October 12th, 2023

Saving a Life or Eight – What to Know About Organ Donation

“The measure of life is not its duration, but its donation”. (Peter Marshall) According to statistics, approximately seventeen people die each day waiting for an organ transplant.[1] One donor can save up to eight lives with the donation of vital organs. For those who consider making such a commendable gift of life, there are many considerations to be aware of, such as the difference between vital and non-vital organs, how a donation may affect funeral arrangements, and most importantly, whether one’s wishes concerning donation are reflected in the proper legal documents and are enforceable upon death.

There are multiple ways to become an organ donor. According to the Pennsylvania Probate, Estates, and Fiduciary Code, an anatomical gift may be made by Will, Advance Health Care Directive, by registering with a donor registry, or by ID card designation.[2] Pennsylvania residents who choose the organ donation designation on their application for a driver’s license or photo ID card will have their identity included in the local organ procurement organization (OPO) database. When a hospital patient dies or is near death, the hospital will check for their identity in the database. If the patient is listed, this constitutes an authorization for the harvesting of vital organs. Suspension, expiration, or revocation of someone’s license or photo ID does not revoke their organ donation. If someone wishes to add or remove the organ donor designation on their driver’s license before expiration, PennDot provides specific forms online for updating an ID card.[3]

When a hospital patient’s identity is not registered with the local OPA database, the hospital must contact the patient’s next of kin to make decisions concerning organ donation. Without an Advance Health Care Directive, family members may not be aware of their wishes concerning organ donation. Furthermore, an Advance Health Care Directive sets out a patient’s wishes concerning the donation of non-vital organs, including Vascular Composite Allografts (VCAs) and bone tissue.

“VCAs involve the transplantation of multiple structures such as skin, bone, muscles, blood vessels, nerves, and connective tissue. The most commonly known types of VCAs are hand and face transplants.”[4] Regarding the donation of bone tissue, you can be a person of any age, and yet a donation of your bone tissue could be used upon your death to help another person.

An organ donor designation via ID card does not automatically extend valid legal consent to the donation of non-vital organs or VCAs. Rather, consent to the donation of VCAs and non-vital organs must be specifically consented to in one of the following ways:

  1. By the patients themselves, if they are mentally competent and able to communicate
  2. By the patient’s next of kin; or
  3. By an Advance Health Care Directive duly executed by the patient in advance.

An Advance Health Care Directive further designates an Agent to make medical decisions on behalf of a patient if such a patient cannot make them themselves. If a patient grants consent to organ and VCA donation via Advance Health Care Directive, such consent cannot be revoked by the Agent, unless the patient specifically granted authority to their Agent to override their decisions. The Agent cannot, however, consent to organ or VCA donation if the patient indicates in the Advance Health Care Directive, that they do not consent to donation.

Individuals who are considering a donation of non-vital organs or VCAs must also consider how a donation may impact their end-of-life treatment plans and funeral plans. Someone who declines all life-saving measures but consents to VCA donation will be kept alive to maintain the viability of limbs, tissue, or other body parts to be used for donation. This may further change plans for an open-casket funeral. Other considerations are religious beliefs and the possibility of identifying features being transplanted on another person (i.e., a birthmark or scar that gets transplanted during a facial transplant).

Executing an Advance Health Care Directive alleviates the stressful burden on family members who would have to make such a decision in the event of a patient’s imminent death. Patients who have strong convictions for or against donation, but have no directive in place, further face a risk that family members may make decisions contrary to their wishes. A comprehensive estate plan includes the preparation and execution of an Advance Health Care Directive that properly sets out an individual’s wishes concerning organ donation. If you are ready to put a plan in place or have questions regarding your end-of-life plan, contact the Wills, Trusts, and Estates Team at Gross

[1] https://www.organdonor.gov/learn/organ-donation-statistics#:~:text=people%20die%20each%20day%20waiting,YOU%20can%20help.&text=transplants%20were%20performed%20in%202022

[2] 20 Pa C.S.A. §8613.

[3] Organ Donation (pa.gov)

[4] https://donatelife.net/donation/types/vca-donation/#:~:text=Vascularized%20Composite%20Allografts%20(VCAs)%20involve,for%20hand%20and%20face%20transplants.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.