Sec. 9123.

(1) Except as otherwise provided in subsection (2), a person, including, but not limited to, a licensee under article 15 or article 17 who procures or collects blood or human tissues, organs, or other specimens for purposes of transplantation, transfusion, introduction, or injection into a human body shall test or provide for the testing of each potential donor or each sample or specimen of blood or tissue, or each organ or other human specimen for the presence in the donor, sample, specimen, or organ of HIV or an antibody to HIV.

(2) Subsection (1) does not apply if a test for HIV or an antibody to HIV cannot be performed in the time during which the blood, tissue, organ, or other human specimen is viable for purposes of transplantation, transfusion, introduction, or injection into a human body, due to emergency or other exigent circumstances.

(3) Except as otherwise provided in subsection (4), if the results of a test performed under subsection (1) are positive, the blood, tissue, organ, or other human specimen shall not be used for purposes of transplantation, transfusion, introduction, or injection into a human body. If a test for HIV or an antibody to HIV cannot be performed in the time during which the blood, tissue, organ, or other human specimen is viable for purposes of transplantation, transfusion, introduction, or injection into a human body, due to emergency or other exigent circumstances, then the blood, tissue, organ, or other human specimen may be used for purposes of transplantation, transfusion, introduction, or injection into a human body if the person responsible for the transplantation, transfusion, introduction, or injection and the person who intends to receive the blood, tissue, organ, or other human specimen have been informed that there was insufficient time to perform a test for HIV or an antibody to HIV, and have agreed in writing to the use of the blood, tissue, organ, or other human specimen. If the person who intends to receive the blood, tissue, organ, or other human specimen is a minor, then the parent, legal guardian, or person in loco parentis of the minor shall have been informed that there was insufficient time to perform a test for HIV or an antibody to HIV and shall have agreed in writing to the use of the blood, tissue, organ, or other human specimen. If the person who intends to receive the blood, tissue, organ, or other human specimen is otherwise unable to give informed consent, then any of the following persons, in order of priority stated, when persons in prior classes are not available at the time the transplantation, transfusion, introduction, or injection is to be performed, shall have been informed that there was insufficient time to perform a test for HIV or an antibody to HIV and shall have agreed in writing to the use of the blood, tissue, organ, or other human specimen:

(i) The spouse.

(ii) An adult son or daughter.

(iii) Either parent.

(iv) An adult brother or sister.

(v) A guardian of the person at the time the transplantation, transfusion, introduction, or injection is to be performed.

(4) If a person donates blood exclusively for his or her own transfusion needs, and if the results of a test performed under subsection (1) are positive, the person may use the blood for that purpose if both the person responsible for the transfusion and the person who intends to receive the blood have been informed of the positive test result and have consented in writing to the use of the blood.

(5) A person, including, but not limited to, a licensee under article 15 or article 17, who procures or collects self-replicating body fluids for purposes of introduction into a human body shall test each potential donor, and, if the donor donates on a regular basis, not less than every 3 months, for the presence in the donor of HIV or an antibody to HIV. If at any time the test results are positive, the self-replicating body fluids of the donor shall not be used for introduction into a human body.

(6) A person, including, but not limited to, a licensee under article 15 or article 17 who orders or performs, or both, a test for HIV or an antibody to HIV under this section shall, if the test result is positive, inform the donor of the positive test result. For purposes of this subsection, a positive test result is a double positive enzyme-linked immunosorbent assay test, combined with a positive western blot assay test, or a positive result under an HIV test that is considered reliable by the federal centers for disease control and is approved by the department.

(7) A person who violates this section shall be liable in a civil action for damages for the loss or damage resulting from the violation.

(8) As used in this section:

(a) "Blood" includes whole blood, blood plasma, blood products, and blood derivatives.

(b) "HIV" means human immunodeficiency virus.

(c) "Self-replicating body fluids" means bodily fluids that are reproduced by the body including, but not limited to, breast milk. Self-replicating body fluids does not include blood or sperm.

History: Add. 1988, Act 487, Eff. July 1, 1989 Popular Name: Act 368