Montana Code 72-17-214. Making, revoking, and objecting to anatomical gifts by others
72-17-214. Making, revoking, and objecting to anatomical gifts by others. (1) Subject to subsections (2) and (3), any member of the following classes of persons who is reasonably available, in the order of priority listed, may make an anatomical gift of all or a part of the decedent‘s body for a purpose authorized in 72-17-201(1) unless the decedent, at the time of death, had made an unrevoked refusal to make that anatomical gift as provided for in 72-17-201:
Terms Used In Montana Code 72-17-214
- Adult: means an individual who is at least 18 years of age. See Montana Code 72-17-102
- Agent: means an individual:
(a)authorized to make health care decisions on the principal's behalf by a power of attorney for health care; or
(b)expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal. See Montana Code 72-17-102
- Anatomical gift: means a donation of all or part of a human body to take effect upon or after death for the purposes of transplantation, therapy, research, or education. See Montana Code 72-17-102
- Decedent: A deceased person.
- Decedent: means a deceased individual whose body or part is or may be the source of an anatomical gift and includes a stillborn infant or fetus. See Montana Code 72-17-102
- Document of gift: means any of the following methods used to make an anatomical gift:
(a)a card;
(b)a statement attached to or imprinted on a driver's license, identification card, or donor registry;
(c)a will or other writing; or
(d)a witnessed oral statement. See Montana Code 72-17-102
- Enucleator: means an individual who is certified pursuant to 72-17-311 to remove or process eyes or parts of eyes. See Montana Code 72-17-102
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Hospital: means a facility licensed, accredited, or approved under the laws of any state or a facility operated as a hospital by the United States government, a state, or a subdivision of a state. See Montana Code 72-17-102
- Parent: means a parent whose parental rights have not been terminated. See Montana Code 72-17-102
- Part: means an organ, tissue, eye, bone, artery, blood, fluid, or other portion of a human body. See Montana Code 72-17-102
- Person: means an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, joint venture, association, limited liability company, public corporation, instrumentality, or any other legal or commercial entity. See Montana Code 72-17-102
- Procurement organization: means an eye bank, organ procurement organization, or tissue bank. See Montana Code 72-17-102
- Reasonably available: means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift. See Montana Code 72-17-102
- Recipient: means an individual into whose body a decedent's part has been or is intended to be transplanted. See Montana Code 72-17-102
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Montana Code 72-17-102
- Refusal: means a record created under 72-17-201 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part. See Montana Code 72-17-102
- surgeon: means an individual licensed or otherwise authorized to practice medicine and surgery or osteopathy and surgery under the laws of any state. See Montana Code 72-17-102
- Technician: means an individual who is certified by the state board of medical examiners to remove or process a part. See Montana Code 72-17-102
- Writing: includes printing. See Montana Code 1-1-203
(a)an agent of the decedent at the time of death who could have made an anatomical gift under 72-17-201 immediately before the decedent’s death;
(b)the spouse of the decedent;
(c)an adult son or daughter of the decedent;
(d)either parent of the decedent;
(e)an adult brother or sister of the decedent;
(f)adult grandchildren of the decedent;
(g)a grandparent of the decedent;
(h)a guardian of the person of the decedent at the time of death; and
(i)any other person having the authority to dispose of the decedent’s body.
(2)If there is more than one member of a class listed in subsection (1)(a), (1)(c), (1)(d), (1)(e), (1)(f), (1)(g), or (1)(i) 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 can pass under 72-17-202 knows of an objection by another member of the class. If an objection is known, the anatomical gift may be made only by a majority of the members of the class who are reasonably available.
(3)An anatomical gift may not be made by a person listed in subsection (1) if:
(a)a person in a prior class is reasonably available at the time of death to make or to object to the making of an anatomical gift; or
(b)the person proposing to make an anatomical gift knows of a refusal by the decedent.
(4)An anatomical gift by a person authorized under subsection (1) must be made by:
(a)a document of gift signed by the person; or
(b)the person’s telegraphic, recorded telephonic, other recorded message, or other form of communication from the person that is contemporaneously reduced to writing and signed by the recipient.
(5)Subject to subsection (6), an anatomical gift by a person authorized under subsection (1) 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 may be:
(a)amended only if a majority of the reasonably available members agree to the amending of the gift; or
(b)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.
(6)A revocation made under subsection (5) is effective only if, before an incision has been made for the removal of a part from the body of the decedent or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, physician, surgeon, technician, or enucleator removing the part knows of the revocation.
(7)A failure to make an anatomical gift under subsection (1) is not an objection to the making of an anatomical gift.