146.34 Donation of bone marrow by a minor.
(1) Definitions. In this section:
(a) “Bone marrow" means the soft material that fills human bone cavities.
(b) “Bone marrow transplant" means the medical procedure by which transfer of bone marrow is made from the body of a person to the body of another person.
(c) “Donor" means a minor whose bone marrow is transplanted from his or her body to the body of the minor's brother or sister.
(d) “Guardian" means the person named by the court under ch. 48 or 54 or ch. 880, 2003 stats., having the duty and authority of guardianship.
(e) “Legal custodian" means a person other than a parent or guardian or an agency to whom the legal custody of a minor has been transferred by a court under ch. 48 or 938, but does not include a person who has only physical custody of a minor.
(f) “Parent" means a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40 or a parent by adoption. If the minor is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, “parent" includes a person adjudged in a judicial proceeding under ch. 48 to be the biological father of the minor. “Parent" does not include any person whose parental rights have been terminated.
(g) “Physician" means a person licensed to practice medicine and surgery under ch. 448.
(h) “Psychiatrist" means a physician specializing in psychiatry.
(i) “Psychologist" means a person licensed to practice psychology under ch. 455.
(j) “Relative" means a parent, grandparent, stepparent, brother, sister, first cousin, nephew or niece; or uncle or aunt within the 3rd degree of kinship as computed under s. 990.001 (16). This relationship may be by blood, marriage or adoption.
(2) Prohibition on donation of bone marrow by a minor. Unless the conditions under sub. (3) or (4) have been met, no minor may be a bone marrow donor in this state.
(3) Consent to donation of bone marrow by a minor under 12 years of age. If the medical condition of a brother or a sister of a minor who is under 12 years of age requires that the brother or sister receive a bone marrow transplant, the minor is deemed to have given consent to be a donor if all of the following conditions are met:
(a) The physician who will remove the bone marrow from the minor has informed the parent, guardian or legal custodian of the minor of all of the following:
1. The nature of the bone marrow transplant.
2. The benefits and risks to the prospective donor and prospective recipient of performance of the bone marrow transplant.
3. The availability of procedures alternative to performance of a bone marrow transplant.
(b) The physician of the brother or sister of the minor has determined all of the following, has confirmed those determinations through consultation with and under recommendation from a physician other than the physician under par. (a) and has provided the determinations to the parent, guardian or legal custodian under par. (e):
1. That the minor is the most acceptable donor who is available.
2. That no medically preferable alternatives to a bone marrow transplant exist for the brother or sister.
(c) A physician other than a physician under par. (a) or (b) has determined the following and has provided the determinations to the parent, guardian or legal custodian under par. (e):
1. The minor is physically able to withstand removal of bone marrow.
2. The medical risks of removing the bone marrow from the minor and the long-term medical risks for the minor are minimal.
(d) A psychiatrist or psychologist has evaluated the psychological status of the minor, has determined that no significant psychological risks to the minor exist if bone marrow is removed from the minor and has provided that determination to the parent, guardian or legal custodian under par. (e).
(e) The parent, guardian or legal custodian, upon receipt of the information and the determinations under pars. (a) to (d), has given written consent to donation by the minor of the bone marrow.
(4) Consent to donation of bone marrow by a minor 12 years of age or over.
(a) A minor who has attained the age of 12 years may, if the medical condition of a brother or sister of the minor requires that the brother or sister receive a bone marrow transplant, give written consent to be a donor if:
1. A psychiatrist or psychologist has evaluated the intellect and psychological status of the minor and has determined that the minor is capable of consenting.
2. The physician who will remove the bone marrow from the minor has first informed the minor of all of the following:
a. The nature of the bone marrow transplant.
b. The benefits and risks to the prospective donor and prospective recipient of performance of the bone marrow transplant.
c. The availability of procedures alternative to performance of a bone marrow transplant.
(b) If the psychiatrist or psychologist has determined under par. (a) that the minor is incapable of consenting, consent to donation of bone marrow must be obtained under the procedures under sub. (3).
(5) Hearing on prohibition of consent or performance.
(a) A relative of the prospective donor or the district attorney or corporation counsel of the county of residence of the prospective donor may file a petition with the court assigned to exercise jurisdiction under chs. 48 and 938 for an order to prohibit either of the following:
1. The giving of consent under sub. (3) or (4) to donation of bone marrow.
2. If consent under sub. (3) or (4) has been given, the performance of the bone marrow transplant for which consent to donate bone marrow has been given.
(am) Any party filing a petition for an order to prohibit performance under par. (a) 2. shall file and serve the petition within 3 days after consent has been given under sub. (3) or (4).
(b) Any party filing a petition under par. (a) shall at the same time file with the court a statement of a physician or psychologist who has recently examined the prospective donor and which avers, if made by a physician, to a reasonable degree of medical certainty or, if made by a psychologist, to a reasonable degree of professional certainty, that the removal of bone marrow presents medical or psychological risks to the prospective donor or to the prospective recipient which outweigh all benefits to the prospective donor or to the prospective recipient.
(c) Any party filing a petition under par. (a) and a statement under par. (b) shall, at the time of filing, provide personal service of notice of the filing and a copy of the statement to the parent, guardian or legal custodian of the prospective donor and, if the prospective donor is a minor who has attained 12 years of age, to the minor.
(d) Following the filing of a petition under par. (a) and a statement under par. (b), the judge shall appoint a guardian ad litem under s. 48.235 for the prospective donor.
(e) If a request for hearing is filed by the prospective donor under sub. (4) or by the parent, guardian or legal custodian within 7 days following the personal service of notice under par. (c), the court shall conduct a hearing to determine whether the giving of consent under par. (a) 1. or performance under par. (a) 2. shall be prohibited and providing the prospective donor under sub. (4) and the parent, guardian or legal custodian opportunity to rebut the statement under par. (b).
(f) If no request for hearing is filed by the prospective donor under sub. (4) or by the parent, guardian or legal custodian within the time limit specified under par. (e), the court may do one of the following:
1. Order prohibition of consent under par. (a) 1. or performance under par. (a) 2.
2. On its own motion conduct a hearing to determine whether the giving of consent under par. (a) 1. or performance under par. (a) 2. shall be prohibited.
(g) If the court on its own motion conducts a hearing under par. (f) 2., the court shall provide personal service of notice of the hearing to all parties and may request submission of relevant evidence.
(h) Any person aggrieved by a final judgment or final order of the court under par. (e) or (f) may appeal within the time period specified in s. 808.04 (3) or (4).
History: 1985 a. 50; 1995 a. 77; 1997 a. 188; 1999 a. 32, 162; 2001 a. 38; 2005 a. 387; 2005 a. 443 s. 265.