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Man Wants Kidney Back: Divorce Claim for Kidney Donated to Wife

A Long Island doctor has countersued his soon to be ex-wife for the kidney which he donated to her while they were married. In addition to questions about the depths to which divorce disputes can push people, his case reminds us of age old questions regarding property distribution in divorce.

In 2001, Long Island doctor Richard Batista donated his wife one of his kidneys. In 2005 she filed for divorce. Now he wants it back. The AP reports that Batista has countersued  his estranged wife, Dawnell Batista, for the kidney he donated to her, or $1.5 million.

All kidding aside, what happens to "gifts" between spouses once a couple decides to divorce? Like divorces, the answer can be complicated.

When allocating assets in divorce, courts decide what is marital (or community) property and what is separate property. Gifts between spouses pose problems. Many states presume gifts from one spouse to another to remain marital, rather than separate, property. Some states allow this presumption to be rebutted with clear evidence that the gift was intended to be the property only of the recipient. Courts can also look at factors such as the intention of the giver, along with whether the gift is subsequently used by one or both spouses.   

Unfortunately for Dr. Batista, US law forbids the exchange of bodily organs for money or anything of value. So, a lack of property rights in his own organs might prevent the kidney from being considered a gift of value to the marital estate. In any event, it is highly unlikely that a divorce judge will be willing to place a price tag on the kidney. Yet, as Dr. Batista?s attorney eloquently put it to Newsday, "[a] price can't be placed on a human organ but it does have value."

And what about the oft repeated confusion as to who gets the engagement ring? It too can get complicated depending on where you are, but in many cases it is a "conditional gift," contingent upon the knot actually getting tied. This means it often goes back to the giver if the marriage never happens.

Which brings us full circle to Batista's claim. The classy doctor has explained that (after his wife suffered two failed transplant attempts) he intended the donation of his kidney 1) to save her life, but also 2) to turn the marriage around. Even if he wants it back because the marriage never turned around, is it better to have loved and lost a kidney than to never have loved at all?

• US Dept. of Health and Human Services: Be an Organ Donor
• Divorce and Property (FindLaw)
• 10 Tips for Divorcing Parents (provided by Olup & Associates LLC)
• Who Gets the Engagement Ring? (FindLaw)
• Divorce and Alternative Dispute Resolution (FindLaw)
• Medscape: National Organ Transplant Act of 1984 Bans Buying and Selling of Organs

Full post as published by FindLaw's Common Law on January 08, 2009 (boomark / email).