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
DBM:lgp                                                0
                                                       3

                           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

                       **************