Analysis of State Actions Regarding Donor Registries. Registries as Advance Directives

01/04/2000

Many states only recently took the initiative to create donor registries intended to function as official documentation of advance directives. Most often housed in the state divisions of motor vehicles, registries are intended to officially represent the posthumous donation wishes of individuals, and therefore to be acted upon without further consent from next of kin. However, if the actual implementation of these more recently developed registries remains dependent upon seeking next of kin consent as it does in practice in other states, such donor registries will not serve effectively as advance directives.

Some states with existing registries have taken actions to strengthen their ability to use the registry as an indication of an advance directive. Though states have taken different approaches to this issue, a clear and definitive statement regarding the specific purposes of the registry (e.g., education, procurement, demographic tracking) is a necessary first step in providing direction for change. Legislation explicitly diminishing or eliminating liability of hospital and procurement personnel who carry out the advance directive may be more effective than legislation eliminating the necessity of next of kin consent. In this latter case, hospital and procurement personnel often will remain wary of litigation, even in cases of a clear and valid advance directive.

Two additional legislative categories exist that have proven to be important in strengthening registries as advance directives. First, a small number of states require law enforcement personnel to make a reasonable search for the decedent’s driver’s license (or other donor documentation) at the scene of an incident. These actions increase the likelihood that an individual’s wishes would be determined and acted upon (either as a donor or a non-donor), and reduce time wasted in trying to determine donation wishes at the hospital, when crucial personal documentation may already have been lost. While this legislation is more applicable to the donation process as a whole, it clearly demonstrates support for ensuring knowledge of a decedent’s donation wishes, indirectly bolstering prominence of a registry in the donation process. Second, three states stipulate that donee rights are superior to the interests of all others. This legislation reinforces the right of OPOs, hospitals, surgeons, and individuals to carry out the decedent’s designation of an anatomical gift. Ultimately, this legislative support of advance directives may provide a further incentive to develop state registries as an effective tool in demonstrating the wishes of the potential donor.

While many state actions help registries function as advance directives, three areas of legislation create potential barriers to this function. A number of state actions creating or expanding a prioritized next of kin list further reduce the effectiveness of donor registries by increasing the number of people who must be found and consulted by hospital or procurement personnel. This can reduce the strength of the stated advance directive in the registry, and may waste valuable time in the donation process. Because current practice often is to ignore valid donor documents and seek consent from the family, an expanded prioritized list would further hinder procurement personnel (i.e., OPO, eye and tissue bank, and hospital staff) from carrying out an individual’s wishes.

Two state actions in Texas present potential barriers to use of registries as advance directives. One law requires that all hospitals obtain consent from the next of kin even in cases in which the individual’s wishes to donate are valid and clear. This directly undermines the function of advance directives. A second measure eliminates the printing of donor status on drivers’ licenses. This action renders the donation process less transparent and efficient by making individuals’ wishes less accessible.