Divorce, Bioethics Style: Can a Kidney Donor Get His Organ Back From His Ex?

Lori Andrews by Lori Andrews

New options in medical therapies, including reproductive technologies and organ donation, provoke heated debates among philosophers and physicians.  But these therapies also create disputes in the unlikeliest of places:  divorce courts.

When a man has an infertility problem, his wife can be inseminated with donor sperm to create a child for the couple.  But what if the couple later split?  Initially, some ex-wives tried to deny their ex-husbands visitation rights, saying the men had no biological bond to the children.  And some ex-husbands tried to shirk child support, saying “I’m not that baby’s daddy.”  Courts initially fumbled (with a 1956 Illinois court decision holding that donor insemination constituted adultery, even if the husband consented).  But ultimately, courts and most state legislatures came to a solution that benefited the child: a man who consented to the insemination of his wife has the rights and responsibilities of a legal father.

A new wrinkle in divorce law surfaced twenty years ago when couples who had undergone in vitro fertilization divorced amidst disagreements over the fate of their frozen embryos.  Sometimes the divorced woman wanted to initiate a pregnancy with the embryo created during her marriage with her husband’s sperm and her now-ex protested, asking the divorce judge to destroy the embryo instead.  In other cases, it was the ex-husband who wanted to use the embryo to implant in his new wife or a surrogate mother.  Again, courts were initially confounded.  Should the embryo be treated like marital property?  (“Honey, you take the stereo and I’ll take the embryo?”)  If two embryos were frozen, should the husband and wife each get one? Ultimately, most courts held in favor of the spouse who did not want to reproduce, even if there is an express contract to the contrary.

This March, a New York judge will face another bioethical dilemma.  When Richard Batista donated his kidney to his wife in June 2001, he never dreamed they’d later be battling it out in divorce court.  Now Richard is asking for his kidney back.

There’s no doubt that Richard’s actions benefited his then-wife Dawnell.  Her body had rejected donated kidneys from her father and her brother. The fact that she and her husband were a 1-in-700,000 match allowed her to jump ahead of 6,748 other people in line for kidneys in New York State.

But his claim for $1.5 million for saving his wife’s life is unlikely to pass muster.  A New York statute, N.Y. Public Health Law Section 4307, prohibits payment to donors other than for travel, housing and lost wages associated with the cost of donation.  He’s unlikely to be able to prove that he lost that much in wages, though, given that he was on his feet the day after the transplant, according to news reports.

Richard’s claim that Dawnell should give the kidney back is also legally ludicrous.  And unlike the perplexing cases involving sperm donors or frozen embryos, courts have ready precedents regarding people’s rights to bodily integrity that would prevent a court from ordering Dawnell to submit to surgery.  Even if Dawnell had promised to remain faithful or remain married in exchange for the organ, the doctrine of specific performance limits how far courts can go to uphold promises made in a contract.  Every law student studies the 1852 British case of an opera singer who wanted to breach her contract. The court held she couldn’t be forced to perform.  If a judge can’t require a woman to sing, a judge certainly shouldn’t require an organ recipient to go under the knife at the behest of a jilted donor.

4 thoughts on “Divorce, Bioethics Style: Can a Kidney Donor Get His Organ Back From His Ex?

  1. I agree completely that to expect the return of the kidney, or for that matter – any kind of remuneration or damages — is completely absurd!

  2. Collaborative Divorce is a really interesting concept. Basically, both parties have a divorce attorney, and often, both parties have a coach. If there are children, there’s a therapist for them

  3. I can just imagine the life of both estranged husband and wife, how they dealt with everyday arguments or how they stand each other’s presence. To ask for a kidney back? Is just ridiculously painful!

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