Slave Law Prompts VA Judge To Rule Frozen Embryos Are Property

FAIRFAX, VA — A Virginia judge has ruled that frozen embryos can legally be considered property, a decision he based on a 19th century law governing the treatment of enslaved people. The decision has drawn criticism, according to multiple reports.

In a preliminary opinion written on Feb. 8, Fairfax County Circuit Judge Richard Gardiner defined the frozen embryos of a divorced couple as “goods or chattels," USA Today reported.

“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," Gardiner wrote in his opinion, according to USA Today.

The decision, which settled a long-running dispute between a divorced husband and wife, is being criticized by some for wrongly and unnecessarily delving into a time in Virginia history when it was legally permissible to own human beings.

"It's repulsive and it’s morally repugnant,” Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics and an expert in reproductive technology law, told The Associated Press.

Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, called Gardiner’s ruling troubling.

“I would like to think that the bench and the bar would be seeking more modern precedent,” he told The AP.

Gardiner's decision is not final: He has not yet ruled on other arguments in the case involving Honeyhline and Jason Heidemann, a divorced couple fighting over two frozen embryos that remain in storage.

Honeyhline Heidemann, 45, wants to use the embryos. Jason Heidemann objects.

Initially, Gardiner sided with Jason Heidemann. The law at the heart of the case governs how to divide “goods and chattels.” The judge ruled that because embryos could not be bought or sold, they couldn't be considered as such and therefore Honeyhline Heidemann had no recourse under that law to claim custody of them.

But after the ex-wife's lawyer, Adam Kronfeld, asked the judge to reconsider, Gardiner conducted a deep dive into the history of the law. He found that before the Civil War, it also applied to enslaved people. The judge then researched old rulings that governed custody disputes involving people who were enslaved, and said he found parallels that forced him to reconsider whether the law should apply to embryos.

After seeing the similarities, Gardiner retracted his ruling, USA Today reported.

The Associated Press contributed to this report.