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http://news.bbc.co.uk/2/hi/americas/7818751.stm
This story got me thinking. The TLDR version is that an American guy donated a kidney to his wife, and now that they're getting divorced, he's demanding that she either give him back the kidney or pay him 1.5M for it. My guess is, he doesn't really matter want the kidney, he just wants the money. But, it raises a larger question; how should you split up assets after a divorce? Assume for the sake of argument that there's no prenup.
On the one hand, I feel like anything you've given your spouse is, well, a gift, and it's just bad manners to ask for a gift back. It's like in "wedding crashers" where the creepy artist asks for his nude painting back: "no, that was a gift. I'm keeping it."
On the other hand, it's not quite that simple. When you're married, you usually assume you'll be living with the other person a very long time, and you arrange your assets accordingly. It's not uncommon to give your partner access to all your money, because you basically become one person ,financially speaking. So when you split up, I guess it makes sense to undo that arrangement.
Then there's the problem of unequal wealth AKA gold-diggers. Suppose that the wife agrees to put her career on hold for a while so that she can have children. If they get divorced, and the man doesn't give her anything, then she's really up shit creek. Of course this can go the other way too, but it's more common this way, so please forgive the sexism. In a case like this, does the man have an obligation to give her a large chunk of his money, given that he can earn money more easily than she can?
I dunno, I'm just rambling at this point. But, after seeing in the "manpower" thread how many wanna-be lawyers TL has, I wanna test TL law. What do you guys think about divorce law? And, if you're not from the US, how does it work in your country?
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lost is comming to life man
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On January 10 2009 14:39 jimminy_kriket wrote:
lost is comming to life man
Huh? I've never seen lost.
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hahaha, you either give him the kidney or die.
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thedeadhaji
39489 Posts
w/o a prenup it is 1/2, with any ambiguous thingies going in favor of the "less financially potent" side, which is usually the wife. If your family is far wealthier than the wife's side then you better as hell be planning on getting a properly drafted prenup no matter what the fuck she says about "not trusting me" or w/e BS she brings up.
In the case of the United States, ownership law and whatnot depends on state. ie california is derived from what was set under spanish rule + english rule, others are english rule only, and Louisiana is French.
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pretty sure if this goes to court it'll be pretty easy ruling in favor of the woman, and if somehow it isn't it'll surely be ruled in her favor upon appeal.
primary reasons are:
1. the kidney is 100% necessary to the woman's ability to live
2. the man knowingly and willingly gave the kidney to the woman with the full intent of her keeping it
i mean i guess you could argue that body parts are the highest form of personal property that we can own, but even then i think anyone would be able to see that the kidney is more essential to the woman than to the man, and that he's probably making this request out of simple spite or malice.
any reasonable court/jury should be able to see that this man's request is just absurd. he donated this kidney to save her life, and regardless of what happened during the marriage there's no reason to take it away (which, if they did, would be essentially taking her life away). if she really did "betray" him as the story says then fine, everyone feels sorry for you, but don't take her life away. let the bitch live with the guilt of knowing she turned her back on the man who kept her alive.
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Aus family law insofar as marriage breakdown is concerned is summed up by the following basic 'equation', for lack of a better word.
The Court conisders what the parties brought into the marriage (eg. a home, boat, business etc, etc), looks at what the parties contributed during the marriage (eg. one party may have earned 200k p.a. the other only 60k p.a. or one may have been a stay at home parent allowing the other to be the 'bread winner'; all of the aforementioned examples are contributions) and the future needs of the parties (eg. did the person who stayed at home forgo a career and thus limit their earning capacity after the dissolution of the marriage? If so they are seen to have greater future needs. Is one party going to look after the children full time? Then they have greater needs. Etc)
After weighing up these considerations it determines what the split should be from the asset pool thereafter.
That's Aus family law in a nutshell.
Edit: There's also no legislative '50/50' rule in Australia, in fact technically the judge is not allowed to start with such an assumption. But a look through the case law tends to support a different reality in practice 
Disclaimer: I don't practice in family law at all (I'm a criminal lawyer), but have worked pretty closely with, and have many friends who are, family law practitioners.
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Physician
United States4146 Posts
On January 10 2009 14:29 Luddite wrote: it raises a larger question; how should you split up assets after a divorce?
Out of all the questions the news prompted in you, that is the one you think merits a discussion? o_Oa
I would have gone for something with more flair such as A modern day Shylock demands his pound of flesh! What would Portia have done in our contemporary times?
+ Show Spoiler +http://www.enotes.com/shakespeare-quotes/pound-flesh
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If he did get the kidney back, wouldn't she die?
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Probably, but you could make the argument she could find another kidney. (I believe Kidneys are the more common organs)
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Whatever the outcome of the trial will change things dramatically.
Cases like this are what lead to the capitalization and consumerization (why does firefox think this is spelled wrong?) of things that normally and morally shouldn't be thought of this way.
Take passion crimes for example. Some douche bag 100 years ago found out his wife was cheating and planned out the murder of both his wife and the man then turned himself in and got a lesser crime because he was so furious he got off on a temporary insanity plea. Now everywhere this holds up. We call them 'passion crimes'. In fact in Texas there is/was a law that if you caught your spouse in the act of sex with someone else you had the right to shoot and kill that person.
Then there is shit like biotech, where people actually patent living bio engineered organisms and there are just so many variables involved that the laws can not even fathom dealing with the shit and it gets completely out of hand. Now companies like Monsanto can go around suing people who have any random bio-engineered crop on their property regardless of how it got there (I shit you not).
It's ridiculous.
I hope he loses.
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On January 10 2009 15:30 il0seonpurpose wrote:
If he did get the kidney back, wouldn't she die?
What would the husband do with the kidney anyways? Can you transplant it one more time?
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There is no way in hell they would make her give the kidney back or pay for it.
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This man is retarded.
By the way, i think now that the divorce rate is so high anywhere, the law should start enforcing prenup arrangements, for the sole purpouse of avoiding problems in the future. The couple must be aware that even though they love each other and shit, you cannot predict the future. And instead of going into court and fighting and ending bad, they should just arrange their stuff for the best.
I dont see any problem with prenup's arrangements. In fact i think they would solve this kind of stuff.
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This is at least as retarded as the concept of alimony.
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On January 10 2009 14:43 thedeadhaji wrote:
w/o a prenup it is 1/2, with any ambiguous thingies going in favor of the "less financially potent" side, which is usually the wife. If your family is far wealthier than the wife's side then you better as hell be planning on getting a properly drafted prenup no matter what the fuck she says about "not trusting me" or w/e BS she brings up.
In the case of the United States, ownership law and whatnot depends on state. ie california is derived from what was set under spanish rule + english rule, others are english rule only, and Louisiana is French.
On January 10 2009 15:59 Night[Mare wrote:
This man is retarded.
By the way, i think now that the divorce rate is so high anywhere, the law should start enforcing prenup arrangements, for the sole purpouse of avoiding problems in the future. The couple must be aware that even though they love each other and shit, you cannot predict the future. And instead of going into court and fighting and ending bad, they should just arrange their stuff for the best.
I dont see any problem with prenup's arrangements. In fact i think they would solve this kind of stuff.
I agree with the above.
But I do have a derailing question: when the woman talks about "trust" issues how should you respond?
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Well first and foremost this is impossible. It's illegal for an organ to be exchanged for anything of value. Organs in the United States cannot be bought or sold. Donating an organ is legally a gift and you cannot ask for gifts back. Nor can you assign a subsequent monetary value to an organ. Whats more, no reputable surgeon would perform the transplant, no court could compel a person to undergo such an operation.
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United States43602 Posts
On January 10 2009 16:06 Wala.Revolution wrote:Show nested quote +On January 10 2009 14:43 thedeadhaji wrote:
w/o a prenup it is 1/2, with any ambiguous thingies going in favor of the "less financially potent" side, which is usually the wife. If your family is far wealthier than the wife's side then you better as hell be planning on getting a properly drafted prenup no matter what the fuck she says about "not trusting me" or w/e BS she brings up.
In the case of the United States, ownership law and whatnot depends on state. ie california is derived from what was set under spanish rule + english rule, others are english rule only, and Louisiana is French. Show nested quote +On January 10 2009 15:59 Night[Mare wrote:
This man is retarded.
By the way, i think now that the divorce rate is so high anywhere, the law should start enforcing prenup arrangements, for the sole purpouse of avoiding problems in the future. The couple must be aware that even though they love each other and shit, you cannot predict the future. And instead of going into court and fighting and ending bad, they should just arrange their stuff for the best.
I dont see any problem with prenup's arrangements. In fact i think they would solve this kind of stuff. I agree with the above. But I do have a derailing question: when the woman talks about "trust" issues how should you respond?
Say "what if our baby son dies and you can't look at me without being reminded of him and you just can't deal with it?".
Extreme example but the point is you just can't know the future.
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On January 10 2009 16:19 Kwark wrote:Show nested quote +On January 10 2009 16:06 Wala.Revolution wrote:On January 10 2009 14:43 thedeadhaji wrote:
w/o a prenup it is 1/2, with any ambiguous thingies going in favor of the "less financially potent" side, which is usually the wife. If your family is far wealthier than the wife's side then you better as hell be planning on getting a properly drafted prenup no matter what the fuck she says about "not trusting me" or w/e BS she brings up.
In the case of the United States, ownership law and whatnot depends on state. ie california is derived from what was set under spanish rule + english rule, others are english rule only, and Louisiana is French. On January 10 2009 15:59 Night[Mare wrote:
This man is retarded.
By the way, i think now that the divorce rate is so high anywhere, the law should start enforcing prenup arrangements, for the sole purpouse of avoiding problems in the future. The couple must be aware that even though they love each other and shit, you cannot predict the future. And instead of going into court and fighting and ending bad, they should just arrange their stuff for the best.
I dont see any problem with prenup's arrangements. In fact i think they would solve this kind of stuff. I agree with the above. But I do have a derailing question: when the woman talks about "trust" issues how should you respond? Say "what if our baby son dies and you can't look at me without being reminded of him and you just can't deal with it?". Extreme example but the point is you just can't know the future.
lol Children of Men?
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On January 10 2009 14:39 jimminy_kriket wrote:
lost is comming to life man
thats what i was thinking too lol.
Freaking the dad tricked his son to steal his kidney lol
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On January 10 2009 16:19 Kwark wrote:Show nested quote +On January 10 2009 16:06 Wala.Revolution wrote:On January 10 2009 14:43 thedeadhaji wrote:
w/o a prenup it is 1/2, with any ambiguous thingies going in favor of the "less financially potent" side, which is usually the wife. If your family is far wealthier than the wife's side then you better as hell be planning on getting a properly drafted prenup no matter what the fuck she says about "not trusting me" or w/e BS she brings up.
In the case of the United States, ownership law and whatnot depends on state. ie california is derived from what was set under spanish rule + english rule, others are english rule only, and Louisiana is French. On January 10 2009 15:59 Night[Mare wrote:
This man is retarded.
By the way, i think now that the divorce rate is so high anywhere, the law should start enforcing prenup arrangements, for the sole purpouse of avoiding problems in the future. The couple must be aware that even though they love each other and shit, you cannot predict the future. And instead of going into court and fighting and ending bad, they should just arrange their stuff for the best.
I dont see any problem with prenup's arrangements. In fact i think they would solve this kind of stuff. I agree with the above. But I do have a derailing question: when the woman talks about "trust" issues how should you respond? Say "what if our baby son dies and you can't look at me without being reminded of him and you just can't deal with it?". Extreme example but the point is you just can't know the future.
Children of Men quote/reference?
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Right to the integrity of the person.
Movable accession.
Unilateral contract.
In order of descending strength. All would say that the woman has a right to the goddam kidney. Not all are common law. Civil law countries could easily fall back on abuse of rights, like Art 7. C.c.Q, or could make a much simpler case for the kidney comprising an extrapatrimonial right which is no susceptible to the real action being put forward by the former husband.
Generally speaking, this case will not change much unless the judges decide to get inventive with their rulings and create some new law that the legislator will be forced to hack away at.
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On January 10 2009 16:06 Wala.Revolution wrote:Show nested quote +On January 10 2009 14:43 thedeadhaji wrote:
w/o a prenup it is 1/2, with any ambiguous thingies going in favor of the "less financially potent" side, which is usually the wife. If your family is far wealthier than the wife's side then you better as hell be planning on getting a properly drafted prenup no matter what the fuck she says about "not trusting me" or w/e BS she brings up.
In the case of the United States, ownership law and whatnot depends on state. ie california is derived from what was set under spanish rule + english rule, others are english rule only, and Louisiana is French. Show nested quote +On January 10 2009 15:59 Night[Mare wrote:
This man is retarded.
By the way, i think now that the divorce rate is so high anywhere, the law should start enforcing prenup arrangements, for the sole purpouse of avoiding problems in the future. The couple must be aware that even though they love each other and shit, you cannot predict the future. And instead of going into court and fighting and ending bad, they should just arrange their stuff for the best.
I dont see any problem with prenup's arrangements. In fact i think they would solve this kind of stuff. I agree with the above. But I do have a derailing question: when the woman talks about "trust" issues how should you respond?
Easy: "fuck you bitch, get a jorb, I'll stay home and raise little Susie!"
I know, not the most politic way of going about it, but I don't waste time and cut right through the bullshit.
EDIT: I'm not a lawyer but I have taken family law courses in university and based on what I've learned this is the easiest straight up way of dealing with it. Prenup, or stf-up. Hey it ryhmes, so it's gotta be right.
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Best solution is to not marry the wrong person.
Asian culture frowns upon divorce so the divorce rate is typically lower in Asian countries, but the same marital problems (cheating, incompatibility, etc) exist like in Western countries. Only thing is that divorce is typically not an option because of the feared loss of face. There are many cases of guys running off to live with other women while they are still technically married to their wives.
So yeah, don't marry unless you really think the two of you are meant for each other (you could still be wrong lol).
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On January 10 2009 15:37 CharlieMurphy wrote:
Take passion crimes for example. Some douche bag 100 years ago found out his wife was cheating and planned out the murder of both his wife and the man then turned himself in and got a lesser crime because he was so furious he got off on a temporary insanity plea. Now everywhere this holds up. We call them 'passion crimes'. In fact in Texas there is/was a law that if you caught your spouse in the act of sex with someone else you had the right to shoot and kill that person.
To separate crimes of passion from random acts of violence towards humanity makes a lot of sense in my opinion. If you take someone who kills a man who has slept with his wife, he's very much less likely to be a serial murderer who will go around hacking the rest of the world's heads off; than a guy who kills indiscriminately and picks a target for no reason. And putting people in jail is about assessing their risk to the public. I wouldn't be so disappointed in them myself. Perhaps they are used to too much of an extent (by unscrupulous lawyers looking to make a buck)
PS to the OP, I hope a judge kicks his ass. To be demanding his kidney back is just ridiculous. He made his body part her body part. Plus he is a pretty fucking petty man.
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On January 10 2009 18:41 HamerD wrote:Show nested quote +On January 10 2009 15:37 CharlieMurphy wrote:
Take passion crimes for example. Some douche bag 100 years ago found out his wife was cheating and planned out the murder of both his wife and the man then turned himself in and got a lesser crime because he was so furious he got off on a temporary insanity plea. Now everywhere this holds up. We call them 'passion crimes'. In fact in Texas there is/was a law that if you caught your spouse in the act of sex with someone else you had the right to shoot and kill that person.
To separate crimes of passion from random acts of violence towards humanity makes a lot of sense in my opinion. If you take someone who kills a man who has slept with his wife, he's very much less likely to be a serial murderer who will go around hacking the rest of the world's heads off; than a guy who kills indiscriminately and picks a target for no reason. And putting people in jail is about assessing their risk to the public.
its not solely about protecting the public, its also a punishment.
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I dont know about the law. But it sounds absurd to want your transplanted kidney back.
Can one ask for purchased items back after divorce? as in: "I gave you a necklace of xxxx dollar, can i haz plox?"
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United States43602 Posts
On January 10 2009 16:25 Ideas wrote:Show nested quote +On January 10 2009 16:19 Kwark wrote:On January 10 2009 16:06 Wala.Revolution wrote:On January 10 2009 14:43 thedeadhaji wrote:
w/o a prenup it is 1/2, with any ambiguous thingies going in favor of the "less financially potent" side, which is usually the wife. If your family is far wealthier than the wife's side then you better as hell be planning on getting a properly drafted prenup no matter what the fuck she says about "not trusting me" or w/e BS she brings up.
In the case of the United States, ownership law and whatnot depends on state. ie california is derived from what was set under spanish rule + english rule, others are english rule only, and Louisiana is French. On January 10 2009 15:59 Night[Mare wrote:
This man is retarded.
By the way, i think now that the divorce rate is so high anywhere, the law should start enforcing prenup arrangements, for the sole purpouse of avoiding problems in the future. The couple must be aware that even though they love each other and shit, you cannot predict the future. And instead of going into court and fighting and ending bad, they should just arrange their stuff for the best.
I dont see any problem with prenup's arrangements. In fact i think they would solve this kind of stuff. I agree with the above. But I do have a derailing question: when the woman talks about "trust" issues how should you respond? Say "what if our baby son dies and you can't look at me without being reminded of him and you just can't deal with it?". Extreme example but the point is you just can't know the future. Children of Men quote/reference?
No. Never heard of it.
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If he's not lying and she betrayed him after he's given one of his own organs to save her life, she deserves to lose the case and most likely, her life.
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On January 10 2009 16:25 Ideas wrote:
Children of Men quote/reference?
Think thats more of a minority report reference-
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Alimony is not a rediculous concept. There's a reason the idea has been around since the Summerians.
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anyway no surgeon would reimplant his kidney back
there would be no point
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OMFG, where's "The Bear" when you need him!?!
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1. If you make a lot of money, get prenup
2. Gimme my kidneys or pay me bitch...
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Cayman Islands24199 Posts
On January 11 2009 00:22 aRod wrote:
Alimony is not a rediculous concept. There's a reason the idea has been around since the Summerians.
you just can't appreciate the genius that is headbangaa
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On January 11 2009 03:13 oneofthem wrote:Show nested quote +On January 11 2009 00:22 aRod wrote:
Alimony is not a rediculous concept. There's a reason the idea has been around since the Summerians. you just can't appreciate the genius that is headbangaa
What a thoughtful response.
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Netherlands19137 Posts
Long story short, the Kidkey doesn't exist anymore as item per se. It is part of the womans body now and 100% integrated. It's not an item on its own anymore and to affect the kidney you have to affect her body as a whole. Even if she did something as far as steal his kidney (as illegal surgeon in his sleep while sedated or whatever in some horror story) he would have no right to his kidney back as it existed as an item purely during transplant when it wasn't a part of anyone's body. The only thing that would be remaining to him would be a damages claim where a judge would value his lost kidney in a monetary sum plus a criminal charge for heavy assault resulting in extreme injuries.
However he just donated it freely.
Next point in that line is that the human body is a lawsubject not a lawobject and isn't subject to the rolls governing items and material posessions. Hence the woman and in extention the kidney are out of any danger of ever getting anything related to the kidney itself. The human body (and all parts of it) are not a posession.
You do not even posess your own body in the eyes of the law. You cannot do with it what you want, you cannot mortgage it, loan it, sell it or parts of it for that matter. Somethings can in special circumstances be donated but never for any financial gain or prospect. The fact alone that he donated it freely, even if he was abused, tricked or lied to cannot possibly lead to any financial gain or compensation in the eyes of the law.
You do not own your body in the eyes of the law. (And yes this is tough for most people to accept)
Again: He donated his kidney, there can be no financial gain or profit involved. Hence he cannot even be paid a sum of damages since he donated it freely and there can be no financial value attached to that. Plus the item he wants returned doesn't even exist anymore as it became a part of something else plus the fact that the thing it became part of isn't even an item in itself so the kidney did not only lose its status as a seperate item after being implanted but due to the nature of the non-object (actually subject) in which it was implanted it also lost the nature of item and subsequently lost the possibility to be affected by any laws or regulations affecting material posessions and item.
Hope that made sense just wrote it out quick hehe.
Divorce law is too complicated to just write a quicky on hehe, this were just two easy basics in law concerning the human body.
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Nyovne, how about the medical procedures involved in donation and possible related fees? Let's say he paid a million bucks for the surgery out of his own pocket. Would he have a valid claim if he asked for money for that?
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Netherlands19137 Posts
He cannot receive any compensation for the donation other then the damages he sustained (financial or otherwise). The word profit is taboo concerning anything even faintly related to organ donation. (Or any other profit related to the use of any material from a human body. But dont get started on this one it doesnt fly in a million cases and hypocracy is the rule of fact).
If she caused him damages in "expenses made" yeah he could claim that back I guess. But then only if she tricked him, false pretences or whatever. But this again brings up the point that a underlying bargain would most likely be required for any damages caused and to repeat myself there can be no financial gain, hence what underlying bargain, hence damages caused in what related context? If you get my drift.
The ex-husband in all good knowledge and consent pays for the surgery (if not insured) and donates his kidney willingly and for no financial gain. Case closed. Then they get divorced, tough luck. I'd say even if she was planning on divorcing him but waits until after he donates his kidney so he won't change his mind and he donates the kidney and then she divorces this changes nothing about the fact that he freely donated his kidney and the fact that he wasnt correctly aware of the whole situation and 100% informed about his wifes intentions doesn't change anything after the kidney is implanted in his wife.
I'm just calling it a bad beat for the husband in any scenario.
The only scenario's where he would have a claim in damages would be the one where the claim would be based on something illegal and there would be no resulting case at all to bring that claim forward in.
Plus the fact that because there can be no valueing something that cannot lead to profit on the moral basis that one cannot value human life or human organs in all good conscience as written in Law that one could receive a compensation for it in damages and hence would be valued afterall while the whole basis is that it is without ascertainable monetary value.
What would remain is a criminal charge for assault resulting in severe injury or w/e its called if she took his kidney or abused him into giving it, but not civil suit I can imagine succeeding.
A criminal charge if she tricked him into donating the kidney would probably have the best shot I think but even that would be very very very thin ice and would set a terrible precedent but at least it would dodge the financial gain bullet while it might still give satisfaction to the injured (husband) and might serve justice in a desired context (not mine for sure).
Its a bit of a ramble but again I hope it makes some sense BottleAbuser  .
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Netherlands19137 Posts
Oh a small addendum here:
If you were to donate your kidney to me and I would pay for your travel expenses and other aids you might require during your revalidation process or possibly incurred loss of income during this period that would be no problem at all. That would just be compensation for suffered damages/made expenses and wouldn't lead to any profit on part of the donor.
edit: crap why do these things always turn out so much longer then intended in the first place ^^;.
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Criminal charges? That's an incredibly long bow to draw. I don't know of a criminal offence in this country that wouldn't run into the same problems of definition you've already outlined. As well as others such as lawful excuse.
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Netherlands19137 Posts
Tricking someone into doing something that results in severe bodily injury is a long bow how from criminal charges? And yes losing an organ qualifies in severe bodily injury even if one can function normally without it (see cases on spleens after physical abuse).
But yeah it would have alot of the same problems but since criminal charges are between the state and the offender there is no issue of the victim profitting so that removes the biggest problem.
The next is if it is actually desireable to prosecute on these bases as it will set a really really nasty precedent and will make organ donation an even riskier business as it is allready and will discourage even more people from doing it. Hence it will probably not be tried or if so it will most likely result in a dismissal as any conviction would do more harm the letting these few dubious cases get away.
Justice has to be served but as judge one must always keep in mind the greater good as well and individual justice can suffer from that at times to prevent many others from suffering where it would be injustified. This is mostly a problem in caselaw countries though, in civillaw countries such as continental europe I could easily see this as being tried before a criminal court and in case of a conviction see a following civil suit where a reparation for damages and expences could be tried.
Would be a very interesting case in my opinion, however it would require alot more malintent then there is displayed in this case. There was a period of 4 years between the donation and the file for divorce so it seems pretty obvious (at least from the little information that the article provides us with) that there is no link between her marrying him for an organ donation or postponing a divorce to secure her husband wellwillingness to donate his kidney. This just seems to be a hard knock life for the husband.
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What are you going to charge her with? Obtaining 'property' by deception? Without lawful excuse causing serious injury?
It was a kidney transplant for crying out loud. What is the deception? That she didn't actually need the kidney? Or do you actually intend to allege that she created the relationship to induce his donation. Oh god the evidentiary issues...
What's the injury? The surgery and removal of the organ? Lawful excuse.
If you're going to draw a bow that long you may as well charge the surgeons for being complicit in the crime. They aided the procurement of the organ!! Doesn't that sound completely ridiculous and improbable? Yes. And so is a criminal charge against the woman. You even state further public interest grounds for why State authorities wouldn't pursue such charges in your above post. It's the sum of all these factors that make it a long bow to draw.
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Netherlands19137 Posts
On January 14 2009 06:54 Brett wrote:
What are you going to charge her with? Obtaining 'property' by deception? Without lawful excuse causing serious injury?
It was a kidney transplant for crying out loud. What is the deception? That she didn't actually need the kidney? Or do you actually intend to allege that she created the relationship to induce his donation. Oh god the evidentiary issues...
What's the injury? The surgery and removal of the organ? Lawful excuse.
If you're going to draw a bow that long you may as well charge the surgeons for being complicit in the crime. They aided the procurement of the organ!! Doesn't that sound completely ridiculous and improbable? Yes. And so is a criminal charge against the woman. You even state further public interest grounds for why State authorities wouldn't pursue such charges in your above post. It's the sum of all these factors that make it a long bow to draw.
Kidneys aren't property to start with and yeah I obviously ment (and explicitly stated) the scenarios where she started a relationship to induce his donation which I'm absolutely 100% sure about that I could make a case for it and a good one to boot. There's so much legal basis for it on both sides of the pond. The verdict is going to be another matter alltogether plus the fact that getting evidence is almost impossible but those are another matter. I was just talking about actually making a case and getting a trial started.
And I don't possibly see how you can't clasify the unwanted removal of an organ as something other then resulting in severe injury. If she goaded him into it under false pretenses there is a lack of compatible wills hence the unwanted.
Barring the evidence required which is really hard to aquire if not impossible (but so can be proving murderous intent) and the fact that the verdict will have big repercussions (esp in a commonlaw state) , I'm 100% sure I can build a good case for a husband who got goaded into donating a kidney soon after getting married and then got immediately divorced. If it's in the case of a longer lasting relationship (say 10 years or more just to be on the safe side) and he donates and then she immediately divorces him it already gets alot trickier but even there the basis would be the same, the evidence would just even be harder to procure.
I'm not saying this is right or it should be (actually I think it is, esp in the first marry to goad into donation case), I'm just saying that there is valid reasoning possible to build this into a case but the circumstances would have to be exceptional (and obvious most of all).
Pus again the main reason I would see this as the only result of getting satisfaction for "the victim" is as a civil suit is pretty much barred from his options as its impossible to value certain things or even illegal to do so let alone the fact that he might financially profit. Where this is impossible in a criminal suit because he is not even party to the proceedings State vs Purpetrator (sp?).
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Netherlands19137 Posts
If you assume that you can prove that the woman had knowledge of this man being a compatible and capable donor prior to the start of the relationship and her being in need of one or knowing she would soon be, then seducing him and starting a relationship with him, moment of truth arrives and he donates the kidney, which is succesfully transplanted into her body, after which she proceeds to leave/divorce depending on the legal status of the relationship.
If you can prove all that I'm 100% sure you can get her convicted for causing serious injury without lawful excuse because she pulled the wool over his eyes (the fact that the guy is a total too trusting madly in love retard doesn't matter or even makes it worse for her case) to donate his kidney to her. If he states that he wouldn't have donated his kidney if he was aware of all the facts and her intentions (something no judge or jury would doubt I'm sure) then there is no lawful excuse. It's plain old deception to gain compliance to engage in an act which results in severe bodily harm.
It's very very very exceptional circumstances sure, and the evidence is really hard to aquire. Plus the fact what the verdict would turn out to be, but I'm sure theres a good case in there .
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wow nyovne, that last paragraph you wrote was awesome. You are very good with words my friend.
Lawyer perhaps?
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Well, holy shit, of course if you want me to make all of those concessions it's possible to make a case for it (although I'm still not convinced the lawful excuse hurdle is cleared where a reasonable person of firm mind consents to organ donorship which is, as you've already stated, a non profit enterprise, even where induced to do so for another's benefit... partly because organ donorship is always to the donee's benefit).
In any event my comment was: That's an incredibly long bow to draw. And you've just agreed that it would be very very very exceptional circumstances. I'm not exactly sure that we disagree here! Almost everything in law is arguable, however unrealistic many of those arguments are...
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Australia3818 Posts
Just hang on...I'll get The Bear.
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Netherlands19137 Posts
Just took the chance for a purely academic discussion there. Where it will remain until such an elaborate case presents itself ^^.
And thanks for the praise attackzerg but im no lawyer (perhaps later in life), atm Im graduated in Healthlaw and now doing my 2nd masters in Trade and Corporate law, with specialisations in intellectual propertylaw and aiming at a Intellectual property/Patent specialisation PostMaster in a month or 18 from now . Hope that all works out ;p.
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I hate to chime in late on this discussion, but I just found the thread.
For the reasons stated by Nyvonne and others the demand will fail because U.S. law prohibits the transfer of organs for "valuable consideration."
Me give money for organ? Illegal.
NY judge order me give money for organ? Still Illegal.
Dr. Batista has stated the reason he made the demand was to bring attention to the allegation that his wife was not allowing him proper visitation with his children.
I suspect the demand was made to influence the judge deciding the ongoing divorce settlement between the two. New York is not a "community property" state. (Community property law divides marital property 50 / 50.) My understanding of New York law is that a concept of "equitable distribution" applies to create a "fair" settlement. The judge has a tremendous amount of leeway.
In this case, the doctor, I would guess, has more non-marital property and greater income potential than his spouse. Typically a judge might be inclined to award the spouse a greater share of the marital property based on this information, but the judge can consider many other factors. I am guessing that this was a clever stunt to put the idea in the judge's head that the spouse is $1.5 million wealthier now that she has a working kidney, and the judge should deduct that or some other reasonable amount from the spouse's total award in the final judgement.
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Bisutopia19307 Posts
Even though a bot res-ed this thread:
This is a very brief overview of what a woman is doing to my friend. Her actions are far worse then described below:
I've got a friend (a father of two young kids) who has been trying to get divorced for 3 years now. His wife was the one who served him with the divorce. In the time since she served papers, she has had a child a with man who is a convicted felon for drugs and domestic violence against two other baby mamas. (This guy allegedly beat her and threatened to kill the entire family, but she dropped those charges against this man). Her actions have gotten so bad, until the divorce goes through she is only allowed to see her two original kids on weekends.
She has:
* Called DCF on my friend at least a dozen times including officer involved visits. All provable fake claims. My friend has a camera in every room of his house now to record everything
* Made fake assault claims to the police and then called his school principal which got him put on paid leave until the police proved her claims were invalid
* Had 4 different lawyers removed themselves from representing her because of her constant lying to them
She also has gotten the divorce court date pushed back 4 times because of either changes in lawyers or submitting evidence for fake claims the day before trail only to remove them after the court date is changed. This is because she knows she will lose full custody to her soon to be ex-husband.
At this rate it will probably take 4 years for him to successfully free himself of this torture. It could be longer, cause there is no law preventing you from firing and hiring attorneys and could just do this indefinitely, thus preventing my friend from ever getting to spend the weekend with his children until this is over.
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EPT
