Article 5 - Organ Donation - Illinois Statutes

ILLINOIS STATUTES AND CODES

Article 5 - Organ Donation

(755 ILCS 50/Art. 5 heading) Article 5. Organ Donation. (Source: P.A. 93‑794, eff. 7‑22‑04.)

    (755 ILCS 50/5‑5)(was 755 ILCS 50/3)
    Sec. 5‑5. Persons who may execute an anatomical gift.

(a) Any individual of sound mind who has attained the age of 18 may give all or any part of his or her body for any purpose specified in Section 5‑10. Such a gift may be executed in any of the ways set out in Section 5‑20, and shall take effect upon the individual's death without the need to obtain the consent of any survivor. An anatomical gift made by an agent of an individual, as authorized by the individual under the Powers of Attorney for Health Care Law, as now or hereafter amended, is deemed to be a gift by that individual and takes effect without the need to obtain the consent of any other person.

(b) If no gift has been executed under subsection (a), any of the following persons, in the order of priority stated in items (1) through (11) below, when persons in prior classes are not available for the giving of consent or refusal and in the absence of (i) actual notice of contrary intentions by the decedent and (ii) actual notice of opposition by any member within the same priority class, may consent to give all or any part of the decedent's body after or immediately before death to a person who may become a donee for any purpose specified in Section 5‑10:

(1) an individual acting as the decedent's agent

under a power of attorney for health care,

(2) the decedent's surrogate decision maker

identified by the attending physician in accordance with the Health Care Surrogate Act,

(3) the guardian of the decedent's person at the time

of death,

        (4) the decedent's spouse,
        (5) any of the decedent's adult sons or daughters,
        (6) either of the decedent's parents,
        (7) any of the decedent's adult brothers or sisters,
        (8) any adult grandchild of the decedent,
        (9) a close friend of the decedent,
        (10) the guardian of the decedent's estate,
        (11) any other person authorized or under legal

obligation to dispose of the body.

If the donee has actual notice of opposition to the gift by the decedent or any person in the highest priority class in which an available person can be found, then no gift of all or any part of the decedent's body shall be accepted.

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

(d) The rights of the donee created by the gift are paramount to the rights of others except as provided by Section 5‑45(d).

(e) If no gift has been executed under this Act, then no part of the decedent's body may be used for any purpose specified in this Act.

(Source: P.A. 92‑349, eff. 1‑1‑02; 93‑794, eff. 7‑22‑04.)

(755 ILCS 50/5‑10)(was 755 ILCS 50/4)
Sec. 5‑10.

Persons Who May Become Donees; 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, chiropractic, mortuary or

dental school, college or university for education, research, advancement of medical or dental science, or therapy; or

(3) any bank or storage facility, for medical or

dental education, research, advancement of medical or dental science, therapy, or transplantation; or

(4) any federally designated organ procurement agency

or tissue bank, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or

(5) any specified individual for therapy or

transplantation needed by him or her, or for any other purpose.

(Source: P.A. 93‑794, eff. 7‑22‑04.)

    (755 ILCS 50/5‑15)(was 755 ILCS 50/4.5)
    Sec. 5‑15. Disability of recipient.

(a) No hospital, physician and surgeon, bank or storage facility, or other person shall determine the ultimate recipient of an anatomical gift based upon a potential recipient's physical or mental disability, except to the extent that the physical or mental disability has been found by a physician and surgeon, following a case‑by‑case evaluation of the potential recipient, to be medically significant to the provision of the anatomical gift.

(b) Subsection (a) shall apply to each part of the organ transplant process.

(c) The court shall accord priority on its calendar and handle expeditiously any action brought to seek any remedy authorized by law for purposes of enforcing compliance with this Section.

(d) This Section shall not be deemed to require referrals or recommendations for or the performance of medically inappropriate organ transplants.

(e) As used in this Section "disability" has the same meaning as in the federal Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq., Public Law 101‑336) as may be amended from time to time.

(Source: P.A. 93‑794, eff. 7‑22‑04.)

    (755 ILCS 50/5‑20)(was 755 ILCS 50/5)
    Sec. 5‑20. Manner of Executing Anatomical Gifts.

(a) A gift of all or part of the body under Section 5‑5 (a) 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 Section 5‑5 (a) may also be made by a written, signed document other than a will. The gift becomes effective upon the death of the donor. The document, which may be a card or a valid driver's license designed to be carried on the person, is effective without regard to the presence or signature of witnesses. Such a gift may also be made by properly executing the form provided by the Secretary of State on the reverse side of the donor's driver's license pursuant to subsection (b) of Section 6‑110 of The Illinois Vehicle Code. Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid.

(b‑1) A gift under Section 5‑5 (a) may also be made by an individual consenting to have his or her name included in the First Person Consent organ and tissue donor registry maintained by the Secretary of State under Section 6‑117 of the Illinois Vehicle Code. An individual's consent to have his or her name included in the First Person Consent organ and tissue donor registry constitutes full legal authority for the donation of any of his or her organs or tissue. Consenting to be included in the First Person Consent organ and tissue donor registry is effective without regard to the presence or signature of witnesses.

(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, then if made for the purpose of transplantation, it shall be effectuated in accordance with Section 5‑25, and if made for any other purpose 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.

(d) Notwithstanding Section 5‑45 (b), the donor may designate in his will, card, or other document of gift the surgeon or physician 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 or physician for the purpose.

(e) Any gift by a person designated in Section 5‑5 (b) shall be made by a document signed by him or made by his telegraphic, recorded telephonic, or other recorded message.

(f) When there is a suitable candidate for organ donation and a donation or consent to donate has not yet been given, procedures to preserve the decedent's body for possible organ and tissue donation may be implemented under the authorization of the applicable organ procurement agency, at its own expense, prior to making a donation request pursuant to Section 5‑25. If the organ procurement agency does not locate a person authorized to consent to donation or consent to donation is denied, then procedures to preserve the decedent's body shall be ceased and no donation shall be made. The organ procurement agency shall respect the religious tenets of the decedent, if known, such as a pause after death, before initiating preservation services. Nothing in this Section shall be construed to authorize interference with the coroner in carrying out an investigation or autopsy.

(Source: P.A. 93‑794, eff. 7‑22‑04; 94‑75, eff. 1‑1‑06; 94‑920, eff. 1‑1‑07.)

    (755 ILCS 50/5‑25)
    Sec. 5‑25. Notification; consent.

(a) When, based upon generally accepted medical standards, an inpatient in a general acute care hospital with more than 100 beds is a suitable candidate for organ or tissue donation and the patient has not made an anatomical gift of all or any part of his or her body pursuant to Section 5‑20 of this Act, the hospital shall proceed in accordance with the requirements of 42 CFR 482.45 or any successor provisions of federal statute or regulation, as may be amended from time to time, and the written agreement between the hospital and the applicable organ procurement agency executed thereunder.

(b) In making a request for organ or tissue donation, the hospital or the hospital's federally designated organ procurement agency or tissue bank shall request any of the following persons, in the order of priority stated in items (1) through (11) below, when persons in prior classes are not available and in the absence of (i) actual notice of contrary intentions by the decedent, (ii) actual notice of opposition by any member within the same priority class, and (iii) reason to believe that an anatomical gift is contrary to the decedent's religious beliefs, to consent to the gift of all or any part of the decedent's body for any purpose specified in Section 5‑10 of this Act:

(1) an individual acting as the decedent's agent

under a power of attorney for health care;

(2) the decedent's surrogate decision maker

identified by the attending physician in accordance with the Health Care Surrogate Act;

(3) the guardian of the decedent's person at the time

of death;

        (4) the decedent's spouse;
        (5) any of the decedent's adult sons or daughters;
        (6) either of the decedent's parents;
        (7) any of the decedent's adult brothers or sisters;
        (8) any adult grandchild of the decedent;
        (9) a close friend of the decedent;
        (10) the guardian of the decedent's estate; or
        (11) any other person authorized or under legal

obligation to dispose of the body.

(c) If (1) the hospital, the applicable organ procurement agency, or the tissue bank has actual notice of opposition to the gift by the decedent or any person in the highest priority class in which an available person can be found, or (2) there is reason to believe that an anatomical gift is contrary to the decedent's religious beliefs, or (3) the Director of Public Health has adopted a rule signifying his or her determination that the need for organs and tissues for donation has been adequately met, then the gift of all or any part of the decedent's body shall not be requested. If a donation is requested, consent or refusal may be obtained only from the person or persons in the highest priority class available. If the hospital administrator, or his or her designated representative, the designated organ procurement agency, or the tissue bank is unable to obtain consent from any of the persons named in items (1) through (11) of subsection (b) of this Section, the decedent's body shall not be used for an anatomical gift unless a valid anatomical gift document was executed under this Act.

(d) When there is a suitable candidate for organ donation, as described in subsection (a), or if consent to remove organs and tissues is granted, the hospital shall notify the applicable federally designated organ procurement agency. The federally designated organ procurement agency shall notify any tissue bank specified by the hospital of the suitable candidate for tissue donation. The organ procurement agency shall collaborate with all tissue banks in Illinois to maximize tissue procurement in a timely manner.

(Source: P.A. 93‑794, eff. 7‑22‑04.)

    (755 ILCS 50/5‑27)(was 755 ILCS 60/3.5)
    Sec. 5‑27. Notification of patient; family rights and options.

(a) In this Section, "donation after cardiac death" means the donation of organs from a ventilated patient without a certification of brain death and with a do‑not‑resuscitate order, if a decision has been reached by the physician and the family to withdraw life support and if the donation does not occur until after the declaration of cardiac death.

(b) If (i) a potential organ donor, or an individual given authority under subsection (b) of Section 5‑25 to consent to an organ donation, expresses an interest in organ donation, (ii) there has not been a certification of brain death for the potential donor, and (iii) the potential donor is a patient at a hospital that does not allow donation after cardiac death, then the organ procurement agency shall inform the patient or the individual given authority to consent to organ donation that the hospital does not allow donation after cardiac death.

(c) In addition to providing oral notification, the organ procurement agency shall develop a written form that indicates to the patient or the individual given authority to consent to organ donation, at a minimum, the following information:

(1) That the patient or the individual given

authority to consent to organ donation has received literature and has been counseled by (representative's name) of the (organ procurement agency name).

(2) That all organ donation options have been

explained to the patient or the individual given authority to consent to organ donation, including the option of donation after cardiac death.

(3) That the patient or the individual given

authority to consent to organ donation is aware that the hospital where the potential donor is a patient does not allow donation after cardiac death.

(4) That the patient or the individual given

authority to consent to organ donation has been informed of the right to request a patient transfer to a facility allowing donation after cardiac death.

(5) That the patient or the individual given

authority to consent to organ donation has been informed of another hospital that will allow donation after cardiac death and will accept a patient transfer for the purpose of donation after cardiac death; and that the cost of transferring the patient to that other hospital will be covered by the organ procurement agency, with no additional cost to the patient or the individual given authority to consent to organ donation.

The form required under this subsection must include a

place for the signatures of the patient or the individual given authority to consent to organ donation and the representative of the organ procurement agency and space to provide the date that the form was signed.

(Source: P.A. 95‑331, eff. 8‑21‑07.)

    (755 ILCS 50/5‑30)
    Sec. 5‑30. Corneal Transplants.

(a) Upon request by a physician licensed to practice medicine in all its branches, or by an eye bank certified by the Eye Bank Association of America, and approved by the coroner or county medical examiner, in any case in which a patient is in need of corneal tissue for a transplant, a coroner or county medical examiner who orders the performance of an autopsy may provide corneal tissue of a decedent whenever all of the following conditions are met:

(1) The decedent from whom the tissue is taken is

under the jurisdiction of the coroner or county medical examiner.

(2) There has been a reasonable and good faith effort

by the coroner or county medical examiner or any authorized individual acting for the coroner or county medical examiner to contact an appropriate person as set forth in subsection (b) of this Section.

(3) No objection by the decedent or, after the

decedent's death, by an appropriate person as set forth in subsection (b) of this Section is known to the coroner or county medical examiner or authorized individual acting for the coroner or county medical examiner prior to removal of the corneal tissue.

(4) The person designated to remove the tissue is

qualified to do so under this Act.

(5) Removal of the tissue will not interfere with the

subsequent course of an investigation or autopsy.

(6) The individual when living did not make known in

writing his or her objection on religious grounds to the removal of his or her corneal tissue.

(b) Objection to the removal of corneal tissue may be made known to the coroner or county medical examiner or authorized individual acting for the coroner or county medical examiner by the individual during his or her lifetime or by the following persons, in the order of priority stated, after the decedent's death:

(1) an individual acting as the decedent's agent

under a power of attorney for health care;

(2) the decedent's surrogate decision maker

identified by the attending physician in accordance with the Health Care Surrogate Act;

(3) the guardian of the decedent's person at the time

of death;

obligation to dispose of the body.

(c) If the coroner or county medical examiner or any authorized individual acting for the coroner or county medical examiner has actual notice of any contrary indications by the decedent or actual notice that any member within the same class specified in subsection (b), paragraphs (1) through (11), of this Section, in the same order of priority, objects to the removal, the coroner or county medical examiner shall not approve the removal of corneal tissue.

(d) The coroner or county medical examiner or any authorized individual acting for the coroner or county medical examiner authorizing the removal of corneal tissue, or the persons or organizations listed in subsection (a) of this Section, shall not be liable in any civil or criminal action for removing corneal tissue from a decedent and using the same for transplant purposes if there has been compliance with the provisions of this Section.

(Source: P.A. 93‑794, eff. 7‑22‑04.)

(755 ILCS 50/5‑35)(was 755 ILCS 50/6)
Sec. 5‑35. 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. 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 it 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.

(Source: P.A. 93‑794, eff. 7‑22‑04.)

    (755 ILCS 50/5‑40)(was 755 ILCS 50/7)
    Sec. 5‑40. 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 witnessed and certified as provided in Section 5‑20(b); or

(2) a signed card or document found on his person, or

in his effects, executed at a date subsequent to the date the original gift was made and witnessed and certified as provided in Section 5‑20(b).

(b) Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set out in subsection (a).

(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).

(d) An individual may withdraw his or her consent to be listed in the First Person Consent organ and tissue donor registry maintained by the Secretary of State by notifying the Secretary of State in writing, or by any other means approved by the Secretary, of the individual's decision to have his or her name removed from the registry.

(Source: P.A. 93‑794, eff. 7‑22‑04; 94‑75, eff. 1‑1‑06.)

    (755 ILCS 50/5‑45)(was 755 ILCS 50/8)
    Sec. 5‑45. Rights and Duties at Death.

(a) The donee may accept or reject the gift. If the donee accepts a gift of the entire body, he may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services, unless a person named in subsection (b) of Section 5‑5 has requested, prior to the final disposition by the donee, that the remains of said body be returned to his or her custody for the purpose of final disposition. Such request shall be honored by the donee if the terms of the gift are silent on how final disposition is to take place. If the gift is of a part of the body, the donee or technician designated by him upon the death of the donor and prior to embalming, shall cause the part to be removed without unnecessary mutilation and without undue delay in the release of the body for the purposes of final disposition. 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, in the order or priority listed in subsection (b) of Section 5‑5 of this Act.

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

(c) A person who acts in good faith in accord with the terms of this Act, the Illinois Vehicle Code, and the AIDS Confidentiality Act, or 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 his act. Any person that participates in good faith and according to the usual and customary standards of medical practice in the preservation, removal, or transplantation of any part of a decedent's body pursuant to an anatomical gift made by the decedent under Section 5‑20 of this Act or pursuant to an anatomical gift made by an individual as authorized by subsection (b) of Section 5‑5 of this Act shall have immunity from liability, civil, criminal, or otherwise, that might result by reason of such actions. For the purpose of any proceedings, civil or criminal, the validity of an anatomical gift executed pursuant to Section 5‑20 of this Act shall be presumed and the good faith of any person participating in the removal or transplantation of any part of a decedent's body pursuant to an anatomical gift made by the decedent or by another individual authorized by the Act shall be presumed.

(d) This Act is subject to the provisions of "An Act to revise the law in relation to coroners", approved February 6, 1874, as now or hereafter amended, to the laws of this State prescribing powers and duties with respect to autopsies, and to the statutes, rules, and regulations of this State with respect to the transportation and disposition of deceased human bodies.

(e) If the donee is provided information, or determines through independent examination, that there is evidence that the gift was exposed to the human immunodeficiency virus (HIV) or any other identified causative agent of acquired immunodeficiency syndrome (AIDS), the donee may reject the gift and shall treat the information and examination results as a confidential medical record; the donee may disclose only the results confirming HIV exposure, and only to the physician of the deceased donor. The donor's physician shall determine whether the person who executed the gift should be notified of the confirmed positive test result.

(Source: P.A. 93‑794, eff. 7‑22‑04; 94‑75, eff. 1‑1‑06; 94‑920, eff. 1‑1‑07.)

    (755 ILCS 50/5‑50)(was 755 ILCS 50/8.1)
    Sec. 5‑50. Payment for gift.

(a) Except as provided in subsection (b), any person who knowingly pays or offers to pay any financial consideration to a donor or to any of the persons listed in subsection (b) of Section 5‑5 for making or consenting to an anatomical gift shall be guilty of a Class A misdemeanor for the first conviction and a Class 4 felony for subsequent convictions.

(b) This Section does not prohibit reimbursement for reasonable costs associated with the removal, storage or transportation of a human body or part thereof pursuant to an anatomical gift executed pursuant to this Act.

(Source: P.A. 93‑794, eff. 7‑22‑04.)