Public Act 0920 94TH GENERAL ASSEMBLY

HB5259 Enrolled LRB094 17646 RCE 52944 b

Public Act 094-0920

AN ACT concerning organ donation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Anatomical Gift Act is amended by changing Sections 5-20 and 5-45 as follows:

(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.)

(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.)