West Virginia Code 16-19-9 – Who may make anatomical gift of decedent’s body or part
(a) Unless barred by §16-19-7 or § 16-19-8 of this code, 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:
Terms Used In West Virginia Code 16-19-9
- Adult: means an individual who is at least 18 years of age. See West Virginia Code 16-19-3
- Agent: means an individual:
(1) Authorized by a medical power of attorney to make health care decisions on behalf of a prospective donor. See West Virginia Code 16-19-3
- Anatomical gift: means a donation of all or part of a human body, to take effect after the donor's death, for the purpose of transplantation, therapy, research, or education. See West Virginia Code 16-19-3
- Decedent: A deceased person.
- decedent: includes a stillborn infant and, subject to restrictions imposed by law other than this article, a fetus. See West Virginia Code 16-19-3
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Part: means an organ, an eye, or tissue of a human being. See West Virginia Code 16-19-3
- Person: means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. See West Virginia Code 16-19-3
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- 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 West Virginia Code 16-19-3
- Surrogate: means an individual 18 years of age or older who is reasonably available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions, and is identified or selected by the attending physician or advanced nurse practitioner in accordance with §. See West Virginia Code 16-19-3
(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 § 16-19-4 of this code immediately before the decedent’s death;
(2) The spouse of the decedent, unless in the six 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 or an action for divorce is pending;
(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;
(10) An adult who exhibited special care and concern for the decedent; or
(11) A person authorized or obligated to dispose of the decedent’s body.
(b) 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 § 16-19-11 of this code, 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 anatomical gift may proceed despite the objection by a member or members of a class.
(c) 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.