Virginia judge to decide whether state law considers embryos as property

FAIRFAX, Va. – A trial is underway in Virginia that will determine whether state law allows frozen embryos to be considered property that can be divided up and assigned a monetary value.

Fairfax County Circuit Court Judge Dontae Bugg heard arguments Thursday from a divorced couple who disagree over the ex-wife’s desire to use two embryos that they created when they were married.

Honeyhline Heidemann says the embryos are her last chance to conceive a biological child after a cancer treatment left her infertile. Jason Heidemann, says he does not want to be forced to become a biological father to another child.

The case attracted national attention last year when a different judge, Richard Gardiner, ruled that embryos could be considered “goods or chattel” that could be divided under state law, and his analysis relied in part on a 19th-century law governing the treatment of slaves.

Gardiner is no longer assigned to the case, for reasons unrelated to his citation of slavery as a precedent.

The case also comes as reproductive rights activists have expressed alarm over a ruling from the Alabama Supreme Court that found embryos could be considered children under that state’s law.

There is little case law in Virginia governing the treatment of embryos.

Honeyhline Heidemann’s suit was brought under a partition statute that governs the division of property between interested parties.

Jason Heidemann’s lawyer, Carrie Patterson, argued that there is no precedent for it because that law is not designed to deal with embryos. Its primary purpose, she said, is to govern the division of real estate.

Case law that exists nationally regarding embryos recognizes that they are not mere property, she said, but rather property with special characteristics that require courts to balance competing interests.

One of the things a judge must consider when evaluating such cases is a person’s “right to procreational autonomy.” In this case, Patterson said, her client has a strong interest in avoiding procreating against his will.

Honeyhline’s Heidemann’s attorney, Jason Zellman, argued that the partition statute applies if the embryos are classified as property, and if they can be assigned a monetary value.

Documents that both Heidemanns signed with the IVF provider specifically refer to the embryos as property, he said, and thus their value can be assessed as the cost incurred in their creation.

Because there are two embryos, he added, the judge has an easy means of dividing up the property: Award one embryo to each party.

Bugg, who said he will issue a ruling at a later date, expressed misgivings about the notion of assigning a monetary value to the embryos.

Zellman acknowledged that the case presents some novel issues, but he also suggested to the judge that it doesn’t need to “blaze the headlines” or establish any sweeping precedent. He said the unique facts of the Heidemanns’ case — including language in their divorce settlement requiring the embryos to remain in storage “pending a court order” — will distinguish it from future disputes.

The judge readily accepted that notion, saying, “I don’t think anything I do in this case applies to anyone but the Heidemanns.”