Annals of Health Law - Vol 23 Issue 2

days after removal. 78 Tissues can be frozen and held even longer before transplantation. 79 And yet, the percentage of viable eye and tissue donors recovered is far lower compared to organ donors. While nationally nearly seventy-three percent of eligible organ donors are recovered, this drops to less than thirty-two percent for cornea donors. 80 Fewer people are familiar with eye and tissue donation, and may not realize they or their family members could be donors. 81 The need for corneal tissue was among the primary motivations for early U.S. presumed consent statutes. 82 Though these systems had significant flaws (most dramatically the lack of family notification and consultation), they were highly effective in increasing the supply of corneas for transplant. 83

Practical concerns may limit the direct impact of presumed consent on eye and tissue procurement. In addition to ethical issues discussed above, staffing and other resource limitations may militate in favor of not pursuing procurement before families have been contacted to provide complete medical and social history, even if procurement might be legally permissible based on presumed consent. As observed by Professor Orentlicher, among others, the Eye Bank Association of America did not oppose eliminating presumed consent in the 2006 revisions to the UAGA, at least in part because medical and social history requirements negated much of the func-tionality of presumed consent statutes as they existed at that time. 84

Unlike organ procurement, where the procurement team operates in an environment they control after the process begins, eye and tissue procurement is much more varied and unpredictable. Staff must obtain medical records from all relevant institutions and other entities involved in care leading up to death. This may include physicians’ offices and hospitals, as well as other entities, such as first responders (e.g., police and fire departments). The records are necessary to establish information required to determine transplant, including time of death and medications and fluids administered. 85 Such records may be transferred to procurement organizations

78. Cornea Donation, supra note 77.

79. Tissue Donation, supra note 39.

80. United Network for Organ Sharing, Reported Eligible Deaths and Recovered Deceased Donors 2008-2013 (Mar. 7, 2014), http://www.aopo.org/userfiles /file/DonationData/Reported%20Eligible%20Deaths%20and%20Recovered%20Deceased% 20Donors%202008-December%202013.xlsx (reporting 6487 total recoveries among 8936 eligible deaths for 2012); EYE BANK ASS’N OF AM., 2012 EYE BANKING STATISTICAL REPORT 14 (2013), available at http://www.restoresight.org/wp-content/uploads/2013/04/2012 _Statistical_Report_FINAL-reduced-size- 4-10.pdf.

81. Statistics, supra note 72 (“According to research, ninety-eight percent of all adults have heard about organ donation and eighty-six percent have heard of tissue donation.”).