Citing Slavery-Era Property Law, VA Judge Rules Embryos are Property

A Virginia judge relied in part on a 19th century law that defined enslaved people as property in a recent decision to allow a divorced woman to pursue using embryos that she shared with her former husband — a ruling that has drawn criticism.

The request by the woman, Honeyhline Heidemann, 45, represented an issue that had not been previously addressed by the court, Richard E. Gardiner, a Fairfax County Circuit Court judge, wrote in an opinion last month.

While previous cases asking for the division of frozen embryos have been considered within the legal context of splitting up marital property, the judge wrote in February, Ms. Heidemann was already divorced from her former husband, Jason Heidemann. So Judge Gardiner took a different approach, delving into earlier versions of Virginia’s current property law on “goods or chattels” to see whether embryos could be divided as property between people who are no longer spouses.

One version, an 1849 code, categorized “slaves” as property that could be divided and sold. The judge cited it to draw a parallel to the human embryo case, saying the code used “language almost identical” to current law.

“As there is no prohibition on the sale of human embryos, they may be valued and sold, and thus may be considered ‘goods or chattels,’” he wrote.

One of Ms. Heidemann’s lawyers, Adam T. Kronfeld, said on Wednesday that the judge’s ruling meant that the case could now proceed to trial. “As of yet, all that has happened is the court is allowing the case to go forward,” he said.

But some criticized the judge’s use of an old law governing “slaves” in reaching his decision, which The Associated Press wrote about this month.

Lisa Ikemoto, a bioethics professor at the U.C. Davis School of Law, said courts had generally taken three approaches to contested embryos by enforcing previous agreements, balancing the procreative interests of the parties, or by trying to get them to agree.

“It is logically possible that he could treat it as a distribution of property, but he doesn’t have to go into the slave law. So that was a jump,” Ms. Ikemoto said. “In a sense, he is reviving the use of a law that treated humans as property, in the 21st century. It is reprehensible and offensive.”