Opinion
S02A1747.
DECIDED: JANUARY 13, 2003
OCGA § 40-5-25(d); constitutional question. Fulton Superior Court. Before Judge Goger.
Charles L. Barrett III, for appellant. Thurbert E. Baker, Attorney General, Eugene S. Hatcher, Jr., Assistant Attorney General, for appellees.
Is OCGA § 40-5-25(d) unconstitutional because it provides that driver's license applicants who are willing to be organ donors are to be charged a reduced fee? The answer is "no."
Brett C. Barnhill applied for a Class C driver's license. Because he declined to identify himself as an organ donor, Barnhill paid the standard $15 license fee. Thereafter, Barnhill brought suit seeking a declaration that OCGA § 40-5-25(d), which provides that applicants for a Class C license pay a reduced fee (not to exceed $8) if they desire to be organ donors, is unconstitutional because it violates substantive due process and equal protection. The superior court upheld the statute and Barnhill appealed. We find no constitutional debility and affirm.
Subsection (d) reads as follows:
(1) The General Assembly finds that it is in the best interest of the state to encourage improved public education and awareness regarding anatomical gifts of human organs and tissues and to address the ever increasing need for donations of anatomical gifts for the benefit of the citizens of Georgia.
(2) Notwithstanding the provisions of paragraph (2) or (3) of subsection (a) of this Code section, each applicant for the issuance, reissuance, or renewal of a Class C, M, A, or B driver's license under paragraph (2) or (3) of subsection (a) of this Code section shall accompany such application with a license fee as established by the commissioner, not to exceed $8.00, if such applicant executes an anatomical gift pursuant to Code Section 40-5-6.
(3) The department shall make available to those federally designated organ procurement organizations the name, license number, date of birth, and most recent address of any person who obtains a driver's license with the reduced fee provided for in paragraph (2) of this subsection. Information so obtained by such organizations shall be used for the purpose of establishing a state-wide organ donor registry accessible to organ tissue and eye banks authorized to function as such in this state and shall not be further disseminated.
1. Substantive due process. Barnhill asserts that he has a fundamental right not to be an organ donor; that, therefore, OCGA § 40-5-25(d) is subject to a strict scrutiny test; and that the statute cannot pass such a test because it is not narrowly tailored to meet its objectives. We cannot accept this assertion because the premise — that this case involves a fundamental right — is unfounded.
See generally State of Georgia v. Jackson, 269 Ga. 308(1) ( 496 S.E.2d 912) (1998) (substantive due process requires that when governmental action infringes upon a fundamental right, the infringement must be narrowly tailored to serve a compelling state interest).
At the outset, we recognize that the right of privacy is a fundamental right, and that whether a person donates his or her organs at the time of death is a choice veiled in the right of privacy. But that is not to say that the right to privacy is implicated in this case. OCGA § 40-5-25(d) does not force a driver's license applicant to be an organ donor against his or her wishes. It does not compel organ donation, but merely asks a driver's license applicant if he or she wishes to make an anatomical gift. Thus, the statute does not impinge upon an applicant's right to have his or her body buried intact. It does not even publicize information concerning the physical state of the applicant's body. In short, the statute does not require a driver's license applicant to divulge information which a reasonable person would deem to be purely private. Thus, the statute does not impact upon a fundamental right.
See Powell v. State, 270 Ga. 327, 329 ( 510 S.E.2d 18) (1998); Ambles v. State, 259 Ga. 406, 408 ( 383 S.E.2d 555) (1989).
See generally Cruzan v. Director, MDH, 497 U.S. 261, 269 (1990) ("Every human being of adult years and sound mind has a right to determine what shall be done with his own body"); Zant v. Prevatte, 248 Ga. 832 ( 286 S.E.2d 715) (1982) (by virtue of his right of privacy, individual who is not mentally incompetent can refuse intrusions on his person, even though calculated to save his life).
Barnhill does not contend that his right to privacy was violated simply because he was asked if he wished to be an organ donor at the time he applied for a license. And we note that the statute did not require Barnhill to disclose the reason for his decision.
Compare King v. State, 272 Ga. 788, 790 ( 535 S.E.2d 492) (2000) (a patient's medical information is a matter which a reasonable person would consider private).
See id. (right of privacy in purely private matters is derived from natural law) (quoting Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194 ( 50 S.E. 68 (1905)). See also Thurman v. State, 861 S.W.2d 96, 98 (Tex.App. 1993) (medical records are entitled to more privacy than bank and telephone records).
2. Equal protection. Barnhill also asserts that OCGA § 40-5-25(d) violates the equal protection clause because persons who do not wish to be organ donors must pay more for a driver's license than persons who are willing to be organ donors. We disagree.
Inasmuch as OCGA § 40-5-25(d) does not impact upon a fundamental right, and persons who are unwilling to be organ donors are not members of a suspect class, we scrutinize the statute under the rational basis test, the least rigorous level of constitutional scrutiny. This "rational basis test requires that the classification drawn by the legislation be reasonable and not arbitrary, and rest upon some ground of difference having a fair and rational relationship to the legislation's objective, so that all similarly situated persons are treated alike." In the present case, it was reasonable for the General Assembly to conclude that a reduced license fee for potential organ donors will advance the objective of the statute, i.e., to promote and encourage the cause of anatomical gifts.
City of Lilburn v. Sanchez, 268 Ga. 520(2) ( 491 S.E.2d 353) (1997).
City of Atlanta v. Watson, 267 Ga. 185, 187-188 ( 475 S.E.2d 896) (1996).
We note in passing that, contrary to Barnhill's assertion, the statute does not monetarily penalize an applicant who does not want to make an anatomical gift. On the contrary, the statute merely reduces the standard driver's license fee for persons who are willing to be organ donors (from $15 to $8 or less). Thus, persons who are willing to be organ donors are given a small monetary incentive to make that decision in advance of death. But, persons who are unwilling to be organ donors suffer no ill-treatment whatsoever.
The legislature's driver's license fee schedule does not irrationally and unfairly discriminate against similarly situated persons. Barnhill's equal protection challenge is without merit.
Judgment affirmed. All the Justices concur, except Carley, J., who concurs in the judgment and in Division 1.
DECIDED JANUARY 13, 2003 — RECONSIDERTION DENIED FEBRUARY 7, 2003.