Headlines were made recently when a disgruntled woman allegedly demanded that her ex-husband, who had left her for one of her friends, return the kidney she had donated to him during their relationship. Although the kidney was the only thing standing between her ex-husband and the pearly gates, the woman asserted that she would rather the kidney go to, in her view, a more deserving candidate.
Although this takes it to extremes, it is not unheard of during a separation for one party to demand that a former spouse or partner give up the physical benefits endowed upon them by their former partners through plastic surgery or similar.
So what is the law’s returns policy on organs and implants?
Although there are no decided cases on the matter, it is almost certain that the Courts would refuse to make any Order requiring a party to reverse surgery conducted during the relationship, whether funded by the other party or otherwise.
Aside from the potential health complications and moral quandaries associated with such an Order, the Family Law Act 1975 (Cth) only grants the Court the power to adjust parties’ interests in the “property? of the marriage. Although the term “property? has a wide definition and the Courts have been reluctant to place any limits on the concept, it is almost certain that it would be held that organs and/or implants within the body do not constitute property.
In Queensland, the Transplantation and Anatomy Act 1979 (Qld) makes it a crime to exchange human tissue for monetary consideration and restricts the situations in which such tissue may be given to other persons. There are also strict limits in Commonwealth intellectual property legislation relating to the ownership of human tissue and its components.
Compensation for surgeries conducted during the relationship is also unlikely to be awarded in the absence of one party being able to prove that the money used to pay for the surgery was “wasted? in the sense of the case Kowaliw & Kowaliw.