Montana Code 72-17-301. Rights and duties at death
72-17-301. Rights and duties at death. (1) Subject to 72-17-202 and 72-17-218, the rights of a donee created by an anatomical gift are superior to rights of others under 72-17-214(1), except with respect to autopsies. A donee may accept or reject an anatomical gift. If the donee accepts an anatomical gift of the entire body, the donee, subject to the terms of the gift and this chapter, may allow embalming, burial, or cremation and the use of the body in funeral services. If the anatomical gift is of a part of the body, the donee, upon the death of the donor and before embalming, burial, or cremation shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the person under obligation to dispose of the body.
Terms Used In Montana Code 72-17-301
- 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
- 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
- Donee: The recipient of a gift.
- Donor: The person who makes a gift.
- Donor: means an individual whose body or part is the subject of an anatomical gift. 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
- Minor: means an individual who is under 18 years of age. See Montana Code 72-17-102
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- 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
- Prospective donor: means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. 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
- Remainder: An interest in property that takes effect in the future at a specified time or after the occurrence of some event, such as the death of a life tenant.
- 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
(2)The time of death must be determined by a physician or surgeon who attends the donor at death or, if none, the physician, surgeon, or coroner who certifies the death. Neither the physician or surgeon who attends the donor at death nor the physician, surgeon, or coroner who determines the time of death may participate in the procedures for removing or transplanting a part unless the document of gift designates a particular physician or surgeon pursuant to 72-17-201(5).
(3)Unless prohibited by law other than this chapter, at any time after a donor’s death, the person to which a part passes under 72-17-202 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.
(4)Unless prohibited by law other than this chapter, an examination under 72-17-213(2)(c) or subsection (3) of this section may include an examination of all medical and dental records of the donor or prospective donor.
(5)Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.
(6)Upon referral by a hospital under 72-17-213(2), a procurement organization shall make a reasonable search for any person listed in 72-17-214 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.
(7)If there has been an anatomical gift, a technician may remove any donated parts and an enucleator may remove any donated eyes or parts of eyes after determination of death by a physician or surgeon.