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 Donta Bugg heard arguments Thursday from a divorced couple who disagree with their ex-wife’s wishes to use two embryos they created while they were married.
Honeyline Heidemann says these embryos are her last chance to conceive a biological child after cancer treatment left her infertile. Jason Heidemann says he doesn’t want to be forced to become the biological father of another child.
The case gained national attention last year when another judge, Richard Gardiner, ruled that embryos could be considered “goods or chattels” that could be divided under state law, an analysis that relied in part on 19th century law regulating the treatment of slaves.
Gardiner is no longer assigned to the case for reasons unrelated to his invocation of slavery as a precedent.
The case also comes as reproductive rights activists have expressed alarm over an Alabama Supreme Court decision that found embryos can be considered children according to the laws of this state.
Virginia has little case law governing the handling of embryos.
Honeyhline Heidemann’s lawsuit was brought under the law of partition, which governs the division of property between interested parties.
Jason Heideman’s lawyer, Carrie Patterson, said there is no precedent for this because the law is not intended to deal with fetuses. According to her, its main purpose is to regulate the division of real estate.
She said domestic case law regarding embryos recognizes that they are not simply property, but rather property with special characteristics that require courts to balance competing interests.
One of the things a judge must consider when considering such cases is the “individual’s right to reproductive autonomy.” In this case, Patterson said her client has a strong interest in avoiding childbearing against his will.
Honeyhline Heidemann attorney Jason Zellman said the sharing law applies if the embryos are classified as property and if they can be assigned a monetary value.
He said the documents both Heidemanns signed with the IVF provider specifically referred to the embryos as property, and thus their value could be assessed as the costs incurred in creating them.
Because there are two embryos, he added, the judge has a simple way to divide the property: award one embryo to each party.
Bugg, who said he would rule at a later date, expressed misgivings about the idea of assigning a monetary value to embryos.
Zellman acknowledged that there are some new issues in the case, but he also advised the judge that there was no need to “make headlines” or set any sweeping precedents. He said the unique facts of the Heidemans’ case, including language in their divorce agreement requiring embryos to remain in storage “pending the court’s decision,” will differentiate it from future disputes.
The judge readily agreed with the idea, saying, “I don’t think anything I do in this case applies to anyone other than the Heidemans.”