If a Maryland child's biological parent had their parental rights legally terminated before the child died, does that parent still outrank the child's guardian in deciding whether to donate the child's organs?

Plain-English summary

Julie Brandt of the Transplant Resource Center of Maryland asked the Attorney General whether a biological parent still had priority over a guardian to consent to a deceased minor's organ or tissue donation under HG §19-310(d)(2), if that parent's parental rights had been terminated as part of the very guardianship proceeding that put the guardian in place. The statute normally ranks an "alive, competent, immediately available" parent above a guardian in the priority order for deciding on donation.

The opinion agreed with outside counsel's advice that the answer was no. It reasoned that a decree terminating parental rights ends the parent's legal relationship to the child entirely, citing the Family Law Article's provisions that a guardianship decree terminates a natural parent's "rights, duties, and obligations" and that an adoption decree divests a biological parent of all parental rights, making that person "a legal stranger" to the child under Maryland case law. Since the term "parent" in the organ donation priority statute should be read to mean someone whose parental relationship to the child existed at the time of death, a person whose rights were terminated no longer qualifies. The opinion added an alternative rationale: even if such a person were still technically a "parent," they would not be "competent" in the sense of having legal qualification or ability to consent, since the termination decree stripped that legal capacity.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific priority rule or procedure mentioned here.

Common questions

Does a parent whose rights were terminated ever get to decide about a deceased child's organ donation?
No, according to this opinion. It concluded that once a court terminates parental rights, whether through a guardianship decree or an adoption decree, that person is no longer legally a "parent" for purposes of the organ donation priority statute, HG §19-310(d)(2), and therefore has no consent authority in that role.

Who does get to make the organ donation decision if the parent's rights were terminated?
The guardian. The opinion concluded that if no other individual with higher priority (such as a spouse or adult child) is competent and immediately available, the guardian for the deceased child may consent to the donation, since the guardian's priority ranking is not displaced by a parent whose rights have been terminated.

Why did the opinion also discuss the word "competent" separately from the word "parent"?
As a backup argument. The opinion reasoned that even under an incorrect assumption that a rights-terminated biological parent could still count as a "parent," that person still would not be "competent" in the statute's sense of having legal qualification or ability, since the termination decree stripped away the legal capacity needed to give or withhold consent.

Background and statutory framework

HG §19-310(d)(1) governs requests that a decedent's "representative" consent to organ donation, ordinarily made by a representative of the appropriate organ recovery agency (the Transplant Resource Center serves as that federally certified agency for most Maryland counties). HG §19-310(d)(2) sets a priority order among potential representatives, giving a spouse or adult child the highest priority, an "alive, competent, immediately available" parent third priority, and a guardian fifth priority, a notably different ranking than the health care surrogate priority list in HG §5-605(a)(2), where a guardian holds top priority instead.

The opinion drew on Family Law Article provisions establishing that a guardianship decree "terminates the natural parents' rights, duties, and obligations towards the child" (FL §5-317(f)(1)) and that an adoption decree divests biological parents "of all parental rights as to the individual adopted" (FL §5-308(b)(2)(ii)), together with Maryland case law describing the effect of such a decree as making the biological parent "a legal stranger" to the child.

Citations and references

Statutes:
- HG §19-310(d)(1), governing requests for a decedent's representative to consent to organ donation
- HG §19-310(d)(2), setting the priority order among potential representatives, including spouse, adult child, parent, and guardian
- HG §5-605(a)(2), the health care surrogate priority list, cited by contrast for giving a guardian top priority rather than fifth priority
- FL §5-317(f)(1), providing that a guardianship decree terminates a natural parent's rights, duties, and obligations toward the child
- FL §5-308(b)(2)(ii), providing that an adoption decree divests biological parents of all parental rights

Cases:
- Walker v. Gardner, 221 Md. 280, 157 A.2d 273 (1960), describing the effect of a termination decree as making the biological parent "a legal stranger to his offspring"
- Reddy v. Mody, 39 Md. App. 675, 388 A.2d 555 (1978), cited for a historical example of the legal meaning of "competent" as a qualification rather than cognitive capacity

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2005/90oag3.pdf

Original opinion text

HEALTH

O RGAN D ONATION - G UARDIANSHIPS - W ITH R ESPECT TO
D ECISION W HETHER TO D ONATE A D ECEDENT'S O RGAN OR
T ISSUES, A G UARDIAN H AS P RIORITY O VER A P ARENT
W HOSE P ARENTAL R IGHTS H AVE B EEN T ERMINATED

                      January 3, 2005

Julie Brandt, MSW, LCSW-C
Manager of Family Services & Program Development
Transplant Resource Center of Maryland, Inc.

  You have requested our opinion concerning the authority to

grant consent for organ or tissue donation. You refer to §19-
310(d)(2) of the Health-General ("HG") Article, under which a
parent has priority over a guardian for purposes of deciding whether
to consent to the donation of a decedent's organs or tissues. Your
question is as follows: Does this priority ranking remain in effect if
the "parent" is one whose parental rights have been terminated as a
consequence of the guardianship proceeding?

  With your inquiry, you provided a letter of advice from

Marianne DePaulo Plant, Esquire, in which she commented that "it
is highly unlikely that the Maryland General Assembly intended a
natural parent whose parental rights have been terminated to qualify
as a 'parent' under that section, and be given ... priority as a
representative for organ donation." Consequently, Ms. Plant advised
as follows: "When a minor decedent's natural parents have had their
parental rights terminated, and you have obtained an order to that
effect, the most advisable course would be to comply with the
instructions of the guardian." For the reasons stated below, we
concur with this conclusion.

                                  I

                             Discussion

  HG §19-310(d)(1) deals with requests that a decedent's

"representative consent to the donation of all or any of the
decedent's organs ...."[1] A "representative" is whoever has priority
in the listing in HG §19-310(d)(2). A "parent" who is "alive,
competent, [and] immediately available" has third priority.[2] A
guardian has fifth priority.[3]

  In our view, the term "parent" should be construed to mean an

individual whose parental relationship to a child existed at the time
of the child's death. If a child is placed under guardianship, the
decree of guardianship "terminates the natural parents' rights, duties,
and obligations towards the child." §5-317(f)(1) of the Family Law
("FL") Article. Likewise, if a child is adopted, the effect of the
decree of adoption is that the biological parents are "divested of all
parental rights as to the individual adopted." FL §5-308(b)(2)(ii).
Such a decree makes the biological parent "a legal stranger to his
offspring." Walker v. Gardner, 221 Md. 280, 284, 157 A.2d 273
(1960).

 The terminated "rights" are those that arise from all sources,

including the Constitution, statute, and common law. In our view,
one of the rights thus terminated is the priority given to a "parent"
under HG §19-310(d)(2). After the court's decree, the individuals
who were once the child's "parents" no longer are.

 Alternatively, even if it were incorrectly assumed that a

biological parent whose parental rights had been terminated is still
a "parent" for purposes of HG §19-310(d)(2), the individual would
not be "competent." The term "competent," although primarily
referring to the basic ability to do something, has as its secondary
meaning "qualification." Black's Law Dictionary 302 (8th ed.
2004).[4] Incompetency is "lack of legal ability in some respect." Id.
at 780. The decree resulting in termination of parental rights renders
the biological parent unqualified and without legal ability to give or
withhold consent for the organ donation.

                                II

                           Conclusion

  In summary, we conclude that an individual whose parental

rights have been terminated does not have priority status under HG
§19-310(d)(2). If no other individual with higher priority is
competent and immediately available, then the guardian for the
deceased child may consent to the organ donation.

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         Jack Schwartz
                                         Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

[1] The request would ordinarily be made by "a representative of the
appropriate organ ... recovery agency ...." The Transplant Resource Center
is the federally certified organ recovery agency for all but three counties
in Maryland.

[2] A spouse or adult child has higher priority.

[3] This priority ranking for the guardian differs from the priority for
health care surrogates in HG §5-605(a)(2), in which a guardian has top
priority.

[4] For example, "At common law, in order to avoid self-interested
perjury, no party to a lawsuit was competent to testify in that suit." Reddy
v. Mody, 39 Md. App. 675, 678, 388 A.2d 555, cert. denied, 283 Md. 737
(1978). Obviously, this disqualification (long since supplanted by statute)
had nothing to do with "competence" in the sense of cognitive capacity.