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Is Organ Donation Opt In or Opt Out?

Posted by Nina Whitehurst | Oct 04, 2023 | 0 Comments

Nearly every United States citizen is aware of the option to be (or not to be) an organ donor.  What most people do not realize is how the law in this area has evolved from “opt in” to essentially “opt out”.  There is an important distinction between the two. 

If the law in your state is “opt in”, that means that you are presumed to NOT consent to being an organ donor.  In order to be an organ donor you must take some action to opt in.  The action could be opting in when you obtain your driver license, or checking a box on a statutory advance directive or living will, or registering on an official website, or perhaps some other method.  But the important aspect of the “opt in” system is that if you do nothing, you will NOT be an organ donor.

If the law in your state is “opt out”, that means that if you do not want to be an organ donor you must take some action to opt out.  The the important aspect of the “opt out” system is that if you do nothing, your ORGANS MIGHT BE TAKEN WHETHER YOU LIKE IT OR NOT.  Some people are very concerned about this because organs usually must be taken while the donor is still alive in order to the organs to be viable.  The surgeon will usually paralyze the donor in order to facilitate the process, rendering the donor unable to object at the last minute while feeling the intense pain of every cut and the terror of knowing what is happening.  Click here for more information on this.

The first Uniform Anatomical Gift Act (UAGA), originally promulgated in 1968, was an “opt in” system.  By 1987 all 50 states had adopted it.  In 1987 some modifications were made to the uniform law, but it remained an “opt in” system that required the donor to affirmatively take some action to opt in.

But a lot changed in 2006 when the Uniform Law Commission published recommended changes to the law, now referred to as the Revised Uniform Anatomical Gift Act (RUAGA).  Notably, RUAGA changed the law to allow an agent to agree to organ donation even if the donor himself or herself never opted in.  The only way to prevent an agent from consenting to organ donation on your behalf in these states is to affirmatively opt out.

Here are your options under RUAGA:

  1. Opt in. If you take some affirmative action to authorize organ donation, you are an organ donor. You can do this in a number of ways:
    1. Pursuant to the terms of your will or living will/advance directive or medical power of attorney or other instrument.
    2. By authorizing a statement or symbol on your driver license.
    3. By authorizing a statement or symbol on a donor registry.
  2. You have neither opted in nor opted out, or you have opted in but later revoked your consent.  When you are “neutral” it may be possible for your healthcare agent to opt in for you, even at the last minute.  If you do not want your healthcare agent to have that ability, you need to affirmatively opt out.
  3. Opt out. You have affirmatively refused to make a gift of organ donation.  Your healthcare agent cannot opt in for you, against your wishes, if you have affirmatively opted out.   A refusal can be made through a signed document such as will, living will, advance directive, etc.

The bottom line is this: In the RUAGA states, if you do not want to be an organ donor, the more sure action is to affirmatively opt out in writing.

As of this writing, nearly every state has adopted RUAGA.  The only exception is Pennsylvania, which is still operating under the old 1987 opt-in version.  The District of Columbia is still operating under the original 1968 opt-in version. 

Not every state has adopted RUAGA word-for-word, however, so you should consult with an attorney in your state for details.

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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