Once I sign up to be an organ donor, can my family override my decision after I die? And can a hospital or organ bank that follows my donor card be sued by my family?

Subject

When an anatomical gift made by a donor can be revoked, and when a party enforcing the donor's gift can be held liable.

Plain-English summary

Sen. Kim Hammer asked the AG two questions about the Revised Arkansas Anatomical Gift Act (A.C.A. §§ 20-17-1201 to -1227). The answers are clean.

Question 1: When can someone revoke an anatomical gift made by a donor (other than gifts by unemancipated minors)?

The donor can revoke their own gift at any time, before death. After death, no one else can revoke it unless the donor provided "an express, contrary indication" allowing someone else to revoke. The Act is built around donor autonomy. The uniform act commentary quoted by the AG addresses the tension between a donor's autonomous choice and surviving family members' wishes by "favoring the decision of the donor over the desires of the family."

The donor revokes by one of five methods: (1) a signed record; (2) a later "document of gift" (donor card, driver's license) used to make a different gift; (3) destruction or cancellation of the original document of gift; (4) during a terminal illness or injury, by any form of communication addressed to at least two adults; or (5) in the donor's will.

If a "statutorily authorized person" (the donor's agent during life, parent of unemancipated minor, or guardian) made the gift instead of the donor, the situation is more complex. That same authorized person may revoke by signed record or by destruction of the document of gift. Whether the authorized person can revoke after the donor's death is unclear under the Act because § 20-17-1206 is titled "Amending or revoking anatomical gift before donor's death" but its text is not actually limited to before death. A.C.A. § 20-17-1209 and 20-17-1210 create a separate post-death framework. The opinion flags this ambiguity but does not resolve it.

For gifts made after the donor's death by a statutorily authorized person under § 20-17-1209, a person of higher priority on the statutory list (or a majority of equally-priority persons) may revoke, but only before an incision is made or an invasive procedure has begun.

Question 2: When may a party who enforces the donor's anatomical gift be held liable?

A.C.A. § 20-17-1218 gives anyone who follows or attempts in good faith to follow the Act immunity from civil, criminal, or administrative liability. The donor's surviving family who object to the donation cannot successfully sue someone who is following the donor's wishes in good faith. "Good faith" is not defined by Arkansas courts but generally means "an honest belief or purpose, faithfulness to one's duty or obligation, or absence of intent to defraud or to seek unconscionable advantage." Multiple out-of-state cases interpret similar good-faith provisions the same way (Ohio, Massachusetts, Minnesota, New York).

The opinion notes that whether someone has actually acted in good faith is a fact-specific question, so the AG cannot definitively say "Person X cannot be sued" in the abstract. But the legal framework strongly protects honest compliance.

What this means for you

If you are a registered organ donor

Your donation decision is protected by Arkansas law. Once you have made the gift (driver's license check-off, donor registry, donor card, or other valid document of gift), no one can revoke it for you, before or after your death, unless you specifically allow it. Family objection does not override your choice.

If you change your mind, revoke yourself: tear up the donor card, replace your driver's license with a new one without the designation, sign a written revocation, or include the revocation in your will. Communicate the change to your family and to your physician so the documentation matches your intent.

Special situation: terminal illness. A.C.A. § 20-17-1205(d) lets you revoke during terminal illness or injury through any form of communication addressed to at least two adults. So even if you cannot sign a document, you can verbally tell two people, and that revocation is effective.

If you are a family member of a registered donor

If your loved one is a registered donor and has died, the gift is theirs to make. You cannot revoke it by objecting to the hospital or organ procurement organization. The hospital and OPO will follow the registered donation, and their immunity under § 20-17-1218 protects them from your suit.

If you have evidence that your loved one revoked the gift before death (a written revocation, the destroyed donor card, statements during a terminal illness to two adults), present that to the hospital. The procurement may be paused while the document is verified. But raw objection without revocation evidence will not stop the donation.

If you are a hospital administrator or part of an organ procurement organization

A.C.A. § 20-17-1218 is your statutory shield. If you follow the Act in good faith, you are immune from civil, criminal, and administrative liability brought by anyone, including objecting family. Document your good-faith compliance: the donor's documentation you relied on, your verification steps, the timeline.

The murky area is post-death revocation by a statutorily authorized person other than the donor. A.C.A. § 20-17-1206 is titled as covering only before-death revocations but its text might apply broader. If a non-donor authorized person tries to revoke after the donor's death, get counsel and document the situation. The AG flags this as unclear under current law.

For gifts made post-death under § 20-17-1209 (where the donor never made a gift but the family makes one for them), a person of higher priority can revoke before an incision is made. After incision, revocation is closed.

If you are an estate planning attorney

Two takeaways for clients. First, a will revocation of an anatomical gift is statutorily authorized under § 20-17-1205(e). If your client wants to revoke a prior gift via will, draft the language clearly. But warn them that wills can take time to surface, and an organ procurement decision may be made before the will is read; the durable revocation channels (destroying the donor card, removing the designation from the license) are more reliable in practice.

Second, the donor autonomy principle protects clients from family override. Help clients understand that signing as a donor creates a legally protected decision their family cannot reverse. If the client wants the family to have the override, the client must include "express, contrary indication" allowing it under § 20-17-1208(a).

If you work in hospice or terminal care

A.C.A. § 20-17-1205(d)'s communicate-to-two-adults rule is specific to terminal illness or injury. If a patient in your care wants to revoke a prior anatomical gift, you can document the revocation in the medical record and communicate it. Two adults must hear or receive the communication for it to be effective. Train staff on this provision so a verbal revocation by a dying patient is captured before it is too late.

Common questions

Q: Can my family stop my organ donation after I die?
A: Generally no. If you registered as a donor and did not allow family override, the gift stands. The hospital and organ procurement organization can rely on your registration.

Q: How do I revoke my anatomical gift?
A: Five methods: (1) signed record; (2) a new document of gift indicating a different decision; (3) destroy or cancel the original donor card or document; (4) during terminal illness, communicate to at least two adults; or (5) by will.

Q: I'm worried my family won't follow my wishes. What should I do?
A: Make your registration formal (driver's license designation or registry), tell your family clearly, document your intent in your healthcare advance directive, and consider a separate signed record of your gift. Multiple corroborating documents make it harder for objection to gain traction.

Q: What if I'm an unemancipated minor donor?
A: The Act has special provisions for unemancipated minors (the parent can revoke gifts the minor made; § 20-17-1208(a) carves out unemancipated minors from the no-other-revocation rule). This opinion focused on adult and emancipated-minor donors.

Q: Can a hospital that follows my donor card be sued by my family?
A: If they follow the Act in good faith, no. A.C.A. § 20-17-1218 grants immunity from civil, criminal, and administrative liability.

Q: What is "good faith" for purposes of the immunity?
A: An honest belief, faithfulness to duty, absence of intent to defraud or seek unconscionable advantage. The AG points to definitions in Black's Law Dictionary and out-of-state cases applying similar statutes (Siegel v. LifeCenter, Carey v. New England Organ Bank, Rahman v. Mayo Clinic, Nicoletta v. Rochester Eye & Hum. Parts Bank, Inc.).

Q: My loved one was on life support and someone signed an anatomical gift on their behalf. Can I revoke it? A: The answer depends on when the gift was made and who made it. Life support alone does not establish whether the person had died. If an authorized person made the gift while the donor was alive, the opinion says that person may revoke it before death by signed record or by destroying or canceling the document of gift; it leaves post-death revocation of that gift unresolved. For a gift made after death under § 20-17-1209, a higher-priority person, or the required vote among people of equal priority, may revoke before an incision or invasive procedure begins. The opinion does not determine your priority from these facts.

Background and statutory framework

Arkansas enacted the Revised Arkansas Anatomical Gift Act as Act 839 of 2007. The statutory provisions are at A.C.A. §§ 20-17-1201 to -1227. The Act allows a donor to make, amend, refuse, or revoke an anatomical gift, and addresses gifts made post-death by statutorily authorized persons.

Donor autonomy is the organizing principle. A.C.A. § 20-17-1208(a) provides that no person other than the donor may revoke a donor-made gift "without an express, contrary indication by the donor." The uniform act commentary quoted in the opinion (Nat'l Conf. of Comm'rs on Unif. State L. 2009) explicitly states the Act resolves the tension between donor autonomy and family wishes "by favoring the decision of the donor over the desires of the family."

Mechanics of revocation by a donor (§§ 20-17-1205, 20-17-1206): (1) signed record; (2) later document of gift used to make a different gift; (3) destruction or cancellation of the document of gift; (4) terminal-illness communication to at least two adults; (5) by will.

Mechanics for a statutorily authorized person (donor's agent during life, parent of unemancipated minor, guardian): signed record or destruction of the document of gift. A.C.A. § 20-17-1206 is titled as covering "before donor's death" but the text is not so limited; the AG flags this as ambiguous.

Post-death gifts under § 20-17-1209 follow a priority order: (1) donor's agent during life, (2) spouse, (3) adult children, (4) parents, (5) adult siblings, (6) adult grandchildren, (7) grandparents, (8) an adult who had "special care and concern," (9) people acting as guardians at death, (10) any other authorized person. Revocation under § 20-17-1210 is by a person of higher priority, only before incision or invasive procedure.

Immunity is at § 20-17-1218: anyone who follows or attempts in good faith to follow the Act, or the anatomical gift law of another state, is immune from civil, criminal, and administrative liability. Sale of a body or body part is illegal under § 20-17-1216.

Citations and references

Statutes:

• A.C.A. §§ 20-17-1201 to -1227 (Revised Arkansas Anatomical Gift Act)

Cases applying similar good-faith immunity provisions:

• Siegel v. LifeCenter Organ Donor Network, 969 N.E.2d 1271 (Ohio 2011)
• Carey v. New England Organ Bank, 843 N.E.2d 1070 (Mass. 2006)
• Rahman v. Mayo Clinic, 578 N.W.2d 802 (Minn. Ct. App. 1998)
• Nicoletta v. Rochester Eye & Hum. Parts Bank, Inc., 519 N.Y.S.2d 928 (N.Y. Sup. Ct. 1987)

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-078, December 5, 2024; official five-page PDF)

Original opinion text

Opinion No. 2024-078

December 5, 2024

The Honorable Kim Hammer
State Senator
1201 Military Road PMB 285
Benton, Arkansas 72015

Dear Senator Hammer:

I am writing in response to your request for my opinion on the Revised Arkansas Anatomical Gift Act, as codified at A.C.A. §§ 20-17-1201 to -1227. You ask:

1. When may someone revoke an anatomical gift by a donor, other than those by an unemancipated minor?1

Brief response: While a donor may revoke an anatomical gift at any time, no one else may revoke—either before or after the donor’s death—an anatomical gift made by the donor. Only an anatomical gift made by someone other than the donor can be revoked by someone other than the donor.

2. When may “a party enforcing a donor’s choice to make an anatomical gift be penalized or held legally responsible in any legal proceeding brought by the donor’s surviving family members who were opposed to the donation”?

Brief response: One who follows, or attempts in good faith to follow, the Revised Arkansas Anatomical Gift Act or the anatomical gift act of another state cannot be held liable in a civil action, criminal prosecution, or an administrative proceeding brought by anyone, including the donor’s surviving family members opposed to the donation.

1
This is a paraphrase of two questions in your request: (1) “Under what circumstances, if any, may an anatomical gift by a donor (other than an anatomical gift by an unemancipated minor) be revoked prior to the death of the donor?” and (2) “[u]nder what circumstances, if any, may an anatomical gift by a donor (other than an anatomical gift by an unemancipated minor) be revoked after the death of the donor?”

The Honorable Kim Hammer
State Senator
Opinion No. 2024-078
Page 2

DISCUSSION

1. Revised Arkansas Anatomical Gift Act. Act 839 of 2007—the Revised Arkansas Anatomical
   Gift Act—provides the legal framework for donating all or part of a human body.2 During the life of a donor, a donor or statutorily authorized person3 may take four actions:

   • Make a gift. The donor or statutorily authorized person may make an anatomical gift of a
   donor’s body or part.4 But if the donor initially made the gift, no other person may make a
   gift of the same body or part without “an express, contrary indication by the donor.”5

   • Amend a gift. The donor or statutorily authorized person may also amend an anatomical
   gift.6 But if the donor initially made the gift, no other person may amend it without “an
   express, contrary indication by the donor.”7

   • Refuse making a gift. If someone does not want to be a donor, he or she “may refuse to
   make an anatomical gift of [the] body or part.”8 No other person may make a gift if the
   donor refused to make the gift, unless there is “an express, contrary indication by the”
   donor.9

   • Revoke a gift. Someone who changes his or her mind about having made a gift may revoke
   the gift.10 Unlike a refusal, revoking a gift does not bar the donor or a statutorily authorized

2
A.C.A. §§ 20-17-1201 to -1227. The sale of a body or body part is illegal. See id. § 20-17-1216(a); see also id.
§ 20-17-1217 (listing other prohibited acts).
3
A donor may make an anatomical gift if he or she is an adult, an emancipated minor, or a minor who is “authorized under state law to apply for a driver’s license because the donor is at least sixteen (16) years of age.” Id. § 20-17- 1204(1). Before a donor’s death, the following people are statutorily authorized to act: the donor’s agent, the donor’s parent if the donor is an unemancipated minor, and the donor’s guardian. Id. § 20-17-1204(2)–(4). 4 Id. § 20-17-1204.
5
Id. § 20-17-1208(a).
6
Id. § 20-17-1206.
7
Id. § 20-17-1208(a).
8
Id. § 20-17-1207(a). Generally, an “unrevoked refusal to make an anatomical gift of [a body or part] … bars all other persons from making an anatomical gift of [that body or part].” Id. § 20-17-1207(d). 9 Id. § 20-17-1207(d).
10
Id. § 20-17-1206.

The Honorable Kim Hammer
State Senator
Opinion No. 2024-078
Page 3

person from later making the same anatomical gift.11 But if the donor initially made the gift, no other person may revoke it without “an express, contrary indication by the donor.”12

Because your request is limited to revocation, I turn to the details of that process, both before and after the donor’s death.

1.1. Revocation before death. A donor or statutorily authorized person may revoke a gift he or she made at any time before the donor’s death.13 But if the donor made the anatomical gift, no one else may revoke that gift,14 unless there is “an express, contrary indication by the donor.”15 A donor may revoke by: (1) a signed record;16 (2) a later-executed “document of gift”17—which means “a donor card or other record used to make an anatomical gift,” including a driver’s license;18 (3) destruction or cancellation of the “document of gift” or the portion used to make a gift;19 (4) if made “during a terminal illness or injury,” through “any form of communication addressed to at least two adults”;20 or (5) in his or her will.21 But a statutorily authorized person can make a revocation by: a signed record22 or destruction or cancellation of the “document of gift” or the portion used to make a gift.23

1.2. Revocation after death. There are three potential situations that affect when a gift may be revoked after the donor’s death.

11
Id. § 20-17-1208(b), (d).
12
Id. § 20-17-1208(a).

Id. §§ 20-17-1206, 20-17-1208(a) (noting that, generally, the donor is the one who must revoke a gift “if the donor 13

made [the] gift”).
14
Id. “[T]he possible tension between a donor’s autonomous decision to be a donor with the interest of surviving family members to make that decision” is addressed in the law by “favoring the decision of the donor over the desires of the family.” Revised Unif. Anatomical Gift Act § 8 cmt. at 30 (Nat’l Conf. of Comm’rs on Unif. State L. 2009). 15 Id. This provision does not apply to unemancipated minors. Id.
16
Id. § 20-17-1206(a)(1).
17
Id. § 20-17-1205(a)(2).
18
Id. § 20-17-1202(6).
19
Id. § 20-17-1206(c).
20
Id. § 20-17-1205(d).
21
Id. § 20-17-1205(e).
22
Id. § 20-17-1206(a)(1).
23
Id. § 20-17-1206(c).

The Honorable Kim Hammer
State Senator
Opinion No. 2024-078
Page 4

• If the donor made the gift before his or her death, no one may revoke the gift, unless there is “an express, contrary indication by the donor.”24

• If a statutorily authorized person made the gift before the donor’s death, it is unclear whether that same person may revoke it after the donor’s death. Section 20-17-1206, which authorizes revocation by an authorized person, is titled “Amending or revoking anatomical gift before donor’s death.”25 The text of § 20-17-1206, however, is not limited to revocations before death. The lack of clarity is furthered because A.C.A. § 20-17-1209, discussed below, creates a separate process for revoking “an anatomical gift of a decedent’s body.”26 Thus, there is a question about whether both methods of revocation apply after the donor’s death or only the method for making “an anatomical gift of a decedent’s body or part.”

• If the gift is made after the donor’s death under A.C.A. § 20-17-1209, the following procedure applies. Under § 20-17-1209, enumerated “classes of persons who [are] reasonably available” may make “an anatomical gift of a decedent’s body or part” in a specified order of priority.27 A gift made under that section may be revoked by a person of a higher priority—or if there are multiple people at the same higher priority, then the gift may be revoked by a majority or equally divided vote.28 Such revocation may be made “orally in a record,”29 and must be made before an “incision” is made or an “invasive procedure[]” has begun.30

2. Liability. Under A.C.A. § 20-17-1218, one who follows, or attempts to follow in good faith,
   the Revised Arkansas Anatomical Gift Act or the “applicable anatomical gift law of another state,” is immune from certain liability.31 Moreover, “[n]either the person making an anatomical gift nor

24
Id. This provision does not apply to unemancipated minors. Id.
25
Emphasis added.
26
Id. § 20-17-1210(b) (emphasis added).
27
The statute establishes the following priority: (1) the donor’s agent during life, (2) the donor’s spouse, (3) the donor’s adult children, (4) the donor’s parents, (5) the donor’s adult siblings, (6) the donor’s adult grandchildren, (7) the donor’s grandparents, (8) an adult who had “special care and concern for the” donor, (9) the people acting as the donor’s guardians at the donor’s death, and (10) any other person with authority. Id. § 20-17-1209(a). 28 Id. § 20-17-1210(b).
29
Id.
30
Id. § 20-17-1210(c).
31
That is, one cannot be “liable for the act in a civil action, criminal prosecution, or administrative proceeding.” See id. §§ 20-17-1218(c) (providing the evidence one “may rely upon” concerning “whether an anatomical gift has been made, amended, or revoked”), 20-17-1219 (providing the law governing validity of an anatomical gift).

The Honorable Kim Hammer
State Senator
Opinion No. 2024-078
Page 5

the donor’s estate” will be “liable for any injury or damage that results from the making or use of the gift.”32

A “good faith” attempt to comply with the Act has not been interpreted by the Arkansas courts, but the term commonly means an “honest … belief or purpose[,] … faithfulness to one’s duty or obligation[,] … or absence of intent to defraud or to seek unconscionable advantage.” 33 Multiple out-of-state courts have similarly defined “good faith” in their anatomical-gift statutes.34

Ultimately, whether a person, like the hypothetical one in your request, has in fact “enforc[ed] a donor’s choice to make an anatomical gift,” or has attempted to in good faith, is a highly factual question. Therefore, I cannot opine on whether any specific party can be held liable by the donor’s surviving family. But I can opine that someone who adheres to the applicable law, or attempts in good faith to do so, cannot be held liable for an alleged act concerning the anatomical gift. Of course, someone who acts outside of or violates the applicable law is not afforded protection.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

32
Id. § 29-17-1218(b).
33
Black’s Law Dictionary 832 (12th ed. 2024).
34
E.g., Siegel v. LifeCenter Organ Donor Network, 969 N.E.2d 1271, 1277 (Ohio 2011); Carey v. New England Organ Bank, 843 N.E.2d 1070, 1082–83 (Mass. 2006); Rahman v. Mayo Clinic, 578 N.W.2d 802, 805–06 (Minn. Ct. App. 1998); Nicoletta v. Rochester Eye & Hum. Parts Bank, Inc., 519 N.Y.S.2d 928, 930–31 (N.Y. Sup. Ct. 1987).