South Dakota Anatomical Gift Act Law

Uniform Anatomical Gift – General – South Dakota

34-26-51 Who may make anatomical gift before donor’s death.

An anatomical gift of a donor’s body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in § 34-26-52 by:

(1) The donor, if the donor is an adult or if the donor is a minor and is:

(A) Emancipated; or

(B) Authorized under state law to apply for a driver’s license because the donor is at least fourteen years of age, provided, that if the minor is unemancipated, a parent or guardian has consented that the organ donor indicator be placed on the minor’s driver license or nondriver identification card;

(2) An agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift;

(3) A parent of the donor, if the donor is an unemancipated minor; or

(4) The donor’s guardian.

34-26-52. Manner of making anatomical gift before donor’s death.

A donor may make an anatomical gift:

(1) By checking a box on the driver license or identification card application authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor’s driver license or identification card. The issuance of a driver license or identification card with a donor designation completes the donation process and is effective unless the donor requests removal of the donor designation;

(2) In a will;

(3) During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness.

A donor or other person authorized to make an anatomical gift under § 34-26-51 may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and must:

(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and

(2) State that it has been signed and witnessed.

Revocation, suspension, expiration, or cancellation of a driver license or identification card upon which an anatomical gift is indicated does not invalidate the gift.

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’ death does not invalidate the gift.

34-26-53 Amending or revoking anatomical gift before donor’s death.

A donor or other person authorized to make an anatomical gift under § 34-26-51 may amend or revoke an anatomical gift by:

(1) A record signed by:

(A) The donor;

(B) The other person; or

(C) another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or

(2) A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.

A record signed pursuant to subsection (a)(1)(C) must:

(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and

(2) State that it has been signed and witnessed.

A donor or other person authorized to make an anatomical gift under § 34-26-51 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.

A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.

A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills.

34-26-54 Refusal to make anatomical gift–Effect of refusal.

An individual may refuse to make an anatomical gift of the individual’s body or part by:

(1) A record signed by:

(A) The individual; or

(B) Another individual acting at the direction of the individual if the individual is physically unable to sign;

(2) The individual’s will, whether or not the will is admitted to probate or invalidated after the individual’s death; or

(3) Any form of communication made by the individual during the individual’s terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.

A record signed pursuant to subsection (a)(1)(B) must:

(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and

(2) State that it has been signed and witnessed.

An individual who has made a refusal may amend or revoke the refusal:

(1) In the manner provided in subsection (a) for making a refusal;

(2) By subsequently making an anatomical gift pursuant to § 34-26-52 that is inconsistent with the refusal; or

(3) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.

In the absence of an express, contrary indication by the individual set forth in the refusal, an individual’s unrevoked refusal to make an anatomical gift of the individual’s body or part bars all other persons from making an anatomical gift of the individual’s body or part.

34-26-55. Preclusive effect of anatomical gift, amendment, or revocation.

In the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor’s body or part if the donor made an anatomical gift of the donor’s body or part under § 34-26-52 or an amendment to an anatomical gift of the donor’s body or part under § 34-26-53.

A donor’s revocation of an anatomical gift of the donor’s body or part under § 34-26-53 is not a refusal and does not bar another person specified in § 34-26-51 or 34-26-56 from making an anatomical gift of the donor’s body or part under § 34-26-52 or 34-26-57.

If a person other than the donor makes an unrevoked anatomical gift of the donor’s body or part under § 34-26-52 or an amendment to an anatomical gift of the donor’s body or part under § 34-26-53, another person may not make, amend, or revoke the gift of the donor’s body or part under § 34-26-57.

A revocation of an anatomical gift of a donor’s body or part under § 34-26-53 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under § 34-26-52 or 34-26-57.

In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 34-26-51, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.

In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 34-26-51, an anatomical gift of a part for one or more of the purposes set forth in § 34-26-51 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under § 34-26-52 or 34-26-57.

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.

If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor’s refusal.

34-26-56. Who may make anatomical gift of decedent’s body or part.

An anatomical gift of a decedent’s body or part for purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:

(1) An agent of the decedent at the time of death who could have made an anatomical gift under § 34-26-51(2) immediately before the decedent’s death;

(2) The spouse of the decedent;

(3) Adult children of the decedent;

(4) Parents of the decedent;

(5) Adult siblings of the decedent;

(6) Adult grandchildren of the decedent;

(7) Grandparents of the decedent;

(8) An adult who exhibited special care and concern for the decedent;

(9) The persons who were acting as the guardians of the person of the decedent at the time of death; and

(10) Any other person having the authority to dispose of the decedent’s body.

If there is more than one member of a class listed in subsection (a) (1), (3), (4), (5), (6), (7), or (9) entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under § 34-26-58 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.

A person may not make an anatomical gift if, at the time of the decedent’s death, a person in a prior class under subsection (a) is reasonably available to make or to object to the making of an anatomical gift.

34-26-57. Manner of making, amending, or revoking anatomical gift of decedent’s body or part.

A person authorized to make an anatomical gift under § 34-26-56 may make an anatomical gift by a document of gift signed by the person making the gift or by that person’s oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication.

An anatomical gift by a person authorized under § 34-26-56 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under § 34-26-56 may be:

(1) Amended only if a majority of the reasonably available members agree to the amending of the gift; or

(2) Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift.

A revocation is effective only if, 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, the procurement organization, transplant hospital, or physician or technician knows of the revocation.

34-26-60. Delivery of document of gift not required–Right to examine.

A document of gift need not be delivered during the donor’s lifetime to be effective.Upon or after an individual’s death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under § 34-26-58.

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