Can a family member or hospital override a registered organ donor's decision in Mississippi?

Plain-English summary

A state senator asked four big questions about Mississippi's Revised Uniform Anatomical Gift Act (Sections 41-39-101 et seq.):

1. If a person has registered as an organ donor, can a family member or hospital staffer override that decision?
2. Does a hospital have to cooperate with the local organ procurement organization (OPO) to facilitate donation?
3. Who decides whether a patient near death is actually an authorized donor?
4. Does the Act protect a hospital from liability when it cooperates with an OPO?

The AG worked through each:

1. No override. Section 41-39-115(a) says that once a person makes the donor decision, "a person other than the donor is barred from making, amending, or revoking" that decision. The donor's choice is binding at death, without legal or clinical justification for departing from it.

2. Yes, hospitals must cooperate. Section 41-39-129 requires every Mississippi hospital to have an agreement or affiliation with an OPO for procurement and use of anatomical gifts. Section 41-39-127 sets out the obligations triggered by a hospital's referral of a patient at or near death: the OPO searches the registry, the hospital must let the OPO conduct a reasonable medical-suitability examination including access to medical records, and the hospital cannot withdraw life-sustaining measures during the examination unless the patient expressed contrary intent.

3. The OPO is the determining body. Section 41-39-127(a) and 41-39-139(c) require the OPO to search the donor registry. If the patient is not a registered donor, Section 41-39-127(g) sends the OPO to look for individuals listed in Section 41-39-117 who may authorize donation on the patient's behalf.

4. Hospitals get immunity for good-faith reliance on the Act. Section 41-39-135(a) protects parties who in good faith and acting under the Act take possession of, perform surgery on, remove tissue from, or refuse a gift, and parties who unknowingly fail to carry out the donor's wishes. The immunity does not extend to a hospital that knowingly fails to carry out the donor's wishes without legal or clinical justification.

What this means for you

For hospital administrators and ICU staff

The default protocol is: refer the patient to the OPO and let the OPO run the determination. Do not let family conversations or staff personal beliefs short-circuit a registered donation. The donor's prior registration is binding under Section 41-39-115(a).

Two operational points: (a) the hospital cannot withdraw life-sustaining measures during the OPO examination period unless the patient previously expressed contrary intent, and (b) the OPO needs access to the patient's medical records as part of its medical-suitability work. Build both points into your protocols.

Document everything. Good-faith reliance on the Act is the immunity hook. The strength of the immunity defense is proportional to the quality of the documentation that you followed the Act's procedures.

For OPO staff working with Mississippi hospitals

Section 41-39-127 puts the determination of donor status squarely on you. Search the Department of Public Safety records and any donor registry you know exists for the patient's geographic area. If the patient is registered, proceed under the donor's authorization. If not, search Section 41-39-117 for the priority list of people who may authorize donation on the patient's behalf.

If a hospital pushes back on cooperation, refer them to Section 41-39-129 (mandatory affiliation) and Section 41-39-127 (obligations triggered by referral). The Act gives you statutory access; lean on it.

For donors and donor families

If you have registered as an organ donor (driver's license designation, online registry, advance directive), your decision is legally binding under Mississippi law. Your family cannot legally override it after your death. The most useful thing your family can do, beyond grief, is provide your medical history to the OPO to help with suitability assessment.

If you object to organ donation, the same principle works in reverse. Section 41-39-115(a) bars another person from amending or revoking your stated decision. Document refusal explicitly to make sure the OPO honors it.

For hospital attorneys and risk managers

The immunity provision in Section 41-39-135(a) is broad but has a knife-edge: it extends only to parties who unknowingly fail to carry out donor wishes. A hospital that knowingly fails to carry out a registered donation, without legal or clinical justification, may not qualify. Train clinical staff on this distinction. The hospital that pulls the plug because the family is upset, when the patient was a registered donor, is not in good-faith compliance.

For Mississippi state legislators

The framework leaves OPOs as the determining body. If the legislature wants to add safeguards (notice to family, mandatory cooling-off period, appeal mechanism), that requires statutory change. Under current law, the OPO call is the call.

Common questions

What is an OPO?
An organ procurement organization, a federally designated nonprofit responsible for coordinating organ recovery in a defined geographic area. In Mississippi, the OPO is the Mississippi Organ Recovery Agency.

Can a hospital refuse to cooperate based on religious objection?
The Act applies to hospitals. Section 41-39-129 requires every hospital to have an affiliation with an OPO. The Act does not have a religious exemption for institutions. Individual staff conscience clauses are governed by separate provisions.

Who is on the priority list in Section 41-39-117?
The Act lists categories of people who may authorize donation on behalf of a non-registered patient, in order of priority: spouse, adult children, parents, adult siblings, adult grandchildren, grandparents, guardian, and ultimately any other person having authority. Section 41-39-117 has the full list.

What if the patient has a written refusal?
Section 41-39-115(a) protects the patient's decision in either direction. A documented refusal is binding, just as a documented authorization is. The donor registry should reflect the refusal so the OPO finds it.

Does the Act cover tissue donation as well as organ donation?
Yes. The Act uses "anatomical gift" broadly to include organs, tissues, and other body parts. Section 41-39-101 et seq. covers the entire range.

Background and statutory framework

Mississippi adopted the Revised Uniform Anatomical Gift Act, codified in Sections 41-39-101 through 41-39-149. The Act standardizes the process for organ and tissue donation across states.

Key provisions:

• Section 41-39-115(a): donor decision binding; no third-party amendment or revocation.
• Section 41-39-117: priority list of persons who may authorize donation on behalf of a non-registered prospective donor.
• Section 41-39-127: hospital referral triggers OPO obligations; hospital must permit medical-suitability examination and cannot withdraw life-sustaining measures during the exam without contrary patient intent.
• Section 41-39-129: every hospital must have an OPO affiliation.
• Section 41-39-135(a): good-faith immunity for parties acting under the Act, including parties who unknowingly fail to carry out donor wishes.
• Section 41-39-139(c): donor registry must allow donors to record their decisions and must be accessible to OPOs.

The "First Person Authorization" or "FPA" doctrine is the operating principle: the individual's own legal expression of donation intent takes effect at death and is binding. No third party (family, hospital, friend) can override it without legal or clinical justification.

Citations

• Miss. Code Ann. §§ 41-39-101 through 41-39-149 (Mississippi Revised Uniform Anatomical Gift Act)
• Miss. Code Ann. § 41-39-115(a) (binding donor decision)
• Miss. Code Ann. § 41-39-117 (priority list of authorizers)
• Miss. Code Ann. § 41-39-127 (hospital referral obligations)
• Miss. Code Ann. § 41-39-127(a) (OPO registry search)
• Miss. Code Ann. § 41-39-127(c) (medical-suitability examination)
• Miss. Code Ann. § 41-39-127(e) (no withdrawal of life-sustaining measures)
• Miss. Code Ann. § 41-39-127(g) (search for Section 41-39-117 authorizers)
• Miss. Code Ann. § 41-39-129 (hospital-OPO affiliation requirement)
• Miss. Code Ann. § 41-39-135(a) (good-faith immunity)
• Miss. Code Ann. § 41-39-139(c) (donor registry accessibility)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/02/J.-Harkins-February-19-2025-Mississippi-Revised-Uniform-Anatomical-Gift-Act.pdf

Original opinion text

February 19, 2025

The Honorable Josh Harkins
Mississippi State Senate
Post Office Box 320374
Flowood, Mississippi 39232

Re: Mississippi Revised Uniform Anatomical Gift Act

Dear Senator Harkins:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

You have asked a number of questions about Mississippi's Revised Uniform Anatomical Gift Act, located in Sections 41-39-101 et seq. of the Mississippi Code ("MS UAGA"). We understand your questions to be as follows:

1. If an individual has registered as an organ donor, does anyone else, including a family member or a hospital healthcare provider, have the right to override that decision or otherwise prevent the donation process from moving forward?
2. Must a hospital cooperate with an organ procurement organization ("OPO") to facilitate the donation process?
3. Under the MS UAGA, who is responsible for determining whether an individual at or near death is an authorized organ donor, including whether they have indicated a refusal to donate or have amended or revoked a previous authorization to donate?
4. Does the MS UAGA protect a hospital from liability when it cooperates with an OPO to facilitate the donation process?

Brief Response

1. If an individual has registered as an organ donor or otherwise authorized donation consistent with the MS UAGA, no one else, including a family member or a hospital health care provider, has the right to revoke the designation as an organ donor in order to prevent the donation process from moving forward, without legal or clinical justification.
2. Under the MS UAGA, a hospital must cooperate with an OPO to facilitate the donation process.
3. It is the responsibility of the OPO to determine whether a patient at or near death has authorized, amended, or revoked an anatomical donation. Miss. Code Ann. § 41-39-139(c). If the patient has not authorized donation, then it is the OPO's responsibility to search for the individuals listed in Section 41-39-117 who may authorize donation on the patient's behalf. Miss. Code Ann. § 41-39-127(g).
4. The MS UAGA protects a hospital from liability so long as it acts in good faith in compliance with the MS UAGA to support the donation process and to work with the OPO to carry out the wishes of the donor. However, this protection would not extend to a hospital that knowingly fails to carry out the wishes of the donor without legal or clinical justification. See Miss. Code Ann. § 41-39-135(a).

Applicable Law and Discussion

Your first question asks whether anyone other than the individual who has registered as an organ donor or has otherwise authorized donation, including a family member or a health care provider, has a right to override that decision or otherwise prevent the donation process from moving forward. Section 41-39-115(a) of the MS UAGA provides that, once a person indicates their decision to be a donor, "a person other than the donor is barred from making, amending, or revoking" that decision. (emphasis added). The term "First Person Authorization," or "FPA," is often used to describe an individual's legal determination and expression to donate their organs, tissues, and other body parts, which, according to gift law, takes effect upon the individual's death and becomes a legally binding decision. That said, the plain language of this section is clear: an individual's own decision to be a donor, whether by registering as an organ donor or otherwise authorizing donation, cannot be revoked by any other person, including a family member or a hospital health care provider, without legal and clinical justification.

Your second question asks whether a hospital must cooperate with an organ procurement organization ("OPO") to facilitate the donation process. The MS UAGA requires every hospital in the state to have an agreement or affiliation with an OPO "for coordination of procurement and use of anatomical gifts." Miss. Code Ann. § 41-39-129. Moreover, when an individual in a hospital is "at or near death," the OPO's determination whether that individual is a registered donor, as well as the OPO's examination to assess medical suitability for donation, is triggered "when [the] hospital refers" the individual to the OPO. Miss. Code Ann. § 41-39-127.

Accordingly, Section 41-39-127 of the MS UAGA starts with the assumption that a hospital has an agreement or affiliation with an OPO to refer individuals at or near death to the OPO and then sets forth additional obligations that are triggered when that referral occurs. When a hospital makes the required referral, the following must occur: 1) the OPO must search the donor registry to determine if the individual is a registered donor; 2) the hospital must permit the OPO to conduct "any reasonable examination necessary" to ensure the medical suitability of the organs that are or could be the subject of donation, including permitting access to the donor/potential donor's medical records; and 3) during the examination period, the hospital may not withdraw life-sustaining measures from the donor/potential donor unless that individual expressed a contrary intent. Miss. Code Ann. § 41-39-127(a), (c), (e).

Therefore, under the MS UAGA, a hospital must have an agreement or affiliation with an OPO to facilitate the donation process. Moreover, a hospital that undertakes any actions or omissions that impede the donation process, without legal or clinical justification, may violate the agreement and/or the MS UAGA not only to the extent such actions fail to comply with the explicit duties outlined above, but also by ignoring the explicit prohibition against amending and revoking an anatomical gift of a donor's body or part by any person other than the donor as stated in Section 41-39-115.

Next, you ask who, under the MS UAGA, is responsible for determining whether an individual at or near death is an organ donor, including whether they have indicated a refusal to donate or have amended or revoked a previous authorization to donate. The MS UAGA recognizes that an OPO is responsible for ascertaining whether an individual at or near death is a donor. Section 41-39-127(a) requires an OPO, upon receiving a hospital's referral of a patient at or near death, to "make a reasonable search of the records of the Mississippi Department of Public Safety and any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift." Toward that end, Section 41-39-139(c) requires a donor registry to "[a]llow a donor . . . to include on the donor registry a statement or symbol that the donor has made, amended, or revoked an anatomical gift" and to "[b]e accessible to a procurement organization to allow it to obtain relevant information . . . to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift." (emphasis added). If the OPO's search of the relevant donor registry reveals that the individual is not a donor, then Section 41-39-127(g) requires an OPO to "make a reasonable search for any person listed in Section 41-39-117 having priority to make an anatomical gift on behalf of a prospective donor."

Accordingly, under the plain language of the MS UAGA, it is the responsibility of the OPO to determine whether a patient at or near death has authorized, amended, or revoked an anatomical donation. Where the OPO's search reveals that the patient has not authorized donation, then it is the OPO's responsibility to search for the individuals listed in Section 41-39-117 who may authorize donation on the patient's behalf.

Your fourth and final question asks whether the MS UAGA protects a hospital from liability when the hospital cooperates with an OPO to facilitate the donation process. The MS UAGA contains a broad immunity clause that protects parties involved in the donation process from liability when they act in good faith reliance on the MS UAGA. Section 41-39-135(a) provides:

[a]ny person who, in good faith and acting in reliance upon and authorization made under the provisions of Sections 41-39-101 through 41-39-149 and without notice of revocation thereof, takes possession of, performs surgical operations upon, removes tissue, substances or parts from the human body, or refuses such a gift, and any person who unknowingly fails to carry out the wishes of the donor according to the provisions of Sections 41-39-101 through 41-39-149 shall not be liable for damages in a civil action brought against him for that act.

(emphasis added).

The MS UAGA's immunity provision would not, however, extend to parties who act in bad faith or in a way they know violates the UAGA. Similarly, a party who knowingly "fails to carry out the wishes of the donor" without legal or clinical justification may not qualify for immunity under this provision because it extends protection only to parties who unknowingly fail to carry out the donor's wishes. See Miss. Code Ann. § 41-39-135(a).

Accordingly, the MS UAGA protects a hospital from liability so long as it acts in good faith reliance on the MS UAGA and carries out the wishes of the donor, but it does not protect a hospital that knowingly fails to carry out the wishes of the donor.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General