Let’s Get Physical: Body Donation in Massachusetts

Most of us are familiar with the small heart or other symbol on a driver’s license signifying grave-3that a person is an organ donor. But what if you would like to donate your entire body—organs and all—“to science,” as it is commonly phrased? How does one go about doing this? This post discusses how estate planning can address body donation; note that this discussion covers only the donation of one’s entire body, not the donation of one’s organs.

In 2012, Massachusetts adopted the Uniform Anatomical Gift Act, M.G.L. c.113A (2012), which allows anyone eighteen years of age or older to donate his or her body upon death to an accredited medical school, hospital, college, university, dental school, organ procurement organization, or specific person for purposes of research or education.

Who may donate?

You may make a donation or anatomical gift of your body at any time while you are alive. Your guardian or designated health care proxy (so long as the proxy document does not prohibit it) may also make a donation on your behalf.

If you do not make a donation during your life, certain other individuals may make anatomical gifts on your behalf after your death. These individuals are divided into ten “classes” with the following priority:

  1. Your health care proxy;
  2. Your spouse;
  3. Your adult child;
  4. Your parent;
  5. Your adult sibling;
  6. Your adult grandchild;
  7. Your grandparent;
  8. Any adult who has exhibited special care and concern for you;
  9. Guardian of your person at the time of your death; or
  10. Any person with the authority to dispose of your body.

If a class has more than one member, certain rules apply. Say, for example, you have five adult children, with no spouse or health care proxy. Any one of your children may donate your body after your death, unless that child knows that one of the other children objects. In that case, the majority will rule, meaning that the donation will go forward only if the majority of your children agree to it.

But what if, in this example, your spouse is alive, and he or she objects to the donation even though your children have already agreed to donate? Then, your children cannot make the donation since your spouse, a member of a class with higher priority, objects to the donation.

How do you donate?

There are a number of ways by which you can donate your body after your death. One way is through your will. A second way is by a written record signed by you or by a person authorized to sign for you if you are not physically able to sign. The signature must be witnessed by two people, and at least one witness must be disinterested. A third way to donate is by any form of communication during terminal illness or injury expressing this wish. The communication must be made to at least two adults, with at least one of them being disinterested. You can always later amend or revoke your donation using these same three means.

A will alone is usually not the best mechanism for making a donation. There is only a short period of time after a person passes away during which his or her body can be successfully preserved for use, typically twenty-four hours at most. Although anatomical gifts provided for within wills are immediately effective upon death, wills are rarely reviewed or even discovered during this brief period. Accordingly, if you make a provision in your will for the donation of your body, be sure to reflect your wishes in other documents, as well as communicate your wishes to others.

From a practical point of view, institutions may prefer that you designate the donation during your life. Medical schools have body donating programs and some require that the donor register during his or her life in order for the body to be accepted after death. Harvard Medical School, for example, requires an Instrument of Anatomical Gift form.

What if you do not want to donate?

If you want to make sure that your body is not donated after your death, you can take affirmative action to ensure this. This is accomplished by will, by a signed written statement witnessed by two adults, with at least one being disinterested, or by any form of communication during terminal illness or injury to two people, at least one of whom being disinterested. Massachusetts law favors a donor’s intent above all else, and prohibits other individuals, such as family members, from circumventing your clear wishes after your death.

About Emily Crim

Emily joined Mirick O’Connell in November 2015 as an associate with the Trusts and Estates Group. The focus of her practice is estate planning, probate and trust administration, and elder law. Emily assists clients with the preparation of wills, revocable living trusts, health care proxies, durable powers of attorney, and MassHealth applications. She also concentrates her practice in the area of estate and trust administration, advising personal representatives, trustees and other fiduciaries on the legal aspects of administering complex estates and trusts. This representation also includes the preparation and filing of gift and estate tax returns on the state and federal levels.
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