West Virginia Anatomical Gift Law

Uniform Anatomical Gift – General – West Virginia

16-19-2 Applicability.
This article applies to an anatomical gift or to an amendment to, revocation of or refusal to make an anatomical gift, whenever made.

16-19-4a Request for consent to an anatomical gift.

Where, based on accepted medical standards, a patient is a suitable candidate for organ or tissue donation, the person in charge of a hospital, or his or her designated representative other than a person connected with the determination of death, shall at the time of death request persons listed in this section for consent to an anatomical gift. In the order of priority stated and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, any of the following persons may give all or any part of the decedent’s body for any purpose specified in this article:

(a) The spouse;

(b) An adult son or daughter;

(c) Either parent;

(d) An adult brother or sister.

(e) A guardian of the person of the decedent at the time of his death.

Where the person in charge of a hospital or his or her designee has received actual notice of opposition from any of the persons named in this subsection or where there is otherwise reason to believe that an anatomical gift is contrary to the decedent’s religious beliefs, such gift of all or any part of the decedent’s body shall not be requested. Where a donation is requested, consent or refusal need only be obtained from the person or persons in the highest priority class available.

Where a donation is requested, the person in charge of a hospital or his designated representative shall complete a certificate of request for an anatomical gift, on a form supplied by the hospital. Said certificate shall include a statement to the effect that a request for consent to an anatomical gift has been made, and shall further indicate thereupon whether or not consent was granted, the name of the person granting or refusing the consent, and his or her relationship to the decedent. Upon completion of the certificate, said person shall attach the certificate of request for an anatomical gift to the death certificate.

The director of health shall establish regulations concerning the training of hospital employees who may be designated to perform the request, and the procedures to be employed in making it.

The director of health shall establish such additional regulations as are necessary for the implementation of this section.

No hospital or person in charge of a hospital or his or her designated representatives shall be liable for damages for any action taken in good faith in the administering of the provisions of the article.

16-19-4 Who may make anatomical gift before donor’s death.

An anatomical gift may be made during the life of the donor for the purpose of transplantation, therapy, research or education by:

(1) The donor, if the donor is an adult;

(2) The donor, if the donor is a minor and is emancipated or sixteen (16) years of age or older;

(3) An agent of the donor, unless the medical power of attorney or other record prohibits the agent from making an anatomical gift;

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

(5) The donor’s guardian.

16-19-5 Manner of making anatomical gift before donor’s death.

A donor may make an anatomical gift:

(1) By authorizing a statement or symbol to be imprinted on his or her driver’s license or identification card indicating that he or she has made an anatomical gift;

(2) In a will;

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

A donor or a person authorized by section four of this article may make a gift by:

(A) A donor card or other record signed by the donor or the authorized person; or

(B) Authorizing a statement or symbol indicating that the donor has made an anatomical gift to be included on a donor registry.

If the donor or the authorized person is physically unable to sign a record, another individual may sign at the direction of the donor or the authorized person if the document of gift:

(A) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness; and

(B) Contains a statement that it has been signed and witnessed as required by paragraph (A) of this subdivision.

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

(d) An anatomical gift made by will takes effect upon the donor’s death regardless of whether the will is probated. Invalidation of the will after the donor’s death does not invalidate the gift.

16-19-6 Amending or revoking anatomical gift before donor’s death.

A donor or a person authorized pursuant to section four of this article may amend or revoke an anatomical gift by:

(1) (A) A record signed and dated by the donor or the authorized person.

(B) If the donor or the authorized person is physically unable to sign a record, another individual may sign at the direction of the donor or the authorized person if the document of gift:

(i) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness; and

(ii) Contains a statement that it has been signed and witnessed as required by subparagraph (i) of this paragraph; or

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 donor or a person authorized by section four of this article may revoke an anatomical gift by destroying or cancelling the document of gift, or the relevant portion of the document of gift, with the intent to revoke the gift.

During a terminal illness or injury, a donor may amend or revoke an anatomical gift that was not made in a will by any form of communication 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 or as provided in subsection (a) of this section.

16-19-9 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) A person holding a medical power of attorney or another agent of the decedent at the time of death who could have made an anatomical gift under section four of this article immediately before the decedent’s death;

(2) The spouse of the decedent, unless in the six (6) months prior to the decedent’s death the spouse has lived separate and apart from the decedent in a separate place of abode without cohabitation;

(3) Adult children of the decedent;

(4) The person acting as the guardian of the decedent at the time of death;

(5) An appointed health care surrogate;

(6) Parents of the decedent;

(7) Adult siblings of the decedent;

(8) Adult grandchildren of the decedent;

(9) Grandparents of the decedent; or

(10) An adult who exhibited special care and concern for the decedent.

If there is more than one member of a class entitled to make an anatomical gift, any member of the class may make the anatomical gift unless he or she or a person to whom the anatomical gift may pass pursuant to section eleven of this section knows of an objection by another member of the class. If an objection is known, the majority of the members of the same class must be opposed to the donation in order for the donation to be revoked. In the event of a tie vote, the attending physician or advanced nurse practitioner shall appoint a health care surrogate to decide whether to make an anatomical gift of the decedent’s body or part for the purpose of transplantation, therapy, research or education.

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

16-19-10 Manner of making, amending, or revoking anatomical gift of decedent’s body or part.

A person authorized to make an anatomical gift under section nine of this article may do so by:

(1) A document of gift signed by the authorized person; or

(2) An oral communication by the authorized person that is electronically recorded or is contemporaneously reduced to a record and signed by the person receiving the oral communication.

An anatomical gift by a person authorized by section nine of this article may be amended or revoked orally or in writing 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 the authorized person may be revoked only if a majority of the members of the same class are opposed to the anatomical gift. In the event of a tie vote, a health care surrogate shall be appointed to decide whether to honor, amend or revoke the anatomical gift of the decedent’s body or part.

A revocation under subsection (b) of this section 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.

16-19-13 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 with respect to the decedent shall allow:

(1) A person authorized to make or object to the making of an anatomical gift with respect to the decedent; or

(2) a person to whom the gift could pass under section eleven of this article to examine and copy the document of gift or refusal.


Inside West Virginia Anatomical Gift Law