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4307. Prohibition of sales and purchases of human organs.
4308. Prohibition on charging a fee to a donor's estate.
4309. Application.
4310. New York state donate life registry for organ and tissue
donations.
4311. REQUEST FOR CONSENT TO AN ANATOMICAL GIFT.
S 4300. DEFINITIONS. [AS USED IN] IN this [section] ARTICLE, THE DEFI-
NITIONS IN ARTICLE FORTY-THREE-B OF THIS CHAPTER SHALL APPLY, EXCEPT
WHERE THEY DIFFER WITH THE DEFINITIONS IN THIS SECTION, AND, the follow-
ing terms shall have the following meanings:
1. "ANATOMICAL GIFT" OR "GIFT" MEANS A DONATION OF ALL OR PART OF A
HUMAN BODY, TO TAKE EFFECT AFTER THE DONOR'S DEATH, FOR THE PURPOSE OF
TRANSPLANTATION, THERAPY, RESEARCH OR EDUCATION.
2. "Bank or storage facility" OR "BANK" means [a hospital, laboratory
or other facility licensed or approved under the laws of any state for
storage of human bodies or parts thereof, for use in medical education,
research, therapy, or transplantation to individuals] ANY PERSON OR
FACILITY WHICH PROCURES, STORES OR ARRANGES FOR THE STORAGE OF (A) NON-
TRANSPLANT ORGANS, OR (B) TISSUE FOR TRANSPLANTATION, THERAPY, EDUCA-
TION, RESEARCH, OR FERTILIZATION PURPOSES, INCLUDING AUTOLOGOUS PROCE-
DURES. AN ORGAN PROCUREMENT ORGANIZATION SHALL NOT CONSTITUTE A BANK OR
STORAGE FACILITY SOLELY BY VIRTUE OF STORING OR ARRANGING FOR THE STOR-
AGE OF HEART VALVES, NOR SHALL ANY PERSON OR ENTITY WHICH STORES
NON-TRANSPLANT ORGANS OR TISSUES SOLELY FOR THE PURPOSE OF RESEARCH
AND/OR EDUCATION CONDUCTED BY SUCH PERSON OR ENTITY BE DEEMED A BANK OR
STORAGE FACILITY.
[2] 3. "Decedent" means a deceased individual of any age and includes
a stillborn infant or fetus.
[3.] 4. "DOCUMENT OF GIFT" MEANS A WRITTEN, RECORDED TELEPHONIC, ELEC-
TRONIC OR OTHER RECORD USED TO MAKE AN ANATOMICAL GIFT, INCLUDING A
STATEMENT OR SYMBOL ON A DRIVER'S LICENSE, IDENTIFICATION CARD, OR DONOR
REGISTRY, INCLUDING THE NEW YORK DONATE LIFE REGISTRY.
5. "Donor" means an individual [who makes a gift of all or part of his
body] WHOSE BODY OR PART IS THE SUBJECT ON AN ANATOMICAL GIFT.
[4] 6. "Hospital" means a hospital licensed, accredited, or approved
under the laws of any state and includes a hospital operated by the
United States Government, a state, or a subdivision thereof, although
not required to be licensed under state laws.
[5] 7. "Part" of a body includes organs, tissues, eyes, bones,
arteries, blood, other fluids and other portions of a human body, and
"part" includes "parts".
[6] 8. "Person" means an individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust, part-
nership or association, or any other legal entity.
[7] 9. "Physician" or "surgeon" means a physician or surgeon licensed
or authorized to practice under the laws of any state.
[8] 10. "State" includes any state, district, commonwealth, territory,
insular possession, and any other area subject to the legislative
authority of the United States of America.
11. "REASONABLY AVAILABLE" MEANS THAT A PERSON TO BE CONTACTED CAN BE
CONTACTED WITHOUT UNDUE EFFORT AND IS WILLING AND ABLE TO ACT IN A TIME-
LY MANNER CONSISTENT WITH EXISTING MEDICAL CRITERIA NECESSARY FOR THE
MAKING OF AN ANATOMICAL GIFT.
12. "DOMESTIC PARTNER" MEANS A PERSON WHO, WITH RESPECT TO ANOTHER
PERSON:
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(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.
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 A DOCUMENT OF GIFT SUCH AS 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] MADE AN
ANATOMICAL GIFT BY ENROLLING in the New York state [organ and tissue
donor] DONATE LIFE 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] IN THE ABSENCE OF A GIFT MADE BY THE DONOR UNDER SUBDIVISION
ONE OF THIS SECTION, ANY of the following persons, in the order of
priority stated, may, when persons in prior classes are not reasonably
available, willing, 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] MAJORITY OF THE MEMBERS 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 OR THE LAWS OF THE JURISDICTION IN
WHICH THE DESIGNATION WAS MADE, subject to any written statement in the
health care proxy form AND THE LAW OF THE JURISDICTION IN WHICH THE
DESIGNATION WAS MADE,
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(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.
IF THERE IS MORE THAN ONE MEMBER OF A CLASS LISTED IN PARAGRAPH (A),
(B), (D), (E), (F), (G) OR (H) OF THIS SUBDIVISION ENTITLED TO MAKE AN
ANATOMICAL GIFT, AN ANATOMICAL GIFT MAY BE MADE BY A MEMBER OF THE CLASS
UNLESS THAT MEMBER OR A PERSON TO WHICH THE GIFT MAY PASS UNDER SECTION
FORTY-THREE HUNDRED TWO OF THIS ARTICLE KNOWS OF AN OBJECTION BY ANOTHER
MEMBER OF THE CLASS. IF AN OBJECTION IS KNOWN, THE GIFT MAY BE MADE ONLY
BY A MAJORITY OF THE MEMBERS OF THE CLASS OF THE HIGHEST PRIORITY WHO
ARE REASONABLY AVAILABLE.
3. [For the purposes of this section, "reasonably available" means
that a person to be contacted can be contacted without undue effort and
willing 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] A PERSON shall not accept the gift under the following
circumstances:
(a) the [donee] PERSON has actual notice of contrary indication by the
decedent;
(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
A. 7799 5
vehicle and traffic law, [registered] MADE AN ANATOMICAL GIFT BY ENROLL-
ING in the New York state [organ and tissue donor] DONATE LIFE 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
(c) the [donee] PERSON has reason to believe that an anatomical gift
is contrary to the decedent's religious or moral beliefs.
[6] 4. A gift of all or part of a body authorizes any examination
necessary to assure medical acceptability of THE gift for the purposes
intended.
[7] 5. The rights of the [donee] PERSON created by the gift are para-
mount to the rights of others except as provided by section forty-three
hundred eight of this article.
[8. 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 4302. [Persons who may become donees and purposes for which anatom-
ical gifts may be made] USES AND DISPOSITION OF AN ANATOMICAL GIFT.
[The following persons may become donees of gifts or bodies or parts
thereof for the purposes stated:
1. any hospital, surgeon, or physician, for medical or dental educa-
tion, research, advancement of medical or dental science, therapy, or
transplantation; or
2. any accredited medical or dental school, college or university for
education, research, advancement of medical or dental science, or thera-
py; or
3. any bank or storage facility, for medical or dental education,
research, advancement of medical or dental science, therapy or trans-
plantation; or
4. any specific donee, for therapy or transplantation needed by him.
5. an organ procurement organization meeting the requirements of arti-
cle forty-three-B of this chapter.] 1. EVERY GIFT UNDER THIS ARTICLE
SHALL PASS AS FOLLOWS:
(A) ONLY THE FEDERALLY DESIGNATED ORGAN PROCUREMENT ORGANIZATION MAY
ACCEPT A GIFT OF A SOLID ORGAN FOR TRANSPLANTATION OR THERAPY.
(B) ONLY A NEW YORK STATE LICENSED BANK OR BANKS MAY ACCEPT A GIFT OF
AN EYE OR TISSUE FOR TRANSPLANTATION OR THERAPY.
(C) ONLY A NEW YORK STATE LICENSED BANK, ACCREDITED MEDICAL OR DENTAL
SCHOOL, COLLEGE OR UNIVERSITY OR APPROPRIATE RESEARCH ORGANIZATION MAY
ACCEPT A GIFT FOR MEDICAL OR DENTAL EDUCATION, RESEARCH, ADVANCEMENT OF
MEDICAL OR DENTAL SCIENCE.
2. IF THE EXPRESSED INTENT OF THE GIFT IS FOR TRANSPLANTATION OR
THERAPY FOR A SPECIFIED INDIVIDUAL, THE GIFT SHALL BE USED FOR THE
PURPOSE, IF SUITABLE.
3. IF THE EXPRESSED INTENT OF THE GIFT IS FOR TRANSPLANTATION OR THER-
APY, OR IF THERE IS NO EXPRESSED INTENT, THE GIFT SHALL BE USED FOR
TRANSPLANTATION OR THERAPY, IF SUITABLE.
4. IF THE EXPRESSED INTENT OF THE GIFT IS FOR RESEARCH OR EDUCATION,
THE GIFT SHALL BE USED FOR THAT PURPOSE, IF SUITABLE. IF ANY PART OF THE
GIFT CANNOT BE USED FOR RESEARCH OR EDUCATION, THE PART MAY BE USED FOR
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TRANSPLANTATION OR THERAPY, UNLESS THERE IS AN EXPRESSED INTENT THAT THE
PART NOT BE USED FOR TRANSPLANTATION OR THERAPY.
5. IF A GIFT EXPRESSES THE INTENT THAT IT MAY BE USED FOR MORE THAN
ONE PURPOSE, IT SHALL BE USED FOR ANY OF THOSE PURPOSES, IF SUITABLE,
WITH PRIORITY FOR USE FOR TRANSPLANTATION OR THERAPY, OR IN A DIFFERENT
ORDER OF PRIORITY IF THAT IS EXPRESSED IN THE GIFT.
6. SUBJECT TO SUBDIVISIONS TWO, THREE, FOUR, AND FIVE OF THIS SUBDIVI-
SION, A GIFT OF A BODY PART OF A DECEDENT FOR A PARTICULAR INTENDED
PURPOSE SHALL NOT PRECLUDE THE MAKING OF ANOTHER GIFT UNDER THIS ARTICLE
OF A BODY OF THE DECEDENT FOR A PARTICULAR PURPOSE.
7. IF ANY PART CANNOT OR MAY NOT BE USED FOR TRANSPLANTATION, THERAPY,
RESEARCH, OR EDUCATION, CUSTODY OF THE PART SHALL PASS TO THE PERSON
AUTHORIZED TO DISPOSE OF THE PART.
S 4303. Manner of executing anatomical gifts. 1. A gift of all or part
of the body under this article may be made by will. The gift becomes
effective upon the death of the testator without waiting for probate. If
the will is not probated, or if it is declared invalid for testamentary
purposes, the gift, to the extent that it has been acted upon in good
faith, is nevertheless valid and effective.
2. A gift of all or part of the body under this article may also be
made by document other than a will. The gift becomes effective upon the
death of the donor. The document, which may be a card designed to be
carried on the person, must be signed by the donor. Delivery of the
document of gift during the donor's lifetime is not necessary to make
the gift valid.
3. The gift may be made either to a specified donee or without speci-
fying a donee. If the latter, the gift may be accepted by and utilized
under the direction of the attending physician upon or following death.
If the gift is made to a specified donee who is not available at the
time and place of death, the attending physician upon or following
death, in the absence of any expressed indication that the donor desired
otherwise, may accept the gift as donee. The physician who becomes a
donee under this subdivision shall not participate in the procedures for
removing or transplanting a part.
4. [Subject to the prohibitions in subdivision two of section four
thousand three hundred six] IF the donor [may designate in his will,
card or other] DESIGNATES IN THE document of gift the surgeon or physi-
cian to carry out the appropriate procedures, THE DESIGNATION SHALL BE
VOID BUT THE GIFT SHALL OTHERWISE BE VALID, UNLESS IT EXPLICITLY
PROVIDES OTHERWISE. [In the absence of a designation, or if the designee
is not available, the donee or other person authorized to accept the
gift may employ or authorize any surgeon or physician for the purpose.]
5. Any gift by a person designated in subdivision two of section [four
thousand three] FORTY-THREE hundred one of this article shall be by a
document signed by him or made by his telegraphic, ELECTRONIC, recorded
telephonic, or other recorded message.
S 4304. Delivery of document of gift. If the gift is made by the donor
to a specified donee, the will, card or other document or [an executed]
A copy thereof, may be delivered to him to expedite the appropriate
procedures immediately after death; HOWEVER, delivery is not necessary
to THE validity of the gift. [The will, card or other document, or an
executed copy thereof, may be deposited in any hospital, bank, storage
facility or registry office that accepts it for safekeeping or for
facilitation of procedures after death.] On request of an interested
party upon or after the donor's death, the person in possession shall
produce the document for examination.
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S 4305. Revocation of the gift. 1. [If the will, card, or other docu-
ment or executed copy thereof has been delivered to a specified donee,
the donor may amend or revoke the gift by:
(a) the execution and delivery to the donee of a signed statement, or
(b) an oral statement of revocation made in the presence of two
persons, communicated to the donee, or
(c) a statement during a terminal illness or injury addressed to an
attending physician and communicated to the donee, or
(d) a signed card or document, found on his person or in his effects.
2. Any document of gift which has not been delivered to the donee may
be revoked in the manner set out in subdivision one of this section or
by destruction, cancellation, or mutilation of the document and all
executed copies thereof.
3. Any gift made by a will may be revoked or amended in the manner
provided for revocation or amendment of wills or as provided in subdivi-
sion one of this section.] A GIFT MAY BE AMENDED OR REVOKED ORALLY IN
THE PRESENCE OF TWO DISINTERESTED WITNESSES OR IN A RECORD BY THE DONOR
OR, IF THE GIFT WAS MADE AFTER THE DONOR'S DEATH BY A PERSON AUTHORIZED
TO DO SO UNDER SECTION FORTY-THREE HUNDRED ONE OF THIS ARTICLE, BY THE
PERSON MAKING THE GIFT, BY MAJORITY DECISION OF THE REASONABLY AVAILABLE
MEMBERS OF THE CLASS THAT MADE THE GIFT OR OF THE CLASS OF THE PERSON
WHO MADE THE GIFT, OR BY A MEMBER OF A PRIOR CLASS WHO IS REASONABLY
AVAILABLE. IF MORE THAN ONE MEMBER OF THE PRIOR CLASS IS REASONABLY
AVAILABLE, THE GIFT MADE BY A PERSON AUTHORIZED UNDER SECTION
FORTY-THREE HUNDRED SIX OF THIS ARTICLE MAY BE:
(A) AMENDED ONLY IF A MAJORITY OF THE REASONABLY AVAILABLE MEMBERS
AGREE TO THE AMENDING OF THE GIFT; OR
(B) REVOKED ONLY IF A MAJORITY OF THE REASONABLY AVAILABLE MEMBERS
AGREE TO THE REVOKING OF THE GIFT OR IF THEY ARE EQUALLY DIVIDED AS TO
WHETHER TO REVOKE THE GIFT.
2. A REVOCATION OR AMENDMENT UNDER PARAGRAPH (A) OR (B) OF SUBDIVISION
ONE OF THIS SECTION IS EFFECTIVE ONLY IF AND AS KNOWN BY THE ORGAN
PROCUREMENT ORGANIZATION, TRANSPLANT HOSPITAL, PHYSICIAN OR TECHNICIAN
BEFORE AN INCISION HAS BEEN MADE TO REMOVE A PART FROM THE DONOR'S BODY
OR BEFORE INVASIVE PROCEDURES HAVE BEGUN TO PREPARE THE RECIPIENT. IN
THE CASE OF THE DONATION OF A WHOLE BODY OR PART FOR PURPOSES OF EDUCA-
TION OR RESEARCH, A REVOCATION UNDER PARAGRAPH (A) OF SUBDIVISION ONE OF
THIS SECTION IS EFFECTIVE ONLY IF THE DONEE KNOWS OR HAS REASON TO KNOW
OF THE REVOCATION BEFORE PROCEDURES ARE COMMENCED TO PREPARE THE BODY OR
PART FOR THE INTENDED USE.
S 4306. Rights and duties at death. 1. The donee may accept or reject
the gift. If the donee accepts a gift of the entire body, he may,
subject to the terms of the gift, authorize embalming and the use of the
body in funeral services. If the gift is of a part of the body, the
donee upon the death of the donor and prior to embalming, may cause the
part to be removed without unnecessary mutilation. After removal of the
part, custody of the remainder of the body vests in the surviving
spouse, next of kin, or other persons under obligation to dispose of the
body.
2. When a donor is determined dead based on irreversible cessation of
circulatory and respiratory functions, the time of death shall be certi-
fied by a physician. Such physician may not participate in the proce-
dure to remove or transplant the body part. In all other cases the time
of death shall be certified by the physician who attends the donor at
his death and one other physician, neither of whom shall participate in
the procedure for removing or transplanting the part.
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3. (A) A person who acts REASONABLY AND in good faith in accord with
the terms of this article or with the anatomical gift laws of another
[state] JURISDICTION is not liable for damages in any civil action or
subject to prosecution in any criminal proceeding for his OR HER act.
(B) A 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.
(C) AN ENTITY UNDER SECTION FORTY-THREE HUNDRED TWO OF THIS ARTICLE OR
HEALTH CARE PROFESSIONAL, OR AN AGENT OR EMPLOYEE THEREOF, WHO OR WHICH
RECOVERS, PROCURES, OBTAINS, OR UTILIZES AN ORGAN OR TISSUE IN REASON-
ABLE AND GOOD FAITH RELIANCE ON INFORMATION PROVIDED IN THE NEW YORK
STATE DONATE LIFE REGISTRY SHALL NOT BE LIABLE IN ANY CIVIL OR CRIMINAL
ACTION OR PROCEEDING FOR ACTION BASED ON SUCH RELIANCE.
[4. At the time of acceptance of the gift, when it is known that the
donation will be used for other than transplantation purposes, the donee
if requested by the donor or the donor's next of kin shall advise the
donor or the donor's next of kin of the body parts to be utilized, the
uses to which the body parts may be put, whether body parts may be
transferred to other facilities or institutions and plans for the ulti-
mate disposition of all body parts if the donor has not specified the
ultimate disposition.]
S 4306-A. DECISIONS RELATING TO LIFE-SUSTAINING TREATMENT. THIS
SECTION APPLIES IN CASES WHERE (I) A LIVING PATIENT WHO LACKS DECISION-
MAKING CAPACITY IS REASONABLY LIKELY, AFTER DEATH, TO BE A SUITABLE
ORGAN DONOR FOR TRANSPLANTATION OR THERAPY; (II) THE PATIENT HAS MADE AN
ANATOMICAL GIFT OR THERE IS NO NOTICE OF OPPOSITION TO SUCH AN ANATOM-
ICAL GIFT BY THE PATIENT; (III) A HEALTH CARE AGENT OR SURROGATE DECI-
SION-MAKER HAS MADE, OR MAY SOON MAKE A LAWFUL DECISION TO WITHDRAW OR
WITHHOLD LIFE-SUSTAINING TREATMENT FROM THE PATIENT; AND (IV) THE TIME,
PLACE OR MANNER OF WITHDRAWING OR WITHHOLDING TREATMENT COULD AFFECT THE
MEDICAL SUITABILITY OF THE PATIENT'S ORGANS FOR TRANSPLANTATION OR THER-
APY. IN SUCH INSTANCES, THE ATTENDING PHYSICIAN SHALL OFFER TO CONSULT
WITH THE AGENT OR SURROGATE, IN COLLABORATION WITH A REPRESENTATIVE OF
THE ORGAN PROCUREMENT ORGANIZATION, AND SHALL, AS REASONABLY AND
MEDICALLY APPROPRIATE, DEFER THE WITHDRAWAL OR WITHHOLDING OF LIFE-SUS-
TAINING TREATMENT PENDING SUCH CONSULTATION. THE AGENT OR SURROGATE,
AFTER SUCH CONSULTATION, AND AFTER CONSIDERATION OF THE PATIENT'S
REASONABLY KNOWN WISHES UNDER THE CIRCUMSTANCES, MAY AGREE TO THE
MODIFICATION OF THE TIME, PLACE OR MANNER OF THE WITHDRAWAL OF TREATMENT
IN ORDER TO ENSURE THE MEDICAL SUITABILITY OF THE PATIENT'S ORGANS,
PROVIDED SUCH DECISION WOULD NOT BE CONTRARY TO THE PATIENT'S REASONABLY
KNOWN WISHES.
S 4307. Prohibition of sales and purchases of human organs. 1. It
shall be unlawful for any person to knowingly acquire, receive, or
otherwise transfer for valuable consideration any human organ OR TISSUE
for use in human transplantation. [The term human organ means the human
kidney, liver, heart, lung, bone marrow, and any other human organ or
tissue as may be designated by the commissioner but shall exclude
blood.] The term "valuable consideration" does not include the reason-
able payments associated with the removal, transportation, implantation,
processing, preservation, quality control, and storage of a human organ
OR TISSUE or the expenses of travel, housing, and lost wages incurred by
the donor of a human organ in connection with the donation of the organ.
A. 7799 9
Any person who violates this section shall be guilty of a class E felo-
ny.
2. For the purposes of this section, the donation of a kidney or other
organ from a live donor for transplantation into an individual condi-
tioned upon the donation and transplantation of a similar organ into an
individual specified by the donor shall not, in and of itself, be
considered to be "valuable consideration" provided that such donation
and transplant are performed in accordance with other applicable laws,
rules and regulations, including any specific rules and regulations the
commissioner may adopt, with the advice and consent of the transplant
council, with respect to such conditional donations. No individual may
make a donation conditioned upon the race, color, creed, national origin
or religious affiliation of the recipient, and no hospital, organ
procurement organization, tissue bank, physician or other professional
may participate in the performance of any procedure or otherwise facili-
tate the donation and/or transfer of organs and/or tissue conditioned on
such factors.
S 4308. Prohibition on charging a fee to a donor's estate. Notwith-
standing any other provision of law, no physician, hospital or other
health care provider may charge the donor's estate, family or insurer
for any cost incurred in testing or removing a human organ or tissue
from a donor and such charge shall be void and unenforceable.
S 4309. Application. The provisions of this article shall not be
deemed to supersede or affect the provisions of the public health law
relating to the functions, powers and duties of coroners, coroner's
physicians or medical examiners.
S 4310. New York state donate life registry for organ and tissue
donations. 1. The department shall establish an organ and tissue donor
registry, which shall be called and be referred to as the "NEW YORK
STATE donate life registry", OR THE "REGISTRY", which shall contain a
listing of all donors who have [declared their consent to make] MADE an
anatomical gift THROUGH THE REGISTRY.
2. [Such registration of consent to make an] AN anatomical gift can be
made through (a) indication made on the application or renewal form of a
DRIVER'S license, (b) indication made on a non-driver identification
card application or renewal form, (c) enrolling in the registry website
maintained by the department, which may include using an electronic
signature under regulations of the commissioner and subject to article
three of the state technology law, (d) indication made on a voter regis-
tration form pursuant to subdivision five of section 5-210 of the
election law, or (e) through any other method identified by the commis-
sioner. [The registration shall take effect upon the department sending
written notice of the registration to the person enrolling in the regis-
try.] WITH RESPECT TO REGISTRATIONS MADE UNDER PARAGRAPH (A), (B) OR (D)
OF THIS SUBDIVISION, ALL INFORMATION DETERMINED NECESSARY BY THE DEPART-
MENT SHALL BE PROVIDED BY THE DEPARTMENT OF MOTOR VEHICLES AND THE BOARD
OF ELECTIONS IN A FORMAT REQUIRED BY THE DEPARTMENT. In making regu-
lations on using an electronic signature for a registration of consent,
the commissioner shall consult with the director of the office of tech-
nology.
3. (a) Information contained in the registry shall be accessible to
(i) federally regulated organ procurement [agencies] ORGANIZATIONS, (ii)
[eye and tissue] banks licensed by the department pursuant to article
forty-three-B of this chapter, (iii) any other entity formally approved
by the commissioner.
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(b) [The] INDIVIDUALLY IDENTIFIABLE information contained in the
registry shall not be released to any person except as expressly author-
ized by this section solely for the purpose of identifying potential
organ and tissue donors at or near the time of death, HOWEVER DEIDENTI-
FIED AND AGGREGATE INFORMATION, INCLUDING DEMOGRAPHIC INFORMATION MAY BE
RELEASED TO THE ENTITIES DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION,
FOR PURPOSES OF QUALITY REVIEW AND ASSURANCE AND THE CREATION OF STATIS-
TICAL REPORTS.
4. [If the department had an established registry prior to the effec-
tive date of this section, it shall be deemed to meet the requirements
of this section.
5.] The registry shall provide persons enrolled the opportunity to
specify which organs and tissues they want to donate and if the donation
can be used for transplantation, THERAPY, research, [or both] EDUCATION
OR ANY COMBINATION THEREOF. IF A PERSON DOES NOT RESTRICT HIS OR HER
DONATION, THE CONSENT SHALL BE DEEMED TO BE A CONSENT FOR ANY AND ALL
ORGANS AND TISSUES FOR TRANSPLANTATION, THERAPY, AND RESEARCH PURPOSES.
[6. A person registered in the organ and tissue registry before the
effective date of this subdivision shall be deemed to have expressed
intent to donate, until and unless he or she files an amendment to his
or her registration or a new registration expressing consent to donate.
7. The commissioner shall contact each person registered before the
effective date of this subdivision in the organ and tissue registry in
writing to inform him or her that at the time he or she registered, the
registry was that of intent and that the registry is now one of consent,
to explain in clear and understandable terms the difference between
intent and consent, and to provide opportunity for the person to change
his or her registration to provide consent by amending his or her
current registration or executing a new registration.
8.] 5. UPON THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOU-
SAND ELEVEN WHICH AMENDED THIS SECTION, ANY REGISTRATION ON THE DONATE
LIFE REGISTRY SHALL BE DEEMED TO BE AN AUTHORIZATION OF THE SPECIFIED
ANATOMICAL GIFT, WHICH CANNOT BE REVOKED BY ANY THIRD PARTY.
6. The commissioner is authorized to promulgate rules and regulations
necessary to implement the provisions of this section.
S 4311. REQUEST FOR CONSENT TO AN ANATOMICAL GIFT. 1. (A) WHEN THE
DEATH OF A PERSON IN A HOSPITAL HAS OCCURRED OR IS IMMINENT, THE HOSPI-
TAL SHALL CONTACT THE FEDERALLY DESIGNATED ORGAN PROCUREMENT ORGANIZA-
TION IN ORDER TO MAKE A PRELIMINARY DETERMINATION OF THE SUITABILITY OF
THE PERSON FOR ORGAN DONATION. A HOSPITAL SHALL MAKE SUCH CONTACT IN A
TIMELY MANNER SUFFICIENT TO ENSURE THAT THE EXAMINATION, EVALUATION, AND
ASCERTAINMENT OF DONOR STATUS CAN BE COMPLETED WITHIN A TIME FRAME
COMPATIBLE WITH THE DONATION OF ORGANS AND TISSUES FOR TRANSPLANT. THE
NOTIFICATION SHALL BE MADE WITHOUT REGARD TO WHETHER THE PERSON HAS
EXECUTED AN ADVANCE DIRECTIVE FOR HEALTH CARE.
(B) WHEN A HOSPITAL REFERS A PERSON WHO IS DEAD OR WHOSE DEATH IS
IMMINENT TO AN ORGAN PROCUREMENT ORGANIZATION, THE ORGANIZATION SHALL
MAKE A REASONABLE SEARCH OF THE RECORDS OF THE NEW YORK STATE DONATE
LIFE REGISTRY AND ANY STATE-AUTHORIZED DONOR REGISTRY THAT IT KNOWS
EXISTS FOR THE GEOGRAPHICAL AREA IN WHICH THE PERSON RESIDES IN ORDER TO
ASCERTAIN WHETHER THE PERSON HAS MADE AN ANATOMICAL GIFT.
(C) IF THE PATIENT HAS A VALIDLY EXECUTED DONOR CARD, DONOR DESIG-
NATION ON A DRIVER'S LICENSE, ADVANCE DIRECTIVE FOR HEALTH CARE, WILL,
OTHER DOCUMENT OF GIFT, OR REGISTRATION WITH A STATEWIDE ORGAN AND
TISSUE DONOR REGISTRY, THE PROCUREMENT ORGANIZATION REPRESENTATIVE OR
THE DESIGNATED REQUESTER SHALL ATTEMPT TO NOTIFY A PERSON LISTED IN
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SECTION FORTY-THREE HUNDRED SIX OF THIS ACT OF THE GIFT. IF NO DOCUMENT
OF GIFT IS KNOWN TO THE PROCUREMENT ORGANIZATION REPRESENTATIVE OR THE
DESIGNATED REQUESTER, ONE OF THOSE TWO INDIVIDUALS SHALL ASK AN APPRO-
PRIATE PERSON LISTED IN SECTION FORTY-THREE HUNDRED SIX OF THIS ACT
WHETHER THE DECEDENT HAD A VALIDLY EXECUTED DOCUMENT OF GIFT. IF THERE
IS NO EVIDENCE OF AN ANATOMICAL GIFT OR REFUSAL BY THE DECEDENT, THE
PROCUREMENT ORGANIZATION REPRESENTATIVE OR THE DESIGNATED REQUESTER
SHALL ATTEMPT TO NOTIFY A PERSON LISTED IN SECTION FORTY-THREE HUNDRED
SIX OF THIS ARTICLE OF THE OPTION TO DONATE ORGANS OR TISSUES.
(D) ALL HOSPITALS SHALL SELECT AT LEAST ONE EYE BANK OR TISSUE BANK
FOR THE PROCUREMENT OF TISSUE, AS DEFINED IN SECTION FORTY-THREE HUNDRED
SIXTY OF THIS CHAPTER. A HOSPITAL SHALL NOTIFY THE FEDERALLY DESIGNATED
ORGAN PROCUREMENT ORGANIZATION OF ITS CHOICE OF TISSUE PROCUREMENT
PROVIDERS. IF A HOSPITAL SELECTS MORE THAN ONE EYE BANK OR TISSUE BANK
AS A PROCUREMENT PROVIDER, IT MAY SPECIFY A ROTATION OF REFERRALS FOR
PURPOSES OF TISSUE PROCUREMENT.
2. WHERE THE FEDERALLY DESIGNATED ORGAN PROCUREMENT ORGANIZATION, EYE
BANK OR TISSUE BANK IS CONTACTED, IT SHALL, IN CONSULTATION WITH THE
HOSPITAL, AFTER APPROPRIATE MEDICAL SCREENING (WHICH MAY INCLUDE MINI-
MALLY INVASIVE TESTING), DETERMINE SUITABILITY FOR ORGAN, EYE AND TISSUE
DONATION, AS APPROPRIATE. WHERE A FEDERALLY DESIGNATED ORGAN PROCUREMENT
ORGANIZATION IS CONTACTED, IT SHALL CONTACT THE APPROPRIATE EYE BANK OR
TISSUE BANK WITH RESPECT TO SUITABILITY FOR EYE OR TISSUE DONATION.
3. IF THE FEDERALLY DESIGNATED ORGAN PROCUREMENT ORGANIZATION, EYE
BANK OR TISSUE BANK DETERMINES THAT ORGAN, EYE OR TISSUE DONATION,
RESPECTIVELY, IS NOT APPROPRIATE BASED ON ESTABLISHED MEDICAL CRITERIA,
THIS SHALL BE NOTED BY HOSPITAL PERSONNEL ON THE PATIENT'S RECORD, AND
NO FURTHER ACTION WITH RESPECT TO ORGAN, EYE OR TISSUE DONATION, RESPEC-
TIVELY, IS NECESSARY.
4. WHERE A PATIENT IS A SUITABLE CANDIDATE FOR ORGAN, EYE OR TISSUE
DONATION AND WHERE THE PATIENT HAS NOT PROPERLY EXECUTED AN ORGAN DONOR
CARD, DRIVER'S LICENSE AUTHORIZATION TO MAKE AN ANATOMICAL GIFT, PURSU-
ANT TO PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION FIVE HUNDRED FOUR OF
THE VEHICLE AND TRAFFIC LAW, CONSENTED TO MAKE AN ANATOMICAL GIFT AND BE
ENROLLED IN THE NEW YORK STATE DONATE LIFE REGISTRY UNDER SECTION
FORTY-THREE HUNDRED TEN OF THIS ARTICLE, OR OTHERWISE GIVEN WRITTEN
AUTHORIZATION FOR ORGAN, EYE OR TISSUE DONATION, THE HOSPITAL OR ITS
DESIGNEE SHALL CAUSE A TIMELY REQUEST TO BE MADE TO ANY OF THE PERSONS
LISTED IN SUBDIVISION TWO OF SECTION FORTY-THREE HUNDRED ONE OF THIS
ARTICLE.
5. THE PERSON INITIATING THE REQUEST SHALL BE DESIGNATED BY A HOSPITAL
AND SHALL BE A REPRESENTATIVE OF A FEDERALLY DESIGNATED ORGAN PROCURE-
MENT ORGANIZATION, EYE BANK, TISSUE BANK, OR A DESIGNATED REQUESTOR. AS
USED IN THIS SECTION A "DESIGNATED REQUESTOR" SHALL MEAN A PERSON WHO
HAS COMPLETED A COURSE PROVIDED BY A FEDERALLY DESIGNATED ORGAN PROCURE-
MENT ORGANIZATION, EYE BANK OR TISSUE BANK, WHICHEVER IS APPLICABLE, ON
HOW TO APPROACH POTENTIAL DONOR FAMILIES AND REQUEST ORGAN, EYE, OR
TISSUE DONATION.
S 2. Article 43-A of the public health law is REPEALED.
S 3. Subparagraph (x) of paragraph (a) of subdivision 2 of section
4201 of the public health law, as amended by chapter 401 of the laws of
2007, is amended to read as follows:
(x) a chief fiscal officer of a county or a public administrator
appointed pursuant to article twelve or thirteen of the surrogate's
court procedure act, [or] any other person acting on behalf of the dece-
dent, provided that such person has executed a written statement pursu-
A. 7799 12
ant to subdivision seven of this section, A CORONER, MEDICAL EXAMINER,
OR A HOSPITAL ADMINISTRATOR.
S 4. This act shall take effect immediately; provided that sections
one and two of this act shall take effect on the first of January next
succeeding the date on which this act shall have become a law; and
provided further that effective immediately it shall be lawful for a
hospital, organ procurement organization, or bank or storage facility as
defined in article 43 or 43-B of the public health law to adopt and
implement policies that are consistent with article 43 of the public
health law as amended by section one of this act, and for appropriate
personnel to act in accordance with such policies.