In a Divorce, Who Gets the Organs?

Dr. Richard Batista‘s wife’s health was failing, and so was their marriage. To save them both, he offered to be the kidney donor his wife Dawnell badly needed.

Dawnell recovered, but their marriage didn’t. A few years later she filed for divorce. Now her husband says he wants his kidney back. If he can’t have it, he wants a payment of $1.5 million, the estimated worth of the organ.

Medical ethicists say Batista is unlikely to get either, as it’s illegal to exchange money for an organ and the law is clear that no gift, once given, can be forcibly taken back.

This is a sad story on all fronts. But would it be possible 10 or 20 years from now? As Dubner and Levitt wrote in The Times Magazine, our repugnance toward assigning monetary value to human life has grown, receded, and changed over time.

How long until, and under what conditions, will a market in donated organs become acceptable?

(Hat tip: Alex Hagen)


Bobby G

Personally I don't mind the monetizing of human organs (sure, flame me for that), but I don't think the husband is in the right here. The law regarding gifts still applies.

Even if we wanted to extrapolate it to a more commonplace example, consider the kidney gift an exchange. The husband sold his kidney to his (then) wife for $0. It was clearly a good deal for her (if the estimated market value of the kidney is $1.5 million), and it must have been a good deal for him considering he did so voluntarily. However, in this exchange, the husband also was "selling" it without a guarantee of a return, refund, or exchange. Asking for one now is as ridiculous as demanding a refund of a product retailed with the disclaimer "no refunds."

Granted, the wife is likely losing repeat business by denying this policy, but I'm sure that she doesn't mind too much.

TWC

From what I understand, and I may be wrong, Dr. Batista is not suing to recover the kidney. He is suing to recover the financial benefits that have accrued to Dawnell since she received the kidney. He is trying to position himself as having given something up in order to benefit his wife and their marriage. It is more akin to him arguing that he gave up 'something' and dedicated himself to her career... (e.g., an executive, a surgeon) and is therefore due a portion of the compensation that she would not have earned had he not given her the kidney. It is not the organ per se, but the benefits that were received because the organ was 'given.'

Steve

This is so off-the-wall that my instinct is there's something else behind it, whether a need for publicity or a screenplay/novel someone is pitching or....

RUBBA

He should have moved a little quicker and made it part of the divorce settlement.

Susan

As TWC comments there is a value which the wife received that can be differentiated from the "value" of the kidney itself but there is also a potential expense or cost to the donor.

I wonder what would have happened if the donor's attorney had sued for the expenses which would accrue if the remaining kidney failed.

Susan

PsiCop

As I see it the issue in this case is not whether or not body parts should be monetized. I have mixed feelings about that, and find myself leaning toward allowing organs to be sold.

But a bigger legal issue here is whether a gift should be left as a gift. If a precedent is set here that gifts can be summarily revoked, that would have vast ramifications, going far beyond either property division in divorce or organ donation. It might conceivably affect every relationship that anyone has.

Tkwon CMS

Oh sure. Dr. Batista might as well ask for the marriage ring back while he's at it...

Justin A

As someone who has had a transplant, I think a market for donated organs cannot come soon enough. But I think organs will be grown organically through stem cells before there is a market for organs. This is very unfortunate since their are so many people dying every day to get an organ, and so many people who are willing to donate an organ especially for a financial gain. I think it's a win-win, and needs to be seriously considered.

Matt

This makes me wonder if the same law or rules apply to breast implants. Technically, they are not organs and I can't imagine how many men have paid for such "enhancements". Will they be able to keep the "fun bags" in the event of a divorce or separation?

Mike B

This guy clearly should have had her sign an amended pre-nup.

Brooke

He's definitely due something for his pain, trouble, and the loss of a kidney. The simple fact is, without his donation, she wouldn't be alive today. In the abstract, she really does owe him her life. How does she pay him back for this priceless favor? She divorces him.

The money is probably fair compensation for her less-than-wonderful behavior. For someone to put themselves in harm's way to preserve your life is a thing that merits gratitude and consideration. And if she cannot bring herself to live with him, she ought to express her gratitude financially.

Kel

Doesn't he know the ancient legal precedent of No Take Backsies?

John Doe

So, yeah, a lot of the comments already have captured most of the points that matter. Though I am not legally allowed to give actual legal advice, it seems like the husband would clearly lose. This was a gift given, and there was absolutely no expectation involved that she would pay anything back (so no unjust enrichment). This would probably work for juts about anyone who freely donated an organ. It's especially true, though, for a husband who did so; things done for close family members, from what I understand, are generally presumed to be gratuitous, and thus without intent to charge. Therefore, he couldn't demand restitution of any kind. I don't know he could win this suit.

spork-girl

this is only his side of the story. i sincerely doubt its accuracy.

Gary G

Brooke: "And if she cannot bring herself to live with him, she ought to express her gratitude financially."

"Ought" and "should be legally required to" are not & shouldn't be the same, however - I wouldn't like to see a court side with Dr. Batista here.

Of course, they're still in divorce proceedings, and have been for ages - this demand is part of the negotiations. It's not actually a suit at this point, just the threat of one.

TWC presents the best argument for awarding compensation, but I don't believe this is the argument being used by Dr. Batista - nor does it seem to jibe with the $1.5 million figure that's been put forward. I could be wrong, though!

mfs

I suppose the next chapter in this tawdry tale will be when the kidney fails, ex-wife returns to ex-husband to modify the alimony order to get him to cover her dialysis costs.

Don

I don't know that he's due anything for what she's earned by not dying (TWC), but perhaps for what he lost by actually donating the kidney and for the cost of the surgery itself. He could have been down for anywhere from a couple weeks to a month, depending on how the surgery went, but chances are being a surgeon himself he got a top of the line procedure.

dwee

A market for organs is already being formed in Singapore. The government is in the midst of setting price controls and protocols, but it has essentially been passed through parliament.

Some other econoblogs have covered it:
http://www.marginalrevolution.com/marginalrevolution/2008/11/singapore-to-pa.html
http://marketdesigner.blogspot.com/2008/11/market-for-kidneys-singapore.html

hildigunnur

Brooke, and does donating an organ mean you can behave as an absolute jerk for years on end, maybe, and mean you'll have to live with the donor forever, however your marriage is? (have no idea how this marriage has been, but this guy sure sounds like he's been wanting eternal thanks and kowtowing, due to his (truly precious) gift).

Emmanuel M

A market for organs will come one day or another. In fact, it will come as soon as a non-negligible amount of relatives of lawmakers will need a transplant.