Man's Wife Cheats: He Wants His Kidney Back
This may ibe the biggest case of ingratitude about which I ever heard: Dr. Richard Batista gave his wife Dawnell one of his kidneys--and then, he says, she cheated on him. Now, as part of the divorce he wants compensation for his lost kidney. From the story:
"There's no deeper pain you can ever express than to be betrayed by the person you devoted your life to," he told reporters. "I saved her life but the pain is unbearable."I completely understand the poor man's pain, but sorry: A gift is a gift. Legally, once an offered gift is accepted it belongs to the receiver. Besides, compensating him would be to let him, in effect, sell his kidney, which is a big no can do. The judge should commiserate but firmly reject the claim.
The vascular surgeon's lawyer Dominic Barbara said his client wanted $1.5 million in compensation for the kidney as part of a bitter matrimonial break-up which has dragged on for three years. "As part of the litigation we are asking for the value of the kidney that he gave his wife," said Mr Barbara. "In theory we are asking for the return of the kidney. Of course, he wouldn't really ask for that, but the value of it. This has never been done before in the State of New York."
posted by Wesley J. Smith @ 5:37 PM
12 Comments
12 Comments:
A agree that a gift is a gift, and that it could be considered analogous to selling a kidney, but in the circumstances I like what Dominic B. is doing. Where I don't agree is in placing a value on the kidney itself, though if this isn't an example of joint marital property I don't know what is, and certain forms have to be followed in matrimonial cases, as in other cases, to get to where one is trying to go. I also don't agree that a kidney is only worth $1.5 million. His compensation should really be in terms of the emotional distress, the ordeal he went through in the course of giving the kidney, the future risk to his life should his remaining kidney ever fail and he no longer has the one he gave away when he had the expectation of the marriage lasting, the additional emotional distress to that of the pain of being the victim of adultery that anyone would feel in this situation, etc. This may never have been done before in New York State, but it's hardly the wackiest or most off-base thing that's ever been done, or brought into court, here, and in the circumstances it doesn't seem right that if the husband is blameless and has done this for her and she has committed adultery, she should leave the marriage with the same share of the property, and he should be treated by the court, as if this were not the case.
Every time I look at SHS there is yet another fascinating item.
Of course the danger here is placing monetary value on life or on what makes life possible. But whatever the reasons for the divorce, and whatever the reasons for the demand for compensation, this guy does have something on his side.
Something that is beyond the scope of the average divorce case. He might try addressing it via litigation outside of the divorce case per se, but it does seem to have a place within it.
He gave her the kidney as her husband and within the context and confines of a relationship formed by a contract that she has broken. Thus the status of the gift has altered somewhat, along with the status of the contract itself. It's not like an engagement ring, given before a contract existed. The principle of fraud also is involved here. I'm glad an issue is being made of it, one way or another.
Wesley, I agree with your end result, but not how you got there. If I gave my wife a BMW for her birthday and then we got divorced, the BMW would still be community property to be split. So speaking purely legalistically, it was an asset that he entered the relationship with and was made community property by gifting it to his wife.
The proper way to handle this though is to go back to the fact that organs can't be sold. Since they can not be sold, they are value-less (financially) and therefore have no impact on the total value of the community property.
Ken: Even with regard to the BMW, it might depend on the circumstances as to whether it would be deemed to be of a community character or would become the wife's separate property. For example, if the husband purchased the car with community assets, it would probably be community. But if he bought it with his separate property, and put it solely in his wife's name, it might not become community property, being deemed a gift to her and not to the community, just as if her parents gave her the car in her name only, and she maintained it with her separate estate, it would not take on a community nature.
But, as you note, a kidney is not property in that sense. Moreover, NY doesn't follow community property law.
Since organs are illegal to buy and sell, an organ can have no monetary value.
It could be said that a kidney can't have monetary value not only because it can't be bought and sold, but also on the principle that slavery is illegal and a person cannot be bought and sold, and because life itself has no price, and a kidney is essential to life, and also because there is no way to put a monetary value on such a thing, even in terms of one's own value to oneself rather than to others. In negligence, originating in common law, there are schedules of value for limbs, lives, life expectancy, etc., generally, if I remember right, in terms of earning capacity, value to others dependent on the person, etc.; here, with the marriage at an end, the issue of value to another is moot -- except in terms of future value in terms of alimony.
Whether monetary value can be placed on the kidney itself or not, the donor has, even though willingly, made a sacrifice for the benefit of the recipient that can conceiveably cost him much more in the future, as well as even his ex-wife, in terms of any settlement that might allow her to benefit from his future earnings. If it had been the husband who committed adultery and broken the marriage, no matter who gave the kidney to the other, that would be a consideration, arising from an action that took place during the marriage and within the context of the marriage contract; thus it remains a valid issue. Here, the calculable loss includes pain and suffering, anguish, emotional distress, etc. as well as possible future loss to the donor. Had the marriage lasted, and the husband's future earning capacity been affected, the wife would have had to support him, as well as suffering loss; with her having given cause for the marriage to end, he is out not only a kidney, but more, and possibly even more than that, and he incurred the potential loss while the marriage was intact and he had the expectation of it and its benefits to him continuing. If he had not expected the marriage to last, and his thoughts had been I don't really love this woman, and I want out, I want my freedom, there's someone else I'm going to leave her for, and/or I know she's unfaithful or apt to be unfaithful but I'm going to give her the kidney anyway purely as an act of human kindness, I think he would be less apt to be claiming compensation. Whether she would have donated her kidney to him if he had been the one who needed a transplant is yet another consideration, difficult though that might be to ascertain truly. It may be a gift, but willingness to make the gift is an element of this marriage. Even if he had been the most terrible husband in the world and the cause of her adultery, he's still out a kidney and is leaving the marriage in a potentially less viable state than that in which he entered it, whereas but for him, she would not have lived to commit adultery at all. He, in fact, by saving her life, enabled the marriage to continue, whereas she has broken it. Thus I still say that this issue is a valid consideration for the court as she goes on with her life, thanks only to him, while what is left of him is trying to pick up the pieces, and that justice demands that the court see to it that he receives more than merely words of consolation.
I just think he should be asking for a lot more than $1.5 million, especially if, as seems to be the case, he expected the marriage to last. Or at least there should be an agreement whereby if his remaining kidney fails, he is compensated, in addition to the compensation he should get now, one way or another, for pain and suffering, distress, etc. She had to know when committing adultery that it had the potential to inflict distress, especially with his having given her his kidney, and thus the infliction of distress by her action was intentional. Even if she had planned to keep it secret to spare him; she wasn't supposed to be doing it in the first place. Just because divorce happens often doesn't mean that the marriage was entered into in expectation of it.
There's another consideration, as well. People who lose their partner in a relationship often feel as if part of themselves is going with them; in this case, that's literally the case. There may be a number of reasons why this divorce has been going on for three years, but one of them very well may be that in addition to the not wanting to let go of the other person, not wanting to lose control over them (he is a doctor after all and they often feel that they have to control everything), etc., he finds it impossible to let go of her because there is still an attachment between his physical body and his donated kidney; this was not an artificial kidney, there is much we do not know about the body, and there have been instances of a person with a transplanted organ having adopted traits, habits, mannerisms, etc. of the donor, even when the donor is unknown to them.
In such a situation, even in addition to his anguish and sense of betrayal and being out a major body part, and further betrayal in view of his having given that body part to her and saved her life, he cannot have the sense of resolution that divorce normally can offer to both parties. She may even be having the same problem, but at least she's the one who's got the kidney, and she's the one who committed adultery. This is a new chapter in divorce law, of course, but nevertheless, he is entitled to be able to have the same sense of resolution (mixed with bitterness or otherwise)that everyone who divorces is entitled to have, and if the connection his body feels with its missing part that she now has as a result of the relationship now being severed prevents that sense of resolution, he must be compensated for that, and made whole in terms of being given that without which he will not be able to go forward.
One is supposed to be compensated in a divorce case, in theory, for the loss of face that adultery causes, even if only by the divorce itself -- and restored to one's previous state -- so that one can go forward (both for the individual's sake and for society's); if, in addition to that -- and the loss of face is even greater here because of the kidney -- one cannot go forward because one's own body feels a sense of connection with the other party in the divorce, then the divorce cannot be completed justly without one being made whole in that respect as well and as best as possible in terms of compensation. He's asking for his kidney back, in theory, in order to be made whole after fraud; he no more actually would take the kidney back than his body can stop feeling the connection with the lost kidney, but since he is going to have to live with that, too, he most certainly should be compensated for what would not have been problematic in terms of his still being stuck with a sense of physical connection to someone with whom he should no longer have to feel it, but the price of her life is his having to live with it, had she not broken the marriage.
He's now not only out a kidney and a wife and cuckolded to boot, but also in a position where he cannot feel even separate, and while it might be argued that that is part of the gift he made voluntarily, it's still a result of the marriage the continuation of which was the expectation underlying his gift and which she has ended. The court is not entitled to be callous or cruel or to countenance injustice without ordering remedy. I think that there are judges who could understand this, see why compensating him is necessary, and allow him to be compensated. Otherwise the decision would be as coldly utilitarian as those made by scientists, hospitals, and the "ethicists" who endorse futilitarianism. He made a gift, and then the marriage ended in circumstances he never expected; someone signs a "living will" and then changes their mind when it's too late and they are in circumstances they never expected; they should die because of a document, and he should go uncompensated because it was a "gift" given under circumstances that since have changed? I don't think that would be right.
Today's New York Post or the New York Daily News (or maybe it was last Sunday's Newsday) ran a little story about this case, and I think it was the News' "what they said this week" column of today that quoted Raoul Felder, who must be representing the wife, as follows: "He doesn't have a kidney to stand on."
Wesley-not to be a pain, but I'm surprised you didn't take note of the fact that if this man had his wish an his kidney were "returned" to him, his wife would probably die. That, too me, is the bottom line of why he can't have it back, not the kidney's change in ownership after it was given as a gift. But, your focus is probably because you are looking at it from a purely legal standpoint, as a lawyer.
Safepres: That was never a serious consideration, and of course would never be done. He wants the "value."
I saw this on tv last night. The wife's lawyer maintains that she never committed adultery and that the husband was obsessed with fidelity. If that is true, this is an example of how once the media picks up on and presents something, whether it is true or not, it becomes instantly accepted as fact and as a premise for the rightness or wrongness of one side or the other in the situation.
Of course, the wife may not be telling the truth. But even that she denies it did not seem to make it into the original story, or she may not have made the denial, or had a chance to, before the story initially broke. That's another reason why it's better to keep anything going on in court out of the media.
Also, the wife's side maintains that there was nothing special about the husband having donated the kidney because most of the wife's family was a positive match for the transplant. The husband said that that was an insult, and he's right about that.
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