Judge finds frozen embryos are not divisible property in cancer survivor’s case against ex-husband

FAIRFAX, Va. – A northern Virginia judge determined embryos are not property that can be divided up, rejecting a previous analysis by the court saying such fertilized eggs could be considered divisible “goods or chattel” based on 19th-century slave law.

Nearly 10 months after closing arguments, Fairfax Circuit Court Judge Dontaè L. Bugg wrote in an opinion letter earlier this month that he would dismiss a cancer survivor’s partition lawsuit against her ex-husband — a legal action that one property owner can take against another. The former wife, Honeyhline Heidemann, sued Jason Heidemann over access to two embryos they froze during a 2015 cycle of in vitro fertilization but agreed to leave in storage during their divorce three years later.

In the bench trial, Honeyhline Heidemann testified the embryos were her last chance to conceive another biological child after a cancer treatment. Jason Heidemann’s attorney argued he did not want to become a biological father to a child by force, even if he wasn’t required to be a parent.

The dispute attracted national attention in 2023 when Judge Richard E. Gardiner — who is no longer assigned to the case for unrelated reasons — referenced slavery-era law when overruling Jason Heidemann’s pleading that the state’s partition statute did not include the embryos. Bugg wrote in his March 7 letter that he took issue with Gardiner’s reliance on state law predating the passage of the 13th Amendment of the U.S. Constitution abolishing slavery.

Bugg wrote that Virginia lawmakers have since 1865 removed references to slavery to “excise a lawless blight from the Virginia Code, the institution of slavery applicable to fellow citizens, which removal supports that human beings, and by extension embryos they have created, should not as a matter of legislative policy be subject to partition.”

Bugg’s dismissal of the case comes during a growing national debate on whether fetuses are human. Seven states have defined embryos, fertilized eggs or fetuses as a “person,” “human being” or “another” in their homicide code, according to Pregnancy Justice’s unpacking fetal personhood report from last September.

In 2024, the Alabama Supreme Court ruled that frozen embryos are people.

And later that year, U.S. Senate Republicans blocked legislation that would make it a right nationwide for women to access in vitro fertilization and other fertility treatment after then-Senate Majority Leader Chuck Schumer forced a vote on the issue.

Before this trial, there was little case law in Virginia governing the treatment of embryos.

Jason Zellman, Honeyhline Heidemann’s attorney, acknowledged in court that the case touched on sensitive issues, but he also suggested Bugg didn’t need to establish any sweeping precedent. Honeyhline Heidemann, who had a daughter with Jason Heidemann through the same in vitro cycle, also testified that she hoped to acquire both remaining frozen embryos, but would also accept if Bugg separated the fertilized eggs between her and the former husband.

Carrie Patterson, Jason Heidemann’s attorney, argued the judge should not conclude that embryos could be sold or divided. Although Virginia courts have the power to direct the sale of property, Patterson also referenced that the American Society for Reproductive Medicine had deemed the sale of fertilized eggs unethical.

Bugg wrote there was no case law suggesting fertilized eggs should be valued, bought or sold — nor did he have evidence there would be a mechanism to carry out such a process given embryos’ nature.

“It is obvious that these two human embryos, if implanted and carried to term, would not result in the same two people,” he wrote. “In fact, the embryos are as unique as any two people that may be selected from the population, including siblings with the same biological parents.”

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Olivia Diaz is a corps member for The Associated Press/Report for America Statehouse News Initiative.