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Frozen human embryos can legally be considered property, or “chattel,” a Virginia judge has ruled, basing his decision on part of a 19th-century law governing the treatment of slave.
Fairfax County Circuit Court Judge Richard Gardiner’s preliminary opinion — delivered in a long-running dispute between a divorced husband and wife — has been criticized by some for misrepresenting and unnecessarily examining a period in the history of Virginia when it is legal to own a person. beings.
“It’s disgusting and it’s morally wrong,” said Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics and an expert on reproductive technology law.
Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up of African American lawyers, called Gardiner’s ruling troubling.
“I would like to think that the bank and the bar will find a more modern standard,” he said.
Gardiner did not return calls to his chambers Wednesday. His decision, issued last month, is not final: He has yet to rule on other arguments in the case involving Honeyhline and Jason Heidemann, a divorced couple fighting over two frozen embryos. which remains in storage.
Honeyhline Heidemann, 45, wants to use the embryos. Jason Heidemann objected.
At first, Gardiner sided with Jason Heidemann. The law at the heart of the case governs how “goods and things” are divided. The judge ruled that since the embryos could not be bought or sold, they could not be considered as such and therefore Honeyhline Heidemann had no way under that law to claim custody of them.
But after the ex-wife’s attorney, Adam Kronfeld, asked the judge to reconsider, Gardiner did a deep dive into the law’s history. He found that before the Civil War, it was also used for slaves. The judge then reviewed past decisions governing custody disputes involving slaves, and said he found parallels that forced him to reconsider whether the law should apply to embryos. .
On the separate side in his opinionGardiner also said he was wrong when he initially concluded that human embryos could not be sold.
“As there is no ban on the sale of human embryos, they can be valued and sold, and thus can be considered ‘goods or things,'” he wrote.
Crockin said he is not aware of any US judge who has concluded that human embryos can be bought and sold. He said the trend, if anything, is to recognize that embryos should be treated in a more nuanced way than just property.
Ashby said he was puzzled that Gardiner felt the need to delve into slavery to answer a question about embryos, even though Virginia case law is thin on how to handle questions of embryo custody.
“Hopefully, jurisprudence will advance in the commonwealth of Virginia such that … we will no longer see slave codes” cited to justify legal decisions, he said.
None of the Heidemann lawyers raised the issue of slavery. However they raised other arguments in support of their cases.
Jason Heidemann’s attorneys said allowing his ex-wife to implant the embryos they created when they were married “would force Mr.
Honeyhline Heidemann’s lawyer, Kronfeld, argued that Honeyhline’s right to the embryos outweighed her ex-husband’s objections, partly because he had no legal obligation to be their parent and partly because because she had no other options to conceive biological children after undergoing cancer treatments that made her infertile.
Kronfeld also argued that the initial separation agreement the couple signed in 2018 already treated the embryos as property when they agreed — under a subheading titled “Division of Personal Property” — that the embryos would remain in cryogenic storage until the court orders otherwise.
Gardiner has yet to decide Jason Heidemann’s procreational autonomy argument.
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