Virginia judge to decide whether state law considers embryos as property
FAIRFAX, Va. — A lawsuit is underway in Virginia that will determine whether state law allows frozen embryos to be considered property that can be divided and assigned a monetary value.
Fairfax County Circuit Court Judge Dontae Bugg heard arguments Thursday from a divorced couple who disagreed over the ex-wife’s desire to use two embryos they created when they married.
Honeyhline Heidemann says the 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 a biological father to another child.
The case attracted national attention last year when another judge, Richard Gardiner, ruled that embryos could be considered “property or property” that could be divided under state law. His analysis was based in part on a 19th-century law governing the treatment of slaves.
Gardiner is no longer involved in the case, for reasons unrelated to his citing of slavery as a precedent.
The case also comes as reproductive rights activists have raised concerns about an Alabama Supreme Court ruling that found embryos can be considered children under that state’s law.
There is little case law in Virginia regarding the treatment of embryos.
Honeyhline Heidemann’s lawsuit was subject to a partition statute that governs the division of property between interested parties.
Jason Heidemann’s attorney, Carrie Patterson, argued there is no precedent for it because that law is not intended to deal with embryos. Its main purpose, she said, is to regulate the division of property.
The case law that exists at the national level regarding embryos recognizes that embryos 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 assessing such cases is a person’s “right to reproductive autonomy.” In this case, Patterson says, her client has a strong interest in reproducing against his will.
Honeyhline’s Heidemann’s attorney, Jason Zellman, argued that the apportionment statute applies if the embryos are classified as property and if a monetary value can be assigned to them.
Documents that both Heidemanns signed with the IVF provider specifically refer to the embryos as property, he said, and so their value can be assessed as the costs incurred in creating them.
Because there are two embryos, he added, the judge has an easy way to divide the property: award one embryo to each party.
Bugg, who said he will make a ruling at a later date, expressed doubts about the idea of putting a monetary value on the embryos.
Zellman acknowledged that the case raises some new issues, but he also suggested to the judge that it doesn’t have to “make headlines” or set a precedent. He said the unique facts of the Heidemanns’ case — including language in their divorce settlement requiring the embryos to remain in custody “pending a court order” — will distinguish it from future disputes.
The judge immediately accepted that idea, saying, “I don’t think anything I do in this case applies to anyone other than the Heidemanns.”