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A new estate planning tool: organ donation

(Article published in the May19,2003 issue of TODAY, Business Section)

It was Dr. Gene San Juan’s donation of his body to the UP Medical School that opened, for me at least, a new area of estate planning: organ donation.  His unprecedented act, which used to be the exclusive preserve of convicts abandoned by their families and accident or crime victims too poor to be given a proper burial, demonstrates to the well-to-do that one’s lifeless body is as precious a resource as one’s worldly possessions.  Therefore, a complete estate plan ought to have some well-though-of provision on the disposition of the estate planner’s dead body.  Up until recently, the standard clause is an expression of a desire to be interred in the family mausoleum or burial plot in accordance with the rites of the decedent’s religion.  The good doctor tells us there is a better way to prevent what he considered “such a waste.

The basic law regarding organ donation in the Philippines is Republic Act 7170, popularly known as the Organ Donation Act of 1991.  Three years after it was passed, it was amended by RA 7885, an act to advance corneal transplantation in the Philippines.  The regulations implementing both laws are found in Administrative Order 11, series of 1995, issued by the Department of Health.  Together they form the legal framework that governs how, to whom, for what, and by whom a organ donation may be made, as well as how the institutional and professional players concerned are to coordinate and cooperate to carry out the laudable intent of the donor.

Who may make an organ donation

            Sections 3 and 4 of RA 7170 list two kinds of donors who may give away the lifeless human body or its parts.  The first is the person himself.  To be capable to donating his body, a person must be 18 years of age and of sound mind (Section 3).  The law makes no definition of what it takes to have a sound mind.  But the traditional meaning of the term in the context of the law on wills provides a working guide: one must known (a) the character of his act, i.e. that it is a disposition effective upon one’s death; (b) the nature of his estate, i.e. that it is his own body, not his wealth, he is disposing of; and (c) the proper objects or recipients of his bounty.  It requires, evidently, minimal sanity and therefore even our politicians may make a donation of their bodies.  Some monkey in the Manila Zoo may benefit from their bounty. 

            The second is any one of a list of relatives of the deceased, provided the decedent had not expressed a contrary intention and no member of the immediate family of the decedent registers an objection.  In the order of their priority, those relatives are (a) the spouse; (b) son or daughter of legal age; (c) either parent; (d) brother or sister of legal age; or (e) guardian over the person of the decedent at the time of his death.  These persons may make the donation after or immediately before the death of the person whose body it is they are donating (Section 4).

            A third kind is found in Section 9.  These donors, who can step in only in the absence of a donation by the decedent himself and of the persons composing the second group of donors, include the physician in charge of the patient, the head of the hospital who had custody of the body of the deceased classified as accident, trauma or other medico-legal cases.

How an organ donation is documented

            On the authority of Section 8 of RA 7170, a person making a legacy of his own body or body part, to take effect upon his death, may do so by (a) making a will; (b) executing any document other than a will.  This may be a card or any paper designed to be carried on a person.

            If the donation is made through a will, the legacy becomes effective upon the donor’s death without waiting for the probate of his will.  If the will is not probated at all or if it is declared invalid for testamentary purposes, the legacy, to the extent it was executed in good faith.  This constitutes an exception to the well-known rule that no will effectively transfers property without first being probated in a court of law.

             Person making a legacy through a document other than a will, such as a card or any paper designed to be carried on his or her person, must sign it in the presence of two witnesses who, in turn must also sign in his presence.  It also, like a will, takes effect upon his death and is to be respected by and is binding upon the decedent’s executor or administrator, heirs, assignees, successors-in-interest and all members of his family.

            The relatives of the decedent who may donate his body or body parts, as authorize under Section 4 of RA 7170, must make their donation under the formalities of a donation of movable property, i.e. in writing, not necessarily a public instrument.

            In the absence of the persons specified in Section 4 and of any document of organ donation on the part of the decedent, the third kind of donors (those authorized under Section 9) may authorize, in a public document, the removal of a body part for purposes of transplantation to the body of a living person.  Before authorizing removal, however, the authorizing person must exert reasonable efforts, for at least 48 hours to locate any of the relatives listed in Section 4 or the guardian of the decedent at the time of his death.

            If the body part that will be removed is the cornea of the corneas of the deceased, the removal may be authorized within 12 hours after death and upon request of the qualified legatees or donees for transplantation.  The removal, however, should not interfere with any subsequent investigation or alter the postmortem facial appearance of the decedent.  This may be accomplished by placing eye caps after the cornea or corneas have been removed.

To whom and for what purpose the body may be given

            The donation of the body or body part may be given to (a) any hospital, physician or surgeon, for medical or dental education, research, advancement of medical or dental science, therapy or transplantation (for instance, a scientific inquiry on how it is possible that some presumptuous presidentiables can go around which such big heads containing so little cranial matter); (b) any accredited medical or dental school, college or university, for education, research advancement of medical or dental science or therapy (the UP School of Medicine, for instance, whose anatomy students, I was told, are raring to cut up the guts of some university incumbent officials); (c) any organ bank storage facility, for medical or dental education, research, therapy, or transplantation, among which, I presume, are the National Kidney Institute, Heart Foundation and the Eye Bank Foundation of the Philippines; and (d) any specified individual, for therapy or transplantation needed by him. Thus, one might want to donate testicles to certain bureaucrats who are too petrified to take decisive action in the national interest on account of the threat of a media attack or an Ombudsman accusation.

The implementing agency

            The natural agency to implement RA 7170 as amended by RA 7885 is the Department of Health.  Accordingly, as previously stated, the secretary issued his Administrative Order 11 on June 19, 1995 to prescribe the principles, guidelines, procedures and standards to facilitate compliance with the governing laws and achieve their objectives.  Some “doctorney” (a doctor or medicine who later became a lawyer, or, if any, a lawyer who later became a doctor) ought to examine those regulations which, I suspect, were crafted from a nonlegal perspective.  Should organ donation go the way of the memorial plans and move from being taboo to a topic of conversation over the dinner table, some fissures and fractures in the set up may give the laudable system a bad name.

            For instance, Section 9 of Administrative Order 11, dealing with the information drive to raise the level of public awareness of organ donation, talks of a department order requiring health care workers to routinely inquire if patients under their care are card carrying organ/tissue donors. If not, the health care workers should routinely request the family of a decedent to consider the possibility of organ/tissue donation.

            I am not too sure I would appreciate, when hovering between life and death from a vehicular accident, being asked if I would like to make a donation of any of my body parts. No that anyone would be interested in receiving my malnourished, medical-care denied, stress-abused and alcohol-drenched body and body parts, but encouraging the health care workers who, more often than not, are connected with, if not employees, of the hospitals and clinics that are qualified recipients of organ donation, to routinely introduce the topic of organ donation to their wards at that time may be less than appropriate, if not fraught with conflict of interest.

             More serious difficulty is found in Chapter VII dealing with the importation of eye bank equipment and reagents. Section 24 speaks of a list of equipment and reagents “which are to be allowed to be imported tax-free under the provisions of RA 7885” by accredited eye/tissue banks.  I read the provisions of RA 7885 over and over and did not see any provision authorizing the tax-free importation of eye bank equipment and reagents.  At the very least, this portion of the regulation is out of place in this regulation (if tax-free importation is indeed authorized by some other law), if not completely unauthorized (if it is not).  But, then my eyes are not the healthiest, and I myself may be in need of corneal transplant.