Anatomical Gifts and Studies

Del. Code tit. 16, ch. 27
in effect

Del. Code tit. 16, § 2701 Registration of approved institutions and persons.

Any nonprofit hospital, accredited university or research institution and teachers, students, research workers and technicians in this State conducting anatomical studies accredited by a nationally recognized accrediting body approved by the Board of Medical Licensure and Discipline desiring to obtain dead bodies for the purpose of anatomical studies shall register with the Board of Medical Licensure and Discipline on such forms as may be prescribed by the Board and for the purpose of this subchapter such a registered hospital, university or research institution shall be known as an approved institution, and any registered teacher, student, research worker or technician shall be known as an approved person, and the Board of Medical Licensure and Discipline shall have the right to refuse registration of such hospital, accredited university or research institution or such persons.

Del. Code tit. 16, § 2702 Duties of public officers.

Every public officer of this State or of any agency, county or political subdivision thereof, who shall have or receive custody or control of the body of any decedent, other than a dead body on which an autopsy has been performed pursuant to § 4707 of Title 29, and which body is not claimed within a reasonable time by a surviving spouse or relative of the decedent but not less than 120 hours following the death of the decedent, and which body will require burial at the expense of the State or of any agency, county or political subdivision thereof, shall forthwith notify the Medical Council of the existence and location of the dead body and of any identification thereof.

Del. Code tit. 16, § 2703 Designation of recipient approved institution.

(a) The Medical Council shall promptly, upon receipt of notice of the existence, location and identification of a dead body pursuant to § 2702 of this title, designate 1 of the approved institutions to receive such body for use, including dissection, in connection with anatomical studies conducted by approved persons and shall notify the approved institutions of its designation and shall notify the officer having custody of the body thereof, and the officer shall promptly deliver the body to the approved institution so designated upon payment by the hospital or research institution of the cost of embalming said body and any necessary transportation and storage costs involved. (b) Each approved institution to which a dead body has been assigned for anatomical studies shall maintain said body in an embalmed condition, shall at all times ensure its proper and safe custody in an approved place of dissection, shall permit only approved persons to have access to such a body and shall identify all parts dissected free from the body with the same serial number assigned to the body by the Medical Council.

Del. Code tit. 16, § 2704 Disposition of remains [For application of this section, see 84 Del. Laws, c. 261, § 16].

An approved institution that has received a dead body under this subchapter shall, on completion of the study of the body, deliver the body as then constituted to the medical examiner’s office of the county in which the approved institution is situated for “natural organic reduction,” as defined under § 3101 of this title, burial, or cremation. The approved institution shall pay the expenses of the “natural organic reduction,” as defined under § 3101 of this title, burial, or cremation, and of the preparation of the body therefor, at the rates provided by law or which are usual and customary in such cases. However, with the approval of the Inspector of Anatomy under § 2706 of this title, the approved institution may retain certain portions of said body for special research or teaching purposes.

Del. Code tit. 16, § 2705 Powers and duties of Medical Council.

The Medical Council shall in the performance of its duties pursuant to this subchapter: (1) Establish such reasonable regulations as may be necessary; (2) Maintain complete records; (3) Maintain a registry of approved institutions and persons pursuant to § 2701 of this title; (4) Allocate unclaimed dead bodies to each of the approved institutions according to the number of approved persons and the character of anatomical studies conducted at such approved institutions.

Del. Code tit. 16, § 2706 Appointment of an Inspector of Anatomy.

The Attorney General, in consultation with the Medical Council, shall, on such conditions as the Attorney General may deem fit, appoint as an Inspector of Anatomy, a medical practitioner or a person with a special training or experience in medicolegal matters, and the duties of such Inspector shall be to: (i) Enter and inspect periodically any or all approved institutions where dissection of dead bodies may be in progress and examine any body or record or thing relating to the use of such dead bodies; (ii) report to the Medical Council and the Attorney General any unsatisfactory condition relating to the custody, use or disposal of dead bodies at such institutions or any other place where they may be located; (iii) investigate the alleged misconduct of any authorized or unauthorized person who has access to dead bodies; and, for the purpose of this subchapter, any person who obstructs the Inspector of Anatomy in the performance of the Inspector’s duties shall be punishable by a fine not exceeding $100.

Del. Code tit. 16, § 2707 Postmortem examination only by physicians; liability; consent.

(a) No postmortem examination of the body of a deceased person shall be conducted by any person other than a duly licensed doctor of medicine or osteopathy. Written or telegraphic consent for a doctor of medicine or osteopathy to conduct a postmortem examination of the body of the deceased person shall be deemed sufficient when given by whichever 1 of the following assumes custody of the body for the purpose of burial: Parent, spouse, child, guardian, next of kin or, in absence of any of the foregoing, a person who assumes the duty of legal disposal of the body. If 2 or more such persons assume custody of the body, consent of 1 of them who is legally considered as the next of kin shall be deemed sufficient. (b) The licensed physician conducting the postmortem examination shall not be liable in damages for any action taken in making such postmortem examination.

Del. Code tit. 16, § 2710 Definitions.

As used in this subchapter: (1) “Adult” means an individual who is at least 18 years of age. (2) “Advance health-care directive” means a directive under § 2507 or § 2508 of this title. (3) “Agent” means an individual authorized to make health-care decisions on another’s behalf by a power of attorney or an individual expressly authorized to make an anatomical gift on another’s behalf by any other record signed by the individual giving the authorization. (4) “Anatomical gift” means a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation, therapy, research, or education. (5) “Decedent” means a deceased individual and includes a stillborn infant or fetus. (6) “Department” means the Delaware Department of Health and Social Services. (7) “Designated requestor” means a hospital employee completing a course offered by the OPO on how to approach potential donor families and request organ and tissue donation. (8) “Document of gift” means a donor card or other record used to make, amend, or revoke an anatomical gift. The term includes a statement or symbol on a driver’s license or identification card or in a donor registry. (9) “Donate Life Delaware Registry” means that subset of persons in the Department of Transportation’s driver’s license and photo identification card database or any expanded or successor database who have elected to include the donor designation on their record. (10) “Donee” means a person authorized to receive an anatomical gift. (11) “Donor” means an individual who makes a gift of all or part of the individual’s body. (12) “Donor registry” means a database which contains records of anatomical gifts. The term includes the Donate Life Delaware Registry. (13) “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. (14) “Fund” means the Organ and Tissue Donor Awareness Trust Fund. (15) “Hospital” means a hospital licensed, accredited or approved under the laws of any state and includes a hospital operated by the United States government, a state or a subdivision thereof, although not required to be licensed under state laws. (16) “Know” means to have actual knowledge. (17) “Medical examiner” means the Chief Medical Examiner, a Deputy Medical Examiner, an Assistant Medical Examiner, or their designee. (18) “Minor” means an individual who is under 18 years of age. (19) “OPO” means the federally certified organ procurement organization for the State. (20) “Part” includes organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of a human body, and “part” includes “parts.” (21) “Person” means an individual, corporation, government or governmental subdivision or agency, statutory trust, business trust, estate, trust, partnership or association or any other legal entity. (22) “Person authorized or obligated to dispose of a decedent’s body” means any of the following without regard to order or priority: a. A medical examiner having jurisdiction over the decedent’s body. b. A warden or director of a correctional facility where the decedent was incarcerated. c. An individual who is otherwise authorized or obligated to dispose of a decedent’s body. d. An official of an entity that is otherwise authorized or obligated to dispose of a decedent’s body. (23) “Physician” or “surgeon” means a physician or surgeon licensed or authorized to practice under the laws of any state. (24) “Prospective donor” means a person who is dead or whose death is imminent and has been determined by the OPO to have a part that could be medically suitable for transplantation, therapy, research, or education. (25) “Reasonably available” means able to be contacted by the OPO, eye bank or tissue bank through the exercise of reasonable due diligence and willing and able to act in a timely manner consistent with existing medical criteria necessary to make an anatomical gift. (26) “Recipient” means an individual into whose body a decedent’s part has been or is intended to be transplanted. (27) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (28) “Recovery specialist” means a medical professional licensed by this or another state or technician trained in accordance with federal standards pursuant to 42 U.S.C. § 274(b) and nationally accredited standards for human body part removal. (29) “State” includes a state, district, commonwealth, territory, insular possession and any other area subject to the legislative authority of the United States of America. (30) “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.

Del. Code tit. 16, § 2711 Persons who may execute an anatomical gift.

(a) Any individual of sound mind and 18 years of age or more or an agent of such an individual, or an individual not of such age who has parental consent may give all or any part of the individual’s body for any purposes specified in § 2712 of this title, the gift to take effect upon the donor’s death. However, a married minor may make such a donation without parental consent. (b) “Parental consent” as used in this section shall be defined as the recorded permission by any of the following persons in order of priority stated below when persons of prior classes are no longer living or no longer have contractual capacity and when there is no notice to a donee of an objection, written or otherwise, by a person of the same class: (1) Either parent; (2) A legal guardian; (3) Any individual having legal custody. (c) Any of the following persons, who are reasonably available, in order of priority stated, when persons in prior classes are not available at the time of death and in the absence of known objections by the decedent or by a member of the same or a prior class, may give all or any part of the decedent’s body for any purpose specified in § 2712 of this title: (1) An agent of the decedent; (2) The spouse of the decedent (unless a petition for divorce has been filed); (3) An adult child of the decedent; (4) A parent of the decedent; (5) An adult sibling of the decedent; (6) An adult grandchild of the decedent; (7) An adult niece or nephew of the decedent; (8) An adult aunt or uncle of the decedent; (9) Any other person related to the decedent by blood, marriage or adoption or an adult who exhibited special care and concern for the decedent; (10) A guardian of the person of the decedent at the time of death; (11) Any other person authorized or obligated to dispose of the decedent’s body; (12) A hospital administrator or their designee of the institution at which the decedent was a patient at the time of death. (d) If the donee knows of an objection by the decedent or that a gift authorized by a member of a class is opposed by 50 percent or more of the reasonably available members of the same class or by a member of a prior class, the donee shall not accept the gift. The persons authorized by subsection (c) of this section may make the gift after death or immediately before death. A gift made by a person authorized pursuant to subsection (c) of this section may be amended or revoked by that person subject to § 2715(d) of this title. (e) A gift of all or part of a body authorizes any examination necessary to assure medical acceptability of the gift for the purposes intended. (f) The rights of the donee created by the gift are paramount to the rights of others except as provided by § 2716(f) of this title. (g) A donor’s gift of all or any part of the individual’s body, as indicated pursuant to this chapter, including, but not limited to, a designation on a driver’s license or identification card, donor card, advance health-care directive, will or other document of gift, may not be revoked by the next-of-kin or other persons identified in subsection (c) of this section, nor shall the consent of any such person at the time of the donor’s death or immediately thereafter be necessary to render the gift valid and effective. (h) The absence of a document of gift, in and of itself, shall not create any presumption regarding the person’s wishes regarding anatomical donation.

Del. Code tit. 16, § 2712 Persons who may become donees, and purposes for which anatomical gifts may be made.

(a) An anatomical gift may be made to any of the following persons named in the document of gift: (1) If for research or education, then to a hospital; accredited medical school, dental school, college or university; the organ procurement organization; or other appropriate person as permitted by law. (2) Subject to subsection (b) of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part. (3) An eye bank or tissue bank. (4) An organ procurement organization. (b) If an anatomical gift to an individual under paragraph (a)(2) of this section cannot be transplanted into the individual, the part passes in accordance with subsection (c) of this section in the absence of a known objection by the person making the anatomical gift. (c) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under paragraph (a)(2) of this section, passes to the organ procurement organization. (d) If the intended purpose or recipient of an anatomical gift is not known the following shall apply: (1) If the part is an eye, the gift passes to the appropriate eye bank. (2) If the part is tissue, the gift passes to the appropriate tissue bank. (3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ. (e) If a document of gift provides for multiple purposes without indicating priority, and transplantation and therapy is one of the purposes, then transplantation and therapy shall be the priority, and the gift, if suitable, shall pass to the appropriate organ procurement organization. If the gift cannot be used for transplantation or therapy, the gift may then be used for any of the other permitted purposes. (f) If an anatomical gift is made in a document of gift that does not name a person described in subsection (a) of this section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (d) of this section.

Del. Code tit. 16, § 2713 Manner of executing anatomical gifts.

(a) A gift of all or part of the body under § 2711(a) of this title may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective. (b) A gift of all or part of the body under § 2711(a) of this title may also be made by a document other than a will, including authorizing a statement or symbol indicating that the donor has made an anatomical gift to be recorded in a donor registry or on the donor’s driver’s license or identification card, or a card or other record signed by the donor. If the donor or other person making a gift is physically unable to sign a record, the record may be signed for the donor at the donor’s direction and in the donor’s presence and in the presence of 2 witnesses who must sign the document in the donor’s presence. Delivery of the document of gift during the donor’s lifetime is not necessary to make the gift valid. Revocation, suspension, expiration or cancellation under Title 21 of a driver’s license or identification card upon which an anatomical gift is indicated does not invalidate the gift. (c) The gift may be made to a specified donee or without specifying a donee. A physician who becomes a donee under this subsection shall not participate in the procedures for removing or transplanting a part. (d) Any gift by a person designated in § 2711(c) of this title shall be made by a document signed by the person or made by the person’s telegraphic, recorded, telephonic or other recorded message. (e) A person who so directs the manner in which the person’s body or any part of the person’s body shall be disposed of shall receive no remuneration or other thing of value for such disposition. (f) A document of gift is valid if executed in accordance with: (1) This chapter; (2) The law of the state or country where it was executed; or (3) The law of the state or country where, at the time of execution of the document of gift, the person making the anatomical gift: a. Is domiciled; b. Has a place of residence; or c. Is a citizen. (g) If a document of gift is valid under this section, the law of Delaware governs interpretation of the document. (h) A person may rely on a document of gift or amendment of an anatomical gift as being valid unless that person knows that it was not validly executed or was revoked.

Del. Code tit. 16, § 2714 Delivery of document of gift.

If the gift is made by the donor to a specified donee, the will, card or other document of gift, or an executed copy thereof, may be delivered to the donee to expedite the appropriate procedures immediately after death, but delivery is not necessary to the validity of the gift. The will, card or other document of gift, or an executed copy thereof, may be deposited in any hospital, bank or storage facility or registry office that accepts them for safekeeping or for facilitation of procedures after death. On request of any interested party upon or after the donor’s death, the person in possession shall produce the document for examination.

Del. Code tit. 16, § 2715 Amendment or revocation of the gift.

(a) If the will, card or other document or executed copy thereof has been delivered to a specified donee, the donor may amend or revoke the gift by: (1) The execution and delivery to the donee of a signed statement; (2) An oral statement made in the presence of 2 persons and communicated to the donee; (3) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee; or (4) A signed card or document found on the person or in the person’s effects. (b) Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set in subsection (a) of this section or by destruction, cancellation or mutilation of the document and all executed copies thereof. (c) Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in subsection (a) of this section. (d) Unless a revocation of a gift under this section includes an objection or refusal to make a gift of a part, it shall not prohibit a person listed in § 2711(c) of this title from authorizing such a gift.

Del. Code tit. 16, § 2716 Rights and duties at death.

(a) The donee may accept or reject the gift. If the donee accepts a gift of the entire body, the donee may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services. If the gift is of a part of the body, the donee, upon the death of the donor and prior to embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin or other persons under obligation to dispose of the body. The heir of any donor, at the time the disposition of the body takes place, may submit a request in writing to the donee that the body be returned to the heir at such time as the donee either refuses the disposition of the entire body or the parts thereof or determines that the donee no longer has use of the remains. (b) A surgeon, physician, funeral director, recovery specialist or eye bank technician who is authorized to remove any part in accordance with this subchapter is also authorized to draw or secure a blood sample from the donor, in order to screen the tissue received for medical purposes. (c) The time of death shall be determined by a physician who attends the donor at the donor’s death or, if none, the physician who certifies the death. This physician shall not participate in the procedures for removing or transplanting a part. (d) A person who acts in good faith in accord with the terms of this subchapter or under the anatomical gift laws of another state (or a foreign country) is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for that act. (e) Where no other provision for the same exists, a body, or the remains thereof, after it is no longer needed for the purpose indicated by the donor, may be buried at public expense on order of the Medical Council of Delaware, but in no case shall the expense of the burial exceed $100. (f) This subchapter is subject to the laws of this State prescribing powers and duties with respect to autopsies. The OPO is authorized to obtain a copy of an autopsy report in a timely fashion upon request and payment of reasonable copying fees.

Del. Code tit. 16, § 2717 Uniformity of interpretation.

This subchapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Del. Code tit. 16, § 2721 Requests for anatomical gifts.

(a) (1) At or near the time of death of any patient in a hospital, the attending physician or hospital designee shall make contact with the OPO in order to determine the suitability for organ, tissue and eye donation for any purpose specified under this chapter. This contact and the disposition shall be noted in the patient’s medical record. (2) a. If the OPO determines that additional medical history or information is required to determine suitability for the donation, the OPO may seek additional health information on the potential anatomical donor from the Delaware Health Information Network (DHIN). b. If the OPO has entered into an agreement with the DHIN for access to clinical data in DHIN’s possession, DHIN shall provide the OPO with timely access to medical information on the potential anatomical donor. (b) Protocol for referral of potential anatomical donors to OPO. — (1) The person designated by the hospital to contact the OPO shall have the following information available: a. Patient’s name and identifier number; b. Patient’s age; c. Anticipated cause of death; d. Past medical history; and e. Other pertinent medical information. (2) a. If the OPO determines that donation is not appropriate based on established medical criteria, this shall be noted by hospital personnel in the patient’s record and no further action shall be necessary. b. If the OPO determines that donation may be appropriate, the OPO shall make a reasonable search of the records of the Donate Life Delaware Registry or the applicable state donor registry that it knows exists for the geographic area in which the individual resided or resides in order to ascertain whether the individual has made an anatomical gift. c. If the referred patient has a document of gift, including registration with the Donate Life Delaware Registry, the OPO representative or the designated requestor shall attempt to notify a person listed in § 2711(c) of this title of the gift. d. If no document of gift is known to the OPO representative or the designated requestor, 1 of these 2 individuals shall ask the persons listed in § 2711(c) of this title whether the decedent had a validly executed document of gift. If there is no evidence of an anatomical gift by the decedent, the OPO representative or the designated requestor shall notify a person listed in § 2711(c) of this title of the option to donate organs and tissues. The request for donation shall be made by the OPO representative, or the designated requester in consultation with the attending physician or the hospital designee. (3) The person in charge of the hospital or that person’s designated representative shall indicate in the medical record of the decedent: a. Whether or not a document of gift is known to exist or whether a gift was made; and b. The name of the person granting or refusing the gift and that person’s relationship to the decedent. (4) If the OPO determines, based upon a medical record review, that a hospitalized individual who is dead or whose death is imminent may be a prospective donor, the hospital shall, if requested by the OPO, conduct a blood or tissue test or minimally invasive examination, which is reasonably necessary to evaluate the medical suitability of a part that is or may be the subject of an anatomical gift. Specific consent to testing or examination under this paragraph (b)(4) is not required. The results of tests and examinations under this paragraph (b)(4) shall be used or disclosed only: a. To evaluate medical suitability for donation and to facilitate the donation process; and b. As required or permitted by law. (5) The attending physician, in collaboration with the OPO, shall ensure that, prior to the withdrawal or withholding of any measures which are necessary to maintain the medical suitability of a part that is or may be the subject of an anatomical gift, the OPO has either: a. Had the opportunity to advise the applicable persons set forth in § 2711(c) of this title of the option to make an anatomical gift; or b. Ascertained that the individual expressed a known objection. (6) Each hospital in the State shall develop and implement a protocol for referring potential anatomical donors as provided in this section. The protocol shall require that, at or near the time of the death of any patient, the hospital shall contact by telephone the OPO to determine suitability for anatomical donation of the potential donor. The protocol shall encourage discretion and sensitivity to family circumstances and beliefs in all discussions regarding donations of organs, tissue or eyes. a. Limitation. — If the hospital staff advises the OPO that the hospital staff has actual knowledge that the decedent did not wish to be an anatomical donor, the gift of all or any part of the decedent’s body shall not be requested. b. Medical record reviews. — Death medical record reviews must be performed annually in each acute care general hospital for the sole purpose of determining anatomical donor potential at the hospital. The hospital may perform the medical record review or may designate the OPO to conduct the review. If the hospital chooses to conduct its own review, it must do so in accordance with clinical specifications and guidelines established by the OPO. If the hospital conducts the review, the OPO must provide the necessary training to hospital personnel conducting the review. The hospital must report the results of the review to the OPO no later than 45 days following the completion of the review. If the hospital designates the OPO to conduct the review, the OPO shall provide the hospital with written assurance that the OPO shall maintain the confidentiality of patient identifying information. c. After a donor’s death, a person to whom an anatomical gift may pass under § 2712 of this title may conduct a test or examination which is reasonably necessary to evaluate the medical suitability of the body or part for its intended purpose. d. Any examination conducted under this section may include an examination and copying of records necessary to determine the medical suitability of the part. This subsection includes medical, dental and other health-related records. e. A hospital shall enter into agreements or affiliations with the OPO for coordination of procurement and use of anatomical gifts. (7) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove. (8) A revocation of a gift made under this chapter is effective only if the applicable organ procurement organization, tissue bank, eye bank, or transplant hospital knows of and can reasonably communicate the revocation to the involved physicians or technicians before an incision has been made to remove a part from the donor’s body or before invasive procedures have begun to prepare the recipient. (c) A person, including a medical examiner, that seeks to facilitate the making of an anatomical gift for the purposes of transplantation or therapy from a decedent who was not a hospital patient at the time of death shall notify the OPO at or around the time of the person’s death in order to allow the OPO to evaluate the potential donation and, if applicable, coordinate the donation process. (d) The OPO may, upon request and payment of associated fees, obtain certified copies of death records of a donor from the Delaware Department of Health and Social Services, Office of Vital Statistics.

Del. Code tit. 16, § 2722 Confidentiality requirement.

(a) General rule. — Except as provided in subsection (b) of this section, no procurement organization may divulge any individually identifiable information acquired in the course of performing its responsibilities under this chapter except for the purpose of facilitating organ, eye or tissue donation and transplantation or as otherwise required under applicable laws. (b) Donors and recipients. — The identity of the donor and of the recipient may not be communicated unless expressly authorized by: (1) The recipient; (2) If the donor is alive, the donor; and (3) If the donor is deceased, the next-of-kin of the donor.

Del. Code tit. 16, § 2723 Donate Life Delaware Registry.

(a) The database maintained by the Department of Transportation to record donor designations shall be known as the “Donate Life Delaware Registry.” The Registry shall include only affirmative donation decisions. Registration by a donor in the Registry shall constitute sufficient authorization to donate organs and tissues for transplantation and therapy. (b) The Department of Transportation shall provide access by residents of the State to an internet-based interface that promotes organ and tissue donation and enables residents 18 years of age or older who apply for, hold, or seek to renew a Delaware driver’s license or identification card or otherwise have a record in the database to register as donors and have their decisions integrated into the Donate Life Delaware Registry. The form and content of the interface shall be maintained in collaboration with the OPO. (c) By October 3, 2016, the Department of Transportation shall establish a system which allows individuals who apply for, hold, or seek to renew a Delaware driver’s license or identification card, or otherwise have a record in the database to add their donor designation to the Donate Life Delaware Registry by submitting a form to the Department at no cost to the registrant. The Department of Transportation may also provide the opportunity to individuals who do not otherwise have a record in the database to add a record and the donor designation to the Donate Life Delaware Registry. (d) Donor designation information entered into the Donate Life Delaware Registry shall supersede prior conflicting information: (1) Provided to the Donate Life Delaware Registry; (2) On the individual’s physical driver’s license or identification card; (3) On an advance health-care directive; (4) Submitted under § 2711 of this title; or (5) Submitted under any other statutory provision. (e) An information technology system adopted by the Department of Transportation or its successor after October 3, 2015, shall continue to accommodate the inclusion of donor designation information into the database and the ongoing operation of the Donate Life Delaware Registry.

Del. Code tit. 16, § 2724 Organ donation designation on driver’s license or identification card.

Beginning as soon as practicable but no later than July 1, 1998, the Delaware Division of Motor Vehicles shall modify the driver’s license and identification card application process and renewal system to obtain information regarding an individual’s consent to anatomical donation, including a process to allow persons under age 18 to register as donors with parental consent as defined in § 2711(b) of this title. The following question shall be asked: Do you wish to have the organ donor designation printed on your driver’s license? Only an affirmative response of an individual shall be noted on the front of the driver’s license or identification card with the word “Organ Donor” or a symbol indicating the donor designation and recorded in the Donate Life Delaware Registry. The Department shall record and store all donor designations in the Donate Life Delaware Registry, regardless of whether a driver’s license or identification card is issued. The OPO shall be given access to the foregoing donor information 24 hours a day through the Division of Motor Vehicles computer database. Notwithstanding the Driver’s Privacy Protection Act, § 305 of Title 21, the Division of Motor Vehicles is authorized to provide the OPO with the foregoing donor information. The OPO shall not be assessed a fee or other charges for such access. The donor designation on the driver’s license or identification card or inclusion in the Donate Life Delaware Registry shall be deemed sufficient to satisfy all requirements for consent to organ and tissue donation.

Del. Code tit. 16, § 2725 Collaboration between departments and organ procurement organizations.

(a) The Department of Transportation, in consultation with the OPO, shall establish an annual education program for employees of the Department of Transportation. The program shall focus on: (1) Benefits associated with organ and tissue donations; (2) Scope and operation of the State’s donor program; and (3) How the employees can: a. Effectively inform the public about the donor program; and b. Best assist those wishing to designate as donors, including use of the Donate Life Delaware Registry. (b) State agencies are encouraged to collaborate with the OPO on initiatives designed to enhance awareness of organ and tissue donation and may collaborate with the OPO in applying for federal, state or private grants.

Del. Code tit. 16, § 2726 Liability.

A person who acts in good faith in accord with the terms of this subchapter is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for that act.

Del. Code tit. 16, § 2727 Facilitation of anatomical gift from decedent whose death is under investigation.

(a) The OPO shall in all cases collaborate with the medical examiner to ensure the preservation of forensic evidence and collection of photographs and specimens. A medical examiner shall, upon request, release to the OPO the name, contact information and available medical and social history of a decedent whose death is under investigation. If the decedent’s body or part is medically suitable for transplantation, therapy, research or education, the medical examiner shall release postmortem examination results to the OPO. The OPO may make a subsequent disclosure of the postmortem examination results or other information received from the medical examiner to support the purposes of the donation. (b) Notwithstanding any provision of this chapter or any other law to the contrary, if the medical examiner has notice, by an advance health-care directive, will, card or other document or as otherwise provided in this chapter, that a deceased person whose death is under investigation is a donor, the medical examiner shall perform an examination, autopsy or analysis of tissues or organs only in a manner and within a time period compatible with the preservation of the tissues or organs for the purpose of transplantation. (c) If the examination, autopsy or analysis has not been undertaken under subsection (b) of this section, all of the following apply to cases involving a prospective organ donor: (1) A physician or technician authorized to remove an anatomical gift from a donor may remove the donated part from the body of a donor whose death is under investigation for acceptance by a person authorized to become a donee subject to paragraph (c)(2) of this section. (2) The medical examiner shall be invited to be present during organ recovery if, in the judgment of the medical examiner, those organs may be involved in the cause of death. While in attendance, if the medical examiner determines that the organs are involved in the cause of death, the medical examiner may request a biopsy of those organs or deny removal of the anatomical gift. The medical examiner shall explain in writing the reasons for determining that those organs may be involved in the cause of death and the basis for denying removal of the anatomical gift and shall include the written explanation in the records maintained by the medical examiner. (3) The OPO shall pay the reasonable costs for the professional services of the medical examiner associated with attending the recovery under paragraph (c)(2) of this section above. (d) The physician or technician recovering a part from a donor under this section shall file upon request of the medical examiner, a report detailing the condition of the part of the body that is the anatomical gift. If appropriate, the report shall include a biopsy or medically approved sample from the anatomical gift.

Del. Code tit. 16, § 2728 Organ and Tissue Donor Awareness Trust Fund contributions.

The Delaware Department of Finance shall provide a space on the face of the state individual income tax return for the 1998 tax year and each year thereafter whereby an individual may voluntarily designate a contribution of any amount desired to the Fund. The amount so designated by an individual on the state income tax return form shall be deducted from the tax refund to which the individual is entitled or added to the individual’s payment and shall not constitute a charge against the income tax revenues due the State.

Del. Code tit. 16, § 2729 Organ and Tissue Donation Awareness Trust Fund.

(a) There is hereby created a special fund in the State Treasury to be known as the Organ and Tissue Donor Awareness Trust Fund. (b) Moneys deposited into the Fund and interest which accrues from those funds are hereby appropriated to the Organ and Tissue Donor Awareness Board as a continuing appropriation, to be distributed by the board in the manner provided in and for the purposes delineated in § 2730 of this title. Funds in the Organ and Tissue Donor Awareness Fund shall not lapse.

Del. Code tit. 16, § 2730 Organ and Tissue Donor Awareness Board.

(a) There is hereby established an Organ and Tissue Donor Awareness Board comprised of 9 members to be appointed by the Governor. The members of the Board shall include a representative of the federally certified organ procurement organization serving Delaware, a representative of an eye bank located in Delaware, a transplant recipient, a donor family member, a physician having special interest in the area of transplantation, a current officer, employee or board member of a Delaware acute care general hospital, 1 representative each from the Department of Health and Social Services, the Department of Education and the Division of Motor Vehicles. Members of the Board shall serve for 3-year terms and may be appointed to successive terms by the Governor. Members of the Board shall serve without compensation, but shall be reimbursed for all reasonable and necessary travel and other expenses incurred in the performance of their duties under this section. (b) The Board shall have the power and its duty shall be: (1) To develop donor awareness programs in Delaware, including but not limited to a promotional campaign to encourage Delaware residents to register as donors through the State’s driver’s license program; educational programs in secondary schools; and an education and awareness campaign for Delaware state employees; (2) From moneys in the Organ and Tissue Donor Awareness Trust Fund or otherwise made available to the Board, to award grants or make and enter into contracts with any person, association, partnership or corporation for the development, design and implementation of donor awareness programs in Delaware. (3) To appoint officers, agents, employees and servants, and to prescribe their duties and fix their compensation; provided, that the Board shall have the authority to obtain staff support, office space, equipment and supplies from any state department, with or without compensation; (4) To make and execute contracts and other instruments necessary or convenient for the conduct of its business and the exercise of the authority of the Board; (5) To apply for and accept appropriations, grants, loans and other assistance from, and to enter into contracts, agreements or other transactions with the federal government, the state government, political subdivisions, persons, associations, partnerships or corporations for the development, design and implementation of donor awareness programs in Delaware; (6) To do all acts and things necessary to carry out the powers granted to it by this act.

Del. Code tit. 16, § 2731 Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits and supersedes the Electronic Signatures in Global and National Commerce Act (Public Law 106-229, 15 U.S.C. § 7001 et seq.) but does not modify, limit or supersede § 101(c) [15 U.S.C. § 7001(c)] of the Electronic Signatures in Global and National Commerce Act or authorize electronic delivery of any of the notices described in § 103(b) [15 U.S.C. § 7003(b)] of the Electronic Signatures in Global and National Commerce Act.

Del. Code tit. 16, § 2741 Legislative intent.

The General Assembly finds that: (1) A mental or physical disability does not diminish a person’s right to health care; (2) The “Americans with Disabilities Act of 1990” [42 U.S.C. § 12101 et seq.] prohibits discrimination against persons with disabilities, yet many individuals with disabilities still experience discrimination in accessing critical health-care services; (3) Individuals with mental and physical disabilities are at risk of being denied life-saving organ transplants based on assumptions that their lives are less worthy, that they are incapable of complying with post-transplant medical regimens, or that they lack adequate support systems to ensure such compliance; (4) Although organ transplant centers must consider medical and psychosocial criteria when determining if a patient is suitable to receive an organ transplant, transplant centers that participate in Medicare, Medicaid, and other federal funding programs are required to use patient selection criteria that result in a fair and nondiscriminatory distribution of organs; and (5) Delaware residents in need of organ transplants are entitled to assurances that they will not encounter discrimination on the basis of a disability.

Del. Code tit. 16, § 2742 Definitions.

For purposes of this subchapter: (1) “Anatomical gift” means a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation or transfusion. (2) “Auxiliary aids and services” includes any or all of the following: a. Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments. b. Qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments. c. Provision of information in a format that is accessible for individuals with cognitive, neurological, developmental, and/or intellectual disabilities. d. Provision of supported decision-making services. e. Acquisition or modification of equipment or devices. f. Services and actions similar to those described in paragraphs (2)a. through (2)e. of this section. (3) “Covered entity” means: a. Any licensed provider of health-care services, including licensed health-care practitioners, hospitals, nursing facilities, laboratories, intermediate care facilities, psychiatric residential treatment facilities, institutions for individuals with intellectual or developmental disabilities, and prison health centers; or b. Any entity responsible for matching anatomical gift donors to potential recipients. (4) “Disability” shall have the same meaning set forth in the Americans with Disabilities ActAmericans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008, at 42 U.S.C. § 12102. (5) “Organ transplant” means the transplantation or transfusion of a part of a human body into the body of another for the purpose of treating or curing a medical condition. (6) “Qualified individual” means an individual who, with or without the support networks available to them, provision of auxiliary aids and services, and/or reasonable modifications to policies or practices, meets the essential eligibility requirements for the receipt of an anatomical gift. (7) The phrase “reasonable modifications to policies or practices” includes: a. Communication with individuals responsible for supporting an individual with post-surgical and post-transplantation care, including medication. b. Consideration of support networks available to the individual, including family, friends, and home and community-based services, including home and community-based services funded through Medicaid, Medicare, another health plan in which the individual is enrolled, or any program or source of funding available to the individual, in determining whether the individual is able to comply with post-transplant medical requirements. (8) The term “supported decisionmaking” includes use of a support person to assist an individual in making medical decisions, communicate information to the individual, or ascertain an individual’s wishes, including: a. Inclusion of the individual’s attorney-in-fact, health-care proxy, or any person of the individual’s choice in communications about the individual’s medical care; b. Permitting the individual access to a person of their choice for the purposes of supporting that individual in communicating, processing information, or making medical decisions; c. Provision of auxiliary aids and services to facilitate the individual’s ability to communicate and process health-related information, including use of assistive communication technology; d. Provision of information to persons designated by the individual, consistent with the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1301 et seq., and other applicable laws and regulations governing disclosure of health information; e. Provision of health information in a format that is readily understandable by the individual; f. If the individual has a court-appointed guardian or other individual responsible for making medical decisions on behalf of the individual, any measures to ensure that the individual is included in decisions involving that individual’s own health care and that medical decisions are in accordance with the individual’s own expressed interests.

Del. Code tit. 16, § 2743 Discrimination prohibited.

(a) A covered entity shall not, solely on the basis of a qualified individual’s mental or physical disability: (1) Deem an individual ineligible to receive an anatomical gift or organ transplant; (2) Deny medical and related services related to organ transplantation, including evaluation, surgery, counseling, post-operative treatment and services; (3) Refuse to refer the individual to a transplant center or other related specialist for the purpose of evaluation or receipt of an organ transplant; (4) Refuse to place an individual on an organ transplant waiting list, or placement of the individual at a lower-priority position on the list than the position at which the individual would have been placed if not for that individual’s disability; or (5) Decline insurance coverage for any procedure associated with the receipt of the anatomical gift, including post-transplantation care; (b) Notwithstanding subsection (a) of this section, a covered entity may take an individual’s disability into account when making treatment and/or coverage recommendations or decisions, solely to the extent that the physical or mental disability has been found by a physician or surgeon, following an individualized evaluation of the potential recipient, to be medically significant to the provision of the organ transplant. The provisions of this section shall not be deemed to require referrals or recommendations for, or the performance of, medically inappropriate organ transplants. (c) If an individual has the necessary support system to assist the individual in complying with post-transplant medical requirements, an individual’s inability to independently comply with those requirements shall not be deemed to be medically significant for the purposes of subsection (b) of this section. (d) A covered entity shall make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to make services such as transplantation-related counseling, information, coverage, or treatment available to qualified individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such services; (e) A covered entity shall take such steps as may be necessary to ensure that no qualified individual with a disability is denied services such as transplantation-related counseling, information, coverage, or treatment because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the services being offered or would result in an undue burden; (f) A covered entity shall otherwise comply with the requirements of Titles II and III of the Americans with Disabilities Act [42 U.S.C. § 12141 et seq. and 42 U.S.C. § 12181 et seq.] and ADA Amendments Act of 2008 [P.L. 110-325]. (g) The provisions of this section shall apply to each part of the organ transplant process.

Del. Code tit. 16, § 2744 Remedies.

(a) Any person subjected to discrimination in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of this subchapter may bring an action in the Court of Chancery for injunctive or other equitable relief. (b) The Court shall accord priority on its calendar and expeditiously proceed with an action brought under this section. (c) Nothing in this section is intended to limit or replace available remedies under the Americans with Disabilities Act [42 U.S.C. § 12101 et seq.] or any other applicable law.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title16/c027/sc01/index.htmlFetched: 10/4/2026

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