A Virginia judge invoked slavery in a ruling concerning frozen embryos and whether they can be treated as property. 

Fairfax County Circuit Court Judge Richard Gardiner interpreted Virginia's law on "goods and chattels" to include human embryos because an older version of the statute dealt with dividing slaves.

The case involved a couple, Honeyhline Heidemann and Jason Heidemann, who conceived a child together using in vitro fertilization before divorcing in 2018.

The couple stored two additional embryos which they agreed to own jointly before their separation left the status of the embryos uncertain.

Court weighs human embryo question

Honeyhline Heidemann, 45, wants to keep the embryos to have children for reasons of infertility. But her ex-husband objects on the grounds that allowing the embryos to be used would violate his "constitutional right" to "procreational autonomy.”

Judge Gardiner did not rule on the "procreative rights" argument, but he issued a preliminary ruling on the question of whether embryos can be treated like personal property.

The case turned on the interpretation of Virginia's "goods and chattels" law. Honeyhline Heidemann asked the court to partition the embryos under the statute after her request to treat the embryos like marital property was denied for lack of jurisdiction.

Her ex-husband had argued that embryos cannot be sold and partitioned because they are not "fungible" and lack monetary value, and the judge initially agreed with that interpretation while acknowledging the novelty of the case.

The judge later reconsidered the case, but the lack of relevant case law on the subject led him in a peculiar direction.

Judge invokes slavery

After weighing the "origins and evolutions" of the "goods and chattels" law, Gardiner concluded that embryos could be partitioned and sold like property. He appeared to reach that conclusion by implicitly comparing frozen embryos to slaves.

"At the time that the Code of 1819 was published, slaves were considered to be personal property not attached to the land. From that, it follows that the versions of the Code discussed [....] equally contemplated that 'goods or chattels' are personal property not attached to the land."

Gardiner also rejected Jason Heidemann's argument that federal law prohibits the sale of frozen embryos. The law Heidemann cited refers to "fetal tissue," which the judge said does not include embryos.

“As there is no prohibition on the sale of human embryos, they may be valued and sold, and thus may be considered ‘goods and chattels,’” he wrote.

The judge also cited the agreement the couple signed before their divorce, which was titled "Division of Personal Property." Needless to say, this ruling is sure to generate some controversy.