ORGAN DONOR OR BODY SNATCHER: Codey’s Inquisition v. Personal Freedom

If New Jersey Senator President Dick Codey has his way the (1) State created substantive right to drive (2) will be contingent on those who apply for, or who seek to renew, their driver’s license obeying the State’s policy to “encourage positive donation” by making a totally unrelated but repeatedly mandatory and public decision (3) as to whether or not the applicant will make a carte blanche “donation” of his or her body, organs, and / or tissue for transplant, research and / or education. New Jersey Hero Act,S-755. (Adobe Reader).

What follows does not attempt to debate the pros and cons of permitting one’s body, organs, or tissue to be harvested for transplant, research or study. It is certainly not meant to be a legal opinion. But when both Blue Jersey and NJ 101.5’s Jim Gearhart oppose the bill’s overreaching mandates one takes notice. It makes one ask: Does the State have the right to ask and demand an answer to such intimate questions, and if so, is the proposed method permissible.

Be forewarned, however, the view here is the legislation, as written, is a patronizing hodge-podge of self-aggrandizing bad law and an incoherent self-serving attempt to slip as much of that bad law as possible by the people. Additionally, reading it together with the proposed Revised Uniform Anatomical Gift Act, S-754 or in the light of 18 U.S.C. 2721 (a)(2). does nothing to change that view. Indeed, where is the OLS legal opinion? Is there one?

LEGISLATION PROPOSAL S-755 CONTENT

Make no mistake – refuse to answer Codey’s questions and the application process is over. According to Senator Codey’s February 14, 2008 testimony, (Windows Media), applicants for driver licenses are required to make a legally binding and recorded declaration concerning their body parts prior to continuing the application process. To “encourage positive donation”, applicants will be met by a State agent, i.e. a motor vehicle employee, who will ask up to three questions. The first is whether the applicant wants to have their remains harvested for transplant, research, or education. It’s an all-or-nothing proposition.

If the answer is yes, the applicant is given a number required for continuing on in the license application process.

If the applicant is not willing or able to make the on-the-spot decision, he or she is asked to name a third party who will be legally responsible for a future decision in the event of the applicant’s death. Upon naming a guardian the applicant is given a number required for continuing on in the license application process.

If the applicant refuses to designate a guardian and proceeds to an outright no to “donation”, the response is recorded and the applicant is given a number required for continuing on in the license application process.

Five years from the date of enactment applicants must answer the same questions via online access or at their DMV office prior to applying for or renewal of a driver’s license. New Jersey Hero Act S-755, p.7, section 8. At the end of the process there will be a donor designation on the driver’s license. New Jersey Hero Act, S-755, p.7, section 8.

SENATOR DICK CODEY’S ORGAN BILL, S-755, SEEMS TO VIOLATE THE FUNDAMENTAL RIGHT TO PRIVACY

Despite the seeming lack of specific guidance, tradition can only lead one to the conclusion the individual has a fundamental right to determine the disposition of one’s remains, and therefore, that right is entitled to be exercised in a manner that is free from government interference.The U.S. Constitution recognizes the individuals have a fundamental liberty interest in independence in decision making and avoiding disclosure of personal matters. First among those privacy interests is a person's body. Schmerber v. California, 384 U.S. 757, 770 (Criminal case)(1966). Indeed, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." Cruzan v. Director, MDH, 497 U.S. 261, 269 (1990).Even where the privacy interest does not rise to the level of fundamental right, analysis of “ ‘privacy’ interest[s] has in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600 (1977).

A statute impinging upon a fundamental right is presumed to be unconstitutional. Harris v. McRae, 448 U.S. 297, 312 (1980).

1. To overcome that presumption, the state must prove its intrusion is not just legitimate, it must prove it to be compelling. "Compelling" generally refers to something necessary, as opposed to something merely preferred. Here, therefore, the government interest in attempting to “persuade” the public to become organ donors is, if anything, merely legitimate because it is the government's preferred option. It cannot be a compelling or necessary interest because it does not, and one could easily argue cannot, mandate organ or tissue donation for transplant, research or study. Conversely, there is no fundamental legal duty to donate.

2. That should be the end it. But, for the sake of argument, let’s assume the court wants to know whether the statute meets the lesser standard of “undue burden” on the right to decision making free from government interference. Now ask yourself the question: Could the State require a woman to decide if she will be a parent in the following four years. If she becomes pregnant during that time, dies while pregnant, regardless of whether the child is or is not viable – what happens to the fetus . Also, will the State inform the women she can give up the right to decide when and whether to have a child by making four year prior notice to a third party who is given the decision making power? Think that answers it….

3. Finally, comes the matter of privacy and “donor” identification on a driver license.Either the appearance or lack of appearance of donor status on a driver license informs everyone who looks at the license of the individual's decision. Yet such identification is neither effective nor necessary. It’s certainly not effective because the only proof as to “donor” status that matters is the “Donate Life NJ Registry”. New Jersey Hero Act, S-755, P.7, section 7(2) (d) . Accordingly, what is on the license must be checked with the registry before any action is taken.

Furthermore, it does not even attempt to minimize the intrusion on privacy as every license is seen by bartenders, librarians, grocers, etc. Thus, unlike the registry, there is absolutely no protection from the eyes of the unnecessary, the uninvolved, the unintended and the curious.