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Bill Analysis

Legislative Service Commission


H.B. 392
125th General Assembly
(As Introduced)

BILL SUMMARY CONTENT AND OPERATION
Background
Anatomical gifts
(R.C. 2108.01, 2108.02, and 2108.03)
Ohio law defines "anatomical gift" as a donation of all or part of a human body to take effect upon or after death.  Any individual of sound mind can make an anatomical gift, but if the individual is under age 18, the document creating the gift must be signed by a parent or guardian.  The following persons or entities may become donees of anatomical gifts: Living wills
(R.C. 2133.02 and 2133.03)
A living will (referred to under Ohio law as "a declaration") is a legal document governing the use or continuation, or the withholding or withdrawal, of life-sustaining treatment[1] to an individual (referred to as "a declarant").  For a declaration to be valid, all of the following requirements must be met: Depending on whether the declarant intends the declaration to apply when the declarant is in a terminal condition, in a permanently unconscious state, or in either of these circumstances, the declarant's declaration must use either or both of the terms "terminal condition" and "permanently unconscious state" and must define or otherwise explain these terms in a manner that is substantially consistent with the definitions of these terms in Ohio law.[2]
A declaration becomes operative when all of the following requirements are met: Provision for anatomical gifts
Current law
(R.C. 2108.04(A), (B)(1) and (2), and (F))
Under current law, an individual may make an anatomical gift through the following means: A valid declaration of an anatomical gift made by any of these means prevails over any contrary desires of the donor's family regarding the donor's corpse.  Nonetheless, a donee is not required to accept an anatomical gift.
The bill
(R.C. 2108.04(B)(3) and 2133.16(B))
The bill preserves the ability of an individual to make an anatomical gift by all of the means listed above, but also adds that an individual may make an anatomical gift of all or part of the individual's body by specifying the intent to make an anatomical gift in a space provided in the individual's declaration.  When an individual declares the intent to make an anatomical gift in the individual's declaration, the bill provides that the declaration serves as a document other than a will in which a declarant makes an anatomical gift, the declaration is considered as having satisfied the requirements for making an anatomical gift in a document other than a will, and the declaration must meet all of the requirements in the Anatomical Gift Law (R.C. 2108.01 through 2108.12) to the extent the declaration specifies the intent of the individual to make an anatomical gift.
Form for anatomical gifts
Current law
(R.C. 2108.10(A) and 2133.07(A))
Current law specifies the general form for anatomical gifts to which documents other than wills must substantially comply.  Also, under current law, a printed form of a declaration may be sold or otherwise distributed for use by adults who are not advised by an attorney.  By using a printed form, an individual may do all of the following: The printed form may not be used as an instrument for granting any other type of authority or for making any other type of designation, except that it may be used as a DNR ("do-not-resuscitate") identification[3] if the individual so specifies.
The bill
(R.C. 2108.10(A) and 2133.07(B))
The bill requires a printed declaration form to include a section, before the signature line, specifically designed for an individual to declare the individual's intent to make an anatomical gift.  The anatomical gift section of the declaration must conform substantially to a form provided for in the bill (a reproduction of this form appears in the COMMENT section, below).
Amendment and revocation of anatomical gifts
Current law
(R.C. 2108.06, not in the bill)
Existing law specifies that an individual may amend or revoke an anatomical gift.  If the will, card, or other document of anatomical gift has been delivered to a specified donee, the donor may amend or revoke the anatomical gift by any of the following means: If a document of anatomical gift has not been delivered to a donee, the donor may revoke the document of gift in any manner specified above or by destruction, cancellation, or mutilation of the document and all executed copies of it.
If an anatomical gift has been made by will, the gift may be amended or revoked in any manner for the amendment or revocation of anatomical gifts when the document of gift has been delivered to a donee (see above) or in the manner provided for amendment or revocation of wills.[4]
The bill
(R.C. 2133.16(C) and (D))
The bill provides that an individual who makes an anatomical gift through a declaration may amend the anatomical gift under the circumstances and by any of the means provided for individuals who have already delivered a will, card, or other document of anatomical gift to a donee (see above).  An individual who makes an anatomical gift through a declaration may revoke the gift under the circumstances and by any of the means provided for individuals who have already delivered a will, card, or other document of anatomical gift to a donee or by cancellation of the individual's intent to make the anatomical gift as specified in the declaration.
Refusal to make an anatomical gift
(R.C. 2133.16(E))
Under the bill, an individual may refuse to make an anatomical gift of all or part of the individual's body by specifying the intent of the individual to refuse to make the anatomical gift in a space provided in the declaration.
No requirement to make or amend an anatomical gift
(R.C. 2133.16(E))
The bill makes it clear that nothing in the bill requires a declarant  to make, amend, or refuse to make an anatomical gift in a space provided in a declaration or otherwise limits a declarant from making, amending, or refusing to make an anatomical gift.  The failure of a declarant to indicate in the space provided in the declaration the intent of the declarant to make an anatomical gift or to refuse to make an anatomical gift does not create a presumption of the intent of the declarant with respect to the matter of making or refusing to make an anatomical gift.
COMMENT
ANATOMICAL GIFT (optional)
Upon my death, the following are my directions regarding donation of all or part of my body:
____ YES, in the hope that I may help others upon my death, I hereby give the following body parts:
____________________________________________________________________________________________________________________________________
for any purpose authorized by law:  transplantation, therapy, research, or education.
OR
____ NO, I do not wish to donate all or any part of my body as an anatomical gift.  (If this revokes a prior anatomical gift that I have made to a designated donee, I will attempt to notify the donee to which or to whom I agreed to donate all or part of my body.)
If I do not check either of the lines indicated above, no presumption is created about my desire to make or refuse to make an anatomical gift.
HISTORY

ACTIONDATEJOURNAL ENTRY
    Introduced
02-03-04p.         1592




[1] "Life-sustaining treatment" means any medical procedure, treatment, intervention, or other measure that, when administered to a qualified patient or other patient, will serve principally to prolong the process of dying.  (R.C. 2133.01(Q).)
[2] "Terminal condition" means an irreversible, incurable, and untreatable condition caused by disease, illness, or injury from which, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by a declarant's or other patient's attending physician and one other physician who has examined the declarant or other patient, both of the following apply:  (1) there can be no recovery, and (2) death is likely to occur within a relatively short time if life-sustaining treatment is not administered (R.C. 2133.01(AA)).  "Permanently unconscious state" means a state of permanent unconsciousness in a declarant or other patient that, to a reasonable degree of medical certainty as determined in accordance with reasonable medical standards by the declarant's or other patient's attending physician and one other physician who has examined the declarant or other patient, is characterized by both of the following:  (1) irreversible unawareness of one's being and environment, and (2) total loss of cerebral cortical functioning, resulting in the declarant or other patient having no capacity to experience pain or suffering (R.C. 2133.01(U)).
[3] A "DNR identification" is a standardized identification card, form, necklace, or bracelet that is of uniform size and design, that has been approved by the Department of Health, and that signifies either of the following:
(1) That the person who is named on and possesses the card, form, necklace, or bracelet has executed a declaration that authorizes the withholding or withdrawal of CPR and that has not been revoked;
(2) That the attending physician of the person who is named on and possesses the card, form, necklace, or bracelet has issued a current do-not-resuscitate order, in accordance with the do-not-resuscitate protocol adopted by the Department of Health for that person and has documented the grounds for the order in that person's medical record.
R.C. 2133.21(C).
[4] R.C. 2107.084 and R.C. 2107.33 govern the modification and revocation of wills.