Changes to Pennsylvania’s Anatomical Gift Act
By Jennifer Simons, Esq.
Estates and Trusts Department
Most people are aware that an individual may choose to donate his/her organs (such as a heart, liver, or lungs) upon their death, and many choose to do so, typically by indicating this preference on a driver’s license or identification card. On October 23, 2018 Pennsylvania made a change to its Anatomical Gift Statute, which lays out the rules, process and procedure for making an “anatomical gift”. An anatomical gift is defined as “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”. 20 Pa.C.S. §8601. However, the statute was recently updated to add a new section allowing for an individual to make a gift of vascularized composite allografts (“VCA”), which include human hands, facial tissue or limb.
This type of donation is separate and different from a typical organ donation and is not included in the definition of an anatomical gift. A donation of VCA requires an explicit and specific consent from a donor or a donor’s family and has very specific requirements that must be met before this type of donation will be authorized.
An individual of sound mind who is 18 years of age or older may authorize a gift of VCA via a Will, Living Will, Health Care Power of Attorney, Power of Attorney or other document. This authorization must be in writing and must be made in front of two witnesses. It must be a separate authorization from an anatomical gift and must provide specific details indicating a donation of hands, facial tissue, limbs, or other vascularized composite allografts. Although a minor may not authorize a donation of VCA, the parent or guardian of a minor whose death is imminent or has died may authorize such a donation as long as the parent or guardian is not aware of the minor’s contrary intent and as long as there is no opposition from the other parent. Additionally, a surrogate decision maker, such as a spouse, parent, child, etc., may authorize the donation of VCA for an individual whose death is imminent or has died, as long as the decision maker is not aware of a contrary intent by the decedent or a revocation of an authorization to make such a donation. Notice of a contrary intent may include statements made by the decedent to health care professionals or family members indicating a contrary intent. 20 Pa. C.S.§8654.
Although a gift of VCA is a new type of donation and many people may not yet be aware of the ability to donate VCA, it may be something to consider in the future when preparing or updating your estate plan. It is important to remember that a gift of VCA cannot be made in the same way that a gift of typical organ donation is made and must be made separately, explicitly and specifically. If you would like more information on how to authorize a gift of VCA please contact our office and ask to speak with one of our Estate Planning attorneys.