(2) Definitions. In this section:
(a) “Agent” means a health care agent, as defined in s. 155.01 (4), or an individual who is expressly authorized in a record that is signed by a principal to make an anatomical gift of the principal’s body or part.
(b) “Anatomical gift” means a donation of all or part of a human body to take effect after the donor’s death, as determined in accordance with s. 146.71, for the purpose of transplantation, therapy, research, or education.
(bm) “Auxiliary aids and services” means any of the following:
1. Qualified interpreters or other effective methods of making aurally delivered material available to individuals with hearing impairments.
2. Qualified readers, audio recordings of texts, or other effective methods of making visually delivered material available to individuals with visual impairments.
3. Supported decision-making services.
(br) “Conservation card” means a conservation card issued by the department of natural resources under s. 23.47 (2).
(c) “Decedent” means a deceased individual.
(cm) “Disability” has the meaning given in 42 USC 12102 (1).
(d) “Disinterested witness” means a witness who is not any of the following:
1. The spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift.
2. A person who exhibits special care and concern, except as a compensated health care provider, for the individual who makes, amends, revokes, or refuses to make an anatomical gift.
3. Any other person to whom the anatomical gift could pass under sub. (11).
(e) “Donor” means an individual whose body or part is the subject of an anatomical gift.
(f) “Donor registry” means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.
(g) “Driver’s license” means a license or permit to operate a vehicle, whether or not conditions are attached to the license or permit, that is issued by the department of transportation under ch. 343.
(h) “Eye bank” means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.
(i) “Guardian” means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual, and does not include a guardian ad litem.
(j) “Hospital” means a facility approved as a hospital under s. 50.35 or a facility operated as a hospital by the federal government, a state, or a political subdivision of a state.
(jm) “Hunting, fishing, or trapping license” means a hunting, fishing, or trapping license issued by the department of natural resources under ch. 29.
(k) “Identification card” means an identification card issued by the department of transportation under s. 343.50.
(L) “Organ procurement organization” means a person designated by the Secretary of the U.S. Department of Health and Human Services as an organ procurement organization.
(m) “Parent” has the meaning given under s. 48.02 (13).
(n) “Part” means a vascularized organ, eye, or tissue of a human being. “Part” does not mean a whole human body.
(o) “Physician” means an individual authorized to practice medicine or osteopathy under the laws of any state.
(p) “Procurement organization” means an eye bank, organ procurement organization, or tissue bank.
(q) “Prospective donor” means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. An individual who has refused to make an anatomical gift as provided under sub. (7) is not a prospective donor.
(r) “Reasonably available” means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.
(s) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form.
(t) “Record of gift” means a donor card or other record used to make an anatomical gift, including a statement or symbol on a driver’s license, identification card, conservation card, or printed hunting, fishing, or trapping license or in a donor registry.
(u) “Record of refusal” means a record created under sub. (7) that expressly states an intent to bar other persons from making an anatomical gift of an individual’s body or part.
(v) “Sign” means to do any of the following with present intent to authenticate or adopt a record:
1. Execute or adopt a signature or tangible symbol.
2. Attach to or logically associate with the record an electronic symbol, sound, or process.
(w) “Technician” means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law and includes an enucleator.
(x) “Tissue” means a portion of the human body other than a vascularized organ or eye and does not include blood unless the blood is donated for the purpose of research or education.
(y) “Tissue bank” means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.
(z) “Transplant hospital” means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.
(zm) “Vascularized organ” means a heart, lung, liver, pancreas, kidney, intestine, or other organ that requires the continuous circulation of blood to remain useful for purposes of transplantation.
(2m) Signing for a person who is physically unable. If an individual who is physically unable to sign a record under sub. (5) (a) 4. or (b) 1., (6) (a) 1., (b) 1., (c) 1., or (d) 1., or (7) (a) 1. or (b) 1. directs another to sign the record on his or her behalf, the signature of the other individual authenticates the record as long as all of the following conditions are satisfied:
(a) The signature of the other individual is witnessed by at least two adults, at least one of whom is a disinterested witness.
(b) The witnesses sign the record at the request of the individual who is physically unable to sign.
(c) The record includes a statement that it was signed and witnessed at the request of the individual who is physically unable to sign.
(4) Who may make an anatomical gift before donor’s death. Except as provided in subs. (7) and (8), any of the following may during the life of a donor make an anatomical gift of the donor’s body or part in the manner provided in sub. (5):
(a) The donor, if he or she is at least 15 years of age or is an emancipated minor.
(b) An agent of the donor, unless the donor’s power of attorney for health care instrument under ch. 155 or some other record prohibits the agent from making an anatomical gift.
(c) A parent of the donor, if the donor is an unemancipated minor and does not object to the making of the anatomical gift.
(d) A guardian of the donor unless a health care agent under ch. 155 has authority to make an anatomical gift of the donor’s body or part.
(5) Manner of making an anatomical gift before donor’s death.
(a) A donor under sub. (4) (a) may make an anatomical gift by doing any of the following:
1. Affixing to, or authorizing a person to imprint on, the donor’s driver’s license or identification card a statement or symbol that indicates that the donor has made an anatomical gift.
1m. Affixing to, or authorizing a person to imprint on, the donor’s conservation card or printed hunting, fishing, or trapping license a statement or symbol that indicates that the donor has made an anatomical gift.
2. Including an anatomical gift in his or her will.
3. If the donor has a terminal illness or injury, communicating the anatomical gift by any means to at least two adults, at least one of whom is a disinterested witness.
4. Signing a donor card or other record that includes an anatomical gift or, if physically unable to sign a record, by directing another individual to sign the record as provided in sub. (2m).
5. Authorizing a person to include in a donor registry a statement or symbol that indicates that the donor has made an anatomical gift.
(b) A person under sub. (4) (b) to (d) may make an anatomical gift of a donor’s body or part during the donor’s life by doing any of the following:
1. Signing a donor card or other record that includes an anatomical gift or, if physically unable to sign a record, by directing another to sign the record as provided in sub. (2m).
2. Authorizing another to include in a donor registry a statement or symbol that indicates that the person has made an anatomical gift of the donor’s body or part.
(c) The revocation, suspension, expiration, or cancellation of a driver’s license, identification card, or hunting, fishing, or trapping license on which an anatomical gift has been made does not invalidate the anatomical gift.
(d) An anatomical gift made by will takes effect upon the donor’s death whether or not the will is probated. Invalidation of the will after the donor’s death does not invalidate the anatomical gift.
(6) Amending or revoking anatomical gift before donor’s death.
(a) Subject to sub. (8), a donor may amend an anatomical gift of his or her body or part by doing any of the following:
1. Signing a record that amends the anatomical gift or, if physically unable to sign, directing another to sign the record as provided in sub. (2m).
2. Subsequently executing a record of gift that amends a previously executed anatomical gift or a portion of a previously executed anatomical gift either expressly or by inconsistency.
3. If the anatomical gift was not made in a will and the donor has a terminal illness or injury, communicating in any manner an amendment of the anatomical gift to at least two adults, at least one of whom is a disinterested witness.
4. If the anatomical gift was made in a will, amending the will.
(b) Subject to sub. (8), a donor may revoke an anatomical gift of his or her body or part by doing any of the following:
1. Signing a record that revokes the anatomical gift or, if physically unable to sign, directing another to sign the record as provided in sub. (2m).
2. Subsequently executing a record of gift that revokes a previously executed anatomical gift or a portion of a previously executed anatomical gift either expressly or by inconsistency.
3. If the anatomical gift was not made in a will and if the donor has a terminal illness or injury, communicating in any manner the revocation of the anatomical gift to at least two adults, at least one of whom is a disinterested witness.
4. If the anatomical gift was made in a will, amending or revoking the will.
5. If the anatomical gift was made in a record of gift, destroying or cancelling the record of gift, or the portion of the record of gift used to make the anatomical gift, with intent to revoke the anatomical gift.
(bm) A donor may not revoke an anatomical gift by declining to authorize inclusion of his or her name in the donor registry established under sub. (20) when applying for or renewing a driver’s license or identification card, when applying for a hunting, fishing, or trapping license, or when filing an income tax form unless the donor expressly indicates his or her intent to have his or her name removed from the donor registry.
(c) Subject to sub. (8), a person who is authorized to make an anatomical gift under sub. (4) (b) to (d) may amend an anatomical gift of a donor’s body or part before the donor’s death by doing any of the following:
1. Signing a record that amends the anatomical gift or, if physically unable to sign, directing another to sign the record as provided in sub. (2m).
2. Subsequently executing a record of gift that amends a previously executed anatomical gift or a portion of a previously executed anatomical gift either expressly or by inconsistency.
(d) Subject to sub. (8), a person who is authorized to make an anatomical gift under sub. (4) (b) to (d) may revoke an anatomical gift of a donor’s body or part before the donor’s death by doing any of the following:
1. Signing a record that revokes the anatomical gift or, if physically unable to sign, directing another to sign the record as provided in sub. (2m).
2. Subsequently executing a record of gift that revokes a previously executed anatomical gift or a portion of a previously executed anatomical gift either expressly or by inconsistency.
3. If the anatomical gift was made in a record of gift, destroying or cancelling the record of gift, or the portion of the record of gift used to make the anatomical gift, with intent to revoke the anatomical gift.
(7) Refusal to make an anatomical gift; effect of refusal.
(a) An individual may refuse to make an anatomical gift of the individual’s body or part by doing any of the following:
1. Signing a record refusing to make an anatomical gift or, if physically unable to sign, directing another to sign the record as provided in sub. (2m).
2. Including a refusal to make an anatomical gift in the individual’s will, whether or not the will is admitted to probate or invalidated after the individual’s death.
3. If the individual has a terminal illness or injury, communicating in any manner a refusal to make an anatomical gift to at least two adults, at least one of whom is a disinterested witness.
(b) An individual who has made a refusal to make an anatomical gift under this subsection may amend or revoke the refusal to make an anatomical gift by doing any of the following:
1. Signing a record amending or revoking the refusal to make an anatomical gift or, if physically unable to sign, directing another to sign the record as provided in sub. (2m).
2. If the refusal to make an anatomical gift was made in the individual’s will, amending or revoking the will, whether or not the will is admitted to probate or invalidated after the individual’s death.
3. If the individual has a terminal illness or injury, communicating in any manner an amendment to or revocation of the refusal to make an anatomical gift to at least two adults, at least one of whom is a disinterested witness.
4. Subsequently making an anatomical gift as provided under sub. (5) (a) that is inconsistent with the refusal to make an anatomical gift.
5. If the refusal to make an anatomical gift was made in a record of refusal, destroying or canceling the record of refusal, or the portion of the record of refusal, that evidenced the refusal to make an anatomical gift, with intent to revoke the refusal to make an anatomical gift.
(c) Except as provided in sub. (8) (h), in the absence of an express, contrary indication by an individual set forth in a refusal to make an anatomical gift under this subsection, the individual’s unrevoked refusal to make an anatomical gift under this subsection of his or her body or part bars all other persons from making an anatomical gift of the individual’s body or part.
(8) Preclusive effect of anatomical gift, amendment, or revocation.
(a) Except as provided in par. (g) and subject to par. (f), in the absence of an express, contrary indication by the donor, a person other than the donor may not make, amend, or revoke an anatomical gift of the donor’s body or part if the donor has made an unrevoked anatomical gift of his or her body or that part under sub. (5) (a) or an amendment to an anatomical gift of the donor’s body or that part under sub. (6) (a).
(b) A donor’s revocation of an anatomical gift of the donor’s body or part under sub. (6) (b) is not a refusal to make an anatomical gift and does not bar another person authorized to make an anatomical gift under sub. (4) from making an anatomical gift of the donor’s body or part under sub. (5) and does not bar a person who is authorized to make an anatomical gift under sub. (9) from making an anatomical gift under sub. (10).
(c) If a person other than the donor makes an unrevoked anatomical gift of the donor’s body or part under sub. (5) (b) or an amendment to an anatomical gift of the donor’s body or part under sub. (6) (c), another person may not amend or revoke the anatomical gift under sub. (10) or otherwise make an anatomical gift of the body or part under sub. (10).
(d) If a person other than the donor revokes an anatomical gift of the donor’s body or part under sub. (6) (d), the revocation does not bar another person from making an anatomical gift of the donor’s body or part under sub. (5) or (10).
(e) An anatomical gift of a part of a donor’s body that is made under sub. (5) or in an amendment under sub. (6), absent an express, contrary indication by the donor or other person who made the anatomical gift, is not a refusal by the donor to make an anatomical gift of another part of the donor’s body or a limitation on a later anatomical gift of another part of the donor’s body.
(f) An anatomical gift of a part that is made under sub. (5) or in an amendment under sub. (6) for a specified purpose for which an anatomical gift may be made, absent an express, contrary indication by the person who made the anatomical gift, does not limit a person from making an anatomical gift of the part under sub. (5), (6), or (10) for any of the other purposes for which an anatomical gift may be made.
(g) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor’s body or part.
(h) If an unemancipated minor who has made a refusal to make an anatomical gift under sub. (7) dies, a reasonably available parent of the minor may revoke the minor’s refusal to make an anatomical gift.
(9) Who may make an anatomical gift near or upon the donor’s death.
(a) Except as provided in subs. (7) and (8) and subject to pars. (b) and (c), any member of the following classes of persons, in the order of priority listed, who is reasonably available may, in the manner provided in sub. (10), make an anatomical gift of the body or part of an individual who is near death or has died:
1. A person who is the individual’s agent near or at the time of the individual’s death and has authority under sub. (4) (b) to make an anatomical gift of the decedent’s body or part.
2. The spouse or domestic partner under ch. 770 of the individual.
3. The adult children of the individual.
4. The parents of the individual.
5. The adult siblings of the individual.
6. The adult grandchildren of the individual.
7. The grandparents of the individual.
8. Adults who exhibited special care and concern, except as a compensated health care provider, for the individual.
9. Persons who were guardians of the individual near or at the time of the individual’s death.
10. Any other persons who have authority to dispose of the individual’s body.
(b) If the members of a class of persons under par. (a) 1., 3., 4., 5., 6., 7., or 9. have priority to make an anatomical gift of an individual’s body or part under par. (a) and the class consists of more than one member, any member of the class may make an anatomical gift unless that member or the person to whom the anatomical gift will pass under sub. (11) has actual knowledge of an objection by another member of the class, in which case the anatomical gift may be made only by a majority of members of the class who are reasonably available.
(c) A person may not make an anatomical gift of an individual’s body or part under this subsection if a person who is a member of a class with higher priority under par. (a) is reasonably available.
(10) Manner of making, amending, or revoking an anatomical gift near or upon donor’s death.
(a) A person authorized under sub. (9) to make an anatomical gift of an individual’s body or part may do so by doing any of the following:
1. Signing a record of gift.
2. Subject to sub. (25m) (c), making an oral communication of an anatomical gift that is electronically recorded.
3. Subject to sub. (25m) (c), making an oral communication of an anatomical gift that is contemporaneously reduced to a record and that is signed by the individual receiving the oral communication.
(b) A member of a class of persons that has higher priority to make an anatomical gift under sub. (9) than the person who made an anatomical gift under par. (a) and who is reasonably available may amend the anatomical gift in the manner provided in par. (d), except that if more than one member of the class with higher priority is reasonably available, the agreement of a majority of the reasonably available members is required to amend the anatomical gift.
(c)
1. Subject to subd. 2., a member of a class of persons that has higher priority to make an anatomical gift under sub. (9) than the person who made an anatomical gift under par. (a) may revoke the anatomical gift in the manner provided in par. (d), except that if more than one member of the class with higher priority is reasonably available, the agreement of at least one-half of the reasonably available members is required to revoke the anatomical gift.
2. A revocation of an anatomical gift under subd. 1. is effective only if before an incision is made to remove a part from the donor’s body or before invasive procedures have been begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician has actual knowledge of the revocation.
(d) A person who is authorized to amend or revoke an anatomical gift under par. (b) or (c) may do so orally or by including the amendment or revocation in a record.
(11) Persons that may receive anatomical gifts; purpose of gifts.
(a) An anatomical gift may be made to any of the following persons:
1. For the purpose of research or education, a hospital, accredited medical school, dental school, college, university, organ procurement organization, or other appropriate person.
2. Subject to par. (b) 1., an individual designated by the person making the anatomical gift into which individual’s body a part is intended to be transplanted.
3. An eye bank or tissue bank.
4. An organ procurement organization, as custodian of a part for transplant or therapy.
5. A search and rescue organization or recovery team that is described in section 501 (c) (3) of the Internal Revenue Code, is exempt from federal taxation under section 501 (a) of the Internal Revenue Code, and uses human remains detection canines with the authorization of a law enforcement agency, as defined in s. 165.83 (1) (b).
(b)
1. If a part that is the subject of an anatomical gift made to an individual under par. (a) 2. cannot be transplanted into the individual, the part passes as provided in par. (f) absent an express, contrary indication by the person making the anatomical gift.
2. If tissue that is the subject of an anatomical gift made to an organ procurement organization is unsuitable for transplantation or therapy, the organ procurement organization may give the tissue to an appropriate person for research or education if authorized to do so by the person who made the anatomical gift.
(c) If an anatomical gift of one or more parts does not name a person under par. (a) 1. to 4. as the person to whom the anatomical gift is made, but identifies the purpose of the anatomical gift, all of the following apply:
1. If the purpose of the anatomical gift is transplantation or therapy, the part passes as provided in par. (f).
2. If the purpose of the anatomical gift is research or education, the part passes to the appropriate procurement organization.
3. If an anatomical gift is for more than one purpose, but the purposes are not set forth in any priority, the part shall be used for transplantation or therapy, if suitable, and if the part cannot be used for transplantation or therapy, may be used for research or education.
(d) If an anatomical gift of one or more parts does not name a person under par. (a) 1. to 4. as the person to whom the anatomical gift is made and does not identify the purpose of the anatomical gift, the parts may be used only for transplantation or therapy, and the parts pass as provided in par. (f).
(e) If an anatomical gift specifies only a general intent to make an anatomical gift by words such as “donor,” “organ donor,” or “body donor,” or by a symbol or statement of similar meaning, the anatomical gift may be used only for the purpose of transplantation or therapy, and the parts pass as provided in par. (f).
(f) If par. (b) 1., (c) 1., (d), or (e) applies, all of the following apply:
1. If the part is an eye, the part passes to the appropriate eye bank.
2. If the part is tissue, the part passes to the appropriate tissue bank.
3. If the part is an organ, the part passes to the appropriate organ procurement organization as custodian of the organ.
(g) If a body or part that is the subject of an anatomical gift does not pass pursuant to pars. (a) to (e) or is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person who is obligated to dispose of the body or part.
(h) A person may not accept an anatomical gift of a decedent’s body or part if the person has actual knowledge that the anatomical gift was not made as provided in sub. (5), (6), or (10) or if the person has actual knowledge that the decedent made a refusal to make an anatomical gift under sub. (7) that was not revoked.
(i) Except as provided under par. (a) 2., nothing in this section affects the allocation of organs for transplantation or therapy.
(12) Search and notification.
(a) If any of the following persons reasonably believes an individual to be dead or near death, the person shall make a reasonable search of the individual for a record of gift or a record of refusal or other information identifying the individual as a donor or as an individual who has refused to make an anatomical gift:
1. A law enforcement officer, fire fighter, emergency medical services practitioner, emergency medical responder, or ambulance service provider.
2. If no other source of information is immediately available, a hospital, as soon as practical after the individual’s arrival at the hospital.
(b) If a record of gift or record of refusal is located by a search under par. (a) 1., and the individual or deceased individual to whom the record or gift or record of refusal relates is taken to a hospital, the person responsible for conducting the search shall send the record of gift or record of refusal to the hospital.
(c) A person is immune from any criminal or civil liability for failure to discharge the duties imposed under this subsection but may be subject to an administrative sanction for such failure.
(13) Delivery of record of gift not required; right to examine.
(a) A record of gift need not be delivered during the donor’s lifetime to be effective.
(b) Upon or after an individual’s death, a person who has possession of a record of gift or a record of refusal relating to the individual’s body or part shall allow any person who is authorized to revoke, make, or object to the making of an anatomical gift of the individual’s body or part, and any person to whom the body or part could pass under sub. (11), to examine and copy the record of gift or record of refusal.
(14) Rights and duties of procurement organization and others.
(a) A procurement organization shall do all of the following when a hospital refers an individual who is near death or who is deceased to the procurement organization:
1. If the individual is a prospective donor, make a reasonable search for any person under sub. (9) having priority to make an anatomical gift of the individual’s body or part.
2. If the individual referred is a minor who is a donor or who made an unrevoked refusal to make an anatomical gift, unless the procurement organization has actual knowledge that the minor was emancipated, conduct a reasonable search for the parents of the minor and provide the parents an opportunity to revoke or amend the anatomical gift or refusal relating to the minor.
3. If the procurement organization receives information about an anatomical gift of the individual’s body or part that under sub. (11) passes to a person other than the procurement organization, promptly advise the other person of relevant information regarding the anatomical gift.
4. If procurement organization personnel make a request of a family member of a potential donor to make an anatomical gift of organs, tissues, or eyes, ensure that the personnel make the request with discretion and sensibility with respect to the circumstances, views, and beliefs of the family of the potential donor.
(b) When a hospital refers an individual at or near death to a procurement organization, the procurement organization may conduct any reasonable examination to determine whether a part of the individual that is or could be the subject of an anatomical gift is medically suitable for transplantation, therapy, research, or education. Unless otherwise prohibited by law, an examination under this paragraph may include an examination of all of the individual’s medical or dental records. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization has actual knowledge that the individual expressed a contrary intent.
(c) Unless otherwise prohibited by law, at any time after a donor’s death, the person to whom the donor’s body or part passes under sub. (11) may conduct any reasonable examination, including an examination of all of the donor’s medical or dental records, to determine the medical suitability of the donor’s body or part for its intended purpose.
(d) Subject to subs. (11) (g), (22m), and (23m), the rights of the person to whom an anatomical gift of a part passes under sub. (11) are superior to the rights of all others with respect to a part. The person may accept or reject an anatomical gift in whole or in part. A person who accepts an anatomical gift of a part shall cause the part to be removed from the donor’s body after the death of the donor and before embalming, burial, or cremation and without unnecessary mutilation.
(e) A person who accepts an anatomical gift of an entire body may, subject to the terms of an anatomical gift and this section, allow embalming, burial, cremation, or use of the remains of the body in a funeral service.
(f) A physician who attends a decedent at death or determines the time of death may not participate in the procedures for removing or transplanting a part from the decedent.
(g) A physician or technician may remove from the body of a donor a donated part that the physician or technician is qualified to remove.
(14m) Coordination of procurement and use; duties of hospitals. Each hospital shall do all of the following:
(a) Enter into agreements or affiliations with procurement organizations for coordination of procurement and use of bodies and parts that are the subject of anatomical gifts, including the following:
1. An agreement with an organ procurement organization to notify the organ procurement organization or its designee in a timely manner of individuals whose death is imminent or who have died in the hospital.
2. Agreements with at least one tissue bank and at least one eye bank to cooperate in the retrieval, processing, preservation, storage, and distribution of tissues and eyes to assure that all usable tissues and eyes are obtained from potential donors, as long as such agreements do not interfere with the procurement of organs.
(b) Ensure, in collaboration with the organ procurement organization with which the hospital has an agreement under par. (a) 1. that the family of each potential donor is informed of its options to donate organs, tissues, or eyes or to refuse to donate organs, tissues, or eyes.
(c) Ensure that the individual who requests family members of potential donors to make anatomical gifts of organs, tissues, or eyes is either an organ procurement representative or has completed a course on the methodology for approaching persons to request that they make anatomical gifts, which course is designed in conjunction with the tissue and eye bank community and offered or approved by the organ procurement organization with which the hospital has an agreement under par. (a) 1.
(d) Ensure that hospital personnel who make requests of family members of potential donors to make anatomical gifts of organs, tissues, or eyes make the requests with discretion and sensibility with respect to the circumstances, views, and beliefs of the families of potential donors.
(e) Ensure that the hospital works cooperatively with the procurement organizations with which it has agreements under par. (a) in educating staff on donation issues, reviewing death records to improve identification of potential donors, and maintaining potential donors while necessary testing and placement of potential donated organs, tissues, and eyes takes place.
(15) Discrimination in use of anatomical gifts prohibited.
(a) Except as provided in pars. (c) and (d), no hospital or transplant hospital may, solely on the basis of an individual’s disability, do any of the following:
1. Consider an individual ineligible to receive an anatomical gift.
2. Deny an individual any medical services or other services related to organ transplantation, including diagnostic services, surgery, postoperative treatment, and counseling.
3. Refuse to refer an individual to a transplant hospital or an organ transplant specialist for the purpose of being evaluated for or receiving an anatomical gift.
4. Refuse to place the individual on an organ transplant waiting list.
5. Place the individual on an organ transplant waiting list at a lower priority position than the position at which the individual would have been placed if the individual did not have a disability, unless the individual is placed at a lower priority position because the individual’s disability relates directly to the medical need of the individual to receive the organ transplant and the individual’s relative placement on the waiting list is reflective of the individual’s medical need for the organ transplant.
(b) No person may refuse an individual insurance coverage for any procedure associated with being evaluated for or receiving an anatomical gift, including posttransplantation and posttransfusion care, solely on the basis of the individual’s physical or mental disability.
(c)
1. A hospital or transplant hospital may consider an individual’s disability when making treatment or coverage decisions or recommendations related to organ transplantation, but only if a physician finds that the disability is medically significant to the receipt of the anatomical gift following an individualized evaluation of the individual.
2. If the examining physician determines that the individual has the necessary support system to assist the individual in complying with posttransplantation medical requirements, an individual’s inability to independently comply with those requirements may not be considered to be medically significant for purposes of subd. 1.
(d) This subsection does not apply to eye transplants or services related to the provision of an eye transplant.
(e) An individual may bring an action for a violation of this subsection in the circuit court of the county where a violation occurs or the county where the individual resides. The circuit court shall give priority on its docket and expedited review to an action brought under this paragraph. The court shall hold a hearing within 30 days of the filing of the action. In an action brought under this paragraph, the court may grant injunctive or other equitable relief, including requiring that auxiliary aids and services be made available for the individual if and when necessary for the receipt of an organ transplant. In issuing any order for auxiliary aids and services under this subsection, the circuit court shall specify the party responsible for paying for the auxiliary aids and services and for how long the services are to be provided.
(17) Prohibited acts related to records. Any person who intentionally falsifies, forges, conceals, defaces, or obliterates a record of gift, an amendment or revocation of a record of gift, or a record of refusal for pecuniary gain is guilty of a Class H felony, except that notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $50,000.
(18) Immunity.
(a) A person who acts, or in good faith attempts to act, in accordance with this section or with the applicable anatomical gift law of another state is not liable for the act in a civil action, criminal prosecution, or administrative proceeding.
(b) A person who makes an anatomical gift and the person’s estate are not liable for any injury or damage that results from the making of the anatomical gift or the use of the body or any part that is the subject of the anatomical gift.
(c) A person may rely on a representation made by an individual purporting to be an individual listed under sub. (9) (a) 2., 3., 4., 5., 6., 7., or 8. as to the individual’s relation to a donor or prospective donor in determining whether an anatomical gift of the donor’s or prospective donor’s body or part has been made, amended, or revoked.
(19) Law governing validity; choice of law as to making of anatomical gift; presumption of validity.
(a) An anatomical gift is valid if made in accordance with any of the following:
1. This section.
2. The laws of the state or country where it was made.
3. The laws of the state or country where the individual making the anatomical gift was domiciled, had a place of residence, or was a national at the time the anatomical gift was made.
(b) If an anatomical gift is valid under this subsection, the law of this state governs the interpretation of the anatomical gift.
(c) A person may presume that an anatomical gift or an amendment of an anatomical gift is valid unless the person has actual knowledge that it was not validly made or was revoked.
(20) Donor Registry. The department of health services may establish a donor registry. If the department of health services establishes a donor registry under this subsection, the department of transportation, department of natural resources, and department of revenue shall cooperate with the department of health services in establishing the donor registry. The department of health services shall promulgate administrative rules governing any donor registry established under this subsection.
(21) Effect of anatomical gift on advance health care directive. If a prospective donor executed a declaration, as defined in s. 154.02 (1), or a power of attorney for health care instrument under ch. 155, measures necessary to ensure the medical suitability of an organ for transplantation or therapy may not be withheld or withdrawn from the prospective donor unless the declaration or power of attorney for health care instrument expressly provides to the contrary.
(22m) Authorization by coroner or medical examiner; no evidence of anatomical gift.
(ag) If a decedent is within the custody of a coroner or medical examiner and if there is no evidence that an anatomical gift of the decedent’s body or part has been made or that the decedent has refused to make an anatomical gift, the coroner or medical examiner shall contact by telephone the organ procurement organization designated for the region in which the death occurs. The coroner or medical examiner shall provide the organ procurement organization with information, if known to the coroner or medical examiner, concerning the decedent’s age, the cause of the decedent’s death and, if available, the decedent’s medical history.
(am) The coroner or medical examiner may release and permit the removal of a part from a decedent specified in par. (ag) within that official’s custody, for transplantation or therapy, including to a tissue bank under the requirements of sub. (24m), if all of the following apply:
1. The official has received a request for the part from a hospital, physician, or organ procurement organization.
2. The official has made a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent’s medical records and, subject to sub. (25m), inform persons listed in sub. (9) of their option to make, or object to making, an anatomical gift.
3. The official does not have actual knowledge of a refusal to make an anatomical gift or contrary indication by the decedent or of an objection by a person having priority to act as listed in sub. (9).
4. The removal will be by a physician, except for the following:
a. In the case of eyes, the removal may be by a physician or by an enucleator.
b. In the case of tissue or bone, the removal may be by a physician or by a technician.
5. The removal will not interfere with any autopsy or investigation.
6. The removal will be in accordance with accepted medical standards.
7. Cosmetic restoration will be done to the decedent’s body, if appropriate.
(b) A coroner or medical examiner who releases, and permits the removal of a part under this subsection shall maintain a permanent record of the name of the decedent, the name of the person making the request, the date and purpose of the request, the part requested, and the name of the person to whom it was released.
(23m) Authorization by coroner or medical examiner; potential donations of organs and tissue.
(a) Subject to par. (b), for a decedent who meets the criteria for a determination of death under s. 146.71, who is a donor, and who is within the jurisdiction of a coroner or medical examiner under ch. 979, any vascularized organ that is the subject of an anatomical gift may be removed by a physician, within a time period compatible with preservation of the organ for purposes of transplantation or therapy, if all of the following take place:
1. Immediately after the hospital in which the donor or potential donor is located contacts the organ procurement organization designated for the region of which the hospital is a part concerning the potential donation, the organ procurement organization shall, by oral conversation, provide notice to the coroner or medical examiner or his or her designee of the referral of the donor or potential donor and shall provide notice of the referral to the district attorney or his or her designee.
2. The coroner or medical examiner or his or her designee has the opportunity to be present during the scheduled removal of the vascularized organ if, in the judgment of the coroner, medical examiner, or designee, the organ may be necessary in determining the cause of death.
(b) If, in the judgment of the coroner, medical examiner, or designee specified in par. (a) the vascularized organ may be necessary in determining the cause of death, the coroner, medical examiner, or designee may order a biopsy of the vascularized organ or, if the coroner, medical examiner, or designee is present during the scheduled removal, he or she may deny removal of the vascularized organ. If denial of removal is a possibility, the organ procurement organization shall make a good faith effort to consult with a forensic pathologist designated by the coroner, medical examiner, or designee as to the pathologist’s opinion concerning the necessity of the vascularized organ in determining the cause of death. If the biopsy is ordered or the removal is denied, the coroner, medical examiner, or designee shall specify, in writing as part of any death report required under ch. 979, any reasons for determining that the vascularized organ may be involved in the cause of death.
(c) For a decedent specified under par. (a), as authorized under the requirements of this section by the coroner, medical examiner, or designee with jurisdiction over the decedent, any part other than a vascularized organ that is a subject of an anatomical gift may be removed by a physician and any part that is tissue or bone may be removed by a technician or tissue bank employee, within a time period compatible with preservation of the part for purposes of transplantation or therapy.
(d) A physician, technician, or tissue bank employee who removes cardiovascular tissue from a decedent under this subsection shall, upon request of the coroner or medical examiner, file with the coroner or medical examiner with jurisdiction over the decedent a report detailing the condition of the cardiovascular tissue and its relationship to the cause of death. The report may include a biopsy or medically approved sample, if available, from the part.
(e)
1. A physician who removes an organ from a decedent under this subsection shall complete a form, as specified in sub. (26m) (a).
2. A physician, technician, or tissue bank employee who removes tissue, other than cardiovascular tissue, from a decedent under this subsection shall complete a form, as specified in sub. (26m) (b).
3. After completing a form under this paragraph, the physician, technician, or tissue bank employee shall transmit the form to the coroner or medical examiner with jurisdiction over the decedent.
(24m) Authorization by coroner or medical examiner; tissue banks.
(a)
1. If a decedent is within the custody of a coroner or medical examiner, and the death occurred in a hospital, any release of the decedent for potential donation of tissue shall be to the tissue bank with which the hospital has an agreement under sub. (14m) (a) 2. However, if such a tissue bank is unwilling to receive the tissue donation, the tissue bank shall so notify the coroner or medical examiner.
2. Upon receipt of a notification under subd. 1., the coroner or medical examiner may notify any other tissue bank with which the coroner or medical examiner has an agreement under par. (b) of the availability of the decedent as a potential tissue donor.
3. Upon receipt of a notification under subd. 2., the tissue bank so notified, if willing to receive the tissue donation, shall contact a reasonably available person, under the priority established in sub. (9), to request that the person make an anatomical gift of all or a part of the decedent’s tissue.
4. If the coroner or medical examiner informs the hospital that subds. 2. and 3. apply and that consent has been given for an anatomical gift, the hospital shall transfer the decedent to the coroner or medical examiner.
(b) When a decedent is within the custody of a coroner or medical examiner, the death occurred outside a hospital or the decedent was transferred to the coroner or medical examiner under par. (a) 4., and the coroner or medical examiner refers the decedent as a potential tissue donor, any such referral shall be made under the following conditions:
1. Subject to subds. 2., 3., and 4., the coroner or medical examiner, after considering a tissue bank’s history, services, traditional referral patterns, geographic service area, and tissue distribution record and any other criteria required for consideration by the corporation counsel of the applicable county, enters into a written, general referral agreement with one or more tissue banks to which the coroner or medical examiner shall refer decedents for potential donation of tissue.
2. Any agreement under subd. 1. is subject to review and approval by all of the following:
a. The corporation counsel of the applicable county.
b. The county board of the applicable county. Within 60 days after any approval by the corporation counsel and transmittal of the agreement to the county board, the county board may approve or disapprove the agreement. If the county board takes no action, the agreement is approved.
3. A tissue bank under this paragraph is accredited by the American Association of Tissue Banks or audited at least once every 2 years by an organization that is accredited by the American Association of Tissue Banks.
4. All of the following applies to an agreement by a coroner or medical examiner with one or more tissue banks to which the coroner or medical examiner refers decedents for potential donation of tissue:
a. Any such agreement that is entered into after April 13, 2006, shall conform to the requirements of subds. 1. to 3.
b. Any such agreement that exists on April 13, 2006, shall conform to the requirements of subds. 1. to 3. by October 1, 2007, unless the agreement expires before that date and is not renegotiated or renewed under subd. 4. a.
(25m) Consent for or limitation on certain uses of bones or tissue; requirements.
(a) A hospital, organ procurement organization, tissue bank, coroner, or medical examiner that provides a record of gift to a person who may make an anatomical gift under sub. (4) or (9) shall include in the record of gift the following sentences: “I understand that donated bones or tissues, including skin, may have numerous uses, including for reconstructive and cosmetic purposes, and that multiple organizations, including nonprofit and for-profit organizations, may recover, process, or distribute the donations. I further understand that I may, by this record, limit the use of the bones or tissues, including skin, that are donated or types of organizations that recover, process, or distribute the donation.”
(b) The record of gift under par. (a) shall include, following the 2nd sentence required in par. (a), all of the following:
1. A line or space for the person who may make an anatomical gift to sign to acknowledge that he or she has read the sentences specified in par. (a) or that the sentences have been read aloud to him or her. Except in cases in which an anatomical gift is executed by means that do not require the person making the anatomical gift to sign a record of gift, failure of the person making the anatomical gift to sign in the line or space is a refusal to make or an objection to making an anatomical gift of bones or tissues.
2. A line or space for the person making the anatomical gift to sign and specify a limitation, if any, on the use of bones or tissues or on the types of organizations that recover, process, or distribute the donation.
(c) If a person makes an anatomical gift in the manner provided in sub. (10) (a) 2. or 3., the individual receiving the oral communication shall read aloud to the person the sentences required under par. (a). If the anatomical gift is made in the manner provided in sub. (10) (a) 3., the individual who reduces the anatomical gift to a record shall note on the record that the person making the anatomical gift has been read the sentences required under par. (a) and note any limitations that the person making the anatomical gift imposes on the use of any bones or tissues that are the subject of the anatomical gift or any limitations on the types of organizations that recover, process, or distribute such bones or tissues.
(d) If a person who may make an anatomical gift under sub. (4) or (9) makes an anatomical gift under this subsection, the hospital, organ procurement organization, tissue bank, coroner, or medical examiner that provides to the person a record of gift under par. (a) shall also provide the person with the telephone number and address of the agency or organization that recovers the anatomical gift.
(e) The requester under par. (a) shall provide the person who may make an anatomical gift under sub. (4) or (9) with a copy of any record of gift executed under the requirements of this subsection.
(26m) Forms for removal of organs and certain tissues; rules. The department of health services shall promulgate rules prescribing all of the following:
(a) A form for removal of organs for use under sub. (23m) (e) 1. and 3.
(b) A form for removal of tissue, other than cardiovascular tissue, for use under sub. (23m) (e) 2. and 3.
(27m) Penalty. Whoever fails to comply with the requirement to provide sentences under sub. (25m) (a) or (c) may be subject to a forfeiture of not less than $500 nor more than $1,000 for each violation.
(28m) Effect of prior document of gift. Notwithstanding the requirements of this section, a document of gift that was made under the requirements of s. 157.06, 1987 stats., or s. 157.06, 2005 stats., is deemed to comply with the requirements of this section.
