Judge rules human embryos can be treated as ‘chattels’ based on 1800s slave law

A judge in Virginia has ruled that frozen human embryos can be legally considered property or “chattel,” partially basing his ruling on a 19th-century law that governed the treatment of slaves in the state.

The case in question is that of divorced couple Honeyhline Heidemann and Jason Heidemann. Together they have two frozen embryos that Ms. Heidemann wants to give a chance a life. Mr. Heidemann does not.

In a preliminary opinion by Fairfax County Circuit Court Judge Richard Gardiner, Gardiner sided with Mr. Heidemann, saying that since embryos can not be bought or sold they should not be considered goods or chattel, and therefore Ms. Heidemann could not claim custody of them.

Ms. Heidemann’s attorney, Adam Kronfeld, asked Gardiner to reconsider, prompting a deeper look into the law on the part of Gardiner.

Because the law on “goods and chattels” applied to slaves prior to the Civil War, Gardiner referred to rulings that had determined custody disputes regarding slaves. He said there are parallels between slave cases and this case involving human embryos that led him to reconsider whether the goods and chattel law should also apply to human embryos.

“As there is no prohibition on the sale of human embryos, they may be valued and sold, and thus may be considered ‘goods or chattels,’” he concluded, saying that he had erred in his initial conclusion.

“It’s repulsive and it’s morally repugnant,” said Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics.

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The former couple’s 2015 in vitro fertilization contract states that the former couple “own any stored embryos jointly.” That contract did not address what would happen with the embryos should one of the parents die or should the couple divorce. They ultimately had one daughter born before divorcing. Their initial separation agreement in 2018 stated that the embryos would remain frozen until a court ordered otherwise and the embryos were listed as property. Ms. Heidemann later requested to “utlitize” the embryos but was denied. In 2021, she requested custody of the remaining two embryos.

“Mr. Heidemann argues in his demurrer that allowing partition of the embryos for Ms. Heidemann to conceive children would violate his constitutional right to procreational autonomy under the Fourteenth Amendment to the United States Constitution,” states the opinion.

Ms. Heidemann’s attorney argued that her right to the embryos trumps her ex-husband’s objections. He would not be legally obligated to care for the children, he argued, and she has no other chance of having biological children following cancer treatments.

Though Mr. Heidemann’s attorneys argue that Ms. Heidemann should not “conceive children” using the embryos because it would be forcing Mr. Heidemann’s to procreate against his wishes, the fact of the matter is that the former couple already took part in procreation of their own free will. Biologically, human embryos are already conceived human beings.

Judge Gardiner’s ruling is not final and he has yet to rule on the argument of Mr. Heidemann’s procreational autonomy.

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