LEGAL ISSUES IN
AUTHORIZATION FOR ORGAN
DONATION IN
MISSOURI & KANSAS
Laurence R. Tucker
November 18, 2011
A.
Authorization for the
Donation of
Organs and
Tissues is Governed by Both
Federal and State Law.
B.
The Federal Laws and
Regulations Established and
Govern the Organ Procurement
and Transplantation Network
(OPTN).
1. The National Organ
Transplantation Act passed by
Congress in 1984 requires
that an
OPO:
 a. have effective agreements to identify potential
donors with hospitals in their service area;
 b. conduct and participate in systematic efforts to
acquire usable organs from potential donors; and
 c. arrange for the acquisition and preservation of
donated organs.
2. Regulations adopted under that
statute and the Medicare Act require
that
OPOs comply with certain
conditions which include:
 a. having contracts with 95% of the hospitals in the
service area in which the OPO and hospital agree
how potential donors will be identified and donation
obtained;
 b. having a written protocol to ensure that in the
absence of a donor document, the individuals
responsible for making the donation are informed of
their options to donate organs and tissue or to
decline to donate. The OPO must provide, at the
minimum the following:
 1. A list of the organs and/or tissues that may be recovered.
 2. The most likely uses for the donated organs and tissues.
 3. A description of the screening and recovery process.
 4. Information about the organizations that will recover, process and
distribute the tissue.
 5. Information regarding access to and release of the donor’s medical
records.
 6. An explanation of the impact the donation process will have on
burial arrangements and the appearance of the donor’s body.
 7. Contact information for individual(s) with questions or concerns.
 8. A copy of the signed consent if donation is made.
 c. If the donor gave authorization before death in a
manner acceptable to the State in which the donor
resided, then the OPO must provide information
about the donation to the family of the potential
donor, as requested.
●
This is important in Missouri and Kansas because
both states’ laws promote First Person authorization.
3. The state laws of Missouri and
Kansas provide the legal guidance to
determine: How may a gift of an
organ or tissue be made? By whom
may the
gift be made? How may
the gift be modified or revoked?
What are the
obligations of the
OPO in seeking consent? What
liability exposure does an OPO have
in seeking consent?
C.
The State Laws Which Govern
the Making of a Gift of Organs or
Tissues Have Many
Similarities,
and a Few
Differences
1. Both Missouri and Kansas have
enacted
forms of the Uniform
Anatomical Gift Act (UAGA).
2. Kansas and Missouri have now
adopted
the most modern
version of this law (2006).
3. Both acts cover the same ground
with
minor variations. Both
states base their laws on the
principle of First
Person
Authorization.
4. Gifts of organs or tissue can be
made in
both states by:
 a. a will;
 b. a donor card;
 c. authorizing a statement or a symbol to be placed on the
donor’s drivers’ license (or state identity card) which
indicates that donation has been authorized; and
 d. an oral statement when the donor is terminal due to an
illness or injury, addressed to two adult witnesses who
sign a document of donation.
 e. In the absence of a specific gift by the donor, or a
known prior objection, a gift may be made by one of a list
of persons (the priority list), but only in specific
circumstances where someone of equal or higher priority
has not objected to the gift. [This list is different in
Kansas from Missouri, but both states provide that a
majority of a priority class can determine whether a
donation will be made or not.]
5. A gift may be amended or
revoked in Missouri or Kansas in
essentially the same ways:
 a. by a new record signed by the donor, a person on the
priority list or;
 b. an oral statement during a terminal illness or injury to
two witnesses which is made into a signed record;
 c. by a will; and
 d. destruction of a prior document of gift.
 e. In Missouri, by informing the Department of Health and
Human Services that he or she wishes to withdraw the
consent to donation.
6. Missouri formerly permitted a
revocation of a gift made by a
consent
noted on a drivers’
license by its
expiration or
revocation, but does not permit that
to occur under the new law.
7. Both states provide for a refusal
of donation by the explicit act of the
potential donor. The methods
which can be used are :
 a. a form signed by either the donor or someone acting at
the direction of the donor (who is unable to physically
sign a document) which is witnessed by two persons, one
of whom is a disinterested person; or
 b. a will.
 c. any form of communication during a terminal illness
or injury made to two adults.
 d. This refusal can be amended or revoked just as a gift
can, but only by the donor.
8. Other differences between the
states have been removed by the
new
law:
 a. In Kansas a 16 year old can make a gift without
parental consent, but the parents of an unemancipated
minor can revoke that gift later, and can revoke the child’s
refusal to donate.
 b. In Missouri, under the old law only persons 18 or older
could make a gift, but now the law is like the Kansas law,
except the parents cannot revoke a child’s refusal to
donate.
 c. Kansas and Missouri requires OPOs to make only a
reasonable search for available priority members to give
consent and the term “reasonable availability” is now
defined.
9. One of the biggest differences
between
the states has to do with
civil and
criminal immunity.
 a. In Missouri, a person must either act in accordance
with the statute, or another state’s anatomical gift statute
or act “without negligence and in good faith”.
 b. In Kansas, the OPO must act in conformance with the
Kansas statute, another state’s statute or make a good
faith attempt to comply with it. (There is no reference to
negligence.)
 c. Both states now provide immunity to the person
making the gift on the donor’s estate for any injury or
damage that results from the making or use of the gift.
[This would seem to prevent claims for the mutilation of a
donor’s body or claims for a “defective” body part.]
Key Concepts:
 1. Gift: the transfer of property without any payment or
other consideration. The law does not involve the
concept of “consent” as in “informed consent”.
 2. Amendment: An alteration in the gift.
 3. Revocation: The decision to not make a gift after
originally deciding to do so. A decision which can be
reversed again by a member of the “priority” list.

4. Rejection: An unequivocal decision to not make a
gift.
Case Studies and Conclusion