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The Rights to Pre-Embryos Upon Divorce

By Stephanie F. Lehman

In Batista v. Batista, N.Y.L.J. 2/24/09 (Nassau Cty. 2009), a Supreme Court, Nassau County, NY, matrimonial case that gained national attention, Court Attorney-Referee A. Jeffrey Grob (“Referee Grob”) denied the defendant's, Dr. Richard Batista's, application for a stay of the trial pending the issuance and exchange of expert reports regarding the value of a kidney donated by the defendant to save his wife's, Mrs. Dawnell Batista's, life. Dr. Batista took the position that his donated kidney should be deemed a marital asset subject to equitable distribution and that he should either receive monetary compensation equal to the value of his kidney or his kidney should be returned to him. In reaching his decision, Court Attorney-Referee Grob relied on New York's Public Health Law
' 4307, which prohibits the exchange of monetary consideration for human organs intended for transplantation.

Referee Grob correctly recognized that Mr. Batista's kidney was not marital property subject to equitable distribution, denied Mr. Batista's application in its entirety and held that “[w]hile the term 'marital property' is elastic and expansive, consisting of a 'wide range of intangible interest,' its reach ' does not stretch into the ethers and embrace, in contravention of this state's public policy, human tissues or organs.”

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