What kind of property is a kidney?
Feb 16th, 2009 by admin
In Washington, an important part of dividing up the assets and debts is first determining what’s community and what’s not. (While clients often have a sense of what’s fair, and what they’d like to get out of the divorce, it is still important to understand the legal backdrop against which they’re making that agreement.)
In New York, a judge may be called on to determine what kind of property a kidney is!
As you may have already read, there’s a New York couple in the process of divorcing and one bit of “property” at issue is a kidney that the wife has, which was donated to her by her husband, a vascular surgeon. I can’t speculate on how the case will turn out, as I’m not familiar with the law in New York, but it seems pretty unlikely to me that the judge will give Dr. Batista the relief he’s requested: Either a return of the kidney or $1.5 million in compensation.
In Washington, a judge would have to determine how to characterize the kidney and attempt to answer the question “What kind of property is a kidney?”. According to the law in Washington, property is characterized by when it is acquired. To start with, then, the kidney would be considered the husband’s separate property. But then he gave it to the wife…and I bet there was a heck of a lot of paperwork involved to record the “gift”. My vote: The kidney belongs to the wife, and not in the divorce negotiations.
UPDATE: According to this story, the Doctor will not be able to include the kidney in the divorce settlement. State Supreme Court marital referee Jeffrey Grob has said that it’s not legal to put a monetary value on a human organ. In other words, an organ isn’t any kind of “property” at all.