Virginia judge must decide whether state law considers embryos property

FAIRFAX, Va. — A lawsuit is underway in Virginia to 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 disagree over the ex-wife’s desire to use two embryos they created when they were 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 the biological father of another child.

The case gained national attention last year when another judge, Richard Gardiner, ruled that embryos could be considered “property or chattels” that could be divided under state law , and his analysis was based in part on a 19th-century law governing the treatment of slaves.

Gardiner is no longer assigned to the case, for reasons unrelated to his citing of slavery as precedent.

The case also comes as reproductive rights activists have expressed concern over an Alabama Supreme Court ruling that embryos could be considered children under that state’s law.

There is little case law in Virginia governing the treatment of embryos.

Honeyhline Heidemann’s lawsuit was filed under a partition law that governs the division of property between interested parties.

Jason Heidemann’s attorney, Carrie Patterson, argued there was no precedent because the law is not designed to deal with embryos. Its primary objective, she says, is to govern the sharing of real estate.

National jurisprudence regarding embryos recognizes that they are not simple property, she said, but rather property with special characteristics that require courts to balance competing interests.

One of the elements a judge must consider when evaluating such cases is a person’s “right to reproductive autonomy.” In this case, Patterson said, his client has a vested interest in avoiding procreation against his will.

Honeyhline Heidemann’s attorney, Jason Zellman, argued that the sharing law applies if the embryos are classified as property and can be assigned a monetary value.

The documents both Heidemanns signed with the IVF provider specifically refer to the embryos as property, he said, and their value can therefore be assessed as the cost incurred in creating them.

Since 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 make a decision at a later date, expressed reservations about the notion of assigning a monetary value to embryos.

Zellman acknowledged that the case presents novel problems, but he also suggested to the judge that it need not make headlines or set a sweeping precedent. He said the unique facts of the Heidemanns’ case — including language in their divorce agreement requiring the embryos to remain in storage “pending a court decision” — will distinguish it from future disputes.

The judge readily accepted this notion, stating, “I don’t think what I’m doing in this case applies to anyone other than the Heidemanns.” »