BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
John L. Burton, Chairman
1997-98 Regular Session
SB 1403 S
Senator Polanco B
As Amended: April 2, 1998
Hearing Date: April 28, 1998 1
Government Code, Health and Safety Code 4
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SUBJECT
Anatomical Gifts: Corneal Eye Tissue
DESCRIPTION
This bill would require written or telephonic consent of a
decedent's next-of-kin before the decedent's corneal tissue
may be removed for transplantation.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
Telephonic consent is consent obtained over a telephone.
Most organ and tissue banks record telephonic consent for
the purpose of future confirmation of consent. Some organ
and tissue banks confirm telephonic consent by asking a
third party witness to verify telephonic consent.
Health and Safety Code Section 7151 provides that if a
decedent has not indicated otherwise, the following
persons, in order of priority, may make an anatomical gift
of all or part of a decedent's body: a person with durable
power of attorney, a spouse, an adult son or daughter, a
parent, an adult brother or sister, a grandparent, a
guardian.
CHANGES TO EXISTING LAW
Existing law (Government Code Section 27491.47, Health and
Safety Code Section 7151.5) provides that if there is no
known objection from any person authorized to make an
anatomical gift on the part of a decedent, the coroner or
medical examiner may remove and release for transplantation
the corneal tissue of a decedent.
This bill would provide that the coroner or medical
examiner must obtain written or telephonic consent from a
person authorized to make an anatomical gift on the part of
a decedent before he or she can remove and release for
transplantation that decedent's corneal eye tissue.
COMMENT
1. Stated need: to allow families the opportunity to
oppose the removal of a decedent relative's corneal eye
tissue
According to the author, this bill was introduced to
allow the relatives of a decedent adequate opportunity to
oppose the removal and transplantation of a decedent's
corneal eye tissue. The author points out that although
existing law requires the coroner to make a reasonable
effort to locate next-of-kin before any other body part
is removed for transplantation, there is no such
requirement for the removal of corneal tissue. As a
consequence, the coroner may remove a decedent's corneal
eye tissue without ever having even tried to contact the
next-of-kin.
The author points to ethical breaches on the part of the
Los Angeles County Coroner's Office and Doheny Eye and
Tissue Transplantation Bank as evidence of the need for a
change in existing law relating to corneal tissue
removal. He cites the Los Angeles Times , which reported
on November 2, 1997 that the Los Angeles County Coroner's
Office had taken thousands of corneas from cadavers
without the knowledge or approval of family members, and
then sold those corneas to Doheny for $215 to $335 a
pair. Though both the Los Angeles County Coroner and
Doheny deny that they ever "trafficked" in corneas, they
do not dispute that the corneas were often removed
without prior consent of either the decedent or the
next-of-kin.
The author further notes that county coroners and most
reputable eye and tissue banks (including the LA County
Coroner and Doheny) now require some form of familial
consent before a decedent's corneal tissue may be
removed. He argues that this legislation increases
record-keeping duties only modestly, and that it will
have no effect on the majority of eye and tissue banks
that already require consent.
2. The case for requiring consent
The author contends that existing law governing corneal
tissue removal does not adequately reflect the importance
of obtaining the consent of a decedent's next-of-kin. He
points out that anatomical gifts are in fact "gifts" and
that the removal of corneal tissue without the consent of
a decedent's next-of-kin violates the legally recognized
principle that absent expressed wishes left by a
decedent, an individual's rights to make or decline to
make an anatomical gift are passed on to the next-of-kin.
The author further points out that the unauthorized
removal of a decedent's corneal tissue is often traumatic
for his or her relatives. Numerous ethnic and religious
groups are known to strongly oppose the removal of a
decedent's organs or tissue. Hmongs, for example,
believe that if a person dies without his or her eyes
fully intact, he or she will be reincarnated as a blind
person, be unrecognizable to his or her deceased
relatives, and be unable to find his or her way to
heaven. Feelings that a relative has not adequately
protected a decedent from such a fate can leave the
next-of-kin with feelings of tremendous guilt.
3. Would this bill significantly reduce the supply of
transplantable corneas?
According to several eye and tissue banks, the original
justification for the relaxed laws governing corneal eye
tissue removal was a shortage of transplantable corneal
tissue in the early 1980s. The author claims that there
is no longer a shortage of corneas, though
ophthalmologists argue that it can occasionally be
difficult to find high quality ones. The obvious
question raised by this bill asks whether a change in
existing law governing corneal tissue removal would
reduce significantly the supply of corneas available for
transplantation. Representatives from the state's major
eye and tissue banks do not think that it will, since
nearly all of the eye and tissue banks in the state
already obtain consent before requesting corneal tissue
from the coroner. The California Association of
Ophthalmologists is less certain and would like to see a
study conducted within two to three years of the date the
bill goes into effect. However, that organization does
not oppose this bill and its representatives say that
they will be working closely with the author to ensure
that the supply of corneal tissue is protected. The
California Healthcare Association, which represents many
of the state's hospitals, also does not oppose this bill.
4. Should statute governing organ and tissue donation be
uniform?
Another bill pending in the legislature [AB 1225
(Granlund)] also addresses the question of corneal tissue
donations. That bill differs from this one in that it
requires the coroner or medical examiner to make a
reasonable effort to locate next-of-kin, but does not
require actual consent. One feature of that bill is that
it treats corneal tissue donations exactly the same as
any other organ.
The author of SB 1403 claims that the circumstances
surrounding the removal and transplantation of organs
(hearts, kidneys, livers, etc.) are very different from
those surrounding corneal tissue and that there are
strong reasons to avoid a "one size fits all" approach to
organ and tissue donation. The first is that there is a
perpetual shortage of organs, while there is no shortage
of corneas. The second is that there is a far greater
public health need to secure a constant supply of organs,
since a person may die without a timely organ transplant,
while he or she will not die waiting for a corneal
transplant. A third reason is that corneas are harvested
much more frequently than are organs, so abuses of law
requiring only that a "reasonable effort" be made are
less likely to be noticed. A final reason is that
corneas may be harvested at a coroner's office or in a
hospital, while organs can only be harvested in
hospitals. The author contends that hospitals are more
likely to make a genuine effort to locate next-of-kin
than are coroners offices, since hospitals are more
vulnerable to civil suits brought by angry relatives.
5. California State Coroner's Association opposes
The California State Coroner's Association opposes this
bill because it believes that the requirement to maintain
records of next-of-kin consent will create additional
record keeping burdens that could increase operating
costs. Timothy Buckhout, President of the California
State Coroner's Association, also claims that his
organization prefers the approach of AB 1225, since it
treats corneal tissue removal in the same manner as all
other tissue and organ removal.
The author points out that the amendments to be offered
in committee will allow eye and tissue banks to obtain
consent instead of the coroner, and that the only added
responsibility that this bill would place upon the
coroner is that it could not release corneal tissue
without consent having been obtained by either a hospital
or an eye and tissue bank or the coroner.
Support: American Nurses Association, California; Kaiser
Permanente; The
University of Southern California; Central Florida Lions
Eye and Tissue Bank, Inc.
Opposition: California State Coroner's Association
HISTORY
Source: Author
Related Pending Legislation: AB 1225 (Granlund) Pending in
Senate Judiciary
Committee
Prior Legislation: None Known
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