Florida Senate - 2009                                     SB 492
       
       
       
       By Senator Sobel
       
       
       
       
       31-00550-09                                            2009492__
    1                        A bill to be entitled                      
    2         An act relating to the Revised Uniform Anatomical Gift
    3         Act; creating s. 765.5101, F.S.; providing a short
    4         title; creating s. 765.5102, F.S.; providing
    5         definitions; creating s. 765.5103, F.S.; providing
    6         that the revised act applies to an anatomical gift or
    7         amendment to, revocation of, or refusal to make an
    8         anatomical gift, whenever made; creating s. 765.5104,
    9         F.S.; specifying who may make an anatomical gift
   10         before the donor's death; creating s. 765.5105, F.S.;
   11         providing the manner of making an anatomical gift
   12         before the donor's death; creating s. 765.5106, F.S.;
   13         providing for amending or revoking an anatomical gift
   14         before the donor's death; creating s. 765.5107, F.S.;
   15         specifying the manner of refusal to make an anatomical
   16         gift; providing the effect of such a refusal; creating
   17         s. 765.5108, F.S.; providing for the preclusive effect
   18         of an anatomical gift, amendment, or revocation in
   19         certain circumstances; providing exceptions; creating
   20         s. 765.5109, F.S.; specifying who may make an
   21         anatomical gift of a decedent's body or part; creating
   22         s. 765.5110, F.S.; specifying the manner of making,
   23         amending, or revoking an anatomical gift of a
   24         decedent's body or part; creating s. 765.5111, F.S.;
   25         specifying persons that may receive an anatomical
   26         gift; providing for the purpose of an anatomical gift;
   27         providing that a person may not accept an anatomical
   28         gift if the person knows that the gift was not
   29         effectively made under specified provisions or if the
   30         person knows that the decedent made a refusal that was
   31         not revoked; creating s. 765.5112, F.S.; requiring
   32         specified persons to make a reasonable search of an
   33         individual who the person reasonably believes is dead
   34         or near death for a document of gift or other
   35         information identifying the individual as a donor or
   36         as an individual who made a refusal; providing duties
   37         if a document of gift or a refusal to make an
   38         anatomical gift is located; providing immunity from
   39         criminal or civil liability for failure to discharge
   40         specified duties; creating s. 765.5113, F.S.;
   41         providing that delivery of a document of gift is not a
   42         requirement for its effectiveness; requiring a person
   43         in possession of a document of gift or a refusal to
   44         make an anatomical gift with respect to the individual
   45         to allow examination and copying of the document;
   46         creating s. 765.5114, F.S.; specifying rights and
   47         duties of procurement organizations when an individual
   48         has been referred to them; allowing the person to whom
   49         a part passes under specified provisions to conduct
   50         any reasonable examination necessary to ensure the
   51         medical suitability of the body or part for its
   52         intended purpose unless otherwise prohibited;
   53         requiring a procurement organization, upon the death
   54         of a minor who was a donor or who had refused, to
   55         conduct a reasonable search for the parents of the
   56         minor and provide them with an opportunity to revoke
   57         or amend the gift or revoke the refusal; providing
   58         that the rights of the person to whom a part passes
   59         under a specified provision are superior to the rights
   60         of all others with respect to the part; prohibiting
   61         both the physician who attends the decedent at death
   62         and the physician who determines the time of death
   63         from participating in removing or transplanting a
   64         part; creating s. 765.5115, F.S.; requiring each
   65         hospital in this state to enter into agreements or
   66         affiliations with procurement organizations for
   67         specified purposes; creating s. 765.5117, F.S.;
   68         prohibiting intentional falsification, forgery, and
   69         other acts concerning a document of gift, an amendment
   70         or revocation of a document of gift, or a refusal in
   71         order to obtain a financial gain; providing criminal
   72         penalties; creating s. 765.5118, F.S.; providing
   73         immunity in a civil action, criminal prosecution, or
   74         administrative proceeding to a person who acts in
   75         accordance with the act or with the applicable
   76         anatomical gift law of another state, or attempts in
   77         good faith to do so; providing immunity from liability
   78         to the donor and the donor's estate for use of the
   79         gift; permitting reliance on specified representations
   80         in determining whether an anatomical gift has been
   81         made, amended, or revoked; creating s. 765.5119, F.S.;
   82         specifying the law governing validity of a document of
   83         gift; providing for the law governing the
   84         interpretation of a document of gift in certain
   85         circumstances; providing a presumption of validity;
   86         renumbering s. 765.5155, F.S., relating to the organ
   87         and tissue donor registry, as s. 765.5120, F.S.;
   88         renumbering s. 765.51551, F.S., relating to an organ
   89         and tissue donor registry public records exemption, as
   90         s. 765.51201, F.S.; creating s. 765.5121, F.S.;
   91         providing for the effect of an anatomical gift on an
   92         advance health care directive; creating s. 765.5122,
   93         F.S.; requiring cooperation between medical examiners
   94         and procurement organizations; creating s. 765.5123,
   95         F.S.; providing for facilitation of anatomical gifts
   96         from decedents whose bodies are under the jurisdiction
   97         of medical examiners; requiring persons with
   98         information requested by a medical examiner conducting
   99         a medicolegal examination about a donor or prospective
  100         donor whose body is under the examiner's jurisdiction
  101         to provide that information as expeditiously as
  102         possible; requiring a medical examiner and procurement
  103         organization to cooperate in the timely removal of a
  104         part when recovery of the part will not interfere with
  105         the examination; requiring consultation between a
  106         medical examiner and a procurement organization when
  107         the medical examiner believes that recovery of the
  108         part could interfere with the postmortem investigation
  109         into the decedent's cause or manner of death;
  110         requiring a medical examiner who intends to deny
  111         recovery to attend, if requested, the removal
  112         procedure for the part before making a final
  113         determination not to allow recovery of the part;
  114         requiring a medical examiner denying recovery to make
  115         specified recorded findings; requiring a procurement
  116         organization in certain circumstances, upon request,
  117         to provide the medical examiner with a records
  118         concerning a part assist in the postmortem
  119         examination; requiring a procurement organization to
  120         reimburse a medical examiner for additional costs
  121         incurred by the examiner who is required to be present
  122         in certain circumstances; creating s. 765.5124, F.S.;
  123         providing for uniformity of application and
  124         construction of the revised act; creating s. 765.5125,
  125         F.S.; providing for relation of the revised act to the
  126         Electronic Signatures in Global and National Commerce
  127         Act; repealing s. 765.510, F.S., relating to a
  128         legislative declaration; repealing s. 765.511, F.S.,
  129         relating to definitions; repealing s. 765.512, F.S.,
  130         relating to persons who may make an anatomical gift;
  131         repealing s. 765.513, F.S., relating to persons and
  132         entities that may become donees and purposes for which
  133         anatomical gifts may be made; repealing s. 765.514,
  134         F.S., relating to manner of making anatomical gifts;
  135         repealing s. 765.515, F.S., relating to delivery of a
  136         donor document; repealing s. 765.516, F.S., relating
  137         to amendment of the terms of or the revocation of the
  138         gift; repealing s. 765.517, F.S., relating to rights
  139         and duties at death; amending ss. 381.0041, 765.521,
  140         and 765.522, F.S.; revising cross-references to
  141         conform to changes made by the act; providing an
  142         effective date.
  143         
  144  Be It Enacted by the Legislature of the State of Florida:
  145         
  146         Section 1. Section 765.5101, Florida Statutes, is created
  147  to read:
  148         765.5101Short title.—Sections 765.5101-765.5125 may be
  149  cited as the “Revised Uniform Anatomical Gift Act.”
  150         Section 2. Section 765.5102, Florida Statutes, is created
  151  to read:
  152         765.5102Definitions.—As used in ss. 765.5101-765.5125, the
  153  term:
  154         (1) “Adult” means an individual who is at least 18 years of
  155  age.
  156         (2) “Agent” means an individual who is:
  157         (a) Authorized to make health care decisions on the
  158  principal's behalf by a power of attorney for health care; or
  159         (b) Expressly authorized to make an anatomical gift on the
  160  principal's behalf by any other record signed by the principal.
  161         (3) “Anatomical gift” means a donation of all or part of a
  162  human body to take effect after the donor's death for the
  163  purpose of transplantation, therapy, research, or education.
  164         (4)“Decedent” means a deceased individual whose body or
  165  part is or may be the source of an anatomical gift. The term
  166  includes a stillborn infant and, subject to restrictions imposed
  167  by law other than ss. 765.5101-765.5125, a fetus.
  168         (5) “Disinterested witness” means a witness other than a
  169  spouse, child, parent, sibling, grandchild, grandparent, or
  170  guardian of the individual who makes, amends, revokes, or
  171  refuses to make an anatomical gift, or another adult who
  172  exhibited special care and concern for the individual. The term
  173  does not include a person to whom an anatomical gift could pass
  174  under s. 765.5111.
  175         (6) “Document of gift” means a donor card or other record
  176  used to make an anatomical gift and includes a statement or
  177  symbol on a driver's license, identification card, or donor
  178  registry.
  179         (7) “Donor” means an individual whose body or part is the
  180  subject of an anatomical gift.
  181         (8) “Donor registry” means a database that contains records
  182  of anatomical gifts and amendments to or revocations of
  183  anatomical gifts.
  184         (9) “Driver's license” means a license or permit issued by
  185  the Department of Highway Safety and Motor Vehicles to operate a
  186  vehicle, whether or not conditions are attached to the license
  187  or permit.
  188         (10) “Eye bank” means a person licensed, accredited, or
  189  regulated under federal or state law to engage in the recovery,
  190  screening, testing, processing, storage, or distribution of
  191  human eyes or portions of human eyes.
  192         (11) “Guardian” means a person appointed by a court to make
  193  decisions regarding the support, care, education, health, or
  194  welfare of an individual. The term does not include a guardian
  195  ad litem.
  196         (12) “Hospital” means a facility licensed as a hospital
  197  under the law of any state or a facility operated as a hospital
  198  by the United States, a state, or a subdivision of a state.
  199         (13) “Identification card” means an identification card
  200  issued by the Department of Highway Safety and Motor Vehicles.
  201         (14) “Know” means to have actual knowledge.
  202         (15) “Organ procurement organization” means a person
  203  designated by the Secretary of the United States Department of
  204  Health and Human Services as an organ procurement organization.
  205         (16) “Parent” means a parent whose parental rights have not
  206  been terminated.
  207         (17) “Part” means an organ, an eye, or tissue of a human
  208  being. The term does not include the whole body.
  209         (18) “Person” means an individual, corporation, business
  210  trust, estate, trust, partnership, limited liability company,
  211  association, joint venture, public corporation, government or
  212  governmental subdivision, agency, or instrumentality or any
  213  other legal or commercial entity.
  214         (19) “Physician” means an individual authorized to practice
  215  medicine or osteopathy under the law of any state.
  216         (20) “Procurement organization” means an eye bank, organ
  217  procurement organization, or tissue bank.
  218         (21) “Prospective donor” means an individual who is dead or
  219  near death and who has been determined by a procurement
  220  organization to have a part that could be medically suitable for
  221  transplantation, therapy, research, or education. The term does
  222  not include an individual who has made a refusal.
  223         (22) “Reasonably available” means able to be contacted by a
  224  procurement organization without undue effort and willing and
  225  able to act in a timely manner consistent with existing medical
  226  criteria necessary for the making of an anatomical gift.
  227         (23) “Recipient” means an individual into whose body a
  228  decedent's part has been or is intended to be transplanted.
  229         (24) “Record” means information that is inscribed on a
  230  tangible medium or that is stored in an electronic or other
  231  medium and is retrievable in perceivable form.
  232         (25) “Refusal” means a record created under s. 765.5107
  233  that expressly states an intent to bar other persons from making
  234  an anatomical gift of an individual's body or part.
  235         (26)“Sign” means, with the present intent to authenticate
  236  or adopt a record:
  237         (a)To execute or adopt a tangible symbol; or
  238         (b)To attach to or logically associate with the record an
  239  electronic symbol, sound, or process.
  240         (27)“State” means a state of the United States, the
  241  District of Columbia, Puerto Rico, the United States Virgin
  242  Islands, or any territory or insular possession subject to the
  243  jurisdiction of the United States.
  244         (28)“Technician” means an individual determined to be
  245  qualified to remove or process parts by an appropriate
  246  organization that is licensed, accredited, or regulated under
  247  federal or state law. The term includes an enucleator.
  248         (29)“Tissue” means a portion of the human body other than
  249  an organ or an eye. The term does not include blood unless the
  250  blood is donated for the purpose of research or education.
  251         (30)“Tissue bank” means a person licensed, accredited, or
  252  regulated under federal or state law to engage in the recovery,
  253  screening, testing, processing, storage, or distribution of
  254  tissue.
  255         (31)“Transplant hospital” means a hospital that furnishes
  256  organ transplants and other medical and surgical specialty
  257  services required for the care of transplant patients.
  258         Section 3. Section 765.5103, Florida Statutes, is created
  259  to read:
  260         765.5103Applicability.—Sections 765.5101-765.5125 apply to
  261  an anatomical gift or amendment to, revocation of, or refusal to
  262  make an anatomical gift, whenever made.
  263         Section 4. Section 765.5104, Florida Statutes, is created
  264  to read:
  265         765.5104Persons who may make an anatomical gift before the
  266  donor's death.—Subject to s. 765.5108, an anatomical gift of a
  267  donor's body or part may be made during the life of the donor
  268  for the purpose of transplantation, therapy, research, or
  269  education in the manner provided in s. 765.5105 by:
  270         (1) The donor, if the donor is an adult or if the donor is
  271  a minor and is:
  272         (a) Emancipated; or
  273         (b) Authorized under state law to apply for a driver's
  274  license because the donor is at least 16 years of age.
  275         (2) An agent of the donor, unless the power of attorney for
  276  health care or other record prohibits the agent from making an
  277  anatomical gift.
  278         (3) A parent of the donor, if the donor is an unemancipated
  279  minor.
  280         (4) The donor's guardian.
  281         Section 5. Section 765.5105, Florida Statutes, is created
  282  to read:
  283         765.5105Manner of making an anatomical gift before the
  284  donor's death.—
  285         (1) A donor may make an anatomical gift:
  286         (a) By authorizing a statement or symbol indicating that
  287  the donor has made an anatomical gift to be imprinted on the
  288  donor's driver's license or identification card;
  289         (b) In a will;
  290         (c) During a terminal illness or injury of the donor, by
  291  any form of communication addressed to at least two adults, at
  292  least one of whom is a disinterested witness; or
  293         (d) As provided in subsection (2).
  294         (2) A donor or other person authorized to make an
  295  anatomical gift under s. 765.5104 may make a gift by a donor
  296  card or other record signed by the donor or other person making
  297  the gift or by authorizing that a statement or symbol indicating
  298  that the donor has made an anatomical gift be included on a
  299  donor registry. If the donor or other person is physically
  300  unable to sign a record, the record may be signed by another
  301  individual at the direction of the donor or other person and
  302  must:
  303         (a) Be witnessed by at least two adults, at least one of
  304  whom is a disinterested witness, who have signed at the request
  305  of the donor or the other person.
  306         (b) State that it has been signed and witnessed as provided
  307  in paragraph (a).
  308         (3) Revocation, suspension, expiration, or cancellation of
  309  a driver's license or identification card upon which an
  310  anatomical gift is indicated does not invalidate the gift.
  311         (4) An anatomical gift made by will takes effect upon the
  312  donor's death whether or not the will is probated. Invalidation
  313  of the will after the donor's death does not invalidate the
  314  gift.
  315         Section 6. Section 765.5106, Florida Statutes, is created
  316  to read:
  317         765.5106Amending or revoking an anatomical gift before the
  318  donor's death.—
  319         (1) Subject to s. 765.5108, a donor or other person
  320  authorized to make an anatomical gift under s. 765.5104 may
  321  amend or revoke an anatomical gift by:
  322         (a) A record signed by:
  323         1. The donor;
  324         2. The other person; or
  325         3. Subject to subsection (2), another individual acting at
  326  the direction of the donor or the other person if the donor or
  327  other person is physically unable to sign; or
  328         (b) A later-executed document of gift that amends or
  329  revokes a previous anatomical gift or portion of an anatomical
  330  gift, either expressly or by inconsistency.
  331         (2) A record signed pursuant to subparagraph (1)(a)3. must:
  332         (a) Be witnessed by at least two adults, at least one of
  333  whom is a disinterested witness, who have signed at the request
  334  of the donor or the other person.
  335         (b) State that it has been signed and witnessed as provided
  336  in paragraph (a).
  337         (3) Subject to s. 765.5108, a donor or other person
  338  authorized to make an anatomical gift under s. 765.5104 may
  339  revoke an anatomical gift by the destruction or cancellation of
  340  the document of gift, or the portion of the document of gift
  341  used to make the gift, with the intent to revoke the gift.
  342         (4) A donor may amend or revoke an anatomical gift that was
  343  not made in a will by any form of communication during a
  344  terminal illness or injury addressed to at least two adults, at
  345  least one of whom is a disinterested witness.
  346         (5) A donor who makes an anatomical gift in a will may
  347  amend or revoke the gift in the manner provided for amendment or
  348  revocation of wills or as provided in subsection (1).
  349         Section 7. Section 765.5107, Florida Statutes, is created
  350  to read:
  351         765.5107Refusal to make an anatomical gift; effect of
  352  refusal.—
  353         (1) An individual may refuse to make an anatomical gift of
  354  the individual's body or part by:
  355         (a) A record signed by:
  356         1. The individual; or
  357         2. Subject to subsection (2), another individual acting at
  358  the direction of the individual if the individual is physically
  359  unable to sign;
  360         (b)The individual's will, whether or not the will is
  361  admitted to probate or invalidated after the individual's death;
  362  or
  363         (c)Any form of communication made by the individual during
  364  the individual's terminal illness or injury addressed to at
  365  least two adults, at least one of whom is a disinterested
  366  witness.
  367         (2)A record signed pursuant to subparagraph (1)(a)2. must:
  368         (a)Be witnessed by at least two adults, at least one of
  369  whom is a disinterested witness, who have signed at the request
  370  of the individual.
  371         (b)State that it has been signed and witnessed as provided
  372  in paragraph (a).
  373         (3)An individual who has made a refusal may amend or
  374  revoke the refusal:
  375         (a)In the manner provided in subsection (1) for making a
  376  refusal;
  377         (b)By subsequently making an anatomical gift pursuant to
  378  s. 765.5105 that is inconsistent with the refusal; or
  379         (c)By destroying or canceling the record evidencing the
  380  refusal, or the portion of the record used to make the refusal,
  381  with the intent to revoke the refusal.
  382         (4)Except as otherwise provided in s. 765.5108(8), in the
  383  absence of an express, contrary indication by the individual set
  384  forth in the refusal, an individual's unrevoked refusal to make
  385  an anatomical gift of the individual's body or part bars all
  386  other persons from making an anatomical gift of the individual's
  387  body or part.
  388         Section 8. Section 765.5108, Florida Statutes, is created
  389  to read:
  390         765.5108 Preclusive effect of an anatomical gift,
  391  amendment, or revocation.—
  392         (1) Except as otherwise provided in subsection (7) and
  393  subject to subsection (6), in the absence of an express,
  394  contrary indication by the donor, a person other than the donor
  395  is barred from making, amending, or revoking an anatomical gift
  396  of a donor's body or part if the donor made an anatomical gift
  397  of the donor's body or part under s. 765.5105 or an amendment to
  398  an anatomical gift of the donor's body or part under s.
  399  765.5106.
  400         (2) A donor's revocation of an anatomical gift of the
  401  donor's body or part under s. 765.5106 is not a refusal and does
  402  not bar another person specified in s. 765.5104 or s. 765.5109
  403  from making an anatomical gift of the donor's body or part under
  404  s. 765.5105 or s. 765.5110.
  405         (3) If a person other than the donor makes an unrevoked
  406  anatomical gift of the donor's body or part under s. 765.5105 or
  407  an amendment to an anatomical gift of the donor's body or part
  408  under s. 765.5106, another person may not make, amend, or revoke
  409  the gift of the donor's body or part under s. 765.5110.
  410         (4)A revocation of an anatomical gift of a donor's body or
  411  part under s. 765.5106 by a person other than the donor does not
  412  bar another person from making an anatomical gift of the body or
  413  part under s. 765.5105 or s. 765.5110.
  414         (5)In the absence of an express, contrary indication by
  415  the donor or other person authorized to make an anatomical gift
  416  under s. 765.5104, an anatomical gift of a part is neither a
  417  refusal to give another part nor a limitation on the making of
  418  an anatomical gift of another part at a later time by the donor
  419  or another person.
  420         (6)In the absence of an express, contrary indication by
  421  the donor or other person authorized to make an anatomical gift
  422  under s. 765.5104, an anatomical gift of a part for one or more
  423  of the purposes set forth in s. 765.5104 is not a limitation on
  424  the making of an anatomical gift of the part for any of the
  425  other purposes by the donor or any other person under s.
  426  765.5105 or s. 765.5110.
  427         (7)If a donor who is an unemancipated minor dies, a parent
  428  of the donor who is reasonably available may revoke or amend an
  429  anatomical gift of the donor's body or part.
  430         (8)If an unemancipated minor who signed a refusal dies, a
  431  parent of the minor who is reasonably available may revoke the
  432  minor's refusal.
  433         Section 9. Section 765.5109, Florida Statutes, is created
  434  to read:
  435         765.5109Who may make an anatomical gift of a decedent's
  436  body or part.—
  437         (1) Subject to subsections (2) and (3) and unless barred by
  438  s. 765.5107 or s. 765.5108, an anatomical gift of a decedent's
  439  body or part for purpose of transplantation, therapy, research,
  440  or education may be made by any member of the following classes
  441  of persons who is reasonably available, in the order of priority
  442  listed:
  443         (a) An agent of the decedent at the time of death who could
  444  have made an anatomical gift under s. 765.5104(2) immediately
  445  before the decedent's death.
  446         (b)The spouse of the decedent.
  447         (c) Adult children of the decedent.
  448         (d) Parents of the decedent.
  449         (e) Adult siblings of the decedent.
  450         (f) Adult grandchildren of the decedent.
  451         (g) Grandparents of the decedent.
  452         (h) An adult who exhibited special care and concern for the
  453  decedent.
  454         (i) The persons who were acting as the guardians of the
  455  person of the decedent at the time of death.
  456         (j) Any other person having the authority to dispose of the
  457  decedent's body.
  458         (2) If there is more than one member of a class listed in
  459  paragraphs (1)(a), (c), (d), (e), (f), (g), or (i) who is
  460  entitled to make an anatomical gift, an anatomical gift may be
  461  made by a member of the class unless that member or a person to
  462  whom the gift may pass under s. 765.5111 knows of an objection
  463  by another member of the class. If an objection is known, the
  464  gift may be made only by a majority of the members of the class
  465  who are reasonably available.
  466         (3) A person may not make an anatomical gift if, at the
  467  time of the decedent's death, a person in a prior class under
  468  subsection (1) is reasonably available to make or to object to
  469  the making of an anatomical gift.
  470         (4) A health care surrogate designated by the decedent
  471  pursuant to part II of this chapter may give all or any part of
  472  the decedent's body for any purpose specified in s. 765.5111
  473  absent actual notice of contrary indications by the decedent.
  474         Section 10. Section 765.5110, Florida Statutes, is created
  475  to read:
  476         765.5110Manner of making, amending, or revoking an
  477  anatomical gift of a decedent's body or part.—
  478         (1) A person authorized to make an anatomical gift under s.
  479  765.5109 may make an anatomical gift by a document of gift
  480  signed by the person making the gift or by that person's oral
  481  communication that is electronically recorded or is
  482  contemporaneously reduced to a record and signed by the
  483  individual receiving the oral communication.
  484         (2) Subject to subsection (3), an anatomical gift by a
  485  person authorized under s. 765.5109 may be amended or revoked
  486  orally or in a record by any member of a prior class who is
  487  reasonably available. If more than one member of the prior class
  488  is reasonably available, the gift made by a person authorized
  489  under s. 765.5109 may be:
  490         (a) Amended only if a majority of the reasonably available
  491  members agree to the amending of the gift; or
  492         (b) Revoked only if a majority of the reasonably available
  493  members agree to the revoking of the gift or if they are equally
  494  divided as to whether to revoke the gift.
  495         (3) A revocation under subsection (2) is effective only if,
  496  before an incision has been made to remove a part from the
  497  donor's body or before invasive procedures have begun to prepare
  498  the recipient, the procurement organization, transplant
  499  hospital, or physician or technician knows of the revocation.
  500         Section 11. Section 765.5111, Florida Statutes, is created
  501  to read:
  502         765.5111Persons who may receive an anatomical gift;
  503  purpose of an anatomical gift.—
  504         (1) An anatomical gift may be made to the following persons
  505  named in the document of gift:
  506         (a) A hospital; an accredited medical school, dental
  507  school, college, or university; an organ procurement
  508  organization; or other appropriate person, for research or
  509  education.
  510         (b) Subject to subsection (2), an individual designated by
  511  the person making the anatomical gift if the individual is the
  512  recipient of the part.
  513         (c) An eye bank or tissue bank.
  514         (2)If an anatomical gift to an individual under paragraph
  515  (1)(b) cannot be transplanted into that individual, the part
  516  passes in accordance with subsection (7) in the absence of an
  517  express, contrary indication by the person making the anatomical
  518  gift.
  519         (3) If an anatomical gift of one or more specific parts or
  520  all parts is made in a document of gift that does not name a
  521  person described in subsection (1) but identifies the purpose
  522  for which an anatomical gift may be used, the following rules
  523  apply:
  524         (a) If the part is an eye and the gift is for the purpose
  525  of transplantation or therapy, the gift passes to the
  526  appropriate eye bank.
  527         (b) If the part is tissue and the gift is for the purpose
  528  of transplantation or therapy, the gift passes to the
  529  appropriate tissue bank.
  530         (c) If the part is an organ and the gift is for the purpose
  531  of transplantation or therapy, the gift passes to the
  532  appropriate organ procurement organization as custodian of the
  533  organ.
  534         (d) If the part is an organ, an eye, or tissue and the gift
  535  is for the purpose of research or education, the gift passes to
  536  the appropriate procurement organization.
  537         (4) For the purpose of subsection (3), if there is more
  538  than one purpose of an anatomical gift set forth in the document
  539  of gift but the purposes are not set forth in any priority, the
  540  gift must be used for transplantation or therapy, if suitable.
  541  If the gift cannot be used for transplantation or therapy, the
  542  gift may be used for research or education.
  543         (5) If an anatomical gift of one or more specific parts is
  544  made in a document of gift that does not name a person described
  545  in subsection (1) and does not identify the purpose of the gift,
  546  the gift may be used only for transplantation or therapy, and
  547  the gift passes in accordance with subsection (7).
  548         (6) If a document of gift specifies only a general intent
  549  to make an anatomical gift by words such as “donor,” “organ
  550  donor,” or “body donor,” or by a symbol or statement of similar
  551  import, the gift may be used only for transplantation or
  552  therapy, and the gift passes in accordance with subsection (7).
  553         (7) For purposes of subsections (2), (5), and (6), the
  554  following rules apply:
  555         (a) If the part is an eye, the gift passes to the
  556  appropriate eye bank.
  557         (b) If the part is tissue, the gift passes to the
  558  appropriate tissue bank.
  559         (c) If the part is an organ, the gift passes to the
  560  appropriate organ procurement organization as custodian of the
  561  organ.
  562         (8) An anatomical gift of an organ for transplantation or
  563  therapy, other than an anatomical gift under paragraph (1)(b),
  564  passes to the organ procurement organization as custodian of the
  565  organ.
  566         (9) If an anatomical gift does not pass pursuant to
  567  subsections (1)-(8) or the decedent's body or part is not used
  568  for transplantation, therapy, research, or education, custody of
  569  the body or part passes to the person under obligation to
  570  dispose of the body or part.
  571         (10) A person may not accept an anatomical gift if the
  572  person knows that the gift was not effectively made under s.
  573  765.5105 or s. 765.5110 or if the person knows that the decedent
  574  made a refusal under s. 765.5107 that was not revoked. For
  575  purposes of the subsection, if a person knows that an anatomical
  576  gift was made on a document of gift, the person is deemed to
  577  know of any amendment or revocation of the gift or any refusal
  578  to make an anatomical gift on the same document of gift.
  579         (11)Except as otherwise provided in paragraph (1)(b),
  580  nothing in ss. 765.5101-765.5125 affects the allocation of
  581  organs for transplantation or therapy.
  582         Section 12. Section 765.5112, Florida Statutes, is created
  583  to read:
  584         765.5112Search and notification.—
  585         (1) The following persons shall make a reasonable search of
  586  an individual who the person reasonably believes to be dead or
  587  near death for a document of gift or other information
  588  identifying the individual as a donor or as an individual who
  589  made a refusal:
  590         (a) A law enforcement officer, firefighter, paramedic, or
  591  other emergency rescuer finding the individual.
  592         (b) If no other source of the information is immediately
  593  available, a hospital, as soon as practical after the
  594  individual's arrival at the hospital.
  595         (2) If a document of gift or a refusal to make an
  596  anatomical gift is located by the search required by paragraph
  597  (1)(a) and the individual or deceased individual to whom it
  598  relates is taken to a hospital, the person responsible for
  599  conducting the search shall send the document of gift or refusal
  600  to the hospital.
  601         (3) A person is not subject to criminal or civil liability
  602  for failing to discharge the duties imposed by this section but
  603  may be subject to administrative sanctions.
  604         Section 13. Section 765.5113, Florida Statutes, is created
  605  to read:
  606         765.5113Delivery of a document of gift not required; right
  607  to examine.—
  608         (1) A document of gift need not be delivered during the
  609  donor's lifetime to be effective.
  610         (2) Upon or after an individual's death, a person in
  611  possession of a document of gift or a refusal to make an
  612  anatomical gift with respect to the individual shall allow
  613  examination and copying of the document of gift or refusal by a
  614  person authorized to make or object to the making of an
  615  anatomical gift with respect to the individual or by a person to
  616  whom the gift could pass under s. 765.5111.
  617         Section 14. Section 765.5114, Florida Statutes, is created
  618  to read:
  619         765.5114Rights and duties of procurement organizations and
  620  others.—
  621         (1) When a hospital refers an individual at or near death
  622  to a procurement organization, the organization shall make a
  623  reasonable search of the records of the statewide organ and
  624  tissue donor registry and any donor registry that the
  625  organization knows exists for the geographical area in which the
  626  individual resides to ascertain whether the individual has made
  627  an anatomical gift.
  628         (2) A procurement organization must be allowed reasonable
  629  access to information in the records of the statewide organ and
  630  tissue donor registry to ascertain whether an individual at or
  631  near death is a donor.
  632         (3) When a hospital refers an individual at or near death
  633  to a procurement organization, the organization may conduct any
  634  reasonable examination necessary to ensure the medical
  635  suitability of a part that is or could be the subject of an
  636  anatomical gift for transplantation, therapy, research, or
  637  education from a donor or a prospective donor. During the
  638  examination period, measures necessary to ensure the medical
  639  suitability of the part may not be withdrawn unless the hospital
  640  or procurement organization knows that the individual expressed
  641  a contrary intent.
  642         (4) Unless prohibited by law other than ss. 765.5101
  643  765.5125, at any time after a donor's death, the person to whom
  644  a part passes under s. 765.5111 may conduct any reasonable
  645  examination necessary to ensure the medical suitability of the
  646  body or part for its intended purpose.
  647         (5) Unless prohibited by law other than ss. 765.5101
  648  765.5125, an examination under subsection (3) or subsection (4)
  649  may include an examination of all medical and dental records of
  650  the donor or prospective donor.
  651         (6) Upon the death of a minor who was a donor or had signed
  652  a refusal, unless a procurement organization knows the minor is
  653  emancipated, the procurement organization shall conduct a
  654  reasonable search for the parents of the minor and provide the
  655  parents with an opportunity to revoke or amend the anatomical
  656  gift or revoke the refusal.
  657         (7) Upon referral by a hospital under subsection (1), a
  658  procurement organization shall make a reasonable search for any
  659  person listed in s. 765.5109 having priority to make an
  660  anatomical gift on behalf of a prospective donor. If a
  661  procurement organization receives information that an anatomical
  662  gift to any other person was made, amended, or revoked, it shall
  663  promptly advise the other person of all relevant information.
  664         (8) Subject to s. 765.5111(9) and s. 765.5123, the rights
  665  of the person to whom a part passes under s. 765.5111 are
  666  superior to the rights of all others with respect to the part.
  667  The person may accept or reject an anatomical gift in whole or
  668  in part. Subject to the terms of the document of gift and ss.
  669  765.5101-765.5125, a person who accepts an anatomical gift of an
  670  entire body may allow embalming, burial, or cremation, and use
  671  of remains in a funeral service. If the gift is of a part, the
  672  person to whom the part passes under s. 765.5111, upon the death
  673  of the donor and before embalming, burial, or cremation, shall
  674  cause the part to be removed without unnecessary mutilation.
  675         (9) Neither the physician who attends the decedent at death
  676  nor the physician who determines the time of the decedent's
  677  death may participate in the procedures for removing or
  678  transplanting a part from the decedent.
  679         (10) A physician or technician may remove a donated part
  680  from the body of a donor that the physician or technician is
  681  qualified to remove.
  682         Section 15. Section 765.5115, Florida Statutes, is created
  683  to read:
  684         765.5115Coordination of procurement and use.—Each hospital
  685  in this state shall enter into agreements or affiliations with
  686  procurement organizations for coordination of procurement and
  687  use of anatomical gifts.
  688         Section 16. Section 765.5117, Florida Statutes, is created
  689  to read:
  690         765.5117Prohibited acts.—A person who, in order to obtain
  691  financial gain, intentionally falsifies, forges, conceals,
  692  defaces, or obliterates a document of gift, an amendment or
  693  revocation of a document of gift, or a refusal commits a felony
  694  of the third degree, punishable as provided in s. 775.082, s.
  695  775.083, or s. 775.084.
  696         Section 17. Section 765.5118, Florida Statutes, is created
  697  to read:
  698         765.5118Immunity.—
  699         (1) A person who acts in accordance with ss. 765.5101
  700  765.5125 or with the applicable anatomical gift law of another
  701  state, or attempts in good faith to do so, is not liable for
  702  such an act in a civil action, criminal prosecution, or
  703  administrative proceeding.
  704         (2) Neither the person making an anatomical gift nor the
  705  donor's estate is liable for any injury or damage that results
  706  from the making or use of the gift.
  707         (3) In determining whether an anatomical gift has been
  708  made, amended, or revoked under ss. 765.5101-765.5125, a person
  709  may rely upon representations of an individual listed in s.
  710  765.5109(1)(b), (c), (d), (e), (f), (g), or (h) relating to the
  711  individual's relationship to the donor or prospective donor
  712  unless the person knows that the representation is untrue.
  713         Section 18. Section 765.5119, Florida Statutes, is created
  714  to read:
  715         765.5119Law governing validity; choice of law as to
  716  execution of a document of gift; presumption of validity.—
  717         (1) A document of gift is valid if executed in accordance
  718  with:
  719         (a) Sections 765.5101-765.5125;
  720         (b) The laws of the state or country where it was executed;
  721  or
  722         (c) The laws of the state or country where the person
  723  making the anatomical gift was domiciled, has a place of
  724  residence, or was a national at the time the document of gift
  725  was executed.
  726         (2) If a document of gift is valid under this section, the
  727  law of this state governs the interpretation of the document of
  728  gift.
  729         (3) A person may presume that a document of gift or
  730  amendment of an anatomical gift is valid unless that person
  731  knows that it was not validly executed or was revoked.
  732         Section 19. Section 765.5155, Florida Statutes, is
  733  transferred and renumbered as s. 765.5120, Florida Statutes.
  734         Section 20. Section 765.51551, Florida Statutes, is
  735  transferred and renumbered as 765.51201, Florida Statutes.
  736         Section 21. Section 765.5121, Florida Statutes, is created
  737  to read:
  738         765.5121Effect of an anatomical gift on an advance health
  739  care directive.—
  740         (1) As used in this section, the term:
  741         (a) “Advance health care directive means a power of
  742  attorney for health care or a record signed or authorized by a
  743  prospective donor containing the prospective donor's direction
  744  concerning a health care decision for the prospective donor.
  745         (b) “Declaration” means a record signed by a prospective
  746  donor specifying the circumstances under which life support
  747  services may be withheld or withdrawn from the prospective
  748  donor.
  749         (c) “Health care decision” means any decision regarding the
  750  health care of the prospective donor.
  751         (2) If a prospective donor has a declaration or advance
  752  health care directive and the terms of the declaration or
  753  directive and the express or implied terms of a potential
  754  anatomical gift are in conflict with regard to the
  755  administration of measures necessary to ensure the medical
  756  suitability of a part for transplantation or therapy, the
  757  prospective donor's attending physician and prospective donor
  758  shall confer to resolve the conflict. If the prospective donor
  759  is incapable of resolving the conflict, an agent acting under
  760  the prospective donor's declaration or directive, or, if none or
  761  the agent is not reasonably available, another person authorized
  762  by law other than ss. 765.5101-765.5125 to make health care
  763  decisions on behalf of the prospective donor, shall act for the
  764  donor to resolve the conflict. The conflict must be resolved as
  765  expeditiously as possible. Information relevant to the
  766  resolution of the conflict may be obtained from the appropriate
  767  procurement organization and any other person authorized to make
  768  an anatomical gift for the prospective donor under s. 765.5109.
  769  Before resolution of the conflict, measures necessary to ensure
  770  the medical suitability of the part may not be withheld or
  771  withdrawn from the prospective donor if withholding or
  772  withdrawing the measures is not contraindicated by appropriate
  773  end-of-life care.
  774         Section 22. Section 765.5122, Florida Statutes, is created
  775  to read:
  776         765.5122Cooperation between medical examiners and
  777  procurement organizations.—
  778         (1) A medical examiner shall cooperate with procurement
  779  organizations to maximize the opportunity to recover anatomical
  780  gifts for the purpose of transplantation, therapy, research, or
  781  education.
  782         (2) If a medical examiner receives notice from a
  783  procurement organization that an anatomical gift might be
  784  available or was made with respect to a decedent whose body is
  785  under the jurisdiction of the medical examiner and a postmortem
  786  examination is going to be performed, unless the medical
  787  examiner denies recovery in accordance with s. 765.5123, the
  788  medical examiner or designee shall conduct a postmortem
  789  examination of the body or the part in a manner and within a
  790  period compatible with its preservation for the purposes of the
  791  gift.
  792         (3) A part may not be removed from the body of a decedent
  793  under the jurisdiction of a medical examiner for
  794  transplantation, therapy, research, or education unless the part
  795  is the subject of an anatomical gift. The body of a decedent
  796  under the jurisdiction of the medical examiner may not be
  797  delivered to a person for research or education unless the body
  798  is the subject of an anatomical gift. This subsection does not
  799  preclude a medical examiner from performing the medicolegal
  800  investigation upon the body or parts of a decedent under the
  801  jurisdiction of the medical examiner.
  802         Section 23. Section 765.5123, Florida Statutes, is created
  803  to read:
  804         765.5123Facilitation of an anatomical gift from a decedent
  805  whose body is under the jurisdiction of a medical examiner.—
  806         (1) Upon request of a procurement organization, a medical
  807  examiner shall release to the procurement organization the name,
  808  contact information, and available medical and social history of
  809  a decedent whose body is under the jurisdiction of the medical
  810  examiner. If the decedent's body or part is medically suitable
  811  for transplantation, therapy, research, or education, the
  812  medical examiner shall release postmortem examination results to
  813  the procurement organization. The procurement organization may
  814  make a subsequent disclosure of the postmortem examination
  815  results or other information received from the medical examiner
  816  only if relevant to transplantation or therapy.
  817         (2) The medical examiner may conduct a medicolegal
  818  examination by reviewing all medical records, laboratory test
  819  results, X rays, other diagnostic results, and other information
  820  that any person possesses about a donor or prospective donor
  821  whose body is under the jurisdiction of the medical examiner
  822  which the medical examiner determines may be relevant to the
  823  investigation.
  824         (3) A person who has any information requested by a medical
  825  examiner pursuant to subsection (2) shall provide that
  826  information as expeditiously as possible to allow the medical
  827  examiner to conduct the medicolegal investigation within a
  828  period compatible with the preservation of parts for the purpose
  829  of transplantation, therapy, research, or education.
  830         (4) If an anatomical gift has been or might be made of a
  831  part of a decedent whose body is under the jurisdiction of the
  832  medical examiner and a postmortem examination is not required,
  833  or the medical examiner determines that a postmortem examination
  834  is required but that the recovery of the part that is the
  835  subject of an anatomical gift will not interfere with the
  836  examination, the medical examiner and procurement organization
  837  shall cooperate in the timely removal of the part from the
  838  decedent for the purpose of transplantation, therapy, research,
  839  or education.
  840         (5) If an anatomical gift of a part from the decedent under
  841  the jurisdiction of the medical examiner has been or might be
  842  made, but the medical examiner initially believes that the
  843  recovery of the part could interfere with the postmortem
  844  investigation into the decedent's cause or manner of death, the
  845  medical examiner shall consult with the procurement organization
  846  or physician or technician designated by the procurement
  847  organization about the proposed recovery. After consultation,
  848  the medical examiner may allow the recovery.
  849         (6) After the consultation under subsection (5), in the
  850  absence of mutually agreed-upon protocols to resolve conflict
  851  between the medical examiner and the procurement organization,
  852  if the medical examiner intends to deny recovery, the medical
  853  examiner or designee, at the request of the procurement
  854  organization, shall attend the removal procedure for the part
  855  before making a final determination not to allow the procurement
  856  organization to recover the part. During the removal procedure,
  857  the medical examiner or designee may allow recovery by the
  858  procurement organization to proceed or, if the medical examiner
  859  or designee reasonably believes that the part may be involved in
  860  determining the decedent's cause or manner of death, may deny
  861  recovery by the procurement organization.
  862         (7) If the medical examiner or designee denies recovery
  863  under subsection (6), the medical examiner or designee shall:
  864         (a) Explain in a record the specific reasons for not
  865  allowing recovery of the part.
  866         (b) Include the specific reasons in the records of the
  867  medical examiner.
  868         (c) Provide a record with the specific reasons to the
  869  procurement organization.
  870         (8) If the medical examiner or designee allows recovery of
  871  a part under subsection (4), subsection (5), or subsection (6),
  872  the procurement organization shall, upon request, cause the
  873  physician or technician who removes the part to provide the
  874  medical examiner with a record describing the condition of the
  875  part, a biopsy, a photograph, and any other information and
  876  observations that would assist in the postmortem examination.
  877         (9)If a medical examiner or designee is required to be
  878  present at a removal procedure under subsection (6), upon
  879  request the procurement organization requesting the recovery of
  880  the part shall reimburse the medical examiner or designee for
  881  the additional costs incurred in complying with subsection (6).
  882         Section 24. Section 765.5124, Florida Statutes, is created
  883  to read:
  884         765.5124Uniformity of application and construction.—In
  885  applying and construing this uniform act, consideration must be
  886  given to the need to promote uniformity of the law with respect
  887  to its subject matter among states that enact it.
  888         Section 25. Section 765.5125, Florida Statutes, is created
  889  to read:
  890         765.5125Relation to Electronic Signatures in Global and
  891  National Commerce Act.—Sections 765.5101-765.5125 modify, limit,
  892  and supersede the Electronic Signatures in Global and National
  893  Commerce Act, 15 U.S.C. ss. 7001 et seq., but do not modify,
  894  limit, or supersede s. 101(a) of that act, 15 U.S.C. s. 7001, or
  895  authorize electronic delivery of any of the notices described in
  896  s. 103(b) of that act, 15 U.S.C. s. 7003(b).
  897         Section 26. Sections 765.510, 765.511, 765.512, 765.513,
  898  765.514, 765.515, 765.516, and 765.517, Florida Statutes, are
  899  repealed.
  900         Section 27. Paragraph (c) of subsection (2) of section
  901  381.0041, Florida Statutes, is amended to read:
  902         381.0041 Donation and transfer of human tissue; testing
  903  requirements.—
  904         (2) Notwithstanding the provisions of subsection (1),
  905  written, informed consent to perform testing shall not be
  906  required:
  907         (c) When an unrevoked anatomical gift has been made
  908  pursuant to s. 765.5105 765.514, by will or other written
  909  instrument, and the donor is deceased or incompetent.
  910         Section 28. Subsection (1) of section 765.521, Florida
  911  Statutes, is amended to read:
  912         765.521 Donations as part of driver license or
  913  identification card process.—
  914         (1) The Agency for Health Care Administration and the
  915  Department of Highway Safety and Motor Vehicles shall develop
  916  and implement a program encouraging and allowing persons to make
  917  anatomical gifts as a part of the process of issuing
  918  identification cards and issuing and renewing driver licenses.
  919  The donor registration card distributed by the Department of
  920  Highway Safety and Motor Vehicles shall include the information
  921  required by the uniform donor card under s. 765.5105(1)(a)
  922  765.514 and such additional information as determined necessary
  923  by the department. The department shall also develop and
  924  implement a program to identify donors, which includes notations
  925  on identification cards, driver licenses, and driver records or
  926  such other methods as the department develops to clearly
  927  indicate the individual's intent to donate the individual's
  928  organs, tissues, or eyes. A notation on an individual's driver
  929  license or identification card that the individual intends to
  930  donate organs, tissues, or eyes satisfies all requirements for
  931  consent to organ or tissue donation. The Agency for Health Care
  932  Administration shall provide the necessary supplies and forms
  933  from funds appropriated from general revenue or contributions
  934  from interested voluntary, nonprofit organizations. The
  935  department shall provide the necessary recordkeeping system from
  936  funds appropriated from general revenue. The Department of
  937  Highway Safety and Motor Vehicles and the Agency for Health Care
  938  Administration shall incur no liability in connection with the
  939  performance of any acts authorized herein.
  940         Section 29. Subsections (2) and (3) of section 765.522,
  941  Florida Statutes, are amended to read:
  942         765.522 Duty of certain hospital administrators; liability
  943  of hospital administrators, organ procurement organizations, eye
  944  banks, and tissue banks.—
  945         (2) Where, based on accepted medical standards, a hospital
  946  patient is a suitable candidate for organ or tissue donation,
  947  the hospital administrator or the hospital administrator's
  948  designee shall, at or near the time of death, notify the
  949  appropriate organ, eye, or tissue recovery program, which shall
  950  access the organ and tissue donor registry created by s.
  951  765.5120 765.5155 to ascertain the existence of an entry in the
  952  registry that has not been revoked, a donor card, or a document
  953  executed by the decedent. In the absence of an entry in the
  954  donor registry, donor card, organ donation sticker or organ
  955  donation imprint on a driver's license, or other properly
  956  executed document, the organ, eye, or tissue recovery program
  957  shall request:
  958         (a) The patient's health care surrogate, as authorized in
  959  s. 765.5109(4) 765.512(2); or
  960         (b) If the patient does not have a surrogate, or the
  961  surrogate is not reasonably available, any of the persons
  962  specified in s. 765.5109(1) 765.512(3), in the order and manner
  963  listed,
  964  to consent to the gift of all or any part of the decedent's body
  965  for any purpose specified in this part. Except as provided in s.
  966  765.5109 765.512, in the absence of actual notice of opposition,
  967  consent need only be obtained from the person or persons in the
  968  highest priority class reasonably available.
  969         (3) A gift made pursuant to a request required by this
  970  section shall be executed pursuant to s. 765.5110 765.514.
  971         Section 30. This act shall take effect October 1, 2009.