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This entry was published on 2020-06-26
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SECTION 4301
Persons who may execute an anatomical gift
Public Health (PBH) CHAPTER 45, ARTICLE 43
§ 4301. Persons who may execute an anatomical gift. 1. (a) Any
individual of sound mind and eighteen years of age or more may make an
anatomical gift to take effect upon their death for any purpose
specified in section forty-three hundred two of this article, limit an
anatomical gift to one or more of those purposes, or refuse to make an
anatomical gift. In any case where the donor has a properly executed
document of gift authorization for donation shall not be rescinded or
amended by any other person except upon a showing that the donor revoked
the authorization pursuant to section forty-three hundred five of this
article.

(b) Any person who is sixteen or seventeen years of age and of sound
mind may make an anatomical gift to take effect upon their death for any
purpose specified in section forty-three hundred two of this article,
limit an anatomical gift to one or more of those purposes, or refuse to
make an anatomical gift. In any case where the donor has a properly
executed document of gift, notice of such gift shall be provided to the
donor's parents or guardians, and authorization for donation may be
rescinded or amended by an objection by a parent or guardian of the
donor at the time of death and prior to the recovery of any organ or
tissue if the donor is less than eighteen years of age. An anatomical
gift made by an individual more than sixteen years of age but less than
eighteen shall otherwise not be rescinded, except upon a showing that
the donor revoked the authorization pursuant to section forty-three
hundred five of this article. Upon the donor reaching the age of
eighteen, the donor's consent to donate his or her organs or tissue
shall be regarded as consent for authorization to make an anatomical
gift pursuant to paragraph (a) of this subdivision.

(c) In the absence of an express, contrary indication by the donor, an
anatomical gift of a part is neither a refusal to give other parts nor a
limitation on an individual's ability to make an anatomical gift under
subdivision two of this section.

2. (a) In the absence of a gift made by the donor under subdivision
one of this section, and in the absence of actual notice of contrary
indications by the decedent, including religious or moral objections, an
anatomical gift of the decedent's body may be made by any member of the
following classes of persons who is reasonably available, in the order
of priority listed, for any purpose specified in section forty-three
hundred two of this article:

(i) 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,

(ii) the person designated as the decedent's agent in a written
instrument under article forty-two of this chapter, subject to any
written statement in the written instrument,

(iii) the spouse, if not legally separated from the patient, or the
domestic partner,

(iv) a son or daughter eighteen years of age or older,

(v) either parent,

(vi) a brother or sister eighteen years of age or older,

(vii) an adult grandchild of the decedent,

(viii) a grandparent of the decedent,

(ix) a guardian of the person of the decedent at the time of his or
her death, or

(x) any other person authorized or under the obligation to dispose of
the body.

(b) If there is more than one member of a class listed in subparagraph
(iv), (vi), (vii), or (viii) of paragraph (a) 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 person 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 who are
reasonably available.

3. An anatomical gift may not be made by a person listed in
subdivision two of this section if:

(a) a person in a prior class is reasonably available;

(b) the person proposing to make an anatomical gift knows of a refusal
or contrary indications by the decedent, including that an anatomical
gift is contrary to the decedent's religious or moral beliefs.

4. Any gift by a person designated in subdivision two of this section
shall be by a document signed by him or her or made by his or her
telegraphic, recorded telephonic, or other recorded message. Where a
gift is made under this subdivision, either: (a) the authorizing party
shall indicate in the document or message that he or she has no actual
notice of contrary indications by the decedent and no reason to believe
that an anatomical gift is contrary to the decedent's religious or moral
beliefs; or (b) an agent of the organ procurement organization or of the
donee shall make reasonable efforts to inquire of the authorizing party
or otherwise determine that the authorizing party has no actual notice
of contrary indications by the decedent and no reason to believe that an
anatomical gift is contrary to the decedent's religious or moral
beliefs.

5. The donee shall not accept the gift under the following
circumstances:

(a) the donee has actual notice of contrary indication by the
decedent;

(b) where an anatomical gift is not properly made pursuant to this
section; or

(c) the donee has reason to believe that an anatomical gift is
contrary to the decedent's religious or moral beliefs.

6. A gift of all or part of a body authorizes any examination
necessary to assure medical acceptability of gift for the purposes
intended.

7. 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. 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.