Bill Text: NY A07800 | 2019-2020 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to definitions and conforming changes pertaining to anatomical gifts (Part A); gift revocation (Part B); dispositions of gifts (Part C); documents of gifts (Part D); duties of donees (Part E); advance directives (Part F); and prohibition of sales of organs (Part G).
Spectrum: Bipartisan Bill
Status: (Passed) 2019-12-26 - APPROVAL MEMO.87 [A07800 Detail]
Download: New_York-2019-A07800-Introduced.html
Bill Title: Relates to definitions and conforming changes pertaining to anatomical gifts (Part A); gift revocation (Part B); dispositions of gifts (Part C); documents of gifts (Part D); duties of donees (Part E); advance directives (Part F); and prohibition of sales of organs (Part G).
Spectrum: Bipartisan Bill
Status: (Passed) 2019-12-26 - APPROVAL MEMO.87 [A07800 Detail]
Download: New_York-2019-A07800-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7800 2019-2020 Regular Sessions IN ASSEMBLY May 23, 2019 ___________ Introduced by M. of A. GOTTFRIED -- read once and referred to the Committee on Health AN ACT to amend the public health law, in relation to definitions and conforming changes pertaining to anatomical gifts (Part A); to amend the public health law, in relation to changes in anatomical gift revo- cation and amendment; and to repeal certain provisions of such law relating thereto (Part B); to amend the public health law, in relation to uses and dispositions of anatomical gifts; and to repeal certain provisions of such law relating thereto (Part C); to amend the public health law, in relation to delivery of documents of gift (Part D); to amend the public health law, in relation to rights and duties of donees at death (Part E); to amend the public health law, in relation to interactions between advance directives and anatomical gifts (Part F); and to amend the public health law, in relation to prohibition of sales or purchase of human organs (Part G) The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The purpose of this legislation is to 2 incorporate the amended provisions of the Uniform Anatomical Gift Act 3 (UAGA) as drafted by the National Conference of Commissioners on Uniform 4 State Laws to enhance the organ donation process. The UAGA was enacted 5 in 1968 following the first successful heart transplant and was revised 6 in 1987 and 2006 to clarify consent rules and other processes. While New 7 York has made recent improvements to its organ donation registry and 8 processes, it still faces a severe organ shortage. It is estimated that 9 bringing New York's anatomical gift consent rules alone into agreement 10 with the UAGA would result in increased numbers of organ donors and 11 would save lives through transplantation. Provisions of this act should 12 not be construed to interfere with a potential donor's recorded intent 13 to make a whole body donation in instances where the potential donor's 14 body is suitable for such donation at death, nor does the gift of a EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11680-02-9A. 7800 2 1 whole body preclude donation for transplant, unless such use is express- 2 ly refused by the donor or the authorizing party. 3 § 2. Short title. This act shall be known and may be cited as the "New 4 York Gift Act". 5 § 3. This act enacts into law changes to the anatomical gift process. 6 Each component is wholly contained within a Part identified as Parts A 7 through G. The effective date for each particular provision contained 8 within such Part is set forth in the last section of such Part. Any 9 provision in any section contained within a Part, including the effec- 10 tive date of the Part, which makes a reference to a section "of this 11 act", when used in connection with that particular component, shall be 12 deemed to mean and refer to the corresponding section of the Part in 13 which it is found. Sections four and five of this act set forth the 14 severability and the general effective dates of this act, respectively. 15 PART A 16 Section 1. Section 4300 of the public health law, as added by chapter 17 466 of the laws of 1970, is amended to read as follows: 18 § 4300. Definitions. As used in this [section] article, the following 19 terms shall have the following meanings: 20 1. "Anatomical gift" or "gift" means a donation of all or part of a 21 human body, to take effect after the donor's death, for the purpose of 22 transplantation, therapy, research or education. 23 2. "Bank or storage facility" or "bank" means a hospital, laboratory 24 or other facility licensed or approved under the laws of any state for 25 storage of human bodies or parts thereof, for use in medical education, 26 research, therapy, or transplantation to individuals. 27 3. "Close friend" means any person, eighteen years of age or older, 28 who is a close friend of the patient, or a relative of the patient 29 (other than a spouse, adult child, parent, brother or sister), who has 30 maintained such regular contact with the patient as to be familiar with 31 the patient's activities, health, and religious or moral beliefs. 32 [2.] 4. "Decedent" means a deceased individual of any age [and] whose 33 body or part is or may be the source of an anatomical gift. The term 34 includes a stillborn infant [or] and, subject to restrictions imposed by 35 law other than this article, a fetus. 36 5. "Disinterested witness" means a witness other than the spouse, 37 domestic partner, child, parent, sibling, grandchild, grandparent, or 38 guardian of the individual who makes, amends, revokes, or refuses to 39 make an anatomical gift, or a close friend, or another adult who is 40 related to the decedent by blood, marriage, or adoption. 41 6. "Document of gift" means an organ donor card, driver's license 42 authorization to make an anatomical gift, pursuant to paragraph (a) of 43 subdivision one of section five hundred four of the vehicle and traffic 44 law, authorization to make an anatomical gift pursuant to any of the 45 methods in subdivision five of section forty-three hundred ten of this 46 article, or any other written authorization for an anatomical gift. The 47 term "document of gift" includes a statement on a driver's license, 48 identification card, enrollment in a donor registry, or any other 49 anatomical gift document valid pursuant to the laws of this or any other 50 state. 51 7. "Domestic partner" has the same meaning as described in subdivision 52 seven of section twenty-nine hundred ninety-four-a of the public health 53 law.A. 7800 3 1 8. "Donee" means an individual or entity authorized to accept an 2 anatomical gift pursuant to section forty-three hundred two of this 3 article. 4 [3.] 9. "Donor" means an individual [who makes a gift of all or part5of his] whose body or part is the subject of an anatomical gift. 6 10. "Eye bank" means a person that is licensed, accredited, or regu- 7 lated under federal or state law to engage in the recovery, screening, 8 testing, processing, storage, or distribution of human eyes or portions 9 of human eyes. 10 11. "Guardian" means a person appointed by a court to make decisions 11 regarding the support, care, education, health, or welfare of an indi- 12 vidual. The term does not include a guardian ad litem. 13 [4.] 12. "Hospital" means a hospital licensed, accredited, or approved 14 under the laws of any state and includes a hospital operated by the 15 United States Government, a state, or a subdivision thereof, although 16 not required to be licensed under state laws. 17 13. "Human paired organ donation" means the donation and receipt of 18 human organs under the following circumstances: 19 (a) An individual (referred to in this subdivision as the "first 20 donor") desires to make a living donation of a human organ specifically 21 to a particular patient (referred to in this subdivision as "first 22 patient"), but such donor is biologically incompatible as a donor for 23 such patient. 24 (b) A second individual (referred to in this subdivision as the 25 "second donor") desires to make a living donation of a human organ 26 specifically to a second particular patient (referred to in this subdi- 27 vision as the "second patient"), but such donor is biologically incom- 28 patible as a donor for such patient. 29 (c) Subject to paragraph (d) of this subdivision, the first donor is 30 biologically compatible as a donor of a human organ for the second 31 patient, and the second donor is biologically compatible as a donor of a 32 human organ for the first patient. 33 (d) If there is any additional donor-patient pair as described in 34 paragraph (a) or (b) of this subdivision, each donor in the group of 35 donor-patient pairs is biologically compatible as a donor of a human 36 organ for a patient in such group. 37 (e) All donors and patients in the group of donor-patient pairs 38 (whether two pairs, or more than two pairs) enter into a single agree- 39 ment to donate and receive such human organs, respectively, according to 40 such biological compatibility in the group. 41 (f) Other than as described in paragraph (e) of this subdivision, no 42 valuable consideration is knowingly acquired, received, or otherwise 43 transferred with respect to the human organs referred to in such para- 44 graph. 45 14. "Organ procurement organization" means a person designated by the 46 secretary of the United States Department of Health and Human Services 47 as an organ procurement organization. 48 15. "Parent" means a parent whose parental rights have not been termi- 49 nated. 50 [5.] 16. "Part" of a body means and includes organs, tissues, eyes, 51 bones, arteries, blood, other fluids and other portions of a human body, 52 and "part" includes "parts". The term does not include the whole body. 53 [6.] 17. "Person" means an individual, corporation, government or 54 governmental subdivision or agency, business trust, estate, trust, part- 55 nership or association, or any other legal entity.A. 7800 4 1 [7.] 18. "Physician" or "surgeon" means a physician or surgeon 2 licensed or authorized to practice under the laws of any state. 3 19. "Prospective donor" means an individual who is dead or near death 4 and has been determined by a procurement organization to have a part 5 that could be medically suitable for transplantation, therapy, research, 6 or education. The term does not include an individual who has made a 7 refusal. 8 20. "Procurement organization" means an eye bank, organ procurement 9 organization, or tissue bank. 10 21. "Reasonably available" means able to be contacted by a procurement 11 organization without undue effort and willing and able to act in a time- 12 ly manner consistent with existing medical criteria necessary for the 13 making of an anatomical gift. 14 22. "Record" means information that is inscribed on a tangible medium 15 or that is stored in an electronic or other medium and is retrievable in 16 perceivable form. 17 23. "Refusal" means a record created under section forty-three hundred 18 five of this article that expressly states an intent to bar other 19 persons from making an anatomical gift. 20 [8.] 24. "State" includes any state, district, commonwealth, territo- 21 ry, insular possession, and any other area subject to the legislative 22 authority of the United States of America. 23 25. "Tissue bank" means a person that is licensed, accredited, or 24 regulated under federal or state law to solicit, retrieve, perform donor 25 selection and/or testing, preserve, transport, allocate, distribute, 26 acquire, process, store or arrange for the storage of human tissues for 27 transplantation, transfer, therapy, artificial insemination or implanta- 28 tion, including autogeneic procedures. 29 § 2. This act shall take effect immediately. 30 PART B 31 Section 1. Section 4301 of the public health law, as amended by chap- 32 ter 348 of the laws of 2009, subdivision 1 as amended by chapter 248 of 33 the laws of 2016, is amended to read as follows: 34 § 4301. Persons who may execute an anatomical gift. 1. (a) Any indi- 35 vidual of sound mind and eighteen years of age or more may [give all or36any part of his or her body] make an anatomical gift to take effect upon 37 their death for any purpose specified in section forty-three hundred two 38 of this article, [the gift to take effect upon death] limit an anatom- 39 ical gift to one or more of those purposes, or refuse to make an anatom- 40 ical gift. In any case where the donor has a properly executed [an organ41donor card, driver's license authorization to make an anatomical gift,42pursuant to paragraph (a) of subdivision one of section five hundred43four of the vehicle and traffic law, registered in the New York state44organ and tissue donor registry under section forty-three hundred ten of45this article, or has otherwise given written authorization for organ or46tissue donation,] document of gift authorization for donation shall not 47 be rescinded [by an objection by a member of any of the classes speci-48fied in paragraphs (a) through (h) of subdivision two of this section,] 49 or amended by any other person except upon a showing that the donor 50 revoked the authorization pursuant to section forty-three hundred five 51 of this article. 52 (b) Any person who is sixteen or seventeen years of age and of sound 53 mind may [give all or any part of his or her body] make an anatomical 54 gift to take effect upon their death for any purpose specified inA. 7800 5 1 section forty-three hundred two of this article, [the gift to take2effect upon death] limit an anatomical gift to one or more of those 3 purposes, or refuse to make an anatomical gift. In any case where the 4 donor has a properly executed [an organ donor card, driver's license5authorization to make an anatomical gift, pursuant to paragraph (a) of6subdivision one of section five hundred four of the vehicle and traffic7law, or has otherwise given written authorization for organ or tissue8donation] document of gift, notice of such gift shall be provided to the 9 donor's parents or [legal] guardians, and authorization for donation may 10 be rescinded or amended by an objection by a parent or [legal] guardian 11 of the donor at the time of death and prior to the recovery of any organ 12 or tissue if the donor is less than eighteen years of age. An anatomical 13 gift made by an individual more than sixteen years of age but less than 14 eighteen shall otherwise not be rescinded, except upon a showing that 15 the donor revoked the authorization pursuant to section forty-three 16 hundred five of this article. Upon the donor reaching the age of eigh- 17 teen, the donor's consent to donate his or her organs or tissue shall be 18 regarded as consent for authorization to make an anatomical gift pursu- 19 ant to paragraph (a) of this subdivision. 20 (c) In the absence of an express, contrary indication by the donor, an 21 anatomical gift of a part is neither a refusal to give other parts nor a 22 limitation on an individual's ability to make an anatomical gift under 23 subdivision two of this section. 24 2. [Any of the following persons, in the order of priority stated,25may, when persons in prior classes are not reasonably available, will-26ing, and able to act, at the time of death, and in the absence of actual27notice of contrary indications by the decedent, or actual notice of28opposition by a member of the same class or prior class specified in29paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision,30or reason to believe that] (a) In the absence of a gift made by the 31 donor under subdivision one of this section, and in the absence of actu- 32 al notice of contrary indications by the decedent, including religious 33 or moral objections, an anatomical gift [is contrary to the decedent's34religious or moral beliefs, give all or any part] of the decedent's body 35 may be made by any member of the following classes of persons who is 36 reasonably available, in the order of priority listed, for any purpose 37 specified in section forty-three hundred two of this article: 38 [(a)] (i) the person designated as the decedent's health care agent 39 under article twenty-nine-C of this chapter, subject to any written 40 statement in the health care proxy form, 41 [(b)] (ii) the person designated as the decedent's agent in a written 42 instrument under article forty-two of this chapter, subject to any writ- 43 ten statement in the written instrument, 44 [(c)] (iii) the spouse, if not legally separated from the patient, or 45 the domestic partner, 46 [(d)] (iv) a son or daughter eighteen years of age or older, 47 [(e)] (v) either parent, 48 [(f)] (vi) a brother or sister eighteen years of age or older, 49 [(g)] (vii) an adult grandchild of the decedent, 50 (viii) a grandparent of the decedent, 51 (ix) a close friend, 52 (x) a guardian of the person of the decedent at the time of his death, 53 or 54 [(h)] (xi) any other person authorized or under the obligation to 55 dispose of the body.A. 7800 6 1 (b) If there is more than one member of a class listed in subparagraph 2 (iv), (vi), (vii), or (viii) of paragraph (a) of this subdivision enti- 3 tled to make an anatomical gift, an anatomical gift may be made by a 4 member of the class unless that member or person knows of an objection 5 by another member of the class. If an objection is known, the gift may 6 be made only by a majority of the members of the class who are reason- 7 ably available. 8 3. [For the purposes of this section, "reasonably available" means9that a person to be contacted can be contacted without undue effort and10willing and able to act in a timely manner consistent with existing11medical criteria necessary for the making of an anatomical gift.124. For the purposes of this section, "domestic partner" means a person13who, with respect to another person:14(a) is formally a party in a domestic partnership or similar relation-15ship with the other person, entered into pursuant to the laws of the16United States or any state, local or foreign jurisdiction, or registered17as the domestic partner of the person with any registry maintained by18the employer of either party or any state, municipality, or foreign19jurisdiction; or20(b) is formally recognized as a beneficiary or covered person under21the other person's employment benefits or health insurance; or22(c) is dependent or mutually interdependent on the other person for23support, as evidenced by the totality of the circumstances indicating a24mutual intent to be domestic partners including but not limited to:25common ownership or joint leasing of real or personal property; common26householding, shared income or shared expenses; children in common;27signs of intent to marry or become domestic partners under paragraph (a)28or (b) of this subdivision; or the length of the personal relationship29of the persons.30Each party to a domestic partnership shall be considered to be the31domestic partner of the other party. "Domestic partner" shall not32include a person who is related to the other person by blood in a manner33that would bar marriage to the other person in New York state. "Domestic34partner" shall also not include any person who is less than eighteen35years of age or who is the adopted child of the other person or who is36related by blood in a manner that would bar marriage in New York state37to a person who is the lawful spouse of the other person.] An anatomical 38 gift may not be made by a person listed in subdivision two of this 39 section if: 40 (a) a person in a prior class is reasonably available; 41 (b) the person proposing to make an anatomical gift knows of a refusal 42 or contrary indications by the decedent, including that an anatomical 43 gift is contrary to the decedent's religious or moral beliefs. 44 4. Any gift by a person designated in subdivision two of this section 45 shall be by a document signed by him or her or made by his or her tele- 46 graphic, recorded telephonic, or other recorded message. Where a gift is 47 made under this subdivision, either: (a) the authorizing party shall 48 indicate in the document or message that he or she has no actual notice 49 of contrary indications by the decedent and no reason to believe that an 50 anatomical gift is contrary to the decedent's religious or moral 51 beliefs; or (b) an agent of the federally designated organ procurement 52 organization or of the donee shall make reasonable efforts to inquire of 53 the authorizing party or otherwise determine that the authorizing party 54 has no actual notice of contrary indications by the decedent and no 55 reason to believe that an anatomical gift is contrary to the decedent's 56 religious or moral beliefs.A. 7800 7 1 5. The donee shall not accept the gift under the following circum- 2 stances: 3 (a) the donee has actual notice of contrary indication by the dece- 4 dent; 5 (b) where [the donor has not properly executed an organ donor card,6driver's license authorization to make] an anatomical gift[, pursuant to7paragraph (a) of subdivision one of section five hundred four of the8vehicle and traffic law, registered in the New York state organ and9tissue donor registry under section forty-three hundred ten of this10article, or otherwise given written authorization for organ or tissue11donation, or has revoked any such authorization, and the gift is opposed12by a person or persons in the highest priority available of the classes13specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of14subdivision two of] is not properly made pursuant to this section; or 15 (c) the donee has reason to believe that an anatomical gift is contra- 16 ry to the decedent's religious or moral beliefs. 17 6. A gift of all or part of a body authorizes any examination neces- 18 sary to assure medical acceptability of gift for the purposes intended. 19 7. The rights of the donee created by the gift are paramount to the 20 rights of others except as provided by section forty-three hundred eight 21 of this article. 22 8. The person who documents the making, amending or revoking of an 23 anatomical gift, acting reasonably and in good faith in accordance with 24 this article, may accept an anatomical gift under this article made by a 25 person who represents that he or she is entitled to consent to the 26 donation. 27 § 2. Section 4305 of the public health law, as added by chapter 466 of 28 the laws of 1970, is amended to read as follows: 29 § 4305. [Revocation] Amendments or revocation of the gift. 1. [If the30will, card, or other document or executed copy thereof has been deliv-31ered to a specified donee, the donor] An individual who has created a 32 document of gift may amend or revoke the gift by: 33 (a) [the execution and delivery to the donee of a signed statement,] a 34 record signed by: 35 (i) the donor; 36 (ii) another person authorized to make the anatomical gift; or 37 (iii) another individual acting at the direction of the donor or other 38 person authorized to make the anatomical gift if those individuals are 39 physically unable to sign; or 40 (b) an oral statement of revocation made in the presence of two 41 persons, [communicated to the donee,] at least one of whom is a disin- 42 terested witness; or 43 (c) a later-executed document of gift that amends or revokes a previ- 44 ous anatomical gift or portion of an anatomical gift either expressly or 45 by inconsistency; or 46 (d) a statement during a terminal illness or injury addressed to an 47 attending physician and communicated to the donee[,]; or 48 [(d)] (e) a signed card or document, found on [his] the prospective 49 donor's person or in [his] the prospective donor's effects; or 50 (f) the individual's will, whether or not the will is admitted to 51 probate or invalidated after the individual's death. 52 2. (a) Subject to paragraphs (b) and (c) of this subdivision, an indi- 53 vidual authorized to make an anatomical gift pursuant to subdivision two 54 of section forty-three hundred one of this article may revoke or amend 55 such gift by: 56 (i) a record signed by the donor; orA. 7800 8 1 (ii) an oral statement of revocation made in the presence of two 2 persons, at least one of whom is a disinterested witness; or 3 (iii) a later-executed document of gift that amends or revokes a 4 previous anatomical gift or portion of an anatomical gift, either 5 expressly or by inconsistency. 6 (b) If more than one member of a class listed in subparagraph (iv), 7 (vi), (vii), or (viii) of paragraph (a) of subdivision two of section 8 forty-three hundred one of this article is reasonably available, a gift 9 made pursuant to subdivision two of section forty-three hundred one of 10 this article may be amended only if a majority of the reasonably avail- 11 able members agree to the amending of the gift, or revoked only if a 12 majority of the reasonably available members agree to the revoking of 13 the gift or if they are equally divided as to whether to revoke the 14 gift. 15 (c) A revocation is effective only if, before an incision has been 16 made to remove a part from the donor's body or before invasive proce- 17 dures have begun to prepare the recipient, the procurement organization, 18 transplant hospital, or physician or technician knows of the revocation. 19 3. Any document of gift [which has not been delivered to the donee] 20 may be revoked in the manner set out in subdivision one or two of this 21 section or by destruction, cancellation, or mutilation of the document 22 and all executed copies thereof. 23 [3.] 4. Any gift made by a will may be revoked or amended in the 24 manner provided for revocation or amendment of wills or as provided in 25 subdivision one of this section. 26 5. In the absence of contrary indications by the donor, a revocation 27 or amendment of an anatomical gift is not a refusal to make another 28 anatomical gift, either by the prospective donor or another person spec- 29 ified in subdivision two of section forty-three hundred one of this 30 article. 31 § 3. Article 43-A of the public health law is REPEALED. 32 § 3-a. Subdivision 5 of section 4303 of the public health law is 33 REPEALED. 34 § 4. This act shall take effect on the one hundred eightieth day after 35 it shall have become a law. Effective immediately, the addition, amend- 36 ment and/or repeal of any rule or regulation necessary for the implemen- 37 tation of this act on its effective date are authorized to be made and 38 completed on or before such effective date. 39 PART C 40 Section 1. Section 4302 of the public health law is REPEALED and a new 41 section 4302 is added to read as follows: 42 § 4302. Uses and dispositions of anatomical gifts. 1. All anatomical 43 gifts made under this article may be made to the following persons named 44 in the document of gift: 45 (a) a hospital; accredited medical school, dental school, college or 46 university; organ procurement organization; or other appropriate person, 47 for research or education; 48 (b) subject to the provisions of subdivision two of this section, an 49 individual designated by the person making the anatomical gift if the 50 individual is the recipient of that part; if an anatomical gift to an 51 individual under this paragraph cannot be transplanted into the individ- 52 ual, the part passes in accordance with subdivision six of this section 53 in the absence of an express, contrary indication by the authorizing 54 party making the anatomical gift; orA. 7800 9 1 (c) an eye bank or tissue bank. 2 2. If an anatomical gift of one or more specific parts or of all parts 3 is made in a document of gift that does not name a person described in 4 subdivision one of this section, but identifies the purpose for which an 5 anatomical gift may be used, the following rules apply: 6 (a) If the part is an eye and the gift is for the purpose of trans- 7 plantation or therapy, the gift passes to the appropriate eye bank. 8 (b) If the part is tissue and the gift is for the purpose of trans- 9 plantation or therapy, the gift passes to the appropriate tissue bank. 10 (c) If the part is an organ and the gift is for the purpose of trans- 11 plantation or therapy, the gift passes to the appropriate organ procure- 12 ment organization as custodian of the organ. 13 (d) If the part is an organ, eye, or tissue and the gift is for the 14 purpose of research or education, the gift passes to the appropriate 15 procurement organization. 16 3. For the purposes of subdivision two of this section, if there is 17 more than one purpose of an anatomical gift set forth in the document of 18 gift but the purposes are not set forth in any priority, the gift must 19 be used for transplantation or therapy, if suitable. If the gift cannot 20 be used for transplantation or therapy, the gift may be used for 21 research or education. 22 4. If an anatomical gift of one or more specific parts is made in a 23 document of gift that does not name a person described in subdivision 24 one of this section and does not identify the purpose of the gift, the 25 gift may be used only for transplantation or therapy, and the gift pass- 26 es in accordance with subdivision six of this section. 27 5. If a document of gift specifies only a general intent to make an 28 anatomical gift by words such as "donor", "organ donor" or "body donor", 29 or by a symbol or statement of similar import, the gift may be used only 30 for transplantation or therapy, and the gift passes in accordance with 31 subdivision six of this section. 32 6. For purposes of subdivisions four, five and paragraph (b) of subdi- 33 vision one of this section, the following rules apply: 34 (a) If the part is an eye, the gift passes to the appropriate eye 35 bank. 36 (b) If the part is tissue, the gift passes to the appropriate tissue 37 bank. 38 (c) If the part is an organ, the gift passes to the appropriate organ 39 procurement organization as custodian of the organ. 40 7. An anatomical gift of an organ for transplantation or therapy, 41 other than an anatomical gift under paragraph b of subdivision one of 42 this section, passes to the organ procurement organization as custodian 43 of the organ. 44 8. If an anatomical gift does not pass pursuant to subdivisions one, 45 two, three, four, five, six or seven of this section or the decedent's 46 body or part is not used for transplantation, therapy, research, or 47 education, custody of the body or part passes to the person under obli- 48 gation to dispose of the body or part. 49 9. A person may not accept an anatomical gift if the person knows that 50 the gift was not effectively made under section forty-three hundred one 51 or forty-three hundred five of this article or if the person knows that 52 the decedent made a refusal under section forty-three hundred one of 53 this article that was not revoked. For purposes of this subdivision, if 54 a person knows that an anatomical gift was made on a document of gift, 55 the person is deemed to know of any amendment or revocation of the gift 56 or any refusal to make an anatomical gift on the same document of gift.A. 7800 10 1 10. Except as otherwise provided in paragraph (b) of subdivision one 2 of this section, nothing in this section affects the allocation of 3 organs for transplantation or therapy. 4 § 2. This act shall take effect on the one hundred eightieth day after 5 it shall have become a law. Effective immediately, the addition, amend- 6 ment and/or repeal of any rule or regulation necessary for the implemen- 7 tation of this act on its effective date are authorized to be made and 8 completed on or before such effective date. 9 PART D 10 Section 1. Section 4304 of the public health law, as added by chapter 11 466 of the laws of 1970, is amended to read as follows: 12 § 4304. Delivery of document of gift. If the gift is made by the donor 13 to a specified donee, the will, card or other document or [an executed] 14 a copy thereof, may be delivered to him or her to expedite the appropri- 15 ate procedures immediately after death; however delivery is not neces- 16 sary to the validity of the gift. [The will, card or other document, or17an executed copy thereof, may be deposited in any hospital, bank, stor-18age facility or registry office that accepts it for safekeeping or for19facilitation of procedures after death.] On request of an interested 20 party upon or after the donor's death, the person in possession shall 21 produce the document for examination. 22 § 2. This act shall take effect immediately. 23 PART E 24 Section 1. Section 4306 of the public health law, as added by chapter 25 466 of the laws of 1970, subdivision 2 as amended and subdivision 4 as 26 added by chapter 589 of the laws of 1990, is amended to read as follows: 27 § 4306. Rights and duties at death. 1. The donee may accept or reject 28 the gift. If the donee accepts a gift of the entire body, he or she may, 29 subject to the terms of the gift, authorize embalming and the use of the 30 body in funeral services. If the gift is of a part of the body, the 31 donee upon the death of the donor and prior to embalming, may cause the 32 part to be removed without unnecessary mutilation. After removal of the 33 part, custody of the remainder of the body vests in the surviving 34 spouse, next of kin, or other persons under obligation to dispose of the 35 body. 36 2. When a donor is determined dead based [on] upon either irreversible 37 cessation of circulatory and respiratory functions, or neurological 38 criteria, the time of death shall be certified by a physician profes- 39 sionally qualified by specialty or expertise, in accordance with 40 currently accepted medical standards, including any regulations or 41 guidelines as promulgated by the department. Such physician may not 42 participate in the procedure to remove or transplant the body part. [In43all other cases the time of death shall be certified by the physician44who attends the donor at his death and one other physician, neither of45whom shall participate in the procedure for removing or transplanting46the part.] 47 3. (a) A person who acts in good faith in accord with the terms of 48 this article or with the anatomical gift laws of another [state] juris- 49 diction is not liable for damages in any civil action or subject to 50 prosecution in any criminal proceeding for his or her act. 51 (b) A person who documents the making, amending or revoking of an 52 anatomical gift, acting reasonably and in good faith in accordance withA. 7800 11 1 this article, may accept an anatomical gift under this article made by a 2 person who represents that he or she is entitled to consent to the 3 donation. 4 (c) An entity under sections forty-three hundred two or forty-three 5 hundred ten of this article or a health care professional, or an agent 6 or employee thereof, who or which documents, records, recovers, 7 procures, obtains, or utilizes an organ or tissue in reasonable and good 8 faith reliance on information provided to or contained in the New York 9 state donate life registry shall not be liable in any civil or criminal 10 action or proceeding for action based on such reliance. 11 4. [At the time of acceptance of the gift, when it is known that the12donation will be used for other than transplantation purposes, the donee13if requested by the donor or the donor's next of kin shall advise the14donor or the donor's next of kin of the body parts to be utilized, the15uses to which the body parts may be put, whether body parts may be16transferred to other facilities or institutions and plans for the ulti-17mate disposition of all body parts if the donor has not specified the18ultimate disposition.] Any employee or agent of a federally designated 19 organ procurement organization, eye bank or tissue bank acting pursuant 20 to this article shall be held to the same standard of confidentiality as 21 that imposed on employees of a hospital. 22 § 2. This act shall take effect on the one hundred eightieth day after 23 it shall have become a law. Effective immediately, the addition, amend- 24 ment and/or repeal of any rule or regulation necessary for the implemen- 25 tation of this act on its effective date are authorized to be made and 26 completed on or before such effective date. 27 PART F 28 Section 1. The public health law is amended by adding a new section 29 4306-a to read as follows: 30 § 4306-a. Advanced directives and health care proxies. If a patient in 31 a hospital who is a potential donor has a declaration or advance health 32 care directive or proxy document pursuant to article twenty-nine-C of 33 this chapter, and the terms of the directive and the express or implied 34 terms of a potential anatomical gift are in conflict with regard to the 35 administration of measures necessary to ensure the medical suitability 36 of a part for transplantation or therapy, the prospective donor's 37 attending physician and prospective donor shall confer to resolve the 38 conflict. If the prospective donor is incapable of resolving the 39 conflict, the health care proxy acting under the prospective donor's 40 declaration or directive, or, if none, a surrogate authorized to make 41 health care decisions on behalf of the patient, in accordance with the 42 provisions of article twenty-nine-CC of this chapter, shall act for the 43 patient to resolve the conflict. The conflict must be resolved as expe- 44 ditiously as possible. Information relevant to the resolution of the 45 conflict may be obtained from the appropriate procurement organization 46 and any other person authorized to make an anatomical gift for the 47 prospective donor described in subdivision two of section forty-three 48 hundred one of this article. Before resolution of the conflict, measures 49 necessary to ensure the medical suitability of the part may not be with- 50 held or withdrawn from the patient if withholding or withdrawing the 51 measures is not contraindicated by appropriate end-of-life care. 52 § 2. The public health law is amended by adding a new section 4306-b 53 to read as follows:A. 7800 12 1 § 4306-b. Withdrawal of life-sustaining treatment. This section 2 applies in cases where a prospective donor who has made an anatomical 3 gift or whose donation status has not been ascertained is in a hospital. 4 The hospital shall not withdraw any measures that are necessary to main- 5 tain the medical suitability of the part until the procurement organiza- 6 tion has had the opportunity to advise the applicable persons as set 7 forth in section forty-three hundred one of this article of the option 8 to make an anatomical gift, has documented or acted upon that decision, 9 or has ascertained that the individual expressed a contrary intent. 10 § 3. This act shall take effect on the one hundred eightieth day after 11 it shall have become a law. Effective immediately, the addition, amend- 12 ment and/or repeal of any rule or regulation necessary for the implemen- 13 tation of this act on its effective date are authorized to be made and 14 completed on or before such effective date. 15 PART G 16 Section 1. Subdivision 1 of section 4307 of the public health law, as 17 amended by chapter 362 of the laws of 2009, is amended to read as 18 follows: 19 1. It shall be unlawful for any person to knowingly acquire, receive, 20 or otherwise transfer for valuable consideration any [human organ] part 21 for use in human transplantation. [The term human organ means the human22kidney, liver, heart, lung, bone marrow, and any other human organ or23tissue as may be designated by the commissioner but shall exclude24blood.] The term "valuable consideration" does not include the reason- 25 able payments associated with the removal, transportation, implantation, 26 processing, preservation, quality control, and storage of a [human27organ] part or the expenses of travel, housing, and lost wages incurred 28 by the donor of a human organ in connection with the donation of the 29 organ or human paired organ donation. Any person who violates this 30 section shall be guilty of a class E felony. 31 § 2. This act shall take effect immediately. 32 § 4. Severability. If any provision of this act, or any application of 33 any provision of this act, is held to be invalid, or to violate or be 34 inconsistent with any federal law or regulation, that shall not affect 35 the validity or effectiveness of any other provision of this act, or of 36 any other application of any provision of this act, which can be given 37 effect without that provision or application; and to that end, the 38 provisions and applications of this act are severable. 39 § 5. This act shall take effect immediately provided, however, that 40 the applicable effective date of Parts A through G of this act shall be 41 as specifically set forth in the last section of such Parts.
