We’re sharing some information about the legal side of organ and tissue donation and how a thorough approach to estate planning can help honor someone’s wishes.

Organ donor eligibility

Most people are eligible to be an organ or tissue donor, though it is still a personal decision with many layers to consider. Organ donation is not restricted by age, nor do any major religions prohibit organ donation. In most cases, prior illness doesn’t prevent a person from being an organ donor, though active cancer and certain infections may affect eligibility.

If someone is interested in being an organ donor but unsure of their eligibility, the best option is to plan for organ donation and allow the medical team to determine what organs or tissue are eligible at the time of death.

Options for becoming an organ donor

In Oklahoma, you can choose to add an organ donor symbol on your state driver’s license. While this can be an important step to inform medical professionals and loved ones about your choice, we also recommend including it in your Advance Directive for Health Care to ensure your wishes are honored.

Legally, organ donation is considered an “anatomical gift,” which is a category that covers donating all or part of a person’s body for transplant, therapy (such as skin, tissue or bone grafts), research, or education. When including the anatomical gift in estate planning documents, the donor can specify what they are willing to donate, the purpose of the donation, and the institution receiving the gift, if donating for research or education. If the individual would like to specify a particular institution to receive the donation for research or educational purposes, the donor will need to make arrangements and complete paperwork with the institution.

In more urgent situations of terminal illness or injury, an individual can express their wish to donate their organs through any form of communication to two adult witnesses (at least one of whom is a disinterested party).

Understanding the rights of organ donors

The legal framework for organ donation comes from the Uniform Anatomical Gift Act (UAGA), which was first drafted in 1968 and has been adopted in some form in all 50 states. This act states that an individual’s decision to become an organ and tissue donor is considered “first person authorization,” which means it cannot be amended or revoked by anyone other than the donor. Therefore, if a person has opted in to be an organ or tissue donor, medical providers must respect the donor’s wishes even if their family objects to organ donation.  

If a person has not opted in nor opted out of organ donation, their family may elect to donate their organs after death. Eligible decision makers include an authorized agent of the decedent, their spouse, an adult child, their parent, an adult sibling, adult grandchildren, grandparents, an adult who exhibited special care or concern for them, a guardian, or another person having authority to dispose of the body. Thus, if someone is opposed to organ donation, that decision should be documented in their estate plan as well.

How organ donation impacts end-of-life care

Some people are hesitant to opt in to organ donation because of a misconception that medical professionals won’t work as hard to save the life of an organ donor. Choosing to be an organ donor does not change the quality of care provided and the life-saving measures taken. Estate planning documents outline the person’s wishes for end-of-life care, and their medical team will do everything possible to save their life while honoring the person’s wishes.

However, a person’s wishes regarding life support may impact what organs and tissues are available for donation. If a person is interested in being an organ donor but also does not want to receive artificially administered hydration or life support, instructions should be included in the advance directive to make it clear that artificial hydration and/or other treatment may be given at the time of death if necessary to preserve organs, tissue or body parts for the purposes of donation.

The treating physician and their team are entirely separate from the organ and tissue recovery team, who only enter the picture after legal death has occurred due to loss of brain activity or the cessation of heart and respiratory function. Coordination is key to successful organ donation, so it’s important to include any special instructions in the healthcare directive so the person’s loved ones and medical team know what action should be taken.

The importance of discussing organ donation

Like many topics related to estate planning, organ donation can be a sensitive subject. Some people feel strongly about donating their organs, while others feel strongly about not donating organs. It’s important to talk with your loved ones and/or the person identified to make healthcare decisions on your behalf. Tell them about your wishes so they are aware, in addition to documenting them in an estate plan.