
- States with laws specifying a prioritized list of next of kin that may authorize an anatomical gift in the absence of a documented advance directive include: Arizona, Florida, Georgia, Maryland, South Carolina, Vermont, Virginia, Washington State, and Wisconsin.
- Utah requires that the next of kin sign a form indicating that they were asked to give consent to donation.
- Nebraska may eliminate the requirement for a witness when an individual is making an advance directive.
- South Dakota enacted a measure which requires law enforcement personnel having access to the decedent’s driver’s license to inform any person having lawful custody of the body of the decedent’s wishes regarding organ and tissue donation. This enactment expands South Dakota’s previous measures, which required law enforcement personnel to inform only the next of kin, the attending nurse, or the attending physician.
- Connecticut and Minnesota specify that an individual legally authorized to make health care decisions for the decedent prior to death (i.e., a health care agent) may give consent to donation.
- Tennessee requires law enforcement personnel to make a reasonable search for a decedent’s license at the scene of an incident.
- Texas law requires that all hospitals obtain consent from the next-of-kin even when there is a clear and valid advance directive to donate.
- In Utah, where the donee is defined as an "organ procurement entity," a law specifies that "the rights of the donee are superior to the interests of others." For example, if an anatomical gift is designated to a specific OPO, no other OPO can supersede the rights to that gift.
- South Carolina and Wisconsin have very similar legislation to that of Utah, but include OPOs, individuals, hospitals, and surgeons in the definition of the donee.
- Louisiana uses a common state consent form, requiring appropriate documentation and next-of-kin signature, which ensures that the next-of-kin was provided the option of donation; a copy of this document is provided to the next-of-kin.