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In a ruling last month, a Virginia judge said frozen human embryos can be legally considered as property, citing a 19th-century law governing the treatment of slaves.
Fairfax County Circuit Judge Richard Gardiner has been criticized over his Feb. 8 preliminary opinion where he defined the frozen embryos of a divorced couple as “goods or chattels.”
“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,” Gardiner wrote in his opinion.
Gardiner’s decision settled a long-running dispute between a divorced couple, Honeyhline and Jason Heidemann, who have two frozen embryos in storage. Honeyhline Heidemann, 45, wants to use the embryos to conceive but her ex-husband objects.
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Criticism over the ruling
The ruling was condemned by legal experts who said it was unnecessary and wrong for Gardiner to cite a slave code to justify his ruling.
“It’s repulsive and it’s morally repugnant,” said Susan Crockin, a lawyer at Georgetown University’s Kennedy Institute of Ethics and an expert in reproductive technology law
Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, found Gardiner’s ruling troubling. He hopes that the law will progress for modern society.
“I would like to think that the bench and the bar would be seeking more modern precedent,” Ashby said. “Hopefully, the jurisprudence will advance in the commonwealth of Virginia such that … we will no longer see slave codes (cited in legal rulings).”
Crockin said she has not heard of any other judge in the U.S. who has concluded that human embryos can be bought and sold. Crockin added that courts should recognize that embryos have to be treated in a more nuanced way than as mere property.
Virginia frozen embryos case
Gardiner initially sided with Jason Heidemann on the case, ruling that Honeyhline Heidemann could not claim custody of the frozen embryos because they couldn’t be bought or sold and therefore couldn’t be considered as “goods or chattels.”
But after Honeyhline Heidemann’s lawyer, Adam Kronfeld, asked Gardiner to reconsider, Gardiner delved into the old rulings that governed custody disputes involving slaves. He found that before the Civil War, the “common law of goods or chattels” also applied to slaves.
After seeing similarities between the divorced couple’s dispute and the old rulings, Gardiner retracted his initial ruling. Although neither of the Heidemanns’ lawyers raised the slavery issue, they did raise other arguments in support of their cases.
Jason Heidemann’s lawyers argued that allowing his ex-wife to use the frozen embryos “would force Mr. Heidemann to procreate against his wishes and therefore violate his constitutional right to procreational autonomy.”
Kronfeld argued that Honeyhline Heidemann right supersedes her ex-husband’s objections as he would not be legally obligated to be their parent and because Heidemann is infertile.
Kronfeld also argued that the couple already designated the embryos as property in their initial separation agreement in 2018, where they agreed that the embryos would remain in storage until a court order otherwise.
But Gardiner’s ruling is not final. He has not yet ruled on other arguments in the couple’s case, including Jason Heidemann’s objection that the use of the embryos would violate his procreational autonomy.
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Contributing: The Associated Press
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