HB1858

SECTION 1. The legislature finds that donees of anatomical gifts, such as organ procurement organizations, physicians, surgeons, and hospitals, frequently disregard the intent of donors who intended to make those anatomical gifts. Subsection 327-2(h), Hawaii Revised Statutes, clearly states, "An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor's death...". Regardless, donees often require the deceased donor's next of kin to sign a consent form even though the donor has made a clear, unrevoked, expression of intent to make an anatomical gift by signing a document of gift prior to death.

This disregard of the law causes many organ donations to be rejected and causes the needless deaths those who are in need of an organ transplant. This tragedy is compounded by the fact that Hawaii has one of the lowest organ transplantation rates in the country. The low transplantation rate is due, in part, to the practice of rejecting anatomical gifts in spite of the donor's clear wishes.

The purpose of this Act is to prevent donees from rejecting anatomical gifts where the donor has expressed a clear, unrevoked, intent to make the gift.

SECTION 2. Chapter 327, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§327- Procedures at death. The time of death shall be determined by the physician or surgeon who attends the donor at death or, if none, the physician or surgeon who certifies the death. Neither the physician or surgeon who attends the donor at death nor the physician or surgeon who determines the time of death may participate in the procedures for removing or transplanting a part unless the document of gift designates a particular physician or surgeon pursuant to section 327-2."

SECTION 3. Section 327-2, Hawaii Revised Statutes, is amended by amending subsection (h) to read as follows:

"(h) An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor's death.

Any person, hospital, or organization that relies on the document of gift and acts in good faith in accordance with this chapter shall not be subject to criminal or civil liability from any action taken under this chapter[.], except as provided in section 327-8. The immunity provided by this subsection shall not extend to the person, hospital, or organization if damages result from the gross negligence, recklessness, or intentional misconduct to the donor."

SECTION 4. Section 327-8, Hawaii Revised Statutes, is amended to read as follows:

"§327-8 Rights and duties at death. (a) Rights of a donee created by an anatomical gift are superior to rights of others except with respect to autopsies under section 327-11.

(b) A donee may accept or reject an anatomical gift[.], provided that a donee may not reject an anatomical gift based upon the objections of others where the donor has indicated a clear intent to make an anatomical gift with an unrevoked document of gift.

(c) Rejection of an anatomical gift by a donee contrary to the intent of the donor as evidenced by an unrevoked document of gift, without a valid documented medical reason, shall subject the donee to a civil penalty of $200,000 per incident.

(d) Any rejection of an anatomical gift under subsection (c) shall be reported to the department of health by the hospital treating the decedent immediately prior to death and the rejecting donee. Any hospital or donee that fails to make a report shall be subject to a $200,000 civil penalty. These reports shall made available to the public upon request, notwithstanding any law to the contrary. The director of health may enforce this subsection. If the director fails to enforce this subsection, any resident of the State who is a registered transplant candidate at the time shall have standing to enforce this subsection, and upon prevailing in on such claim, shall be entitled to recover the amount of the civil penalty, less costs and fees.

(e) If a donee accepts an anatomical gift of an entire body, the donee, subject to the terms of the gift, may allow embalming and use of the body in funeral services. If the gift is of a part of a body, the donee, upon the death of the donor and before embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the person under obligation to dispose of the body.

[(b) The time of death shall be determined by the physician or surgeon who attends the donor at death or, if none, the physician or surgeon who certifies the death. Neither the physician or surgeon who attends the donor at death nor the physician or surgeon who determines the time of death may participate in the procedures for removing or transplanting a part unless the document of gift designates a particular physician or surgeon pursuant to section 327-2.]

[~~(c)~~] (f) If there has been an anatomical gift, a technician may remove any donated parts and an enucleator may remove any donated eyes or parts of eyes, after determination of death by a physician or surgeon."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1858
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII