The Kidney is Not Marital Property!

March 2, 2009

kidneysVess Mitev, star reporter at the New York Law Journal, reported on the decision of a Nassau County Court Referee issued this past Tuesday on the Batista v. Batista “Kidney Case.” As has been widely reported, Dr. Batista, a surgeon, donated a kidney to his wife in 2001. Now that they are getting divorced (with the case already dragging on for four years), he sought to have the kidney considered “marital property.”  The result of such a determination would have been that she would either be credited as having already received $1.5m (its purported monetary value) from him, or, in the alternative, that she should return the kidney to him (!).

The parties agreed to have the case decided by a Court Referee. In his ruling in the case, Referee Grob looked to, among other sources, the New York Public Health law, § 4307 which states that it “shall be unlawful for any person to knowingly acquire, receive,  or  otherwise  transfer  for  valuable  consideration  any human organ for use in human transplantation.”

Grob used this rule, along with the New York public policy against equating human organs with commodities to be bought and sold for compensation, as the basis to dissallow testimony regarding the “monetary value” of the kidney that Dr. Batista sought to offer at trial on the issue of the division of marital assets. 

It will be interesting to see whether Batista’s lawyer, showman trial attorney Dominic Barbara, has any other creative arguments up his sleeve for the upcoming matters that still remain to be decided in the case, including division of the martial assets, maintenance, child support, and a contempt action against Dr. Batista for allegedly failing to pay child support.

Picture courtesy of


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