By Gerri Elder
A New York surgeon locked in a bitter divorce battle with his estranged wife is taking divorce battles to a whole new level.
Dr. Richard Batista, a surgeon at Nassau University Medical center, is demanding that his wife either return the kidney he donated to her in June 2001 or pay him $1.5 million as compensation for the donated organ.
According to an Associated Press report, Dr. Batista decided to go public with his extreme divorce demand, frustrated with Mrs. Batista for allegedly withholding visitation with the couple's three children. He claims that Mrs. Batista has prevented him from seeing the children for months at a time during their nearly four year divorce battle.
Mrs. Batista filed for divorce in July 2005. Dr. Batista claims that sometime around 18 months to two years after receiving his kidney, she began having an extramarital affair.
Legal experts say that Dr. Batista will have a difficult time establishing the fair market value of the kidney, given that federal law prohibits the sale or purchase of body parts. However, Dr. Batista claims that he did not grab the $1.5 million price tag out of thin air. He says the value of the kidney includes Mrs. Batista's earning capacity for the years that she worked, and is likely to work, after the receiving the transplant. He has also lined up an expert witness to testify to the worth of the kidney.
Even so, the idea that Dr. Batista's demand will be granted is far-fetched at best. A donated organ is a gift -- not marital property or asset to be divided during divorce.
During divorce, gifts are usually deemed separate property of the recipient and are not subject to the division of assets process. There is no cash compensation or repossession of gifts during divorce. Breast implants are a common topic in divorce cases but are treated as gifts and belong solely to the recipient.
As a gift, the donated kidney now belongs to Mrs. Batista; however, Dr. Batista's divorce lawyer has admitted that his client doesn't seriously want the kidney back. The surgeon is upset about Mrs. Batista's alleged affair and child visitation issues. He has brought up the issue of the kidney solely to draw attention to the divorce case: Mission accomplished.
An additional thing Dr. Batista may have unwittingly accomplished is sanctions. Often judges find outrageous claims and demands irritating as well as a waste of valuable time and resources. By frustrating the court, Dr. Batista may lose out and have to pay Mrs. Batista's attorney's fees if sanctions are imposed.