BILL ANALYSIS
AB 2440
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 2440 (Tom Berryhill) - As Amended: April 5, 2010
SUBJECT : Uniform Anatomical Gift Act: prison inmates.
SUMMARY : Requires an inmate to complete an organ and tissue
donor consent form upon admittance to a state prison.
Specifically, this bill :
1)Requires an inmate, upon admittance to a state prison, to
complete a form through which the inmate would give or deny
his or her consent to be an organ and tissue donor upon death.
2)Specifies that the form must also include the following
statement:
"If, on this form, you marked 'Yes' to register as an organ
and tissue donor you are legally authorizing the recovery
of organs and tissues in the event of your death."
3)Expresses legislative intent, including that an inmate's
participation in the donor registry be strictly voluntary,
that no special consideration or treatment will be provided to
an inmate for participation in the donor registry, and that no
repercussions will result from an inmate's nonparticipation.
EXISTING LAW :
1)Establishes the California Department of Corrections and
Rehabilitation (CDCR) to enhance public safety through safe
and secure incarceration of offenders, effective parole
supervision, and rehabilitative strategies to successfully
reintegrate offenders into the community.
2)Establishes the Uniform Anatomical Gift Act which governs
organ and tissue donation in California. Includes provisions
relating to the donation process, including who may make a
gift, how to document a gift or refusal, how to amend or
revoke a gift, to whom a gift may be made, and delivery of a
gift.
3)Allows individuals who renew or apply for a driver's license
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or identification card with the Department of Motor Vehicles
to register as a donor, and provides for the pink "donor" dot
symbol to be pre-printed on the applicant's driver's license
or identification card.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . The author indicates that California
does not provide a process for prison inmate organ donation.
The author notes that other states, such as Arizona and Texas,
have led the charge in encouraging organ donation within the
corrections population. The author states that Californians
alone comprise approximately 20% percent of the national
waiting list, with people of color three times less likely
than whites to sign up as donors. According to the author,
this bill is intended to increase the state's donor
participation rates by enabling prison inmates to consider
voluntarily giving their consent to be added to the state's
existing donor registry in an effort to do something positive
with their lives.
2)CURRENT MEDICAL SCREENING PROTOCOLS . According to information
from CDCR, upon admission to a prison, an inmate is initially
screened by a nurse to identify any emergent needs, including
dental and mental health treatment. During this initial
intake process, the inmate is required to be tested for
tuberculosis and hepatitis C, and, upon request, screened for
human immunodeficiency virus (HIV). Within 14 days of
entering CDCR's custody, all inmates undergo a comprehensive
medical evaluation, in which a physician obtains a medical
history from the inmate. CDCR indicates that any information
that the physician obtains during the medical evaluation is
self-disclosed by the inmate and CDCR does not have access to
any prior medical records or proof of insurance coverage that
the inmate may have had prior to imprisonment. CDCR reports
that any process involving informed consent is required to be
done by a physician during the comprehensive medical
evaluation. Currently, CDCR does not solicit from an inmate
his or her interest in being an organ and tissue donor.
According to CDCR, the inmate is responsible for disclosing
that he or she is an organ and tissue donor during his or her
medical evaluation and that information is noted in the
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medical record.
Additionally, CDCR provides an Advance Directive for Health Care
to an inmate if it is requested specifically by the inmate or
the inmate's medical condition warrants it because the inmate
is facing a life-threatening condition or treatment. This
document consists of a durable power of attorney, which allows
inmates to designate someone to make decisions on their behalf
if they are unable to do it on their own, and a living will,
which allows inmates to state their goals or desires for the
types of health care that they do or do not want. The advance
directive form includes an optional section for an inmate to
choose whether or not he or she is willing to donate organs or
other tissues upon death. If an inmate chooses to complete
this part of the form, the inmate is instructed to check the
box that applies to the inmate's wish. The inmate may give
any needed organs or tissues, may specify which organs and
tissues he or she wants to donate, or may select the box
choosing not to donate. The inmate may also designate whether
his or her gift is for purposes of transplant, therapy,
research, or education. Before an inmate signs the advance
directive, a medical staff person is required to document that
the inmate has been fully informed and understands the form
and two additional witnesses are required to verify that the
inmate has willingly signed the form and completed it
according to the inmate's wishes.
3)FEDERAL INMATE ORGAN DONATION POLICY . The Federal Bureau of
Prisons (Bureau) allows organ and tissue donation by inmates
only when the recipient is a member of the inmate donor's
immediate family, defined as parents, siblings, and biological
children. The Bureau's policy specifies that hospitalizations
or fees involved in the donation process will not be at the
federal government's expense, including all costs associated
with guarding the inmate at off-site facilities. The inmate
is required to sign a statement indicating the desire to
donate an organ to a specific relative. The consent form must
state that the inmate understands the possible dangers of the
operation; the inmate agrees of his/her own free will; and,
the federal government will not be held responsible for any
complications or financial requirements associated with the
donation process. The Bureau's policy applies only to
currently incarcerated inmates, not to posthumous donations.
4)RELATED LEGISLATION . SB 1395 (Alquist) authorizes the
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establishment of a living donor registry to sign up kidney
donors and requires a person applying for or renewing a
California driver's license or identification card to
designate whether or not he or she will be an organ donor.
5)SUPPORT . Donate Life California writes in support that this
bill is designed to ensure that every prisoner has access to
the existing Donate Life California Organ and Tissue Donor
Registry. The National Kidney Foundation supports this bill
because it will help increase the numbers of potential donors
by requiring an inmate to have the opportunity to designate
his or her consent to be an organ and tissue donor upon death
while emphasizing that an inmate's participation in the donor
registry be strictly voluntary.
6)OPPOSITION . The American Civil Liberties Union (ACLU) opposes
this bill because it fails to include safeguards to protect
the individual from being coerced or encouraged to donate
tissue or organs without giving informed consent.
Specifically, ACLU contends that, at a minimum, the prisoner
must be told in writing and orally in a language that he or
she understands that the decision to donate will have no
effect on his or her sentence or treatment in prison; there
must be a process in place to ensure that prisoners are not
just presented with a form and told to check the box and sign
it as part of the necessary paperwork; the organ and tissue
donation program must be an opt-in only so that if a prisoner
refuses to sign the form, then he or she has not given
consent; the form must be revocable at any time and the
incarcerated person must be notified of that option; and,
participation in the program must be strictly voluntary with
no incentives or disincentives offered for participation. The
Friends Committee on Legislation of California objects to this
bill because it singles out prisoners and treats them
differently than any other population regarding the issue of
organ donation and unfairly requires new admissions to state
prisons, many of whom are young men and women who probably
have never even thought about the matter of donating organs
upon their death, to make such a decision on the spot without
adequate time to reflect on or understand the choice they are
being required to make.
7)POLICY CONCERNS . Presenting an organ and tissue donor consent
form to a prisoner during the admissions process, or at any
time during incarceration, raises concerns regarding the
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appearance of coercion by requiring the prisoner to complete
the form and of insubordination if the prisoner refuses. To
address these concerns, committee staff recommends deleting
the current contents of the bill and, instead, requiring CDCR
to post brochures and information about organ donation
throughout its medical facilities so that an inmate, rather
than CDCR, is initiating the process.
REGISTERED SUPPORT / OPPOSITION :
Support
Donate Life California
National Kidney Foundation
Opposition
American Civil Liberties Union
Friends Committee on Legislation of California
Analysis Prepared by : Cassie Rafanan / HEALTH / (916)
319-2097