No Kidney for Doctor

In a ruling that reasserts some logic to a case that seemed to have strayed into the realm of the ridiculous, Suffolk County Special Referee Jeffrey Grob rejected doctor Dr. Richard J. Batista's request that his estranged wife, Dawnell C. Batista, either return the kidney (or $1.5 million for the kidney) he donated to her while they were still married. The doctor was trying to include the value of the kidney as part of the marital assets to be considered in the divorce proceedings.

"At its core, the defendant's claim inappropriately equates human organs with commodities," Suffolk County Special Referee Jeffrey Grob declared in a 10-page ruling. "While the term 'marital property' is elastic and expansive ... its reach, in this court's view, does not stretch into the ethers and embrace ... human tissues or organs," Grob wrote.

The Special Referee also cautioned that Dr. Batista could leave himself open to criminal prosecution for attempting to put monetary value on a human organ. Citing Public Health Law §4307, which makes it a crime for "any person to knowingly acquire ... for valuable consideration any human organ for use in human transplantation."

The four-year-old divorce case between vascular surgeon Richard J. Batista Jr. and his wife, Dawnell C. Batista, gained worldwide notoriety in January when Dr. Batista and his attorney, Garden City, N.Y.'s Dominick Barbara, held a press conference announcing their intentions to seek compensation for the organ. Barbara petitioned the court for a stay to produce an expert who could testify as to the value of the organ. Click here for more details on this case.

However in the ruling Referee Jeffrey Grob wrote in Batista v. Batista, Jr., 201931/05 that the doctor's sacrifice could be taken into account:

"That the defendant may not proffer the economic proof he seeks to adduce, however, does not suggest that the sacrifices, magnanimity and devotion, which arguably and logically attend, are beyond the pale or lack relevancy."

Dr. Richard Batista's lawyer, Dominick Barbara, called the ruling a "complete victory" for his client, as such proof would be taken into account in deciding the remaining issues at trial, he said.

The decision was "not a surprise to any right-thinking person," said Douglas R. Rothkopf, Dawnell Batista's attorney, in an interview, lauding the ruling as "an excellent one." Rothkopf declined to comment further, only saying that the "facts will speak for themselves" at the upcoming divorce trial, also in front of Jeffrey Grob. The issues will be limited to division of the marital assets, maintenance and child support.

I Want My Kidney Back

Going through a divorce can be a very traumatic experience. There are a myriad of things to fight over: property, money, the kids, visitation, custody etc. Well, the Batista's are going through one of those messy divorces, but with a unique twist. Dr. Richard Batista, from Ronkonkoma, NY, is demanding that Mrs. Dawnell Batista return the kidney he gave to her - or pay him $1.5 million. He is claiming that his wife was having an affair.

"I saved her life and then, to be betrayed like this, is unfathomable. It's incomprehensible," said Dr. Richard Batista, 49. "I feel humbled and betrayed and disregarded. This divorce is killing me."

“In theory, we are asking for the return of the kidney,” said Dominic Barbara, Dr. Batista’s lawyer. “Of course, he wouldn’t really ask for that, but the value of it.”

Dr. Richard Batista, 49, a vascular surgeon at Nassau University Medical Center, married his wife Dawnell, on Aug. 31, 1990. According to the doctor, the marriage went well for the first two years and then began a "slow downward trend." In June 2001 Dawnell needed a third kidney transplant. As a baby, her father had donated her first kidney and years later a brother donated the second one. It was discovered that Dr. Batista's kidneys were a 1-in-700,000 match and he gladly donated one of them to his wife, allowing her to skip a waiting list of 6,748 people awaiting kidneys in New York State.

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"My first priority was to save her life," Batista said at a news conference in Garden City. "The second bonus was to turn the marriage around. When I donated ... the next day I was on my feet going down the hallway to visit her in the adjoining room - there was no greater feeling on this planet. I did the right thing for her to this day. I could still do it again.”

Initially, Batista said he was happy with his gift of life: "I was walking on a cloud. I did the right thing for her and to this day I would do it again." The transplant certainly gave Mrs Batista a new lease of life. She went back to college to earn a master's degree in nursing and took up karate, but Mr Batista claimed that she repaid his kindness with infidelity. He said that she had an affair with a physical therapist that she began seeing after she injured herself while working towards her black belt. The therapist, David Cazalet, has vehemently denied the allegation.

"We're friends - we've never had an affair," he insisted, calling Batista a "big monster."

"I feel bad for her because he's a wackadoo," he said.

Dr. Batista claims that he requested the return of his kidney - or its monetary value - because his wife was preventing him from seeing his three daughters, aged 8, 11 and 14 after visitation had been agreed upon. The divorce proceedings had already stretched out for more than three years. His lawyer, Dominic Barbara, said the $1.5 million his client feels he's entitled to reflects damages, including how much money she made as a result of being able to continue working and not having to go on dialysis. "A price can't be placed on a human organ but it does have value," he said.

Dawnell Batista, 44, a nurse from Massapequa, filed for divorce in July 2005.  The divorce papers were served on Dr. Batista while he was in surgery. According to Dawnell, Richard was the one who had ruined their marriage with his obsessive belief that she was fooling around. He even went as far as to examine her underwear for evidence that she had been with another man.

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In a Mineola court, stating that she has never been unfaithful, Douglas Rothkopf, Dawnell's lawyer, accused Richard Batista of harming the couple's three children, ages 14, 11 and 8, by holding what he called a "grotesque" press conference on the issue and catapulting the family's problems into the media spotlight.

But Richard Batista's lawyer, Dominic Barbara of Garden City, said his client has the right to tell his story publicly, and that it is Dawnell Batista who should be ashamed.

"This is a man who put his life on the line, and his wife has treated him like a piece of dirt," he said.

The couple was in court to debate whether a judge should impose a gag order in the case. Court referee A. Jeffrey Grob reserved decision on Rothkopf's request for a later date, allowing the public battle to continue.

Medical ethicists agreed that the case is a nonstarter. Arthur Caplan of the University of Pennsylvania's Center for Bioethics said the likelihood of Batista getting either his kidney or cash was "somewhere between impossible and completely impossible."

Robert Veatch, a medical ethicist at Georgetown University's Kennedy Institute of Ethics, noted that "it's illegal for an organ to be exchanged for anything of value." Organs in the United States may not be bought or sold. Donating an organ is a gift and legally, "when you give something, you can't get it back," he said.

"It's her kidney now and . . . taking the kidney out would mean she would have to go on dialysis or it would kill her," Veatch said.

Marriage Annulled: Wife not a Virgin

A Muslim couple's marriage was annulled by a French court on the grounds that the woman had lied and told her husband that she was a virgin. In its ruling, the court concluded the woman had misrepresented herself as a virgin and that, in this particular marriage, virginity was a prerequisite.

In its judgment, the tribunal said the 2006 marriage had been ended based on "an error in the essential qualities" of the bride, "who had presented herself as single and chaste."

The French daily newspaper Liberation made public the April closed-door trial in Lille, causing such an uproar that, against the wishes of both the man and woman involved, the case will be appealed. Critics of the court saw the decision as undermining decades of progress in women's rights by treating the case as a breach of contract. Marriage, they said, was reduced to the status of a commercial transaction in which women could be discarded by husbands claiming to have discovered hidden defects in them. France has a Muslim population of about 5 million, out of a country of 64 million, the largest of any Western European country, but has fought to maintain strong secular traditions in the face of changing demographics. Critics see the ruling as condoning the custom of requiring a woman to enter marriage as a virgin, and prove it with bloodstained sheets on her wedding night.

The court decision "is a real fatwa against the emancipation and liberty of women. We are returning to the past," said Urban Affairs Minister Fadela Amara, the daughter of immigrants from Muslim North Africa, using the Arabic term for a religious decree.

Justice Minister Rachida Dati, whose parents also were born in North Africa, initially shrugged off the ruling but the public clamor reached such a pitch that she asked the prosecutor's office this week to lodge an appeal. What began as a private matter "concerns all the citizens of our country and notably women," a statement from her ministry said.

The irony is that the unnamed couple involved, both the man and the woman, were satisfied with the court's ruling. Neither of them want the case to be appealed. The woman is a student in her 20's and the man is an engineer in his 30's.

The young woman's lawyer, Charles-Edouard Mauger, said she was distraught by the dragging out of the humiliating case and he quoted her as saying:

"I don't know who's trying to think in my place. I didn't ask for anything. ... I wasn't the one who asked for the media attention, for people to talk about it, and for this to last so long."

Xavier Labbee, the lawyer for the bridegroom in question, says it was not the young woman's virginity that was at issue.

"The question is not one of virginity. The question is one of lying," he said. "In the ruling, there is no word 'Muslim,' there is no word 'religion,' there is no word 'custom.' And if one speaks of virginity it is with the term 'a lie."

Although divorce was also an option, annulling the marriage is preferable because it wipes the slate clean for both parties. Divorced Muslim women are allowed to remarry, but they are expected to be forthcoming with their new husband about the previous marriage, and divorce can carry a cultural stigma for women.

Article 180 of the Civil Code states that when a couple enters into a marriage, if the "essential qualities" of a spouse are misrepresented, then "the other spouse can seek the nullity of the marriage." Past examples of marriages that were annulled include a husband found to be impotent and a wife who was a prostitute, according to attorney Xavier Labbee.

However, in a rare show of agreement, politicians on the left and right said the court's action does not reflect French values. "In a democratic and secular country, we cannot consider virginity as an essential quality of marriage," said an expert on French secularism, Jacqueline Costa-Lascoux.

Prime Minister Francois Fillon said an appeal must be lodged "so this ruling does not set a judicial precedent." The appeal was filed and three judges could hear the case sometime this month, said Eric Vaillant of the appeals court in Douai, near Lille.

Personal Opinion:

Maybe its just me, but I have difficulty seeing how a request to nullify a marriage becomes a national debate on French values and women's rights. Even the parties involved are content with the court's ruling and are against any further appeals. To me this is just a case of the government butting into the private lives of private citizens who would rather put an unfortunate situation behind them.

8-Year-Old Girl Seeks A Divorce

When it comes to women's issues, there are 2 institutionalized cultural practices in some countries that I think are just plain wrong. One is Female Genital Mutilation (FGM) and the other is Pedophilia. Both of these are practiced in Yemen. The following story is about an 8-year-old Yemeni girl who was "married" to a 28-year-old man with the blessing of her father.

8-year-old Nojoud Muhammed Nasser arrived at court by herself on Wednesday, April 2, looking for a judge to handle her case against her father, Muhammed Nasser, who forced her two months ago to marry Faez Ali Thamer. Even though she was too young under Yemeni law to bring charges, she found a sympathetic ear in judge Muhammed Al-Qathi. She also asked the judge for a divorce, accusing her husband of sexual and domestic abuse.

“My father beat me and told me that I must marry this man, and if I did not, I would be raped and no law and no sheikh in this country would help me. I refused but I couldn’t stop the marriage,” Nojoud Nasser told the Yemen Times. “I asked and begged my mother, father, and aunt to help me to get divorced. They answered, ‘We can do nothing. If you want you can go to court by yourself.’ So this is what I have done,” she said.

Nasser said that she was exposed to sexual abuse and domestic violence by her husband.

“He used to do bad things to me, and I had no idea as to what a marriage is. I would run from one room to another in order to escape, but in the end he would catch me and beat me and then continued to do what he wanted. I cried so much but no one listened to me. Whenever I wanted to play in the yard he beat me and asked me to go to the bedroom with him. This lasted for two months," added Nasser. "He was too tough with me, and whenever I asked him for mercy, he beat me and slapped me and then used me. I just want to have a respectful life and divorce him.”

After hearing the child's story judge Muhammed Al-Qathi promptly ordered the arrest of both her father and her husband. At the ensuing trial the courtroom was packed with members of the press and human rights activists, who are using the case to highlight the need for more child protection in Yemen.

Her unemployed father, Mohammad Ali Al-Ahdal told the court he felt obliged to marry off his daughter after receiving repeated threats from the would-be husband and his entourage. He said was frightened because his oldest daughter had been kidnapped several years earlier and had been forced to marry her abductor.

Faez Ali Thameur told a judge that he married Nojoud with her consent and her parents', and that the marriage "was consummated, but I did not beat her."

"Yes I was intimate with her, but I have done nothing wrong, as she is my wife and I have the right and no one can stop me," he said. "But if the judge or other people insist that I divorce her, I will do it, it's ok."

In issuing his ruling, the judge said he was terminating the marriage because the girl "had not reached puberty." A provision in Yemeni law allows parents to sign marriage contracts for children younger than 15. However, the article states that a husband can only consummate the marriage when the wife reaches puberty. He annulled the marriage instead of granting a divorce, to stop the husband trying to reinstate the wedlock. He also ordered that the girl be removed from the control of the father who forced her into the wedding. In addition he ordered the girl's family to pay $250 in compensation to Faiz Ali Thamer. There were no provisions for any punishment for the husband, Faez Ali Thamer.

Shatha Ali Nasser who represented Nojoud Mohammed Ali before the court said:

"We are grateful to the judge" she explains. "Had it been someone with strong traditional views, Nojoud could have been sent back home."

Instead, Nojoud is now living with her maternal uncle, Shu'ee Salem Attabi'ee who said: "Nojoud is living happily with me and my eight other children. She is looking forward to going back to primary school as soon as possible." Nojoud wants to have no further contact with her father. According to her uncle, after Muhammed Nasser, the girl's father, lost his job as a garbage truck driver in Hajjah, he became a beggar, and soon after suffered from mental problems.

Shatha Ali Nasser confirmed that item number 15 in Yemeni civil law reads that “no girl or boy can get married before the age of 15." However, this item was amended in 1998 so parents could make a contract of marriage between their children even if they are under the age of 15. But the husband cannot be intimate with her until she is ready or mature,” said Nasser.“This law is highly dangerous because it brings an end to a young girl’s happiness and future fruitful life. Nojoud did not get married, but she was raped by a 30-year old man.”