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Organ Donation

The Florida statutes state that a person may make a gift of his or her body or body parts which will be effective after death. The donation of all or part of his or her body must be for the purpose of tissue and organ preservation or transplanting or for medical research. The Florida statutes permit a donation of a gift of a body or parts of a body for only these purposes to:

  • any hospital, surgeon, or physician for medical or dental education or research, advancement of medical or dental science, therapy, or transplantation
  • any accredited medical or dental school, college, or university for education research, advancement of medical or dental science, or therapy
  • any bank or storage facility for medical or dental education, research advancement of medical or dental science, therapy or transplantation
  • any individual specified by name for therapy or transplantation needed by him or her

There can be no restriction on the possible recipient of such an anatomical gift on the basis of race, color, religion, sex, national origin, age, physical handicap, health status, marital status, or economic status. Any such restriction is unenforceable.

Florida’s Agency for Health Care Administration and the Department of Highway Safety and Motor Vehicles have implemented a registry which records organ and tissue donations submitted through the driver license identification program and by other sources. There are presently 2,704,097 Florida residents who are registered organ or tissue donors. This registry permits access to this information only by accredited hospitals, organ and tissue procurement agencies, and other parties identified by the agency as having a need for this information.

A person may make an anatomical gift as part of the process of obtaining or renewing a driver’s license or through programs established by the Florida Agency for Health Care Administration. The Florida Department of Highway Safety and Motor Vehicles will then indicate the individual’s intent to donate organs or tissues on the front of his or her driver license. Further information regarding this program and the organ donor form can be found on the internet at www.hsmv.state.fl.us. Additional information may also be obtained by contacting the Agency for Health Care Administration at (850) 414-0359 or on the internet at otdonors@fdhc.state.fl.us.

Another way a gift of all or part of the body for the purpose of tissue and organ preservation or transplanting or for medical research may be made is through a will. The gift becomes effective upon the death of the person who made the will without waiting for probate. If the will is not probated or if it is declared invalid, the gift of the body is nevertheless valid to the extent that it was relied upon in good faith.

An anatomical gift may also be made by a document other than a will. The document must be signed in the presence of two witnesses who must also sign the document in the donor’s presence. If the donor cannot sign, the document may be signed at the donor’s direction and in his or her presence and the presence of two witnesses who must sign the document in the donor’s presence.

If an anatomical gift is not made through a program established by the Department of Highway Safety and Motor Vehicles or the Agency for Health Care Administration and is made by a person to a specific donee such as a medical college, the document, other than a will, may be delivered to the donee to expedite the appropriate procedures immediately after death. However, delivery of the document before death is not necessary for the gift to be valid.

A donor may amend or revoke an anatomical gift at anytime before death by signing and delivering a statement to the proposed donee of the anatomical gift. The Florida statutes also permit a person to notify the Department of Highway Safety and Motor Vehicles that he or she has withdrawn his gift of organs or tissues. In such event, the Department is required to update its registry noting the withdrawal.

An amendment or revocation of an anatomical gift may also be made by an oral statement that is made to a spouse. Such an amendment or revocation of an anatomical gift may also be made by an oral statement that is made in the presence of two persons and communicated to the family or attorney of the person intending to make the anatomical gift or to the donee of the anatomical gift. An anatomical gift may also be amended or revoked by a statement during a terminal illness addressed to an attending physician or a signed document found on the donor’s person or in the donor’s effects. An anatomical gift made by will may also be amended or revoked in the manner provided by law for the amendment or revocation of a will.

The Florida statutes state that if a decedent signed an agreement concerning an anatomical gift, his or her health care surrogate may carry out the instructions. The Florida statutes also state that if a decedent has not executed an agreement concerning an anatomical gift or designated a surrogate to make anatomical gifts, a member of one of the classes of persons listed below, in order of priority stated and in absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or prior class, may give all or any part of the decedent’s body as an anatomical gift:

  1. the spouse of the decedent;
  2. an adult son or daughter of the decedent;
  3. either parent of the decedent;
  4. an adult brother or sister of the decedent;
  5. a grandparent of the decedent;
  6. a guardian of the person of the decedent at the time of his or her death.

In addition, a court of competent jurisdiction may appoint a representative ad litem for the purpose making an anatomical gift if the representative ad litem ascertains that no person of higher priority exists who objects to the gift of all or any part of the decedent’s body and that no evidence exists of the decedent’s having made a communication expressing a desire that his or her body or body parts not be donated upon death.

The Florida statutes also state that no anatomical gift may be made by a spouse if any adult son or daughter objects. The statutes is also require that those of higher priority, if they are reasonably available, must be contacted and made aware of the proposed gift.

The Florida statutes provide that after removal of the donated organs or tissues, the remainder of the body vests in the surviving spouse, next of kin or other person under obligation to dispose of the body.

This page is excerpted from the Florida Senior Legal Guide.