American Journal of Law & Medicine

Can same-sex partners consent to organ donation?


As more same-sex couples enter into civil unions and domestic partnerships, the courts and other institutions are beginning to consider the implications of these partnerships in several areas of the law. A Georgia appeals court, for example, recently published the first opinion addressing this issue, ruling that a civil union of two women, obtained in Vermont, was not equivalent to a marriage for the purposes of interpreting a child custody agreement entered into in Georgia. (1) As many observers predicted, the enactment of legislation recognizing same-sex partnerships has profound implications on the practice of family law, trust and estate law and healthcare law.

This Article focuses on an area of healthcare law in which the legal status of a civil union or domestic partnership could have significant consequences--organ donations. In particular, it explores whether a civil union or domestic partner is an appropriate party to consent to an organ donation. This question touches upon a number of different laws, including the Full Faith and Credit Clause of the U.S. Constitution, the Uniform Anatomical Girl Act, various defense of marriage acts and marriage evasion laws. Section II of this Article analyzes state laws which recognize same-sex partnerships and the laws' healthcare consequences. Section III addresses state recognition of same-sex partnerships for the purpose of organ donation. It discusses how courts in different states may decide how to treat same-sex partners, particularly whether such a partner may be considered a "spouse" under the anatomical gift acts. It also separately examines the states that recognize same-sex partnerships, states that have neither a defense of marriage act nor a marriage evasion law, states that have only a marriage evasion law and, finally, states that have both a defense of marriage act and a marriage evasion law. The answer to the organ donation consent question will vary depending not only on the state in which the donation may occur, but also where the potential donor is domiciled. While there is significant support for recognizing civil union and domestic partners as appropriate parties to consent to organ donation, ultimately, specific amendments to existing laws will promote greater clarity and uniformity in the law.



During the early 1990s, it appeared that Hawaii would become the first state to permit same-sex marriages. The Hawaii Supreme Court ruled that Hawaii's statutory prohibition on same-sex marriage violated the equal protection clause of Hawaii's constitution, (2) sparking a flurry of constitutional and legislative activity, and a considerable amount of legal scholarship. (3) The voters in Hawaii eventually adopted a constitutional amendment granting the state legislature the power to reserve marriage for heterosexual couples (4) and, accordingly, Hawaii continues to reserve marriage for heterosexual couples. (5)

As part of a compromise, the Hawaii legislature enacted the Hawaii Reciprocal Beneficiaries Act in 1997. (6) The purpose of the law was "to extend certain rights and benefits which are presently available only to married couples to couples composed of two individuals who are legally prohibited from marrying under state law." (7) Among these rights and benefits were property and inheritance rights, (8) the right to sue for wrongful death of a reciprocal partner (9) and, in some instances, health insurance benefits. (10) Significantly, a reciprocal beneficiary of a patient "shall have the same rights as a spouse with respect to visitation and making healthcare decisions for the patient." (11) In addition, Hawaii's Anatomical Girl Act was amended to permit "[t]he spouse or reciprocal beneficiary of the decedent" to make anatomical gifts. (12)


Several states have since followed with their own same-sex partnership laws. In 2000, by legislative act, Vermont created the legal status of "civil unions" for same-sex partners. (13) Under the civil unions law, same-sex couples may enter into a civil union by obtaining a license and certificate from town or county clerks. (14) The law makes it clear that a civil union is not a marriage per se, which is specifically defined under Vermont law as "the legally recognized union of one man and one woman." (15) Parties to a valid civil union, however, are granted "all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage." (16)

These benefits, protections and responsibilities include the "laws relating to emergency and non-emergency medical care and treatment, hospital visitation and notification, including the Patient's Bill of Rights, ... terminal care documents ..., and durable power of attorney for healthcare execution and revocation...." (17) In addition, a partner to a civil union "shall be included in any definition or use of the terms `spouse,' `family,' `immediate family,' `dependent,' `next of kin,' and other terms that denote the spousal relationship, as those terms are used throughout the law." (18) Presumably, this would apply to Vermont's Anatomical Gift Act, which permits spouses to consent to, or refuse to consent to, making anatomical gifts. (19)


Most recently, California Governor Gray Davis signed an act, which became effective January 1, 2002, that allows same-sex couples to enter into domestic partnerships. (20) The law grants approximately one dozen legal benefits for domestic partners, including the right to sue for the wrongful death of a partner and the right to adopt the partner's child using the step-parent adoption process. (21) Significantly, the law grants domestic partners the same authority a spouse has to make healthcare decisions for an incapacitated partner. (22) The law stops short, however, of amending California's Anatomical Girl Act to allow a domestic partner, as it does a spouse, to consent to an anatomical gift. (23)


In recent years, the state legislatures in New York, Rhode Island and Wisconsin have considered, but have not passed, bills sanctioning civil unions or domestic partnerships. (24) In 2002, the Connecticut legislature passed a resolution to consider the public policy reasons for permitting or prohibiting the marriage or civil union of two persons of the same sex. (25) Although it is unlikely that all fifty states will sanction civil unions or domestic partnerships, the legislative activity in the aforementioned states suggests that others may join Hawaii, Vermont and California in the near future. (26)



As more same-sex partners take advantage of civil union and domestic partnership laws, courts and other institutions will need to determine how to treat these civil unions and domestic partnerships. (27) This issue is likely to arise in the organ donation context because organ donation is one of the only areas in healthcare that statutorily defines the consent process. (28) Because organ donations are frequently precipitated by an accident, it is not unexpected that organ donations may occur outside of the state in which a decedent was domiciled.

Each state has enacted some form of the Uniform Anatomical Gift Act (UAGA), (29) which establishes a hierarchy of persons who are legally authorized to consent, or refuse to consent, to donate organs on behalf of another person. …

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