first-person consent, to make an anatomical gift, and also strictly prohibits and harshly punishes
the sale and purchase of organs. Sections 4 and 7 of the 2006 UAGA address who can authorize
an anatomical gift and how a donor can refuse such a gift.
Section 4 of the 2006 UAGA lists the parties that have the authority to make an anatomical
gift before the donor’s death. This list includes “a parent of the donor, if the donor is an
unemancipated minor.” The UAGA does not define an unemancipated minor; accordingly, the
phrase is defined by state law. While Section 4 gives a parent the right to have their child donate
an organ, Section 7 offers a way for the child to refuse.
According to Section 7, an individual may sign a record refusing to make an anatomical
gift of his or her body parts. The comments to Section 7 note that Section 7 honors the autonomy
of an individual whose body or body part might otherwise be the subject of an anatomical gift by
empowering the individual to make a refusal. There is no age limitation for an individual to sign a
refusal. An individual of any age can do so, and a refusal can only be made by the individual whose
parts are the subject of the refusal. Once a refusal is expressed, an anatomical gift of the
individual’s body or body part by all other persons is barred. However, it is currently unclear how
Section 7 is applied in practice.
As explained above, Section 7 of the UAGA gives a person of any age the right to refuse a
donation which, in theory, would help to prevent compelled donations. However, in practice, this
presents a problem: how do we protect children who do not yet have the capacity to refuse?
Each child’s capacity to refuse should be evaluated prior to the child’s donation. When
obtaining a child’s capacity to consent, the child’s mental capacity is assessed. The same should
be assessed in regard to the child’s capacity to refuse.
Mental capacity is described as having the ability to reason and deliberate, hold appropriate
values and goals, appreciate one’s circumstances, understand information one is given, and
communicate a choice. Accordingly, prior to any donation, the specific operation should be
explained to the child, along with the consequences of refusing or consenting to the donation. After
the operation has been explained to the child, a psychological evaluation of the child’s
understanding should be evaluated. Finally, the child should communicate a choice. The
responsibility of assessing the child’s capacity to refuse should lie with the hospital, as the hospital
would be in the best position to carry out these procedures. When it is determined that a child does
not have the capacity to refuse, we should look to the courts.
When a child does not have the capacity to refuse a donation, the operation should be barred
until a court order permitting the donation is obtained. The hospital in Hart v. Brown refused to
operate on the seven-year-old twins unless a court declared that the parents, or some other
guardian, had the right to give consent for the operation on behalf of the minors. In doing so, the
Connecticut Supreme Court evaluated what the donor child would have thought if they had the
capacity to consent. This is a perfect example of how the courts can help prevent compelled