Under the UAGA, an individual can make a gift before death or a surrogate can authorize a gift at the time of the donor’s death. In this manner, the UAGA provides “two bites of the apple.” This is an important legal component of the system because it provides two different legal avenues to arrive at a “yes” to donation.
First-person authorization is the term used when an individual authorizes their own anatomic gift before death, usually through a donor registry. Donor registries are registries of anatomic gifts. From a legal perspective, the donor registration process is not an informed consent process because it is not designed to be one and it is not required to be one under the law. The donor registration process meets the gift law standard under the UAGA. An adult individual can make a gift by registering as a donor or can decide not to make a gift.
Donor registries have been successful, with annual growth for the past 10 years and over 142 million registered donors as of January 2018, representing over 54% of the adult population (6
). If an individual is registered, there is legally binding permission for donation at the time of the donor’s death under the UAGA, and family members do not have the right to override this decision (1
). This is not only the law, as in current practice most donations proceed even over family objection (3
). The ability to move forward in these circumstances is supported by a measure of confidence that making an anatomic gift was the individual donor’s affirmative decision—a voluntary exercise of autonomy under constructs of law and medical ethics. In the rare case where a donation from a registered donor does not proceed over family objection, it is usually because of marginal transplant potential or unusual circumstances regarding the registration. In such cases, from a legal perspective, the gift is not revoked, rather there is no transfer or acceptance (the second and third element under gift law).
The number of registered donors is only half the story. The donation rate is not 54%, rather the donor registration rate is 54%. The UAGA also permits surrogates to authorize donation at the time of an individual’s death, providing a second opportunity to obtain a “yes”. Because only a small percentage of deaths are eligible for donation for transplant, it is a very small number of surrogates that are ever approached for donation permission. Of that group, over half authorize donation. As a result, the donation rate (actual donors over eligible donors, defined by federal policy) is over 75% (8
). The definition of eligible in the denominator of the donation rate as a proxy for medical suitability is currently the subject of national conversation. This should change over time, as medical advances and critical need result in transplantation of organs from increasingly complex donors (e.g.
, HCV-positive donors) given the risk-to-benefit ratio of waitlist mortality versus transplant outcomes. The numerator of the donation rate is a composite: about half of donors previously authorized their own donation through a registry and surrogates authorize slightly more than 50% of the remaining half.
The UAGA establishes three legally recognized positions: (1
) authorized gift, (2
) no decision, and (3
) refusal to make a gift. Before death, an individual can move between these three positions. A registered donor is in the positive position, i.e.
, an anatomic gift has been authorized. If registration is then revoked, the individual moves back to the neutral position. Revocation is legally equivalent to having never made a gift. The UAGA does not provide for inference of intent from a revocation. A previous revocation does not bar a surrogate from authorizing an anatomic gift at the time of the individual’s death (1
). If an individual does not want to be a donor, the UAGA recognizes that only through a refusal (1
). A refusal can be made through a signed document (e.g.
, advanced directive) and is legally binding.
The opportunity to approach surrogates for permission when the donor has neither made a gift nor registered a refusal is an important component of the system. This is particularly true for some segments of the population where registration rates are lower because of a preference for the family to make the donation decision at the time of death.