THE ROLE OF ATTORNEYS IN ORGAN AND TISSUE DONATION 

By Greg Medalie and Ken Trachy 

Organ and tissue transplants dramatically increase the longevity and quality of life for people suffering from life-threatening diseases. In 2013, almost 29,000 transplants were performed in the U.S. The medical technology exists to perform many more and thus improve many more lives. The need for donated organs has increased rapidly, but there has been no corresponding increase in donors. Tragically, over 120,000 people are on the national waiting list for vital organs. Every year about 6,000 individuals die while waiting. 

In a 2005 Gallop poll, 78% of the respondents reported that they are likely to donate their organs and tissue when they die. However, fewer than 50% of individuals are documented as donors. Attorneys can reduce this disparity by helping clients make and document intelligent, informed decisions regarding tissue and organ donation. 

Dispel Misconceptions. One way attorneys can do so is by dispelling clients ‘ misconceptions about donation. For example, some people incorrectly believe that they are too old or sick for their organs to be of any value for transplantation. However, there is no automatic age cutoff or disqualifying condition other than active cancer or communicable disease. Encourage your clients to register as donors and let physicians make an evaluation at the time of death. 

Another possible misconception is that one’s religion prohibits organ donation. Encourage clients who express this concern to discuss the matter with their religious leaders. All major organized religions support donation as an act of charity and compassion. 

Perhaps the most common misconception is that registering as a donor may result in the “premature” recovery of their organs. If clients express that 
fear, explain how the organ donation process ensures that the determination of death is independent of organ donation considerations. 

Donation After Brain Death Most organs for transplantation come from deceased individuals who experience sudden and traumatic head injury and are subsequently declared brain dead by two physicians in the hospital. The declaration of death occurs after all efforts to save the life have been exhausted, including the use of a mechanical ventilator to assist in breathing. The physicians who make the declaration cannot be members of the organ recovery and transplant teams. Florida Statute Section 382.085 defines brain death as the irreversible cessation of all brain and brain stem functions. It is distinct from a coma or vegetative state. By definition, there is no chance of recovery after brain death. 

Donation after Cardiac Death. Organ recovery can also occur for a ventilator-dependent patient who has sustained a non-recoverable and irreversible brain or spinal cord injury. The patient ‘s Living Will and/or family is consulted to decide whether to withdraw mechanical ventilation and allow cardiac death to occur naturally. The organ recovery agency may approach the family to discuss donation only after the decision to withdraw mechanical ventilation is made. 

Record Donation Decisions. Be sure that clients who choose to be donors discuss their decision with family members and document it on Florida ‘s donor registry at www.DonateLifeFlorida.org and on their advance directives. It is critical to recite in their advance directives not only which treatments are not wanted at end-of-life but also that they want to prioritize organ donation over routine end-of-life care when there is an opportunity for donation after cardiac death. This can be expressed as follows: 

“Notwithstanding any directive contained in any other section of this document, I consent to the commencement and maintenance of any medical procedure necessary to evaluate, maintain or preserve my organs or tissue for purposes of donation for the purposes indicated above, including, but not limited to, medical testing, artificial respiration and artificial nutrition and hydration.” 

This statement directs family and healthcare providers to coordinate with the organ recovery agency before withdrawing life support. Life support systems should be maintained for a short time to assure organ viability while evaluation and other arrangements are made for the recovery of organs. 

By regularly helping clients evaluate and document organ donation, you will be helping to extend and improve lives. Doing so may be the best pro bono work you do in the course of your day-to-day practice. 

Valuable resources for additional information on organ and tissue donation include: 

Ken Trachy cofounded Life Alliance Organ Recovery Agency, a division of the surgery department at UM ‘s Miller School of Medicine, 35 years ago. He is an expert on the medical, legal, and ethical issues of donation and transplantation. 

Greg Medalie chairs the Probate & Trust Law Section and practices wills, trusts, estates and business law at Medalie & Medalie, P.A. in Fort Lauderdale.