Virginia judge to decide whether state law considers embryos property

FAIRFAX, Va. – A trial is underway in Virginia that will determine whether state law allows frozen embryos to be considered property that can be divided and given a monetary value.

Fairfax County Circuit Court Judge Dontae Bugg heard arguments Thursday from a divorcing couple who disagree over their 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 another child’s biological father.

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

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

The case also comes as reproductive rights activists have expressed concern over an Alabama Supreme Court ruling that concluded 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 statute that governs the division of property among interested parties.

Jason Heidemann’s attorney, Carrie Patterson, argued there is no precedent for this because the law was not designed to deal with embryos. Her main goal, she said, is to govern the real estate division.

Existing national case law regarding embryos recognizes that embryos are not mere property, she said, but rather property with special characteristics that require courts to balance conflicting interests.

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

Honeyhline Heidemann’s attorney, Jason Zellman, argued that the partition statute 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 so their value can be assessed as the cost incurred in creating them.

As there are two embryos, he added, the judge has an easy way to divide the assets: granting one embryo to each party.

Bugg, who said he will issue a decision later, expressed doubts about the idea of ​​assigning a monetary value to embryos.

Zellman acknowledged that the case presents some new issues, but also suggested to the judge that it is not necessary to “make headlines” or set any sweeping precedents. He said the unique facts of the Heidemanns’ case — including language in the divorce agreement that requires the embryos to remain in storage “pending a court order” — will distinguish it from future disputes.

The judge readily accepted this idea, saying, “I don’t think anything I do in this case applies to anyone other than the Heidemanns.”