A judge’s recent decision in Virginia to allow a divorced woman to pursue the use of frozen embryos has raised eyebrows due to its reliance on an 1849 law that regarded enslaved people as goods that could be bought and sold. Judge Richard E. Gardiner of Fairfax County ruled that the divorced woman seeking the embryos could sue based on a law that governs the partitioning and distribution of goods or chattels on real property. Gardiner argued that the law is not limited to goods or chattels on land being partitioned, given an 1849 version titled “partition of slaves and other chattels.” The ruling is controversial because enslaved people could be sold under the old law, even though they were not annexed to the land.
The judge’s decision has been criticized by legal experts and scholars, including Lisa Ikemoto, a professor at the University of California at Davis School of Law, who argued that while it is “logically possible” to treat the disposition of the frozen embryos as a property distribution, the judge “doesn’t have to go into the slave law.” Ikemoto also argued that Gardiner “is reviving the use of a law that treated humans as property in the 21st century. It is reprehensible and offensive.” Similarly, Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics, called the opinion “repulsive and morally repugnant.”
The lawsuit at the center of the ruling was brought by Honeyhline Heidemann against her ex-husband, Jason Heidemann, for possessing their two remaining frozen embryos. Before their 2018 divorce, they reached a separation and property settlement agreement that acknowledged the embryos were in cryogenic storage. The agreement specified that the parties would be equally responsible for the cost of storage and that “neither of them will remove such embryos from storage,” pending a court order or further written agreement of the parties regarding their disposition.
Honeyhline Heidemann filed a motion in April 2019 seeking to reopen the divorce to determine the disposition of the embryos. However, the motion was dismissed because the court no longer had jurisdiction. In November 2021, Honeyhline Heidemann responded with a lawsuit seeking the partition of personal property.
Gardiner’s ruling did not address a second issue: whether Jason Heidemann had a 14th Amendment right to procreational autonomy that barred his ex-wife’s use of the embryos. Gardiner argued that this argument was premature and did not need to be addressed at this time.
The controversy surrounding the decision has highlighted the need for a deeper conversation about the legal and ethical implications of using frozen embryos. The decision also brings attention to the continued impact of past laws that have treated humans as property, particularly laws related to slavery. It remains to be seen how this ruling will impact future legal cases related to the disposition of frozen embryos and whether it will lead to a reexamination of laws that have treated humans as property.