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Regular Session, 2010
HOUSE BILL NO. 1123
BY REPRESENTATIVE GALLOT
HEALTH/ANATOMICAL GIFTS: Provides for a uniform Anatomical Gift Act
AN ACT1
To amend and reenact R.S. 9:111(A) and R.S. 17:2351, 2352, 2352.1, 2353, 2354(A)2
through (E), 2354.1, 2354.2, 2354.3, 2354.4(A) and (B), 2355, 2355.1(A), (B), and3
(C), 2356, 2357, and 2358, to enact R.S. 17:2354.5 through 2354.9 and 2358.1, and4
to repeal R.S. 17:2354(F) and (G), 2354.4(C) through (K), and 2355.1(D) and (E),5
relative to the Louisiana Anatomical Gift Act; to make suct Act uniform with that6
of other states; to provide for definitions; to provide for applicability; to provide for7
procurement; to provide for recipients; to provide for the execution of an anatomical8
gift; to provide for the refusal to make a gift; to provide for the authority to make a9
gift of a body or part; to prohibit the sale or purchase of a part and provide for10
penalties; to grant immunity for certain acts; to provide choice of law provisions; to11
provide for a donor registry; to provide for advance health directives; to provide for12
the delivery of the gift; to provide for the search for a gift; to provide for the13
revocation or amendment of a gift; to provide for the rights and duties of14
procurement organizations; to provide for the application of federal laws; to provide15
a special effective date; and to provide for related matters.16
Be it enacted by the Legislature of Louisiana:17
Section 1. R.S. 9:111(A) is hereby amended and reenacted to read as follows: 18
§111. Definition of death19
A. A person will be considered dead if in the announced opinion of a20
physician, duly licensed in the state of Louisiana based on ordinary standards of21
approved medical practice, the person has experienced an irreversible cessation of22 HLS 10RS-75 ORIGINAL
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spontaneous respiratory and circulatory functions. In the event that artificial means1
of support preclude a determination that these functions have ceased, a person will2
be considered dead if in the announced opinion of a physician, duly licensed in the3
state of Louisiana based upon ordinary standards of approved medical practice, the4
person has experienced an irreversible total cessation of brain function. Death will5
have occurred at the time when the relevant functions ceased. In any case when6
organs are to be used in a transplant, then an additional physician, duly licensed in7
the state of Louisiana, not a member of the transplant team, must make the8
pronouncement of death.9
* * *10
Section 2. R.S. 17:2351, 2352, 2352.1, 2353, 2354(A) through (E), 2354.1, 2354.2,11
2354.3, 2354.4(A) and (B), 2355, 2355.1(A), (B), and (C), 2356, 2357, and 2358 are hereby12
amended and reenacted and R.S. 17:2354.5 through 2354.9 and 2358.1 are hereby enacted13
to read as follows: 14
§2351. Definitions15
(1) "Bank or storage facility" means a facility licensed or approved under the16
laws of any state for storage of human bodies or parts thereof, for use in medical17
education, research, therapy, or transplantation to individuals. "Adult" means a18
person who has attained eighteen years of age.19
(2) "Agent" means a person:20
(a) Authorized to make health-care decisions on behalf of the principal by21
a power of attorney for health care; or22
(b) Expressly authorized to make an anatomical gift on behalf of the23
principal by any other record signed by the principal.24
(3) "Anatomical gift" or "gift" means a donation of all or part of a human25
body to take effect after the death of the donor for the purpose of transplantation,26
therapy, research, or education.27
(2) (4) "Decedent" means an individual of any age and includes a stillborn28
infant a deceased person whose body or part is or may be the source of an anatomical29 HLS 10RS-75 ORIGINAL
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gift. The term does not include a stillborn infant and, subject to restrictions imposed1
by law, a fetus.2
(5) "Disinterested witness" means a witness other than the spouse, child,3
parent, sibling, grandchild, grandparent, or guardian of the person who makes,4
amends, revokes, or refuses to make an anatomical gift, or an adult who exhibited5
special care and concern for the person. The term does not include a recipient of an6
anatomical gift in accordance with the provisions of R.S. 17:2353.7
(6) "Document of gift" means a donor card or other record used to make an8
anatomical gift. The term includes a statement or symbol on a driver’s license,9
identification card, or donor registry.10
(7) "Donor" means a person whose body or part is the subject of an11
anatomical gift.12
(8) "Donor registry" means a database that contains records of anatomical13
gifts and amendments to or revocations thereof.14
(9) "Driver's license" means a license or permit issued by the Louisiana15
Department of Public Safety and Corrections, office of motor vehicles to operate a16
vehicle, whether or not conditions are attached to the license or permit.17
(10) "Eye bank" means a person that is licensed, accredited, or regulated18
under federal or state law to engage in the recovery, screening, testing, processing,19
storage, or distribution of human eyes or portions of human eyes.20
(11) "Guardian" means a person appointed by a court to make decisions21
regarding the support, care, education, health, or welfare of a person. The term does22
not include a guardian ad litem.23
(3) (12) "Hospital" means a facility licensed as a hospital licensed,24
accredited, or approved under the laws of any state and includes a hospital or a25
facility operated as a hospital by the United States government, a state, or a26
subdivision of a state thereof, although not required to be licensed under state laws.27
(13) "Identification card" means a card issued by the Louisiana Department28
of Public Safety and Corrections, office of motor vehicles.29 HLS 10RS-75 ORIGINAL
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(14) "Know" means to have actual knowledge.1
(15) "Minor" means a person who has not yet attained eighteen years of age.2
(16) "Organ procurement organization" means a person designated by the3
Secretary of the United States Department of Health and Human Services as an eye4
bank, organ procurement organization, or tissue bank.5
(17) "Parent" means a person whose parental rights have not been6
terminated.7
(4) (18) "Part" of a body includes organs, tissues, eyes, bones, arteries,8
blood, other fluids and other portions of bodies, and "part" includes "parts means an9
organ, an eye, or tissue of a human being. The term does not include the whole10
body.11
(5) (19) "Person" means an individual, corporation, government or12
governmental subdivision or agency, business trust, estate, trust, partnership, limited13
liability company, or association, joint venture, public corporation, government or14
governmental subdivision, agency, or instrumentality, or any other legal or15
commercial entity.16
(6) (20) "Physician" or "surgeon" means a physician or surgeon licensed to17
practice means a person authorized and licensed to practice medicine or osteopathy18
under the laws of any state.19
(21) "Prospective donor" means a person who is dead or near death and has20
been determined by a procurement organization to have a part that may be medically21
suitable for transplantation, therapy, research, or education. The term does not22
include a person who has made a refusal.23
(22) "Reasonably available" means able to be contacted by a procurement24
organization without undue effort and willing and able to act in a timely manner25
consistent with existing medical criteria necessary for the making of an anatomical26
gift.27
(23) "Recipient" means a person into whose body a part of a decedent has28
been or is intended to be transplanted.29 HLS 10RS-75 ORIGINAL
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(24) "Record" means information that is inscribed on a tangible medium or1
that is stored in an electronic or other medium and is retrievable in perceivable form.2
(25) "Refusal" means a record created pursuant to the provisions of R.S.3
17:2354.1 that expressly states an intent to bar other persons from making an4
anatomical gift of a the body or part of a person.5
(26) "Sign" means, with the present intent to authenticate or adopt a record6
either:7
(a) To execute or adopt a tangible symbol.8
(b) To attach to or logically associate with the record an electronic symbol,9
sound, or process.10
(7) (27) "State" includes any state, district, commonwealth, territory, insular11
possession, and any other area subject to the legislative authority of the United States12
of America. means a state of the United States, the District of Columbia, Puerto13
Rico, the United States Virgin Islands, or any territory or insular possession subject14
to the jurisdiction of the United States.15
(8) (28) "Technician" means any individual who has successfully completed16
a course in eye enucleation for ophthalmic medical assistants approved by the17
American Association of Ophthalmology and possesses documentary proof of18
qualifications determined to be qualified to remove or process parts by an19
appropriate organization that is licensed, accredited, or regulated under federal or20
state law. The term includes an enucleator.21
(29) "Tissue" means a portion of the human body other than an organ or an22
eye. The term does not include blood unless the blood is donated for the purpose of23
research or education.24
(30) "Tissue bank" means a person that is licensed, accredited, or regulated25
under federal or state law to engage in the recovery, screening, testing, processing,26
storage, or distribution of tissue.27 HLS 10RS-75 ORIGINAL
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(31) "Transplant hospital" means a hospital that furnishes organ transplants1
and other medical and surgical specialty services required for the care of transplant2
patients.3
(9) "Organ procurement organization" means an organization that is4
designated by the United States Department of Health and Human Services, Health5
Care Financing Administration or its successor, to perform or coordinate the6
performance of surgical recovery, preservation, and transportation of organs, and that7
maintains a system for locating prospective recipients for available organs.8
(10) "Louisiana-designated organ procurement organization" means the9
organ procurement organization for the state as designated by the secretary of the10
Department of Health and Hospitals under R.S. 17:2354.4(J).11
(11) "Vascular organ" means the heart, lungs, kidneys, liver, pancreas, or any12
other organ that requires the continuous circulation of blood to remain useful for13
transplantation purposes. As used in this Part, "vascular organ" does not include14
human tissue, bones, or corneas.15
§2352. Persons Applicability; persons who may execute make an anatomical gift16
prior to the death of the donor17
A. Any individual who is competent to execute a will may give all or any18
part of his body for any of the purposes specified in R.S. 17:2353, the gift to take19
effect after death. The rights of the donee are superior to the rights of the surviving20
spouse and next of kin. The provisions of this Part shall apply to an anatomical gift21
or amendment, revocation, or refusal to make an anatomical gift.22
B. Unless he has knowledge that contrary directions have been given by the23
decedent, any of the following persons, in the order of priority stated, may give all24
or any part of a decedent's body for any of the purposes specified in R.S. 17:2353:25
Subject to the provisions of R.S. 17:2354.2, an anatomical gift of a body or part of26
the donor may be made during his life for the purpose of transplantation, therapy,27
research, or education as provided in R.S. 17:2354 by any of the following:28
(1) The spouse if one survives; if not, An adult donor.29 HLS 10RS-75 ORIGINAL
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(2) An adult son or daughter, A minor donor, if he has been emancipated or1
authorized under state law to apply for a driver's license.2
(3) Either parent, An agent of the donor, unless the power of attorney for3
health care or other record prohibits it.4
(4) An adult brother or sister, A parent of the donor, if he is an5
unemancipated minor.6
(5) The guardian of the person of the decedent at the time of his death, The7
guardian of the donor.8
(6) Any other person authorized or under obligation to dispose of the body.9
If there is no surviving spouse, and an adult son or daughter is not immediately10
available at the time of death, the gift may be made by either parent; if neither an11
adult son or daughter nor a parent is immediately available, it may be made by any12
adult brother or sister; but the donee shall not accept the gift if he or his agent has13
received notice that there is controversy within the class of relatives enabled under14
the above priorities to make the gift. The persons authorized by this subsection to15
make the gift may execute the document of gift either after death or immediately16
before death during a terminal illness or injury.17
C. Any gift of all or part of a body is deemed to authorize such examination18
as may be necessary to assure medical acceptability of gift for the purposes intended.19
D. No person shall disclose, disseminate or make public the fact of the20
making or acceptance of a gift authorized under the provisions of this Part without21
the prior specific consent of the donor, or if he is unable, that of the person22
authorized to make gifts under the provisions of Subsection (B) hereof in the order23
therein prescribed, unless otherwise required by law. Any person who makes any24
such disclosure as contemplated herein in violation of the provisions of this25
subsection shall be subject to absolute liability for damages in an amount of not less26
than five thousand dollars nor more than ten thousand dollars in a civil action27
instituted pursuant hereto by the person whose authorization therefor had not been28
obtained.29 HLS 10RS-75 ORIGINAL
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§2352.1. Information about organ donation for hospital patients Coordination of1
procurement and use2
Upon discharge, each hospital may furnish to a patient, the patient's family,3
or a patient representative written information about organ donation, such4
information to be supplied at no cost to the hospital by the Louisiana Organ5
Procurement Agency. Each hospital in this state shall enter into an agreement or6
affiliation with procurement organizations for the coordination of procurement and7
use of anatomical gifts.8
§2353. Persons who may become donees receive anatomical gifts; purposes for9
which purpose of anatomical gifts may be made; out-of-state organ transfer10
A. The following persons may become donees of gifts of bodies or parts11
thereof for the purposes stated An anatomical gift may be made to any of the12
following:13
(1) Any hospital,. surgeon, or physician, for medical or dental education,14
research, advancement of medical or dental science, therapy, or transplantation to15
individuals.16
(2) Any accredited medical school, or dental school, college, or university,17
engaged in medical or dental education or research for educational, research, or18
medical or dental science purposes.19
(3) The Louisiana-designated organ procurement organization, or other20
appropriate person, for research or education.21
(4) Any person operating an organ procurement organization or an organ22
bank or storage facility.23
(5) Any specific donee, for therapy or transplantation needed by him.24
(2) Subject to the provisions of Subsection B of this Section, a person25
designated by a donor.26
(3) An eye or tissue bank.27
B.(1) In the event an anatomical gift is made in the state of Louisiana of any28
vascular organ for transplantation purposes, if the donor does not name a specific29 HLS 10RS-75 ORIGINAL
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donee and the organ is deemed suitable for transplantation to an individual, the1
vascular organ shall be donated to the Louisiana-designated organ procurement2
organization. Said organization shall use its best efforts to determine if there is a3
suitable recipient in the state. If an anatomical gift to a person in accordance with4
this Section cannot be transplanted into the recipient, the part passes in accordance5
with the provisions of Subsection G of this Section in the absence of an express,6
contrary indication by the donor.7
(2)(a) Subject to the provisions of Subparagraph (b) of this Paragraph, if, in8
the best judgment of the Louisiana-designated organ procurement organization, the9
people of Louisiana would be best served by the organization's entry into reciprocal10
agreements for the sharing of vascular organs with qualified organ procurement11
organizations in other states, then the organization shall have the authority, with sole12
discretion as to terms and conditions, to enter into such vascular organ-sharing13
arrangements as it may deem advisable, necessary, or expedient. The terms of such14
vascular organ-sharing arrangements may provide that a vascular organ recovered15
in Louisiana may be transferred to an out-of-state organ procurement organization16
and transplanted there into a suitable recipient, before such vascular organ is offered17
and placed into a suitable recipient located in Louisiana.18
(b) Prior to the Louisiana-designated organ procurement organization19
entering into a reciprocal agreement, the proposed agreement shall be submitted to20
the Senate Committee on Health and Welfare and the House Committee on Health21
and Welfare for review and comment.22
(3) The Louisiana-designated organ procurement organization may only23
transfer a vascular organ to an out-of-state organ procurement organization or24
suitable out-of-state recipient for transplantation if either:25
(a) A suitable recipient in the state of Louisiana cannot be found in a26
reasonable amount of time.27 HLS 10RS-75 ORIGINAL
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(b) The Louisiana-designated organ procurement organization has a1
reciprocal agreement with the out-of-state procurement organization as provided in2
Paragraph (2) of this Subsection.3
C. If an anatomical gift of one or more specific parts or of all parts is made4
in a document of gift that does not name a person in accordance with Subsection A5
of this Section but identifies the purpose for which an anatomical gift may be used,6
the following shall apply:7
(1) If the part is an eye and the gift is for the purpose of transplantation or8
therapy, the gift passes to the appropriate eye bank.9
(2) If the part is tissue and the gift is for the purpose of transplantation or10
therapy, the gift passes to the appropriate tissue bank.11
(3) If the part is an organ and the gift is for the purpose of transplantation or12
therapy, the gift passes to the appropriate organ procurement organization as13
custodian of the organ.14
(4) If the part is an organ, eye, or tissue and the gift is for the purpose of15
research or education, the gift passes to the appropriate procurement organization.16
D. For the purposes of Subsection C of this Section, if there is more than one17
purpose of an anatomical gift set forth in the document of gift but the purposes are18
not set forth in any priority, the gift shall be used for transplantation or therapy. If19
the gift cannot be used for transplantation or therapy, the gift may be used for20
research or education.21
E. If an anatomical gift of one or more specific parts is made but does not22
name a person in accordance with Subsection A of this Section and does not identify23
the purpose of the gift, the gift may be used only for transplantation or therapy, and24
the gift passes in accordance with the provisions of Subsection G of this Section.25
F. If a document of gift only specifies a general intent to make an anatomical26
gift, or by a symbol or statement of similar import, the gift may be used only for27
transplantation or therapy, and the gift passes in accordance with the provisions of28
Subsection G of this Section.29 HLS 10RS-75 ORIGINAL
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G. For purposes of Subsections B, E, and F of this Section the following1
shall apply:2
(1) If the part is an eye, the gift passes to the appropriate eye bank.3
(2) If the part is tissue, the gift passes to the appropriate tissue bank.4
(3) If the part is an organ, the gift passes to the appropriate organ5
procurement organization as custodian of the organ.6
H. An anatomical gift of an organ for transplantation or therapy, other than7
an anatomical gift made in accordance with Paragraph (A)(2) of this Section, passes8
to the organ procurement organization as custodian of the organ.9
I. If an anatomical gift does not pass pursuant to the provisions of10
Subsections A through H of this Section, or the body or part of the decedent is not11
used for transplantation, therapy, research, or education, custody of the body or part12
passes to the person obligated to properly dispose of the body or part.13
J. A person may not accept an anatomical gift if he knows the gift was not14
effectively made pursuant to the provisions of R.S. 17:2354 or 2356 or if the person15
knows that the decedent made a refusal in accordance with the provisions of R.S.16
17:2354.1 that has not been revoked. For purposes of this Subsection, if a person17
knows that an anatomical gift was made on a document of gift, the person is18
presumed to know of any amendment, revocation, or refusal made to the same19
document of gift.20
K. Except as otherwise provided in Paragraph (A)(2) of this Section, nothing21
in this Part affects the allocation of organs for transplantation or therapy.22
§2354. Manner of executing anatomical gifts gift prior to death of donor23
A. A gift of all or part of the body under this Part may be made by will, in24
which case the gift becomes effective at the death of the testator without waiting for25
probate. If the will is not probated, or if it is declared invalid for testamentary26
purposes, the gift, to the extent that it has been acted upon in good faith, is27
nevertheless valid and effective. A donor may make an anatomical gift by any of the28
following:29 HLS 10RS-75 ORIGINAL
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(1) Authorizing a statement or symbol indicating that he has made an1
anatomical gift to be imprinted on his driver’s license or identification card.2
(2) Executing a will.3
(3) Any form of communication addressed to at least two adults, at least one4
of whom is a disinterested witness, during a terminal illness or injury.5
B. A gift of all or part of the body under this Part may also be made by a6
document other than a will. The document must be signed by the donor, in the7
presence of two witnesses who in turn shall sign the document in his presence. If the8
donor cannot sign in person, the document may be signed for him at his direction and9
in his presence, and in the presence of two witnesses who shall sign the document10
in his presence. Delivery of the document of gift during the donor's lifetime is not11
necessary to make the gift valid. The gift becomes effective at the death of the12
donor. A donor or other person authorized to make an anatomical gift pursuant to13
R.S. 17:2352 may make an anatomical gift by any of the following:14
(1) Verbally, by telephone, provided that the conversation is recorded and15
a record of such conversation is maintained.16
(2) Verbally when expressed or given before two witnesses.17
(3) Verbally, by telephone, provided that the conversation is witnessed.18
(4) In accordance with Subsection C of this Section.19
C. The document of gift may consist of a properly executed card carried on20
the donor's person or in his effects. The document of gift also may be printed on the21
reverse side of an operator's or chauffeur's license as provided by R.S. 32:410. A22
donor or other person authorized to make an anatomical gift pursuant to R.S.23
17:2352 may make a gift by a donor card or other record signed by the person24
making the gift or by authorizing that a statement or symbol indicating that a gift has25
been made be included on a donor registry. If the donor or other person is physically26
unable to sign a record, the record may be signed by another person at the direction27
of the person making the gift and the record shall:28 HLS 10RS-75 ORIGINAL
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(1) Be witnessed by two adults, one of whom is a disinterested witness, who1
have signed at the request of the person making the gift; and2
(2) State that it has been signed and witnessed as provided in Paragraph (1)3
of this Subsection.4
D. The gift may be made either to a named donee or without the naming of5
a donee. If the latter, the gift may be accepted by and utilized under the direction of6
the attending physician at or following death. If the gift is made to a named donee7
who is not reasonably available at the time and place of death, and the gift is8
evidenced by a properly executed card or other writing carried on the donor's person9
or in his effects, the attending physician at or following death, in reliance upon the10
card or writing, and in the absence of any expressed indication that the donor desired11
otherwise, may accept and utilize the gift as the agent of the donee for any purpose12
authorized in R.S. 17:2353. The agent possesses and may exercise all of the rights13
and is entitled to all of the immunities of the donee under this Part. Revocation,14
suspension, expiration, or cancellation of a driver's license or identification card15
upon which an anatomical gift is indicated does not invalidate the gift.16
E. Except as provided in R.S. 17:2357(B), the donor may designate in his17
will or other document of gift the surgeon, physician or technician to implement the18
appropriate procedures. In the absence of such designation, or if the designee is not19
reasonably available, the donee or other person authorized to accept the gift may20
employ or authorize any licensed surgeon, physician or technician to implement the21
appropriate procedures herein authorized. An anatomical gift executed in a will22
takes effect upon the death of the donor whether or not the will is probated.23
Invalidation of the will after the death of the donor does not invalidate the gift.24
* * *25
§2354.1. Coroner's consent for eye enucleation Refusal to make anatomical gift;26
effect27
A. A physician, technician, or other authorized person trained in eye28
enucleation may remove the eyes of a decedent immediately following certification29 HLS 10RS-75 ORIGINAL
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of death provided: A person may refuse to make an anatomical gift of his body or1
part by executing any of the following:2
(1) There is written authorization by a person empowered to execute an3
anatomical gift as provided in R.S. 17:2352(B); or A signed record in accordance4
with Subsection B of this Section or if he is physically unable to sign, another person5
acting at the direction of the person shall sign.6
(2) There is authorization by the parish coroner; and A will and testament,7
whether or not the will is admitted to probate or invalidated after his death.8
(3) The eyes will be donated to an authorized donee of gifts of bodies or9
parts thereof as defined in R.S. 17:2353 for the purposes of advancing medical10
science or for the replacement or rehabilitation of eyes in living persons. Any form11
of communication made by the person during a terminal illness or injury addressed12
to at least two adults, one of whom is a disinterested witness.13
B.(1) Neither the coroner, physician, surgeon, technician, hospital, bank, or14
storage facility, nor the donee, who acts in good faith to comply with this Section15
shall be liable in any civil action to a claimant who alleges that his authorization for16
use of the eyes was required. A signed record, shall be witnessed by at least two17
adults, one of whom is a disinterested witness, and shall state that it has been signed18
and witnessed as provided in Subsection A of this Section.19
(2) The provisions of this Subsection shall not be construed as limiting or20
restricting the liability of a coroner, physician, surgeon, technician, hospital, bank21
or storage facility or the donee as provided by R.S. 17:2357(C).22
(3) The parish coroner, deputy coroner, or any legal representative or agent23
of the coroner acting pursuant to the provisions of this Section shall not authorize the24
removal of the eyes of a decedent where the coroner, deputy coroner, or coroner's25
legal representative or agent derives or may derive any direct or indirect financial26
benefit relative to the removal, donation, or use of the eyes.27
C. A person who has made a refusal to make an anatomical gift, may amend28
or revoke the refusal in any of the following ways:29 HLS 10RS-75 ORIGINAL
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(1) In the manner provided in Subsection A of this Section for making a1
refusal.2
(2) By subsequently making an anatomical gift in accordance with R.S.3
17:2354 that is inconsistent with the refusal.4
(3) By destroying or canceling the record or a portion thereof evidencing the5
refusal, with the intent of revocation.6
D. Except as otherwise provided in R.S. 17:2354.2, in the absence of an7
express contrary indication set forth in the refusal, an unrevoked refusal bars all8
other persons from making an anatomical gift of the body or part of the person.9
§2354.2. Coroner's consent for kidney removal Preclusive effect of anatomical gift;10
amendment; revocation11
A. A physician or surgeon may remove the kidneys of a decedent12
immediately following certification of death provided: Except as otherwise provided13
in Subsection G of this Section and subject to Subsection F of this Section, in the14
absence of an express, contrary indication by the donor, a person other than the15
donor is barred from making, amending, or revoking an anatomical gift of the body16
or part of the donor if the gift complies with R.S. 17:2354 or 2356. 17
(1) There is written authorization by a person empowered to execute an18
anatomical gift as provided in R.S. 17:2352(B); or19
(2) There is authorization by the parish coroner; and20
(3) The kidneys will be or are intended to be donated to an authorized donee21
of gifts of bodies or parts thereof as defined in R.S. 17:2353 for the purpose of22
advancing medical science or for the replacement of kidneys in living persons.23
B.(1) Neither the coroner, physician, surgeon, technician, hospital, bank, or24
storage facility, nor the donee, who acts in good faith to comply with this Section,25
shall be liable in any civil action to a claimant who alleges that his authorization for26
use of the kidneys was required. A revocation of a gift in accordance with R.S.27
17:2356 is not a refusal and does not bar another person from making an anatomical28
gift of the body or part of the donor in accordance with this Part.29 HLS 10RS-75 ORIGINAL
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(2) The provisions of this Subsection shall not be construed as limiting or1
restricting the liability of a coroner, physician, surgeon, technician, hospital, bank2
or storage facility or the donee as provided by R.S. 17:2357(C).3
(3) The parish coroner, deputy coroner, or any legal representative or agent4
of the coroner acting pursuant to the provisions of this Section shall not authorize the5
removal of the kidneys of a decedent where the coroner, deputy coroner, or coroner's6
legal representative or agent derives or may derive any direct or indirect financial7
benefit relative to the removal, donation, or use of the kidneys.8
C. If a person other than the donor makes an unrevoked anatomical gift of9
the body or part or the donor in accordance with R.S. 17:2354 or amends a gift of the10
body or part of the donor in accordance with R.S. 17:2356, another person may not11
make, amend, or revoke the gift in accordance with R.S. 17:2356.12
D. A revocation of an anatomical gift of the body or part of a donor in13
accordance with R.S. 17:2356 by a person other than the donor does not bar another14
person from making an anatomical gift of the body or part in accordance with R.S.15
17:2354 or 2356.16
E. In the absence of an express, contrary indication by the donor or other17
person authorized to make an anatomical gift, an anatomical gift of a part is neither18
a refusal to give another part nor a limitation on the making of a gift of another part19
at a later time by the donor or another person.20
F. In the absence of an express, contrary indication by the donor or other21
person authorized to make an anatomical gift, an anatomical gift of a part for one or22
more of the purposes in R.S. 17:2352 is not a limitation on the making of an23
anatomical gift of the part for any other purpose in accordance with R.S. 17:2354 or24
2356.25
G. If an unemancipated minor donor dies, his reasonably available parent26
may revoke or amend the anatomical gift.27 HLS 10RS-75 ORIGINAL
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§2354.3. Coroner's consent for heart, lungs, liver, soft tissue, or bone removal1
Authority to make an anatomical gift of a body or part2
A. A physician or surgeon may remove the heart, lungs, liver, soft tissue, or3
bone of a decedent immediately following certification of death provided: Subject4
to Subsections B and C of this Section and unless barred by R.S. 17:2354.1 or5
2354.2, an anatomical gift of the body or part of a decedent for the purpose of6
transplantation, therapy, research, or education may be made by any reasonably7
available member of the following classes, in the following order of priority:8
(1) There is written authorization by a person empowered to execute an9
anatomical gift as provided in R.S. 17:2352(B); or The agent who could have made10
an anatomical gift in accordance with R.S. 17:2352 immediately before the death of11
the decedent.12
(2) There is authorization by the parish coroner; and The surviving spouse13
of the decedent.14
(3) The heart, lungs, liver, soft tissue, or bone will be donated to an15
authorized donee of gifts of bodies or parts thereof as defined in R.S. 17:2353 for the16
purpose of advancing medical science or for the replacement of the heart, lungs,17
liver, soft tissue, or bone in living persons. The adult children of the decedent.18
(4) The parents of the decedent.19
(5) The adult siblings of the decedent.20
(6) The adult grandchildren of the decedent.21
(7) The grandparents of the decedent.22
(8) An adult who exhibited special care and concern for the decedent.23
(9) The person acting as guardian of the decedent at the time of death.24
(10) Any other person having the authority to dispose of the body of the25
decedent.26
B.(1) Neither the coroner, physician, surgeon, technician, hospital, bank or27
storage facility, nor the donee, who acts in good faith to comply with this Section28
shall be liable in any civil action to a claimant who alleges that his authorization for29 HLS 10RS-75 ORIGINAL
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use of the heart, lungs, liver, soft tissue, or bone was required. If there is more than1
one member of a class listed in Subsection A of this Section entitled to make an2
anatomical gift, an anatomical gift may be made by a member of the class unless that3
member or a person to which the gift may pass in accordance with R.S. 17:23534
knows of an objection by another member of the class. If an objection is known, the5
gift may be made only by a majority of the members of the class who are reasonably6
available.7
(2) The provisions of this Subsection shall not be construed as limiting or8
restricting the liability of a coroner, physician, surgeon, technician, hospital, bank9
or other storage facility, or the donee as provided by R.S. 17:2357(C).10
(3) The parish coroner, deputy coroner, or any legal representative or agent11
of the coroner acting pursuant to the provisions of this Section shall not authorize the12
removal of the heart, lungs, liver, soft tissue, or bone of a decedent where the13
coroner, deputy coroner, or coroner's legal representative or agent derives or may14
derive any direct or indirect financial benefit relative to the removal, donation, or use15
of the heart, lungs, liver, soft tissue, or bone.16
(4) No coroner, deputy coroner, or any legal representative or agent of the17
coroner shall authorize the removal of kidneys, heart, lungs, liver, soft tissue or bone18
where the coroner or deputy coroner derives an economic benefit in such a19
transaction.20
C. A person may not make an anatomical gift if at the time of the death of21
the decedent, a person in a higher ranking class is reasonably available to make or22
to object to the making of an anatomical gift.23
§2354.4. Duties of hospital administrator; training; coordination Sale or purchase24
of parts prohibited25
A. As used in this Section: Except as otherwise provided in Subsection B of26
this Section, a person that for valuable consideration, knowingly purchases or sells27
a part for transplantation or therapy, if removal of the part is intended to occur after28
the death of the person, shall upon conviction be subject to a fine not exceeding fifty29 HLS 10RS-75 ORIGINAL
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thousand dollars or imprisonment not exceeding five years with or without hard1
labor, or both.2
(1) "Administrator" means the chief operating officer of a hospital.3
(2) "Death" shall have the meaning provided in R.S. 9:111.4
(3) "Hospital" means any institution, place, building, or agency, public or5
private, whether for profit or not, devoted primarily to the maintenance and operation6
of facilities for ten or more individuals for the diagnosis, treatment, or care of7
persons admitted for overnight stay or longer who are suffering from illness, injury,8
infirmity, or deformity or other physical condition for which obstetrical, medical, or9
surgical services would be available and appropriate. The term "hospital" does not10
include the following:11
(a) Physicians' offices or clinics where patients are not regularly kept as bed12
patients for twenty-four hours or more;13
(b) Nursing homes as defined by and regulated under the provisions of R.S.14
40:2009.1 through R.S. 40:2009.12;15
(c) Persons, schools, institutions, or organizations engaged in the care and16
treatment of mentally retarded children and which are required to be licensed by the17
provisions of R.S. 28:421 through R.S. 28:427; or18
(4) "Suitable candidate" means a patient who is certified by the attending19
physician, at or immediately before the time of death, to be a suitable donor for any20
organ or tissue donation based on accepted medical standards, and who has been21
released by the coroner in those instances required by law.22
B. When death occurs in a hospital, to a person determined to be a suitable23
candidate for organ or tissue donation based on accepted medical standards, the24
hospital administrator or designated representative shall request the appropriate25
person described in Subsection H of this Section to consent to the gift of any part of26
the decedent's body as an anatomical gift. A person may charge a reasonable amount27 HLS 10RS-75 ORIGINAL
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for the removal, processing, preservation, quality control, storage, transportation,1
implantation, or disposal of a part.2
* * *3
§2354.5. Other prohibited acts4
A person who to obtain financial gain, intentionally falsifies, forges,5
conceals, defaces, or obliterates a document of gift, amendment, or revocation6
thereof, or a refusal shall be subject to a fine not exceeding fifty thousand dollars or7
imprisonment not exceeding five years with or without hard labor, or both.8
§2354.6. Immunity9
A. A person acting in good faith in accordance with this Part or with the10
applicable anatomical gift law of another state, shall not be liable in a civil action,11
criminal prosecution, or administrative proceeding for any loss or damage caused by12
any act or omission.13
B. Neither the person making an anatomical gift nor the estate of the donor14
shall be liable for any injury or damage that results from the making or use of the gift15
unless the injury or damage was caused by the gross negligence or willful or wanton16
actions of the person.17
C. In determining whether an anatomical gift has been made, amended, or18
revoked in accordance with this Part, a person may rely upon representations in19
accordance with R.S. 17:2354.2 relating to his relationship with the donor or20
prospective donor unless the person knows that the representation is untrue.21
§2354.7. Law governing validity; choice of law; presumption22
A. A valid document of gift shall be executed in accordance with the23
provisions of this Part, the laws of the state or country where it was executed, or the24
laws of the state or country where the person making the anatomical gift was25
domiciled, has a place of residence, or was a national at the time the document of gift26
was executed.27
B. If a document of gift is valid in accordance with this Part, the law of this28
state governs the interpretation of the document of gift.29 HLS 10RS-75 ORIGINAL
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C. A person may presume that a document of gift or amendment thereto is1
valid unless that person knows that it is not validly executed or it was revoked.2
§2354.8. Donor registry3
A. The secretary of the Department of Health and Hospitals may establish4
or contract for the establishment of a donor registry.5
B. The Louisiana Department of Public Safety and Corrections, office of6
motor vehicles shall cooperate with any person administering any donor registry that7
this state establishes, contracts for, or recognizes for the purpose of transferring to8
the donor registry all relevant information regarding the making, amendment to, or9
revocation of an anatomical gift.10
C. A donor registry shall be accessible seven days a week, twenty-four hours11
a day and allow each of the following:12
(1) A donor or other person authorized in accordance with R.S. 17:2352 to13
include on the donor registry a statement or symbol that the donor has make,14
amended, or revoked an anatomical gift.15
(2) A procurement organization to obtain relevant information to determine,16
at or near death of the donor or a prospective donor, whether the donor or17
prospective donor has made, amended, or revoked an anatomical gift.18
D. Personally identifiable information on a donor registry may not be used19
or disclosed without the express consent of the donor, prospective donor, or person20
that made the anatomical gift, for any purpose except to determine, at or near the21
death of the donor, whether he has made, amended, or revoked an anatomical gift.22
E. This Section does not prohibit any person from creating or maintaining23
a donor registry that is not established by or contracted with the state. Any such24
registry shall comply with Subsections C and D of this Section.25
§2354.9. Effect of anatomical gift on advance health care directives26
A. For the purposes of this Section, the following terms shall have the27
following meanings.28 HLS 10RS-75 ORIGINAL
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(1) "Advance health care directive" means a power of attorney for health1
care or a record signed by a prospective donor containing his direction concerning2
health care decisions.3
(2) "Declaration" means a record signed by a prospective donor specifying4
the circumstance in which a life support system may be withheld or withdrawn from5
the donor.6
(3) "Health care decision" means any decision made regarding the health7
care of the prospective donor.8
B. If a prospective donor has a declaration or advance health care directive9
and the express or implied terms of a potential anatomical gift are in conflict with10
regard to the administration of measures necessary to ensure the medical suitability11
of a part for transplantation or therapy, the attending physician and the donor shall12
confer to resolve the conflict. If the conflict cannot be resolved, a reasonably13
available agent acting for the declaration or directive, or if none, another person14
authorized by law to make health care decisions on behalf of the donor, shall act for15
him to resolve the conflict. The conflict shall be resolved as expeditiously as16
possible. Information relevant to the resolution of the conflict may be obtained from17
the appropriate procurement organization and any other person authorized to make18
an anatomical gift for the donor in accordance with R.S. 17:2354.2. Before19
resolution of the conflict, measures necessary to ensure the medical suitability of the20
part may not be withheld or withdrawn from the prospective donor if doing so is not21
contraindicated by appropriate end of life care.22
§2355. Delivery of document of gift ; right to examine23
If the gift is made by the donor to a named donee, the will or other document,24
or a copy thereof, may be delivered to him to expedite the appropriate procedures25
immediately after death, but such delivery is not necessary to validity of the gift.26
The document may also be deposited in any hospital or registry office that accepts27
such documents for safekeeping or for facilitation of procedures after death. Upon28 HLS 10RS-75 ORIGINAL
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request of any interested party at or after the donor's death, the person in possession1
must produce the document for examination.2
A. A document of gift need not be delivered during the lifetime of the donor3
to be effective.4
B. Upon or after the death of the donor, a person in possession of a document5
of gift or a refusal to make an anatomical gift shall allow examination and copying6
of the document of gift or refusal by a person authorized to make or object to the7
making of an anatomical gift or by a person to which the gift may pass in accordance8
with this Part.9
§2355.1. Search for document of anatomical gift; notification10
A. A The following persons shall make a reasonable search of a person11
reasonably believed to be dead or near death for a document of gift or other12
information which may indicate that a person is identifying the person as a donor or13
a person who has refused to make such a donation shall be made by:14
(1) Any law enforcement officer, fireman, paramedic, or anyone rendering15
emergency rescue services when the person is near death any other emergency16
rescuer assisting the person.17
(2) Any coroner, assistant coroner, or representative of the coroner's office18
who is investigating the death of a person.19
(3) Any hospital, upon as soon as practical after the arrival of a person who20
is dead or near death the person.21
B. The results of this search, if any, shall be communicated to the hospital22
where the person or his body is admitted. If a document of gift or refusal to make an23
anatomical gift is located in accordance with this Section, and the person or decedent24
to whom it related is taken to a hospital, the document of gift or refusal shall be sent25
to the hospital.26
C. If a person at or near death has been admitted or is in transit to a hospital27
and has been identified as a donor of his body, organs, tissue, or any part thereof, the28
hospital shall immediately notify the named donee if one is named and known, and29 HLS 10RS-75 ORIGINAL
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if not, the federally approved organ procurement agency. A person shall not be1
subject to criminal or civil liability for failing to discharge the duties imposed by this2
Section, but may be subject to administrative sanctions.3
* * *4
§2356. Revocation or amendment of the gift before death5
A. If the document of gift has been delivered to a named donee, it may be6
revoked by either: A person authorized to make an anatomical gift in accordance7
with this Part may amend or revoke the gift by a signed record or a later-executed8
document of gift that amends or revokes a pervious gift or portion of a gift either9
expressly or by inconsistency.10
(1) The execution and delivery to the donee or his agent of a revocation in11
writing signed by the donor, or12
(2) An oral statement of revocation made in the presence of two persons,13
communicated to the donee or his agent, or14
(3) A statement during a terminal illness addressed to the attending physician15
and communicated to the donee, or16
(4) A card or writing, signed by the donor and carried on his person or in his17
effects, revoking the gift.18
B. A signed record in accordance with Subsection A of this Section shall be19
witnessed by at least two adults, one of whom is a disinterested witness, and state20
that it has been signed and witnessed in accordance with law.21
B. C. Any document of gift which has not been delivered to the donee An22
anatomical gift executed in accordance with this Part may be revoked in the manner23
set out in Subsection (A) of this section or by destruction, cancellation of the24
document of gift, or mutilation cancellation of the portion of the document of gift25
used to make the gift, with the intent to revoke.26
C. D. Any anatomical gift made by a will may be revoked or amended in the27
manner provided for revocation or amendment of wills or as provided in Subsection28
A of this Section.29 HLS 10RS-75 ORIGINAL
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D. An anatomical gift may not be amended or revoked by any person other1
than the donor, except that when the gift is of the entire body, the body shall be2
returned after removal of all the useable organs to the surviving spouse or the next3
of kin upon the request of either.4
E. A donor may amend or revoke an anatomical gift that was not made in a5
will by any form of communication during a terminal illness or injury addressed to6
at least two adults, one of whom is disinterested.7
F. A person authorized to make an anatomical gift in accordance with this8
Section may make a gift by executing a signed document of gift or by oral9
communication that is electronically recorded or is contemporaneously reduced to10
a record and signed by the individual receiving the oral communication.11
G. Subject to Subsection E of this Section, an anatomical gift by an12
authorized person may be amended or revoked orally or in a record by any13
reasonably available member of a higher ranking class. If more than one member14
of the class is available, the gift may be amended only if a majority of the members15
agree or revoked only if a majority of the members agree or are equally divided.16
H. A revocation in accordance with Subsection C of this Section is effective17
only if before an incision has been made to remove a part from the body of the donor18
or before invasive procedures have begun to prepare the recipient, the procurement19
organization, transplant hospital, or physician or technician knows of the revocation.20
§2357. Rights and duties at death of procurement organizations; others21
A. The donee may accept or reject the gift. If the donee accepts, and if the22
gift is of the entire body, the donee or his agent, if he deems it desirable, may23
authorize embalming and funeral services. If the gift is of a part of the body, the24
donee or his agent, immediately after the death of the donor and prior to embalming,25
may cause the part included in the gift to be removed without unnecessary26
mutilation. After removal of the part, custody of the remainder of the body shall be27
transferred promptly to the surviving spouse or next of kin or other persons under28
obligation to dispose of the body. When a hospital refers a person at or near death29 HLS 10RS-75 ORIGINAL
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to a procurement organization, the procurement organization shall make a reasonable1
search of the records of the office of motor vehicles and any known donor registry2
to ascertain whether the person has made an anatomical gift.3
B. The time of death shall be determined by the physician who attends the4
donor at his death, or, if none, the physician who certifies the death. The physician5
shall not be a participant in the procedures for removing the part or transplanting it.6
A procurement organization shall be allowed reasonable access to information in the7
records of the office of motor vehicles to ascertain whether a person at or near death8
is a donor.9
C. The donee, agent of a donee, other person authorized to accept and utilize10
the gift, or any person authorized by the donor or donee to perform the surgical11
operation to remove parts covered by the gift is not liable for damages in any civil12
action or subject to prosecution in any criminal proceeding for his act if he acts in13
good faith and without actual knowledge of revocation of the gift and in accord with14
the terms of a gift under this Part, in accord with a document carried by the donor as15
provided in this Part, or in accord with the laws of the state in which the document16
of gift was executed. When a hospital refers a person at or near death to a17
procurement organization, the procurement organization may conduct any reasonable18
examination necessary to ensure the medical suitability of a part that is or may be the19
subject of an anatomical gift for transplantation, therapy, research, or education.20
During the examination period, measures necessary to ensure the medical suitability21
of the part may not be withdrawn unless the hospital or procurement organization22
knows that the person expressed a contrary intent.23
D. The provisions of this Part are subject to the laws of this state prescribing24
powers and duties with respect to autopsies. Unless otherwise prohibited by law, at25
any time after the death of a donor, the person to which a part passes in accordance26
with R.S. 17:2353 may conduct any reasonable examination necessary to ensure the27
medical suitability of the body or part for its intended purpose.28 HLS 10RS-75 ORIGINAL
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E. Unless otherwise prohibited by law, an examination in accordance with1
this Section may include an examination of all medical and dental records of the2
donor or prospective donor.3
F. Upon the death of a minor who was a donor or had signed a refusal, unless4
a procurement organization knows he was emancipated, it shall conduct a reasonable5
search for his parents and provide them with an opportunity to revoke or amend the6
anatomical gift or the refusal.7
G. Upon referral by a hospital in accordance with Subsection A of this8
Section, a procurement organization shall make a reasonable search for any person9
listed in R.S. 17:2354.2 having priority to make an anatomical gift on behalf of a10
person. If a procurement organization receives information that an anatomical gift11
was made, amended, or revoked, it shall promptly advise the person of all relevant12
information.13
H. Subject to R.S. 17:2353, the rights of the person to which a part passes14
in accordance with this Part are superior to the rights of all others with respect to the15
part. The person may accept or reject an anatomical gift in whole or in part. Subject16
to the terms of the document of gift and this Part, a person that accepts an anatomical17
gift of an entire body may allow embalming, burial, cremation, and use of remains18
in a funeral service. If the gift is a part, the person to which the part passes, shall19
cause it to be removed without unnecessary mutilation prior to embalming, burial or20
cremation.21
I. Neither the physician who attends the decedent at death nor the physician22
who determines the time of the death may participate in the procedures for removing23
or transplanting a part from the decedent.24
J. A qualified physician or technician may remove a donated part from the25
body of a donor.26
§2358. Uniformity of interpretation application and construction27
This Part shall be so construed as to effectuate its general purpose to make28
uniform the law of those states which enact it. In applying and construing this Part,29 HLS 10RS-75 ORIGINAL
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consideration shall be given to the need to promote uniformity of the law with1
respect to this subject matter among states that enact it.2
§2358.1. Relation to electronic signatures in global and national commerce3
This Part modifies, limits, and supersedes the Electronic Signatures in Global4
and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify,5
limit or supersede Section 7001 of that Act, or authorize electronic delivery of any6
of the notices described in Section 7003(b) of that Act.7
Section 3. R.S. 17:2354(F) and (G), 2354.4(C) through (K), and 2355.1(D) and (E)8
are hereby repealed in their entirety.9
Section 4. The provisions of this Act shall become effective on July 1, 2010; if10
vetoed by the governor and subsequently approved by the legislature, this Act shall become11
effective on July 1, 2010, or on the day following such approval by the legislature,12
whichever is later.13
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Gallot HB No. 1123
Abstract: Provides for a uniform Anatomical Gift Act.
(1)Present law provides for the donation or refusal to donate organs or tissue upon
death.
Proposed law rewrites present law to be uniform with the law of other states which
have enacted the same Uniform Anatomical Gift Act.
(2)Present law defines eleven terms relative to anatomical gifts.
Proposed law expands the number of definitions to thirty-one, adding the terms
"adult," "agent," "anatomical gift" or "gift," "disinterested witness," "document of
gift," "donor," "donor registry," "driver's license," "eye bank," "guardian,"
"identification card," "know," "minor," "parent," "prospective donor," "reasonably
available," "recipient," "record," "refusal," "sign," "tissue," "tissue bank," and
"transplant hospital."
Proposed law deletes from the set of defined terms "bank or storage facility,"
"Louisiana-designated organ procurement organization," and "vascular organ." HLS 10RS-75 ORIGINAL
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(3)Proposed law provides for persons who may make an anatomical gift prior to the
death of the donor, persons who may receive an anatomical gift, and coordination of
organ procurement and use between hospitals and organ procurement organizations.
Proposed law provides for the authority to make an anatomical gift, the manner of
executing an anatomical gift prior to the death of the donor, refusal to make an
anatomical gift, search for document of anatomical gift and notification, and
revocation and amendment of anatomical gifts prior to death.
Proposed law provides for rights and duties of those who make anatomical gifts,
organ procurement organizations, hospitals, physicians, recipients of anatomical
gifts, and others.
Proposed law provides for prohibited acts, including the sale or purchase of parts,
subject to a fine of up to $50,000 or imprisonment of up to 5 years with or without
hard labor, or both.
Proposed law provides for immunity, validity of a document of anatomical gift,
effect of an anatomical gift on advance health care directives, and a donor registry.
(4)Present law stipulates that in any case when organs are to be used in a transplant, the
physician who makes the pronouncement of death must not be part of the transplant
team.
Proposed law deletes present law.
Effective July 1, 2010.
(Amends R.S. 9:111(A) and R.S. 17:2351, 2352, 2352.1, 2353, 2354(A)-(E), 2354.1, 2354.2,
2354.3, 2354.4(A) and (B), 2355, 2355.1(A), (B), and (C), 2356, 2357, and 2358; Adds R.S.
17:2354.5-2354.9 and 2358.1; Repeals R.S. 17:2354(F) and (G), 2354.4(C)-(K), and
2355.1(D) and (E))