Rep. William Davis

Filed: 3/13/2013

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 2339

2    AMENDMENT NO. ______. Amend House Bill 2339 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Anatomical Gift Act is amended by
5changing Sections 1-5, 1-10, 5-5, 5-15, 5-20, 5-25, 5-27, 5-35,
65-45, and 5-50 and by adding Sections 5-7, 5-12, 5-42, 5-43,
75-47, and 5-55 as follows:
 
8    (755 ILCS 50/1-5)
9    Sec. 1-5. Purpose. Illinois recognizes that there is a
10critical shortage of human organs and tissues available to
11citizens in need of organ and tissue transplants. This shortage
12leads to the untimely death of many adults and children in
13Illinois and across the nation each year. This Act is intended
14to implement the public policy of encouraging timely donation
15of human organs and tissue in Illinois, and facilitating
16transplantation transplants of those organs and tissue into

 

 

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1patients in need of them, and encouraging anatomical gifts for
2therapy, research, or education. Through this Act, laws
3relating to organ and tissue donation and transplantation are
4consolidated and modified for the purpose of furthering this
5public policy, and for the purpose of establishing consistency
6between this Act and the core provisions of the Revised Uniform
7Anatomical Gift Act of 2006.
8(Source: P.A. 93-794, eff. 7-22-04.)
 
9    (755 ILCS 50/1-10)  (was 755 ILCS 50/2)
10    Sec. 1-10. Definitions.
11    "Bank or storage facility" means a facility licensed,
12accredited or approved under the laws of any state for storage
13of human bodies or parts thereof.
14    "Close friend" means any person 18 years of age or older
15who has exhibited special care and concern for the decedent and
16who presents an affidavit to the decedent's attending
17physician, or the hospital administrator or his or her
18designated representative, stating that he or she (i) was a
19close friend of the decedent, (ii) is willing and able to
20consent to the donation, and (iii) maintained such regular
21contact with the decedent as to be familiar with the decedent's
22health and social history, and religious and moral beliefs. The
23affidavit must also state facts and circumstances that
24demonstrate that familiarity.
25    "Death" means, for the purposes of the Act, when, according

 

 

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1to accepted medical standards, there is (i) an irreversible
2cessation of circulatory and respiratory functions; or (ii) an
3irreversible cessation of all functions of the entire brain,
4including the brain stem the irreversible cessation of total
5brain function, according to usual and customary standards of
6medical practice.
7    "Decedent" means a deceased individual and includes a
8stillborn infant or fetus.
9    "Disinterested witness" means a witness other than the
10spouse, child, parent, sibling, grandchild, grandparent, or
11guardian of the individual who makes, amends, revokes, or
12refuses to make an anatomical gift, or another adult who
13exhibited special care and concern for the individual. The term
14does not include a person to whom an anatomical gift could pass
15under Section 5-10 of this Act.
16    "Document of Gift" means a donor card or other record used
17to make an anatomical gift. The term includes a donor registry.
18    "Donor" means an individual whose body or part is the
19subject of an anatomical gift. who makes a gift of all or parts
20of his body.
21    "Federally designated organ procurement agency" means the
22organ procurement agency designated by the Secretary of the
23U.S. Department of Health and Human Services for the service
24area in which a hospital is located, or the organ procurement
25agency for which the U.S. Secretary of Health and Human
26Services has granted the hospital a waiver pursuant to 42

 

 

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1U.S.C. 1320b-8(a).
2    "Hospital" means a hospital licensed, accredited or
3approved under the laws of any state; and includes a hospital
4operated by the United States government, a state, or a
5subdivision thereof, although not required to be licensed under
6state laws.
7    "Non-transplant anatomic bank" means any facility or
8program operating or providing services in this State that is
9accredited by the American Association of Tissue Banks and that
10is involved in procuring, furnishing, or distributing whole
11bodies or parts for the purpose of medical education. For
12purposes of this Section, a non-transplant anatomic bank
13operating under the auspices of a hospital, accredited medical
14school, dental school, college or university, or federally
15designated organ procurement organization is not required to be
16accredited by the American Association of Tissue Banks.
17    "Not available" for the giving of consent or refusal means:
18    (1) the existence of the person is unknown to the hospital
19administrator or designee, organ procurement agency, or tissue
20bank and is not readily ascertainable through the examination
21of the decedent's hospital records and the questioning of any
22persons who are available for giving consent;
23    (2) the administrator or designee, organ procurement
24agency, or tissue bank has unsuccessfully attempted to contact
25the person by telephone or in any other reasonable manner; or
26    (3) the person is unable or unwilling to respond in a

 

 

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1manner that indicates the person's refusal or consent.
2    "Organ" means a human kidney, liver, heart, lung, pancreas,
3small bowel, or other transplantable vascular body part as
4determined by the Organ Procurement and Transplantation
5Network, as periodically selected by the U.S. Department of
6Health and Human Services.
7    "Organ procurement organization" means the organ
8procurement organization designated by the Secretary of the
9U.S. Department of Health and Human Services for the service
10area in which a hospital is located, or the organ procurement
11organization for which the Secretary of the U.S. Department of
12Health and Human Services has granted the hospital a waiver
13pursuant to 42 U.S.C. 1320b-8(a).
14    "Procurement organization" means an organ procurement
15organization or a tissue bank.
16    "Reasonably available for the giving of consent or refusal"
17means a person who is able to be contacted by a procurement
18organization without undue effort and who is willing and able
19to act in a timely manner consistent with existing medical
20criteria necessary for the making of an anatomical gift.
21    "Tissue" means eyes, bones, heart valves, veins, skin, and
22any other portions of a human body excluding blood, blood
23products or organs.
24    "Part" means organs, tissues, eyes, bones, arteries,
25blood, other fluids and any other portions of a human body.
26    "Person" means an individual, corporation, government or

 

 

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1governmental subdivision or agency, business trust, estate,
2trust, partnership or association or any other legal entity.
3    "Physician" or "surgeon" means a physician or surgeon
4licensed or authorized to practice medicine in all of its
5branches under the laws of any state.
6    "State" includes any state, district, commonwealth,
7territory, insular possession, and any other area subject to
8the legislative authority of the United States of America.
9    "Technician" means an individual trained and certified to
10remove tissue, by a recognized medical training institution in
11the State of Illinois.
12    "Tissue bank" means any facility or program operating in
13Illinois that is accredited certified by the American
14Association of Tissue Banks, the Eye Bank Association of
15America, or the Association of Organ Procurement Organizations
16and is involved in procuring, furnishing, donating, or
17distributing corneas, bones, or other human tissue for the
18purpose of injecting, transfusing, or transplanting any of them
19into the human body, or for research or education. "Tissue
20bank" does not include a licensed blood bank. For the purposes
21of this Act, "tissue" does not include organs or blood or blood
22products.
23(Source: P.A. 93-794, eff. 7-22-04.)
 
24    (755 ILCS 50/5-5)  (was 755 ILCS 50/3)
25    Sec. 5-5. Persons who may execute an anatomical gift.

 

 

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1    (a) An anatomical gift of a donor's body or part may be
2made during the life of the donor for the purpose of
3transplantation, therapy, research, or education by:
4        (1) the donor, if the donor is an adult or if the donor
5    is an emancipated minor;
6        (2) an agent of the donor, unless the power of attorney
7    for health care or other record prohibits the agent from
8    making an anatomical gift;
9        (3) a parent of the donor, if the donor is an
10    unemancipated minor; or
11        (4) the donor's guardian.
12    Any individual of sound mind who has attained the age of 18
13may give all or any part of his or her body for any purpose
14specified in Section 5-10. Such a gift may be executed in any
15of the ways set out in Section 5-20, and shall take effect upon
16the individual's death without the need to obtain the consent
17of any survivor. An anatomical gift made by an agent of an
18individual, as authorized by the individual under the Powers of
19Attorney for Health Care Law, as now or hereafter amended, is
20deemed to be a gift by that individual and takes effect without
21the need to obtain the consent of any other person.
22    (b) If no gift has been executed under subsection (a), an
23anatomical gift of a decedent's body or part for the purpose of
24transplantation, therapy, research, or education may be made at
25the time of the decedent's death, or when death is imminent, by
26a member of the following classes of persons who is reasonably

 

 

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1available for the giving of consent or refusal, in the order of
2priority listed any of the following persons, in the order of
3priority stated in items (1) through (11) below, when persons
4in prior classes are not available for the giving of consent or
5refusal and in the absence of (i) actual notice of contrary
6intentions by the decedent and (ii) actual notice of opposition
7by any member within the same priority class, may consent to
8give all or any part of the decedent's body after or
9immediately before death to a person who may become a donee for
10any purpose specified in Section 5-10:
11        (1) the guardian of the person of the decedent;
12        (2) the spouse or civil union partner of the decedent;
13        (3) an adult child of the decedent;
14        (4) a parent of the decedent;
15        (5) an adult sibling of the decedent;
16        (6) an adult grandchild of the decedent;
17        (7) a grandparent of the decedent;
18        (8) a close friend of decedent; and
19        (9) the guardian of the estate of the decedent.
20        (1) an individual acting as the decedent's agent under
21    a power of attorney for health care,
22        (2) the decedent's surrogate decision maker identified
23    by the attending physician in accordance with the Health
24    Care Surrogate Act,
25        (3) the guardian of the decedent's person at the time
26    of death,

 

 

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1        (4) the decedent's spouse,
2        (5) any of the decedent's adult sons or daughters,
3        (6) either of the decedent's parents,
4        (7) any of the decedent's adult brothers or sisters,
5        (8) any adult grandchild of the decedent,
6        (9) a close friend of the decedent,
7        (10) the guardian of the decedent's estate,
8        (11) any other person authorized or under legal
9    obligation to dispose of the body.
10    If the donee has actual notice of opposition to the gift by
11the decedent or any person in the highest priority class in
12which an available person can be found, then no gift of all or
13any part of the decedent's body shall be accepted.
14    (b-5) If there is more than one member of a class listed in
15items (1), (3), (4), (5), (6), (7), or (9) of subsection (b) of
16this Section entitled to make an anatomical gift, an anatomical
17gift may be made by a member of the class unless that member or
18a person to which the gift may pass under Section 5-12 of this
19Act knows of an objection by another member of the class. If an
20objection is known, the gift may be made only by a majority of
21the members of the class who are reasonably available for the
22giving of consent or refusal.
23    (b-10) A person may not make an anatomical gift if, at the
24time of the decedent's death, a person in a higher priority
25class under subsection (b) of this Section is reasonably
26available for the giving of consent or refusal.

 

 

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1    (c) A gift of all or part of a body authorizes any blood or
2tissue test or minimally invasive examination necessary to
3assure medical acceptability of the gift for the purposes
4intended. The hospital may not withdraw any measures that are
5necessary to maintain the medical suitability of the part until
6the procurement organization has had the opportunity to advise
7the applicable persons as set forth in this Act of the option
8to make an anatomical gift or has ascertained that the
9individual expressed a contrary intent. The results of tests
10and examinations under this subsection shall be used or
11disclosed only for purposes of evaluating medical suitability
12for donation, to facilitate the donation process, and as
13required or permitted by existing law.
14    (d) The rights of the donee created by the gift are
15paramount to the rights of others except as provided by Section
165-45(d).
17    (e) If no gift has been executed under this Act, then no
18part of the decedent's body may be used for any purpose
19specified in this Act.
20(Source: P.A. 92-349, eff. 1-1-02; 93-794, eff. 7-22-04.)
 
21    (755 ILCS 50/5-7 new)
22    Sec. 5-7. Preclusive effect of anatomical gift, amendment,
23or revocation.
24    (a) Except as otherwise provided in this Section and
25subject to subsection (f) of this Section, in the absence of an

 

 

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1express, contrary indication by the donor, a person other than
2the donor is barred from changing, amending, or revoking an
3anatomical gift of a donor's body or part if the donor made an
4anatomical gift of the donor's body or part under Section 5-20
5of this Act or an amendment to an anatomical gift of the
6donor's body or part under Section 5-42 of this Act.
7    (b) A donor's revocation of an anatomical gift of the
8donor's body or part under Section 5-42 of this Act is not a
9refusal and does not bar another person specified in subsection
10(a) or (b) of Section 5-5 of this Act from making an anatomical
11gift of the donor's body or part under subsection (a), (b),
12(b-5), (b-10), (e), or (e-5) of Section 5-20 of this Act.
13    (c) If a person other than the donor makes an unrevoked
14anatomical gift of the donor's body or part under subsection
15(a), (b), (b-5) or (b-10) of Section 5-20 of this Act, or an
16amendment to an anatomical gift of the donor's body or part
17under Section 5-42 of this Act, another person may not make,
18amend, or revoke the gift of the donor's body or part under
19subsection (e) or (e-5) of Section 5-20 of this Act.
20    (d) A revocation of an anatomical gift of a donor's body or
21part under Section 5-42 of this Act by a person other than the
22donor does not bar another person from making an anatomical
23gift of the body or part under subsection (a), (b), (b-5),
24(b-10), (e), or (e-5) of Section 5-20 of this Act.
25    (e) In the absence of an express, contrary indication by
26the donor or other person authorized to make an anatomical gift

 

 

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1under subsection (a) of Section 5-5 of this Act, an anatomical
2gift of a part is neither a refusal to give another part nor a
3limitation on the making of an anatomical gift of another part
4at a later time by the donor or another person.
5    (f) In the absence of an express, contrary indication by
6the donor or other person authorized to make an anatomical gift
7under subsection (a) of Section 5-5 of this Act, an anatomical
8gift of a part for one or more of the purposes set forth in
9subsection (a) of Section 5-5 of this Act is not a limitation
10on the making of an anatomical gift of the part for any of the
11other purposes by the donor or any other person under
12subsection (a), (b), (b-5), (b-10), (e), or (e-5) of Section
135-20 of this Act.
 
14    (755 ILCS 50/5-12 new)
15    Sec. 5-12. Persons who may receive an anatomical gift;
16purpose of anatomical gift.
17    (a) An anatomical gift may be made to the following persons
18named in the document of gift:
19        (1) for research or education, a hospital; an
20    accredited medical school, dental school, college, or
21    university; an organ procurement organization; or other
22    appropriate person;
23        (2) subject to subsection (b) of this Section, an
24    individual designated by the person making the anatomical
25    gift if the individual is the recipient of the part;

 

 

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1        (3) an eye bank or tissue bank; or
2        (4) for research or education, a non-transplant
3    anatomic bank.
4    (b) If an anatomical gift to an individual under item (2)
5of subsection (a) of this Section cannot be transplanted into
6the individual, the part passes in accordance with subsection
7(g) of this Section unless there is an express, contrary
8indication by the person making the anatomical gift.
9    (c) If an anatomical gift of one or more specific parts or
10of all parts is made in a document of gift that does not name a
11person described in subsection (a) of this Section, but
12identifies the purpose for which an anatomical gift may be
13used, the following rules apply:
14        (1) If the part is an eye and the gift is for the
15    purpose of transplantation or therapy, the gift passes to
16    the appropriate eye bank.
17        (2) If the part is tissue and the gift is for the
18    purpose of transplantation or therapy, the gift passes to
19    the appropriate tissue bank.
20        (3) If the part is an organ and the gift is for the
21    purpose of transplantation or therapy, the gift passes to
22    the appropriate organ procurement organization as
23    custodian of the organ.
24        (4) If the part is an organ, an eye, or tissue and the
25    gift is for the purpose of research or education, the gift
26    passes to the appropriate procurement organization.

 

 

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1    (d) For the purpose of subsection (c) of this Section, if
2there is more than one purpose of an anatomical gift set forth
3in the document of gift but the purposes are not set forth in
4any priority, and if the gift cannot be used for
5transplantation or therapy, the gift may be used for research
6or education.
7    (e) If an anatomical gift of one or more specific parts is
8made in a document of gift that does not name a person
9described in subsection (a) of this Section and does not
10identify the purpose of the gift, the gift may be used only for
11transplantation or therapy or research, and the gift passes in
12accordance with subsection (g) of this Section.
13    (f) If a document of gift specifies only a general intent
14to make an anatomical gift by words such as "donor", "organ
15donor", or "body donor", or by a symbol or statement of similar
16import, the gift may be used only for transplantation or
17therapy or research, and the gift passes in accordance with
18subsection (g) of this Section.
19    (g) For purposes of subsections (b), (e), and (f) of this
20Section, the following rules apply:
21        (1) If the part is an eye, the gift passes to the
22    appropriate eye bank.
23        (2) If the part is tissue, the gift passes to the
24    appropriate tissue bank.
25        (3) If the part is an organ, the gift passes to the
26    appropriate organ procurement organization as custodian of

 

 

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1    the organ.
2    (h) An anatomical gift of an organ for transplantation or
3therapy, other than an anatomical gift under item (2) of
4subsection (a) of this Section, passes to the organ procurement
5organization as custodian of the organ.
6    (i) If an anatomical gift does not pass under this Section
7or the decedent's body or part is not used for transplantation,
8therapy, research, or education, custody of the body or part
9passes to the person under obligation to dispose of the body or
10part.
11    (j) A person may not accept an anatomical gift if the
12person knows that the gift was not effectively made under
13Section 5-5 or subsection (e) or (e-5) of Section 5-20 of this
14Act or if the person knows that the decedent made a refusal
15under Section 5-47 of this Act that was not revoked. For
16purposes of this subsection, if a person knows that an
17anatomical gift was made on a document of gift, the person is
18deemed to know of any amendment or revocation of the gift or
19any refusal to make an anatomical gift on the same document of
20gift.
21    (k) Except as otherwise provided in item (2) of subsection
22(a) of this Section, nothing in this Act affects the allocation
23of organs for transplantation or therapy.
 
24    (755 ILCS 50/5-15)  (was 755 ILCS 50/4.5)
25    Sec. 5-15. Disability of recipient.

 

 

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1    (a) No hospital, physician and surgeon, procurement
2organization bank or storage facility, or other person shall
3determine the ultimate recipient of an anatomical gift based
4upon a potential recipient's physical or mental disability,
5except to the extent that the physical or mental disability has
6been found by a physician and surgeon, following a case-by-case
7evaluation of the potential recipient, to be medically
8significant to the provision of the anatomical gift.
9    (b) Subsection (a) shall apply to each part of the organ
10transplant process.
11    (c) The court shall accord priority on its calendar and
12handle expeditiously any action brought to seek any remedy
13authorized by law for purposes of enforcing compliance with
14this Section.
15    (d) This Section shall not be deemed to require referrals
16or recommendations for or the performance of medically
17inappropriate organ transplants.
18    (e) As used in this Section "disability" has the same
19meaning as in the federal Americans with Disabilities Act of
201990 (42 U.S.C. 12101 et seq., Public Law 101-336) as may be
21amended from time to time.
22(Source: P.A. 93-794, eff. 7-22-04.)
 
23    (755 ILCS 50/5-20)  (was 755 ILCS 50/5)
24    Sec. 5-20. Manner of Executing Anatomical Gifts.
25    (a) A donor may make an anatomical gift:

 

 

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1        (1) by authorizing a statement or symbol indicating
2    that the donor has made an anatomical gift to be imprinted
3    on the donor's driver's license or identification card;
4        (2) in a will;
5        (3) during a terminal illness or injury of the donor,
6    by any form of communication addressed to at least 2
7    adults, at least one of whom is a disinterested witness; or
8        (4) as provided in subsection (b) of this Section.
9    A gift of all or part of the body under Section 5-5 (a) may
10be made by will. The gift becomes effective upon the death of
11the testator without waiting for probate. If the will is not
12probated, or if it is declared invalid for testamentary
13purposes, the gift, to the extent that it has been acted upon
14in good faith, is nevertheless valid and effective.
15    (b) A donor or other person authorized to make an
16anatomical gift under subsection (a) of Section 5-5 of this Act
17may make a gift by a donor card or other record signed by the
18donor or other person making the gift or by authorizing that a
19statement or symbol indicating that the donor has made an
20anatomical gift be included on a donor registry. If the donor
21or other person is physically unable to sign a record, the
22record may be signed by another individual at the direction of
23the donor or other person and must:
24        (1) be witnessed by at least 2 adults, at least one of
25    whom is a disinterested witness, who have signed at the
26    request of the donor or the other person; and

 

 

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1        (2) state that it has been signed and witnessed as
2    provided in paragraph (1) of this subsection (b).
3     A gift of all or part of the body under Section 5-5 (a) may
4also be made by a written, signed document other than a will.
5The gift becomes effective upon the death of the donor. The
6document, which may be a card or a valid driver's license
7designed to be carried on the person, is effective without
8regard to the presence or signature of witnesses. Such a gift
9may also be made by properly executing the form provided by the
10Secretary of State on the reverse side of the donor's driver's
11license pursuant to subsection (b) of Section 6-110 of The
12Illinois Vehicle Code. Delivery of the document of gift during
13the donor's lifetime is not necessary to make the gift valid.
14    (b-1) A gift under Section 5-5 (a) may also be made by an
15individual consenting to have his or her name included in the
16First Person Consent organ and tissue donor registry maintained
17by the Secretary of State under Section 6-117 of the Illinois
18Vehicle Code. An individual's consent to have his or her name
19included in the First Person Consent organ and tissue donor
20registry constitutes full legal authority for the donation of
21any of his or her organs or tissue for purposes of
22transplantation, therapy, or research. Consenting to be
23included in the First Person Consent organ and tissue donor
24registry is effective without regard to the presence or
25signature of witnesses.
26    (b-5) Revocation, suspension, expiration, or cancellation

 

 

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1of a driver's license or identification card upon which an
2anatomical gift is indicated does not invalidate the gift.
3    (b-10) An anatomical gift made by will takes effect upon
4the donor's death whether or not the will is probated.
5Invalidation of the will after the donor's death does not
6invalidate the gift.
7    (c) The anatomical gift may be made to a specified donee or
8without specifying a donee. If the latter, the gift may be
9accepted by the attending physician as donee upon or following
10death. If the gift is made to a specified donee who is not
11available at the time and place of death, then if made for the
12purpose of transplantation, it shall be effectuated in
13accordance with Section 5-25, and if made for any other purpose
14the attending physician upon or following death, in the absence
15of any expressed indication that the donor desired otherwise,
16may accept the gift as donee.
17    (d) The donee or other person authorized to accept the gift
18may employ or authorize any qualified technician, surgeon, or
19physician to perform the recovery. Notwithstanding Section
205-45 (b), the donor may designate in his will, card, or other
21document of gift the surgeon or physician to carry out the
22appropriate procedures. In the absence of a designation or if
23the designee is not available, the donee or other person
24authorized to accept the gift may employ or authorize any
25surgeon or physician for the purpose.
26    (e) A person authorized to make an anatomical gift under

 

 

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1subsection (b) of Section 5-5 of this Act may make an
2anatomical gift by a document of gift signed by the person
3making the gift or by that person's oral communication that is
4electronically recorded or is contemporaneously reduced to a
5record and signed by the individual receiving the oral
6communication. Any gift by a person designated in Section 5-5
7(b) shall be made by a document signed by him or made by his
8telegraphic, recorded telephonic, or other recorded message.
9    (e-5) An anatomical gift by a person authorized under
10subsection (b) of Section 5-5 of this Act may be amended or
11revoked orally or in a record by a member of a prior class who
12is reasonably available for the giving of consent or refusal.
13If more than one member of the prior class is reasonably
14available for the giving of consent or refusal, the gift made
15by a person authorized under subsection (b) of Section 5-5 of
16this Act may be:
17        (1) amended only if a majority of the class members
18    reasonably available for the giving of consent or refusal
19    agree to the amending of the gift; or
20        (2) revoked only if a majority of the class members
21    reasonably available for the giving of consent or refusal
22    agree to the revoking of the gift or if they are equally
23    divided as to whether to revoke the gift.
24    (e-10) A revocation under subsection (e-5) is effective
25only if, before an incision has been made to remove a part from
26the donor's body or before invasive procedures have been

 

 

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1commenced to prepare the recipient, the procurement
2organization, non-transplant anatomic bank, transplant
3hospital, or physician or technician knows of the revocation.
4    (f) When there is a suitable candidate for organ donation
5and a donation or consent to donate has not yet been given,
6procedures to preserve the decedent's body for possible organ
7and tissue donation may be implemented under the authorization
8of the applicable organ procurement organization agency, at its
9own expense, prior to making a donation request pursuant to
10Section 5-25. If the organ procurement organization agency does
11not locate a person authorized to consent to donation or
12consent to donation is denied, then procedures to preserve the
13decedent's body shall be ceased and no donation shall be made.
14The organ procurement organization agency shall respect the
15religious tenets of the decedent, if known, such as a pause
16after death, before initiating preservation services. Nothing
17in this Section shall be construed to authorize interference
18with the coroner in carrying out an investigation or autopsy.
19(Source: P.A. 93-794, eff. 7-22-04; 94-75, eff. 1-1-06; 94-920,
20eff. 1-1-07.)
 
21    (755 ILCS 50/5-25)
22    Sec. 5-25. Notification; consent.
23    (a) Each hospital in this State shall enter into agreements
24or affiliations with procurement organizations for
25coordination of procurement and use of anatomical gifts. When,

 

 

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1based upon generally accepted medical standards, an inpatient
2in a general acute care hospital with more than 100 beds is a
3suitable candidate for organ or tissue donation and the patient
4has not made an anatomical gift of all or any part of his or her
5body pursuant to Section 5-20 of this Act, the hospital
6    (b) Hospitals shall proceed in accordance with the
7applicable requirements of 42 CFR 482.45 or any successor
8provisions of federal statute or regulation, as may be amended
9from time to time, with regard to collaboration with
10procurement organizations to facilitate organ, tissue, and eye
11donation and the written agreement between the hospital and the
12applicable organ procurement agency executed thereunder.
13    (b) In making a request for organ or tissue donation, the
14hospital or the hospital's federally designated organ
15procurement agency or tissue bank shall request any of the
16following persons, in the order of priority stated in items (1)
17through (9) (11) below, when persons in prior classes are not
18available and in the absence of (i) actual notice of contrary
19intentions by the decedent, (ii) actual notice of opposition by
20any member within the same priority class, and (iii) reason to
21believe that an anatomical gift is contrary to the decedent's
22religious beliefs, to consent to the gift of all or any part of
23the decedent's body for any purpose specified in Section 5-12
245-10 of this Act:
25        (1) the guardian of the person of the decedent;
26        (2) the spouse or civil union partner of the decedent;

 

 

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1        (3) an adult child of the decedent;
2        (4) a parent of the decedent;
3        (5) an adult sibling of the decedent;
4        (6) an adult grandchild of the decedent;
5        (7) a grandparent of the decedent;
6        (8) a close friend of decedent; and
7        (9) the guardian of the estate of the decedent.
8        (1) an individual acting as the decedent's agent under
9    a power of attorney for health care;
10        (2) the decedent's surrogate decision maker identified
11    by the attending physician in accordance with the Health
12    Care Surrogate Act;
13        (3) the guardian of the decedent's person at the time
14    of death;
15        (4) the decedent's spouse;
16        (5) any of the decedent's adult sons or daughters;
17        (6) either of the decedent's parents;
18        (7) any of the decedent's adult brothers or sisters;
19        (8) any adult grandchild of the decedent;
20        (9) a close friend of the decedent;
21        (10) the guardian of the decedent's estate; or
22        (11) any other person authorized or under legal
23    obligation to dispose of the body.
24    (c) (Blank). If (1) the hospital, the applicable organ
25procurement agency, or the tissue bank has actual notice of
26opposition to the gift by the decedent or any person in the

 

 

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1highest priority class in which an available person can be
2found, or (2) there is reason to believe that an anatomical
3gift is contrary to the decedent's religious beliefs, or (3)
4the Director of Public Health has adopted a rule signifying his
5or her determination that the need for organs and tissues for
6donation has been adequately met, then the gift of all or any
7part of the decedent's body shall not be requested. If a
8donation is requested, consent or refusal may be obtained only
9from the person or persons in the highest priority class
10available. If the hospital administrator, or his or her
11designated representative, the designated organ procurement
12agency, or the tissue bank is unable to obtain consent from any
13of the persons named in items (1) through (11) of subsection
14(b) of this Section, the decedent's body shall not be used for
15an anatomical gift unless a valid anatomical gift document was
16executed under this Act.
17    (d) (Blank). When there is a suitable candidate for organ
18donation, as described in subsection (a), or if consent to
19remove organs and tissues is granted, the hospital shall notify
20the applicable federally designated organ procurement agency.
21The federally designated organ procurement agency shall notify
22any tissue bank specified by the hospital of the suitable
23candidate for tissue donation. The organ procurement agency
24shall collaborate with all tissue banks in Illinois to maximize
25tissue procurement in a timely manner.
26(Source: P.A. 93-794, eff. 7-22-04.)
 

 

 

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1    (755 ILCS 50/5-27)  (was 755 ILCS 60/3.5)
2    Sec. 5-27. Notification of patient; family rights and
3options after circulatory death.
4    (a) In this Section, "donation after circulatory cardiac
5death" means the donation of organs from a ventilated patient
6whose death is declared based upon cardio-pulmonary, and not
7neurological, criteria, following the implementation of the
8decision to withdraw life support without a certification of
9brain death and with a do-not-resuscitate order, if a decision
10has been reached by the physician and the family to withdraw
11life support and if the donation does not occur until after the
12declaration of cardiac death.
13    (b) If (i) a potential organ donor, or an individual given
14authority under subsection (b) of Section 5-25 to consent to an
15organ donation, expresses an interest in organ donation, (ii)
16there has not been a certification of brain death for the
17potential donor, and (iii) the potential donor is a patient at
18a hospital that does not allow donation after circulatory
19cardiac death, then the organ procurement organization agency
20shall inform the patient or the individual given authority to
21consent to organ donation that the hospital does not allow
22donation after circulatory cardiac death.
23    (c) In addition to providing oral notification, the organ
24procurement agency shall develop a written form that indicates
25to the patient or the individual given authority to consent to

 

 

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1organ donation, at a minimum, the following information:
2        (1) That the patient or the individual given authority
3    to consent to organ donation has received literature and
4    has been counseled by (representative's name) of the (organ
5    procurement agency name).
6        (2) That all organ donation options have been explained
7    to the patient or the individual given authority to consent
8    to organ donation, including the option of donation after
9    circulatory cardiac death.
10        (3) That the patient or the individual given authority
11    to consent to organ donation is aware that the hospital
12    where the potential donor is a patient does not allow
13    donation after circulatory cardiac death.
14        (4) That the patient or the individual given authority
15    to consent to organ donation has been informed of the right
16    to request a patient transfer to a facility allowing
17    donation after circulatory cardiac death.
18        (5) That the patient or the individual given authority
19    to consent to organ donation has been informed of another
20    hospital that will allow donation after cardiac death and
21    will accept a patient transfer for the purpose of donation
22    after circulatory cardiac death; and that the cost of
23    transferring the patient to that other hospital will be
24    covered by the organ procurement organization agency, with
25    no additional cost to the patient or the individual given
26    authority to consent to organ donation.

 

 

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1    The form required under this subsection must include a
2place for the signatures of the patient or the individual given
3authority to consent to organ donation and the representative
4of the organ procurement agency and space to provide the date
5that the form was signed.
6(Source: P.A. 95-331, eff. 8-21-07.)
 
7    (755 ILCS 50/5-35)  (was 755 ILCS 50/6)
8    Sec. 5-35. Delivery of Document of Anatomical Gift Not
9Required; Right to Examine.
10    (a) A document of gift need not be delivered during the
11donor's lifetime to be effective.
12    (b) Upon or after an individual's death, a person in
13possession of a document of gift or a refusal to make an
14anatomical gift with respect to the individual shall allow
15examination and copying of the document of gift or refusal by a
16person authorized to make or object to the making of an
17anatomical gift with respect to the individual or by a person
18to which the gift could pass under Section 5-12 of this Act.
19If the gift is made by the donor to a specified donee, the
20will, card, or other document, or an executed copy thereof, may
21be delivered to the donee to expedite the appropriate
22procedures immediately after death. Delivery is not necessary
23to the validity of the gift. The will, card, or other document,
24or an executed copy thereof, may be deposited in any hospital,
25bank or storage facility, or registry office that accepts it

 

 

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1for safekeeping or for facilitation of procedures after death.
2On request of any interested party upon or after the donor's
3death, the person in possession shall produce the document for
4examination.
5(Source: P.A. 93-794, eff. 7-22-04.)
 
6    (755 ILCS 50/5-42 new)
7    Sec. 5-42. Amending or revoking anatomical gift before
8donor's death.
9    (a) Subject to Section 5-7 of this Act, a donor or other
10person authorized to make an anatomical gift under subsection
11(a) of Section 5-5 of this Act may amend or revoke an
12anatomical gift by:
13        (1) a record signed by:
14            (A) the donor;
15            (B) the other authorized person; or
16            (C) subject to subsection (b) of this Section,
17        another individual acting at the direction of the donor
18        or the other person if the donor or other person is
19        physically unable to sign; or
20        (2) a later-executed document of gift that amends or
21    revokes a previous anatomical gift or portion of an
22    anatomical gift, either expressly or by inconsistency.
23    (b) A record signed under subdivision (a)(1)(C) of this
24Section must:
25        (1) be witnessed by at least 2 adults, at least one of

 

 

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1    whom is a disinterested witness, who have signed at the
2    request of the donor or the other person; and
3        (2) state that it has been signed and witnessed as
4    provided in paragraph (1) of this subsection (b).
5    (c) Subject to Section 5-7 of this Act, a donor or other
6person authorized to make an anatomical gift under subsection
7(a) of Section 5-5 of this Act may revoke an anatomical gift by
8the destruction or cancellation of the document of gift, or the
9portion of the document of gift used to make the gift, with the
10intent to revoke the gift.
11    (d) A donor may amend or revoke an anatomical gift that was
12not made in a will by any form of communication during a
13terminal illness or injury addressed to at least 2 adults, at
14least one of whom is a disinterested witness.
15    (e) A donor who makes an anatomical gift in a will may
16amend or revoke the gift in the manner provided for amendment
17or revocation of wills or as provided in subsection (a) of this
18Section.
 
19    (755 ILCS 50/5-43 new)
20    Sec. 5-43. Refusal to make anatomical gift; effect of
21refusal.
22    (a) An individual may refuse to make an anatomical gift of
23the individual's body or part by:
24        (1) a record signed by:
25            (A) the individual; or

 

 

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1            (B) subject to subsection (b) of this Section,
2        another individual acting at the direction of the
3        individual if the individual is physically unable to
4        sign;
5        (2) the individual's will, whether or not the will is
6    admitted to probate or invalidated after the individual's
7    death; or
8        (3) any form of communication made by the individual
9    during the individual's terminal illness or injury
10    addressed to at least 2 adults, at least one of whom is a
11    disinterested witness.
12    (b) A record signed under subdivision (a)(1)(B) of this
13Section must:
14        (1) be witnessed by at least 2 adults, at least one of
15    whom is a disinterested witness, who have signed at the
16    request of the individual; and
17        (2) state that it has been signed and witnessed as
18    provided in paragraph (1) of this subsection (b).
19    (c) An individual who has made a refusal may amend or
20revoke the refusal:
21        (1) in the manner provided in subsection (a) of this
22    Section for making a refusal;
23        (2) by subsequently making an anatomical gift under
24    subsection (a),(b), (b-5) or (b-10) of Section 5-20 of this
25    Act that is inconsistent with the refusal; or
26        (3) by destroying or canceling the record evidencing

 

 

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1    the refusal, or the portion of the record used to make the
2    refusal, with the intent to revoke the refusal.
3    (d) In the absence of an express, contrary indication by
4the individual set forth in the refusal, an individual's
5unrevoked refusal to make an anatomical gift of the
6individual's body or part bars all other persons from making an
7anatomical gift of the individual's body or part.
 
8    (755 ILCS 50/5-45)  (was 755 ILCS 50/8)
9    Sec. 5-45. Rights and Duties at Death.
10    (a) The donee may accept or reject the anatomical gift. If
11the donee accepts a gift of the entire body, he may, subject to
12the terms of the gift, authorize embalming and the use of the
13body in funeral services, unless a person named in subsection
14(b) of Section 5-5 has requested, prior to the final
15disposition by the donee, that the remains of said body be
16returned to his or her custody for the purpose of final
17disposition. Such request shall be honored by the donee if the
18terms of the gift are silent on how final disposition is to
19take place. If the gift is of a part of the body, the donee or
20technician designated by him upon the death of the donor and
21prior to embalming, shall cause the part to be removed without
22unnecessary mutilation and without undue delay in the release
23of the body for the purposes of final disposition. After
24removal of the part, custody of the remainder of the body vests
25in the surviving spouse, next of kin, or other persons under

 

 

09800HB2339ham001- 32 -LRB098 08840 HEP 42462 a

1obligation to dispose of the body, in the order or priority
2listed in subsection (b) of Section 5-5 of this Act.
3    (b) The time of death shall be determined by a physician
4who attends the donor at his death, or, if none, the physician
5who certifies the death. The physician shall not participate in
6the procedures for removing or transplanting a part.
7    (c) A person who acts or attempts in good faith to act in
8accordance with this Act or with the applicable anatomical gift
9law of another state is not liable for the act in a civil
10action, criminal prosecution, or administrative proceeding.
11Neither the person making an anatomical gift nor the donor's
12estate is liable for any injury or damage that results from the
13making or use of the gift. In determining whether an anatomical
14gift has been made, amended, or revoked under this Act, a
15person may rely upon representations of an individual listed in
16items (2), (3), (4), (5), (6), (7), or (8) of subsection (b) of
17Section 5-5 of this Act relating to the individual's
18relationship to the donor or prospective donor unless the
19person knows that the representation is untrue. A person who
20acts in good faith in accord with the terms of this Act, the
21Illinois Vehicle Code, and the AIDS Confidentiality Act, or the
22anatomical gift laws of another state or a foreign country, is
23not liable for damages in any civil action or subject to
24prosecution in any criminal proceeding for his act. Any person
25that participates in good faith and according to the usual and
26customary standards of medical practice in the preservation,

 

 

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1removal, or transplantation of any part of a decedent's body
2pursuant to an anatomical gift made by the decedent under
3Section 5-20 of this Act or pursuant to an anatomical gift made
4by an individual as authorized by subsection (b) of Section 5-5
5of this Act shall have immunity from liability, civil,
6criminal, or otherwise, that might result by reason of such
7actions. For the purpose of any proceedings, civil or criminal,
8the validity of an anatomical gift executed pursuant to Section
95-20 of this Act shall be presumed and the good faith of any
10person participating in the removal or transplantation of any
11part of a decedent's body pursuant to an anatomical gift made
12by the decedent or by another individual authorized by the Act
13shall be presumed.
14    (d) This Act is subject to the provisions of "An Act to
15revise the law in relation to coroners", approved February 6,
161874, as now or hereafter amended, to the laws of this State
17prescribing powers and duties with respect to autopsies, and to
18the statutes, rules, and regulations of this State with respect
19to the transportation and disposition of deceased human bodies.
20    (e) If the donee is provided information, or determines
21through independent examination, that there is evidence that
22the anatomical gift was exposed to the human immunodeficiency
23virus (HIV) or any other identified causative agent of acquired
24immunodeficiency syndrome (AIDS), the donee may reject the gift
25and shall treat the information and examination results as a
26confidential medical record; the donee may disclose only the

 

 

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1results confirming HIV exposure, and only to the physician of
2the deceased donor. The donor's physician shall determine
3whether the person who executed the gift should be notified of
4the confirmed positive test result.
5(Source: P.A. 93-794, eff. 7-22-04; 94-75, eff. 1-1-06; 94-920,
6eff. 1-1-07.)
 
7    (755 ILCS 50/5-47 new)
8    Sec. 5-47. Rights and duties of procurement organizations
9and others.
10    (a) When a hospital refers an individual at or near death
11to a procurement organization, the organization shall make a
12reasonable search of the records of the Secretary of State and
13any donor registry that it knows exists for the geographical
14area in which the individual resides to ascertain whether the
15individual has made an anatomical gift.
16    (b) A procurement organization shall be allowed reasonable
17access to information in the records of the Secretary of State
18to ascertain whether an individual at or near death is a donor.
19    (c) When a hospital refers an individual at or near death
20to a procurement organization, the organization may conduct any
21reasonable examination necessary to ensure the medical
22suitability of a part from a donor or a prospective donor that
23is or could be the subject of an anatomical gift for
24transplantation, therapy, research, or education. During the
25examination period, measures necessary to ensure the medical

 

 

09800HB2339ham001- 35 -LRB098 08840 HEP 42462 a

1suitability of the part may not be withdrawn unless the
2hospital or procurement organization knows that the individual
3expressed a contrary intent.
4    (d) Unless prohibited by law other than this Act, at any
5time after a donor's death, the person to which a part passes
6under Section 5-12 of this Act may conduct any reasonable
7examination necessary to ensure the medical suitability of the
8body or part for its intended purpose.
9    (e) Unless prohibited by law other than this Act, an
10examination under subsection (c) or (d) of this Section may
11include an examination of all medical and dental records of the
12donor or prospective donor.
13    (f) Upon referral by a hospital under subsection (a) of
14this Section, a procurement organization shall make a
15reasonable search for any person listed in subsection (b) of
16Section 5-5 of this Act having priority to make an anatomical
17gift on behalf of a prospective donor. If a procurement
18organization receives information that an anatomical gift to
19any other person was made, amended, or revoked, it shall
20promptly advise the other person of all relevant information.
21    (g) Subject to subsection (i) of Section 5-12 of this Act,
22the rights of the person to which a part passes under Section
235-12 of this Act are superior to the rights of all others with
24respect to the part. The person may accept or reject an
25anatomical gift in whole or in part. Subject to the terms of
26the document of gift and this Act, a person who accepts an

 

 

09800HB2339ham001- 36 -LRB098 08840 HEP 42462 a

1anatomical gift of an entire body may allow embalming, burial
2or cremation, and use of remains in a funeral service. If the
3gift is of a part, the person to which the part passes under
4Section 5-12 of this Act, upon the death of the donor and
5before embalming, burial, or cremation, shall cause the part to
6be removed without unnecessary mutilation.
7    (h) Neither the physician who attends the decedent at death
8nor the physician who determines the time of the decedent's
9death may participate in the procedures for removing or
10transplanting a part from the decedent.
11    (i) A physician or technician may remove a donated part
12from the body of a donor that the physician or technician is
13qualified to remove.
 
14    (755 ILCS 50/5-50)  (was 755 ILCS 50/8.1)
15    Sec. 5-50. Payment for anatomical gift.
16    (a) Except as provided in subsection (b), any person who
17knowingly pays or offers to pay any financial consideration to
18a donor or to any of the persons listed in subsection (b) of
19Section 5-5 for making or consenting to an anatomical gift
20shall be guilty of a Class A misdemeanor for the first
21conviction and a Class 4 felony for subsequent convictions.
22    (b) This Section does not prohibit reimbursement for
23reasonable costs associated with the removal, processing,
24preservation, quality control, storage, transportation,
25implantation, or disposal removal, storage or transportation

 

 

09800HB2339ham001- 37 -LRB098 08840 HEP 42462 a

1of a human body or part thereof pursuant to an anatomical gift
2executed pursuant to this Act.
3(Source: P.A. 93-794, eff. 7-22-04.)
 
4    (755 ILCS 50/5-55 new)
5    Sec. 5-55. Law governing validity; choice of law as to the
6execution of document of anatomical gift; presumption of
7validity.
8    (a) A document of gift is valid if executed in accordance
9with:
10        (1) this Act;
11        (2) the laws of the state or country where it was
12    executed; or
13        (3) the laws of the state or country where the person
14    making the anatomical gift was domiciled, had a place of
15    residence, or was a national at the time the document of
16    gift was executed.
17    (b) If a document of gift is valid under this Section, the
18law of this State governs the interpretation of the document of
19gift.
20    (c) A person may presume that a document of gift or
21amendment of an anatomical gift is valid unless that person
22knows that it was not validly executed or was revoked.
 
23    (755 ILCS 50/5-10 rep.)
24    (755 ILCS 50/5-30 rep.)

 

 

09800HB2339ham001- 38 -LRB098 08840 HEP 42462 a

1    (755 ILCS 50/5-40 rep.)
2    Section 10. The Illinois Anatomical Gift Act is amended by
3repealing Sections 5-10, 5-30, and 5-40.".