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 opinion holds that, once an individual has registered or otherwise authorized donation, no one else (family or hospital health care provider) may revoke that decision without legal or clinical justification (Section 41-39-115(a)), and that a hospital must cooperate with an OPO to facilitate donation. It holds that when a hospital refers a patient at or near death, Section 41-39-127 requires the OPO to search the donor registry, requires the hospital to permit a reasonable medical-suitability examination including access to medical records, and bars the hospital from withdrawing life-sustaining measures during the examination period unless the individual expressed a contrary intent.

For OPO staff working with Mississippi hospitals

The opinion holds that the OPO is responsible for determining whether a patient at or near death has authorized, amended, or revoked a donation. Section 41-39-127(a) requires the OPO, on a hospital's referral, to make a reasonable search of the records of the Mississippi Department of Public Safety and any donor registry it knows exists for the area where the individual resides. If the search reveals the patient is not a donor, Section 41-39-127(g) requires the OPO to search for persons listed in Section 41-39-117 who have priority to authorize donation on the patient's behalf.

For donors and donor families

The opinion holds that an individual's own decision to be a donor "cannot be revoked by any other person, including a family member or a hospital health care provider, without legal and clinical justification" (Section 41-39-115(a)). The same section bars another person from making, amending, or revoking the decision, which the opinion notes operates in either direction (authorization or refusal).

For hospital attorneys and risk managers

The opinion holds that Section 41-39-135(a) immunizes parties who act "in good faith and acting in reliance upon" an authorization under the Act, including parties who "unknowingly" fail to carry out the donor's wishes, but that this protection "would not extend to a hospital that knowingly fails to carry out the wishes of the donor without legal or clinical justification."

For Mississippi state legislators

The opinion holds that, under the current text of the Act, the OPO is the body responsible for determining donor status, and that the donor's own decision is binding and not subject to third-party revocation absent legal or clinical justification.

Common questions

What is an OPO?
An organ procurement organization. The opinion treats the OPO as the entity responsible for searching the donor registry and determining donor status when a hospital refers a patient at or near death. The opinion does not name a specific organization.

Must a hospital cooperate with the OPO?
The opinion holds yes. Section 41-39-129 requires every hospital in the state to have an agreement or affiliation with an OPO "for coordination of procurement and use of anatomical gifts," and Section 41-39-127 sets out the obligations triggered when the hospital refers a patient at or near death.

Who can authorize donation if the patient is not a registered donor?
The opinion holds that if the OPO's search shows the patient is not a donor, the OPO must search for persons listed in Section 41-39-117 having priority to make an anatomical gift on the patient's behalf. The opinion does not reproduce that priority list.

What if the patient has a written refusal?
The opinion holds that Section 41-39-115(a) bars any person other than the donor from making, amending, or revoking the donor's decision, and that this operates in either direction, so a refusal is protected just as an authorization is.

Does the Act cover tissue as well as organs?
The immunity provision the opinion quotes (Section 41-39-135(a)) refers to taking possession of, performing surgical operations upon, or removing "tissue, substances or parts from the human body," and the Act is captioned the Revised Uniform Anatomical Gift Act covering Sections 41-39-101 through 41-39-149.

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