Academic journal article American Journal of Law & Medicine

Can Same-Sex Partners Consent to Organ Donation?

Academic journal article American Journal of Law & Medicine

Can Same-Sex Partners Consent to Organ Donation?

Article excerpt


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 Gift 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 couples4 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 partner9 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 Gift 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. …

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