Frozen human embryos can be legally considered property, or “chattel,” A Virginia judge has ruled, basing the decision on a section of the 19th century law governing the treatment of slaves.
The preliminary opinion by Fairfax County Circuit Court Judge Richard Gardiner – sent in a long-running dispute between divorced husbands – is being criticized by some for wrong and unnecessary delving into the time in the history of Virginia when it was legally allowed to have a human. creature
“It’s repulsive and morally repugnant,” said Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute for Ethics and an expert on reproductive technology law.
Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African-American lawyers, called Gardiner’s decision troubling.
“I’d like to think that the bench and bar will look to a more modern precedent,” he said.
Gardiner did not return calls to his room Wednesday. his decision, issued last month, is not final: He has not ruled on other arguments in the case involving Honeyhline and Jason Heidemann, a divorced couple fighting over two frozen embryos that remain in storage.
Honeyhline Heidemann, 45, wants to use embryos. Jason Heidemann objects.
Initially, Gardiner sided with Jason Heidemann. The law in that case regulates how to divide “goods and things”. The judge ruled that since embryos cannot be bought or sold, they cannot be treated as such, so Honeyhline Heidemann does not have the right to claim custody.
But after her ex-husband’s lawyer, Adam Kronfeld, asked the judge to reconsider, Gardiner dived deep into legal history. He found that before the Civil War, it also applied to slaves. The judge then reviewed old rulings governing custody disputes involving slaves, and said he found parallels that forced him to reconsider whether the law should apply to embryos.
In a separate part of his opinion, Gardiner also said it was wrong when he first concluded that human embryos could not be sold.
“Since there is no prohibition on the sale of human embryos, they can be valued and sold, and therefore may be considered ‘goods or merchandise,'” he wrote.
Crockin said he is not aware of any other judge in the US who has concluded that human embryos can be bought and sold. He says the trend, if anything, is to recognize that embryos should be treated differently than as property.
Ashby said he was baffled that Gardiner felt the need to delve into slavery to answer questions about embryos, even if Virginia’s case law is thin on how to handle the question of embryo custody.
“Hopefully, the jurisprudence will advance in the Commonwealth of Virginia so that … we will never again see the slave code” cited to justify legal decisions, he said.
None of Heidemann’s lawyers ever raised the issue of slavery. However, he made other arguments to support his case.
Lawyer Jason Heidemann said that allowing his ex-wife to implant embryos created during marriage “would force Mr. Heidemann to procreate against his will and therefore violate the constitutional right to procreative autonomy.”
Honeyhline Heidemann’s lawyer, Kronfeld, argued that Honeyhline’s right to the embryo outweighed her ex-husband’s objections, partly because she had no legal obligation to be a parent and partly because she had no other choice to conceive a biological child after undergoing cancer treatment. she is infertile.
Kronfeld also confirmed that the initial separation agreement signed by the couple in 2018 had considered the embryos as property when they agreed – under the subheading entitled “Division of Personal Property” – that the embryos would remain in cryogenic storage until the court ordered.
Gardiner has not ruled on Jason Heidemann’s procreative autonomy argument.
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