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