2010 Delaware Code
Title 16 - Health and Safety
Chapter 27. Anatomical Gifts and Studies
Subchapter II. Uniform Anatomical Gift Act

TITLE 16 Health and Safety Regulatory Provisions Concerning Public Health CHAPTER 27. ANATOMICAL GIFTS AND STUDIES Subchapter II. Uniform Anatomical Gift Act

§ 2710. Definitions.

As used in subchapters II and III of this chapter:

(1) "Acute care general hospital" means a hospital that provides diagnostic and therapeutic services to patients for a variety of medical conditions both surgical and nonsurgical and in which the average length of stay for all patients is less than 30 days.

(2) "Anatomical donation" or "anatomical donor" means a human body part donation or a human body part donor.

(3) "Bank or storage facility" means a facility licensed, accredited or approved under the laws of any state for storage of human bodies or parts thereof.

(4) "Decedent" means a deceased individual and includes a stillborn infant or fetus.

(5) "Department" means the Delaware Department of Health and Social Services.

(6) "Donor" means an individual who makes a gift of all or part of the individual's body.

(7) "Fund" means the Organ and Tissue Donor Awareness Trust Fund.

(8) "Hospital" means a hospital licensed, accredited or approved under the laws of any state and includes a hospital operated by the United States government, a state or a subdivision thereof, although not required to be licensed under state laws.

(9) "OPO" means the federally certified organ procurement organization for the State.

(10) "Part" includes organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of a human body, and "part" includes "parts".

(11) "Person" means an individual, corporation, government or governmental subdivision or agency, statutory trust, business trust, estate, trust, partnership or association or any other legal entity.

(12) "Physician" or "surgeon" means a physician or surgeon licensed or authorized to practice under the laws of any state.

(13) "Recovery specialist" means a medical professional licensed by this or another state or technician trained in accordance with federal standards pursuant to 42 U.S.C. § 274(b) and nationally accredited standards for human body part removal.

(14) "State" includes a state, district, commonwealth, territory, insular possession and any other area subject to the legislative authority of the United States of America.

24 Del. C. 1953, § 1780; 57 Del. Laws, c. 445, § 2; 65 Del. Laws, c. 487, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 453, § 2; 73 Del. Laws, c. 329, § 58.;

§ 2711. Persons who may execute an anatomical gift.

(a) Any individual of sound mind and 18 years of age or more or an individual not of such age who has parental consent may give all or any part of the individual's body for any purposes specified in § 2712 of this title, the gift to take effect upon the donor's death. However, a married minor may make such a donation without parental consent.

(b) "Parental consent" as used in this section shall be defined as the written permission by any of the following persons in order of priority stated below when persons of prior classes are no longer living or no longer have contractual capacity and when there is no notice to a donee of an objection, written or otherwise, by a person of the same class:

(1) Either parent;

(2) A legal guardian;

(3) Any individual having legal custody.

(c) Any of the following persons in order of priority stated, when persons in prior classes are not available at the time of death and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent's body for any purpose specified in § 2712 of this title:

(1) The spouse;

(2) An adult son or daughter, 18 years of age or older;

(3) Either parent;

(4) An adult brother or sister;

(5) A guardian of the person of the decedent at the time of death;

(6) Any other person authorized or under obligation to dispose of the body.

(d) If the donee has actual notice of contrary indications by the decedent or that a gift by a member of a class is opposed by a member of the same or a prior class, the donee shall not accept the gift. The persons authorized by subsection (c) of this section may make the gift after death or immediately before death.

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

(f) The rights of the donee created by the gift are paramount to the rights of others except as provided by § 2716(f) of this title.

(g) A donor's gift of all or any part of the individual's body, as indicated pursuant to this chapter, including, but not limited to, a designation on a driver's license or identification card, donor card, advance health care directive, will or other document of gift, may not be revoked by the next-of-kin or other persons identified in subsection (c) of this section, nor shall the consent of any such person at the time of the donor's death or immediately thereafter be necessary to render the gift valid and effective.

24 Del. C. 1953, § 1781; 57 Del. Laws, c. 445, § 2; 64 Del. Laws, c. 16, §§ 1-3; 65 Del. Laws, c. 487, § 3; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 1, § 1.;

§ 2712. Persons who may become donees, and purposes for which anatomical gifts may be made.

The following persons may become donees of gifts of bodies or parts thereof for the purposes stated:

(1) Any hospital, surgeon or physician, for medical or dental education, research, advancement of medical or dental science, therapy or transplantation; or

(2) Any accredited medical or dental school, college or university for education, research, advancement of medical or dental science or therapy; or

(3) Any bank, storage facility or OPO for medical or dental education, research, advancement of medical or dental science, therapy or transplantation; or

(4) Any specified individual for therapy or transplantation needed by that individual.

24 Del. C. 1953, § 1782; 57 Del. Laws, c. 445, § 2; 65 Del. Laws, c. 487, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 453, § 3.;

§ 2713. Manner of executing anatomical gifts.

(a) A gift of all or part of the body under § 2711(a) of this title may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective.

(b) A gift of all or part of the body under § 2711(a) of this title may also be made by document other than a will. The gift becomes effective upon the death of the donor. The document, which may be a card designed to be carried on the person, must be signed by the donor in the presence of 2 witnesses who need not be in the presence of each other but who must sign the document in the donor's presence. If the donor cannot sign, the document may be signed for the donor at the donor's direction and in the donor's presence and in the presence of 2 witnesses who must sign the document in the donor's presence. Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid.

(c) The gift may be made to a specified donee or without specifying a donee. If the latter, the gift may be accepted by the attending physician as donee upon or following death. If the gift is made to a specified donee who is not available at the time and place of death, the attending physician upon or following death, in the absence of any expressed indication that the donor desired otherwise, may accept the gift as donee. The physician who becomes a donee under this subsection shall not participate in the procedures for removing or transplanting a part.

(d) Notwithstanding § 2716(b) of this title, the donor may designate in the donor's will, card or other document of gift the surgeon, physician or recovery specialist to carry out the appropriate procedures. In the absence of a designation or if the designee is not available, the donee or other person authorized to accept the gift may employ or authorize any surgeon, physician or recovery specialist for the purpose or, in the case of a gift of eyes, donee or authorized person may employ or authorize an undertaker licensed by the State or a qualified eye bank technician on the staff of the Medical Eye Bank of Delaware or the Lion's Eye Bank of Delaware Valley who has successfully completed a course in eye enucleation approved by the Medical Examiner of the State to enucleate eyes for the gift after certification of death by a physician. A qualified undertaker or eye bank technician acting in accordance with this subsection shall be free from civil and criminal liability with respect to the eye enucleation.

(e) Any gift by a person designated in § 2711(c) of this title shall be made by a document signed by the person or made by the person's telegraphic, recorded, telephonic or other recorded message.

(f) A person who so directs the manner in which the person's body or any part of the person's body shall be disposed of shall receive no remuneration or other thing of value for such disposition.

24 Del. C. 1953, § 1783; 57 Del. Laws, c. 445, § 2; 59 Del. Laws, c. 330, § 1; 65 Del. Laws, c. 487, § 3; 67 Del. Laws, c. 360, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 453, § 4.;

§ 2714. Delivery of document of gift.

If the gift is made by the donor to a specified donee, the will, card or other document, or an executed copy thereof, may be delivered to the donee to expedite the appropriate procedures immediately after death, but delivery is not necessary to the validity of the gift. The will, card or other document, or an executed copy thereof, may be deposited in any hospital, bank or storage facility or registry office that accepts them for safekeeping or for facilitation of procedures after death. On request of any interested party upon or after the donor's death, the person in possession shall produce the document for examination.

24 Del. C. 1953, § 1784; 57 Del. Laws, c. 445, § 2; 65 Del. Laws, c. 487, § 3.;

§ 2715. Amendment or revocation of the gift.

(a) If the will, card or other document or executed copy thereof has been delivered to a specified donee, the donor may amend or revoke the gift by:

(1) The execution and delivery to the donee of a signed statement;

(2) An oral statement made in the presence of 2 persons and communicated to the donee;

(3) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee; or

(4) A signed card or document found on the person or in the person's effects.

(b) Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set in subsection (a) of this section or by destruction, cancellation or mutilation of the document and all executed copies thereof.

(c) Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in subsection (a) of this section.

24 Del. C. 1953, § 1785; 57 Del. Laws, c. 445, § 2; 65 Del. Laws, c. 487, § 3; 70 Del. Laws, c. 186, § 1.;

§ 2716. Rights and duties at death.

(a) The donee may accept or reject the gift. If the donee accepts a gift of the entire body, the donee may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services. If the gift is of a part of the body, the donee, upon the death of the donor and prior to embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin or other persons under obligation to dispose of the body. The heir of any donor, at the time the disposition of the body takes place, may submit a request in writing to the donee that the body be returned to the heir at such time as the donee either refuses the disposition of the entire body or the parts thereof or determines that the donee no longer has use of the remains.

(b) A surgeon, physician, funeral director, recovery specialist or eye bank technician who is authorized to remove any part in accordance with this subchapter is also authorized to draw or secure a blood sample from the donor, in order to screen the tissue received for medical purposes.

(c) The time of death shall be determined by a physician who attends the donor at the donor's death or, if none, the physician who certifies the death. This physician shall not participate in the procedures for removing or transplanting a part.

(d) A person who acts in good faith in accord with the terms of this subchapter or under the anatomical gift laws of another state (or a foreign country) is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for that act.

(e) Where no other provision for the same exists, a body, or the remains thereof, after it is no longer needed for the purpose indicated by the donor, may be buried at public expense on order of the Medical Council of Delaware, but in no case shall the expense of the burial exceed $100.

(f) This subchapter is subject to the laws of this State prescribing powers and duties with respect to autopsies.

24 Del. C. 1953, § 1786; 57 Del. Laws, c. 445, § 2; 65 Del. Laws, c. 335, §§ 1, 2; 65 Del. Laws, c. 487, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 453, § 5.;

§ 2717. Uniformity of interpretation.

This subchapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

24 Del. C. 1953, § 1787; 57 Del. Laws, c. 445, § 2; 65 Del. Laws, c. 487, § 3.;

§ 2718. Short title.

This subchapter may be cited as the Uniform Anatomical Gift Act.

24 Del. C. 1953, § 1788; 57 Del. Laws, c. 445, § 2; 65 Del. Laws, c. 487, § 3.;

§ 2719. Forms.

The following forms may be used to accomplish the purposes of this

subchapter:

Anatomical Gift by Next of Kin or Other Authorized Person

I,........... , hereby make this anatomical gift of or from to the body

of ........... who died on ............. at the ............ in ............. The

marks in the appropriate squares and the words filled into the blanks below

indicate my relationship to the deceased and my desires respecting the gift.

I am the surviving: [ ] spouse; [ ] adult son or daughter; [ ] parent; [ ] adult

brother or sister; [ ] guardian; [ ] ..............., authorized to dispose of the

body:

I give [ ] the body of deceased; [ ] any needed organs or parts; [ ] the

following organs or parts ...........................;

To the following person (or institution)...................... . (insert the

name of a physician, hospital, research or educational institution, storage

bank or individual), for the following purposes: [ ] any purpose authorized by

law; [ ] transplantation; [ ] therapy; [ ] research; [ ] medical education.

Dated........... City and State .........................

………………............. Signature of Survivor

…………………........... Address of Survivor

Anatomical Gift by a Living Donor

I am of sound mind and 18 years or more of age.

I hereby make this anatomical gift to take effect upon my death. The marks in

the appropriate squares and words filled into the blanks below indicate my

desires.

I give: [ ] my body; [ ] any needed organs or parts; [ ] the following organs or

parts .........................................................................................................................;

To the following person or institutions [ ]| the physician in attendance at my

death; [ ] the hospital in which I die; [ ] the following named physician,

hospital, storage bank or other medical institution ..................; [ ] the

following individual for treatment ............................; for the following

purposes: [ ] any purpose authorized by law; [ ] transplantation; [ ] therapy; [ ]

research; [ ] medical education.

Dated ........... City and State ..............................

Signed by the Donor in the presence of the following who sign as witnesses.

……............. ………………………….

Witness Signature of Donor

..................... …………………………

Witness Address of Donor

Anatomical Gift by a Living Minor Donor

I am of sound mind and under 18 years of age.

I hereby make this anatomical gift to take effect upon my death with the

parental consent of the undersigned. The marks in the appropriate squares and

the words filled into the blanks below indicate my desires.

I give: [ ] my body; [ ] any needed organs or parts; [ ] the following organs or

parts ........................................................................................................................;

To the following person or institutions [ ] the physician in attendance at my

death; [ ] the hospital in which I die; [ ] the following named physician,

hospital, storage bank or other medical institution …………............. ; [ ] the

following individual for treatment ………………................. ; for the following

purposes; [ ] any purpose authorized by law; [ ] transplantation; [ ] therapy;

[ ] research; [ ] medical education.

Dated......... . City and State......................

The undersigned parent or other person authorized by law grants permission for

the above anatomical gift.

Signed by the Donor and the person giving parental consent in the presence of

the following who sign as witnesses.

…………………………..

Signature of Donor

…………….. ..........................................

Witness Address of Donor

…………………..............

Signature of Parent or

other Person Authorized by Law

.......................... .........................................

Witness Address of Consenting Party

Witness Address of Consenting Party

24 Del. C. 1953, § 1789; 57 Del. Laws, c. 445, § 2; 64 Del. Laws, c. 16, § 4; 65 Del. Laws, c. 487, § 3.;