A New York surgeon who demanded that his wife pay him $1.5 million for the kidney he donated her cannot have the organ valued as a “marital asset” in their divorce case, a court referee has found.

“While the term 'marital property' is elastic and expansive ... its reach, in this Court's view, does not stretch into the ethers and embrace, in contravention of this State's public policy, human tissues or organs,” Nassau County Supreme Court Referee A. Jeffrey Grob said in a Feb. 24 decision.

Dr. Richard Batista's donation of a kidney saved his wife's life in 2001 after she suffered renal failure. Dawnell Batista filed for divorce four years later, however, and the case turned into an international spectacle in January when he made the demand for renal compensation, alleging she had cheated on him and denied him access to their children.

It is illegal for an organ donor to seek “valuable consideration” for a donation –- as Grob noted in ruling that Dr. Batista could not call an expert witness to testify in the divorce trial about the value of his kidney.

“[T]he defendant's effort to pursue and extract 'monetary compensation'” for the kidney, Grob said, “not only runs afoul of the statutory proscription, but, conceivably, may expose the defendant to criminal prosecution.”

But Richard Batista's attorney, Dominic Barbara, may still have accomplished what he set out to do by making a media circus out of the kidney issue. "I saved her life and then, to be betrayed like this, is unfathomable," Batista said of his wife at a news conference Jan. 7.

New York is the only state in the nation that has not adopted no-fault divorce. Under its divorce law, a judge determining the "equitable disposition" of marital property has the discretion to consider anything “which the court shall expressly find just and proper.”

While the media ridiculed Richard Batista for wanting his kidney back, Barbara -- who has called his client "godlike" -- had his eye on the broader objective of building a "fault" case against Dawnell Batista. What could be worse, after all, than betraying the man who saved your life?

In his ruling, Grob made a comment related to the evidence he can consider in deciding the distribution of the Batistas' marital property. Denying Richard Batista the value of his organ donation, he said,

does not suggest that the sacrifices, magnanimity and devotion, which arguably and logically attend, are beyond the pale or lack relevancy.

Citing that comment, Barbara described the ruling as a "complete victory" for his client -- which may stretch credulity, but makes sense in the context of such a nasty, fault-based divorce.

Dawnell Batista, also playing the fault game, has portrayed her husband as less than a model of marital “magnanimity.” According to her attorney, he suffers from “hyper-suspicion” of her and was so consumed with jealousy that he rummaged through her underwear drawer for evidence she was cheating.

“She has never been unfaithful, and she has never denied visitation,” Douglas R. Rothkopf said in court last month.

By Matthew Heller
2/28/09