Assembly Bill A9881

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9881

                          I N  A S S E M B L Y

                            February 5, 2010
                               ___________

Introduced  by M. of A. BRODSKY -- read once and referred to the Commit-
  tee on Health

AN ACT to amend the public health law, in relation to presumed consent

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 4301 of the public health law, as amended by chap-
ter 348 of the laws of 2009, is amended to read as follows:
  S 4301. Persons who may execute an anatomical gift. 1. Any  individual
of sound mind and eighteen years of age or more may give all or any part
of  his  or  her  body  for any purpose specified in section forty-three
hundred two of this article, the gift to take effect upon death. In  any
case where the donor has properly executed an organ donor card, driver's
license  authorization to make an anatomical gift, pursuant to paragraph
(a) of subdivision one of section five hundred four of the  vehicle  and
traffic  law,  registered  in  the New York state organ and tissue donor
registry under section forty-three hundred ten of this article,  or  has
otherwise  given  written  authorization  for  organ or tissue donation,
authorization for donation shall not be rescinded [by an objection by  a
member  of any of the classes specified in paragraphs (a) through (h) of
subdivision two of this section,] except upon a showing that  the  donor
revoked the authorization.
  2.  [Any  of  the  following persons, in the order of priority stated,
may, when persons in prior classes are not reasonably  available,  will-
ing, and able to act, at the time of death, and in the absence of actual
notice  of  contrary  indications  by  the decedent, or actual notice of
opposition by a member of the same class or  prior  class  specified  in
paragraph  (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision,
or reason to  believe  that  an  anatomical  gift  is  contrary  to  the
decedent's  religious  or  moral  beliefs,  give  all or any part of the
decedent's body for any purpose specified in section forty-three hundred
two of this article:
  (a) the person designated as the decedent's health  care  agent  under
article  twenty-nine-C of this chapter, subject to any written statement
in the health care proxy form,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15760-01-0

A. 9881                             2

  (b) the person designated as the decedent's agent in a written instru-
ment under article forty-two of this chapter,  subject  to  any  written
statement in the written instrument,
  (c)  the  spouse,  if  not  legally separated from the patient, or the
domestic partner,
  (d) a son or daughter eighteen years of age or older,
  (e) either parent,
  (f) a brother or sister eighteen years of age or older,
  (g) a guardian of the person of the decedent at the time of his death,
  (h) any other person authorized or under the obligation to dispose  of
the body.
  3. For the purposes of this section, "reasonably available" means that
a person to be contacted can be contacted without undue effort and will-
ing  and able to act in a timely manner consistent with existing medical
criteria necessary for the making of an anatomical gift.
  4. For the purposes of this section, "domestic partner" means a person
who, with respect to another person:
  (a) is formally a party in a domestic partnership or similar relation-
ship with the other person, entered into pursuant to  the  laws  of  the
United States or any state, local or foreign jurisdiction, or registered
as  the  domestic  partner of the person with any registry maintained by
the employer of either party or  any  state,  municipality,  or  foreign
jurisdiction; or
  (b)  is  formally  recognized as a beneficiary or covered person under
the other person's employment benefits or health insurance; or
  (c) is dependent or mutually interdependent on the  other  person  for
support,  as evidenced by the totality of the circumstances indicating a
mutual intent to be domestic partners  including  but  not  limited  to:
common  ownership  or joint leasing of real or personal property; common
householding, shared income or  shared  expenses;  children  in  common;
signs of intent to marry or become domestic partners under paragraph (a)
or  (b)  of this subdivision; or the length of the personal relationship
of the persons.
  Each party to a domestic partnership shall be  considered  to  be  the
domestic  partner  of  the  other  party.  "Domestic  partner" shall not
include a person who is related to the other person by blood in a manner
that would bar marriage to the other person in New York state. "Domestic
partner" shall also not include any person who  is  less  than  eighteen
years  of  age or who is the adopted child of the other person or who is
related by blood in a manner that would bar marriage in New  York  state
to a person who is the lawful spouse of the other person.
  5.]  The  donee shall not accept the gift [under the following circum-
stances:
  (a) the donee has actual notice of contrary indication  by  the  dece-
dent;
  (b)]  where  the  donor has not properly executed an organ donor card,
driver's license authorization to make an anatomical gift,  pursuant  to
paragraph  (a)  of  subdivision  one of section five hundred four of the
vehicle and traffic law, registered in the  New  York  state  organ  and
tissue  donor  registry  under  section  forty-three hundred ten of this
article, or otherwise given written authorization for  organ  or  tissue
donation,  or  has  revoked  any  such  authorization[,  and the gift is
opposed by a person or persons in the highest priority available of  the
classes  specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h)
of subdivision two of this section; or

A. 9881                             3

  (c) the donee has reason to believe that an anatomical gift is contra-
ry to the decedent's religious or moral beliefs].
  [6.]  3.  A  gift  of all or part of a body authorizes any examination
necessary to assure medical  acceptability  of  gift  for  the  purposes
intended.
  [7.]  4.  The rights of the donee created by the gift are paramount to
the rights of others except as provided by section  forty-three  hundred
eight of this article.
  [8.]  5.  The person who documents the making, amending or revoking of
an anatomical gift, acting reasonably and in good  faith  in  accordance
with this article, may accept an anatomical gift under this article made
by  a person who represents that he or she is entitled to consent to the
donation.
  S 2. This act shall take effect immediately.