FAIRFAX, Virginia –
A trial 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 disagree 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 the biological father of another child.
The case gained national attention last year when a different judge, Richard Gardiner, ruled that the embryos could be considered “personal property” that could be divided under state law, and his analysis was based in part on a 19th-century law regulating the treatment of embryos. slaves.
Gardiner is no longer assigned to the case, for reasons unrelated to his citation of slavery as precedent.
The case also comes as reproductive rights activists have expressed alarm over an Alabama Supreme Court ruling that found embryos could be considered children under that state’s law.
In Virginia there is little case law governing the treatment of embryos.
Honeyhline Heidemann’s lawsuit was filed under a partition statute that governs the division of property between interested parties.
Jason Heidemann’s attorney, Carrie Patterson, argued that there is no precedent in this regard because that law is not designed to deal with embryos. Her main goal, she said, is to regulate the division of real estate.
The jurisprudence that exists nationwide regarding embryos recognizes that they are not mere property, he said, but rather property with special characteristics that require courts to balance competing interests.
One of the things a judge must consider when evaluating such cases is a person’s “right to procreational 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, so their value can be assessed as the cost of their creation.
Since 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 issue a ruling at a later date, expressed doubt about the notion of assigning a monetary value to embryos.
Zellman acknowledged that the case raises some novel issues, but also suggested to the judge that there is no need to “make headlines” or set any radical precedents. 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 order” – will distinguish it from future disputes.
The judge readily accepted that idea, saying, “I don’t think anything I do in this case applies to anyone but the Heidemanns.”