A judge in Virginia determined that frozen human embryos are legally considered property, citing a 19th-century law regarding the treatment of slaves as the legal rationale for his decision.
A preliminary opinion issued last month by Fairfax County Circuit Court Judge Richard Gardiner is being examined by attorneys who believe the judge erred in justifying its decision based on measures taken from Virginia’s history, when it was legally permissible to own people.
The ruling by Gardiner, a district court judge for Virginia’s 19th Judicial District, came amid a dispute between a divorced husband and wife in which the ex-wife wants to use two frozen embryos the couple created when they were married to have another child. to beget. .
“It’s repugnant 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 of the ruling.
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Richard Gardiner, Circuit Court Judge in Fairfax County, Virginia, recently ruled that frozen embryos are legally owned, citing a 19th-century law regarding the treatment of slaves as justification for his decision. (Bryan Dozier/Anadolu Agency via Getty Images)
Gardiner’s decision is not yet final as he has yet to rule on other arguments in the case between Honeyhline and Jason Heidemann, a divorced couple battling over two frozen embryos still in storage.
Honeyhline, 45, wants to use the embryos, but her ex-husband Jason objects.
Initially, Gardiner sided with Jason. The law at the heart of the matter dictates how “goods and possessions” are to be distributed. The judge ruled that because embryos could not be bought or sold they could not be considered as such and therefore Honeyhline had no right of recourse under that law to claim custody of them.
But after the ex-wife’s attorney, Adam Kronfeld, asked the judge to reconsider, Gardiner dug deep into the law’s history. He found that it was true for slaves before the Civil War as well. The judge then investigated old custody disputes involving slaves, saying he found parallels that forced him to reconsider whether the law should apply to embryos.
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A doctor retrieves embryo samples from cryogenic storage. (Universal Images group via Getty Images)
In a separate part of his opinionGardiner also said he made a mistake when he initially concluded that human embryos cannot be sold.
“Since there is no ban on the sale of human embryos, they can be valued and sold, and thus can be considered ‘goods or possessions,'” he wrote.
Crockin said she knows of no other judge in the US who has ruled that human embryos can be bought and sold. She said the trend is to recognize that embryos need to be treated in a more nuanced way than just property.
Fertilized embryos are stored in tanks filled with liquid nitrogen to keep them as new if patients need them at a later date. (Christopher Furlong/Getty Images)
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None of the Heidemanns’ lawyers ever raised the issue of slavery. They did, however, put forward other arguments in support of their case.
Jason’s lawyers said allowing his ex-wife to implant the embryos they created when they were married “would force Mr. Heidemann to reproduce against his will and therefore his constitutional right to autonomy for procreation would violate.”
Honeyhline’s lawyer argued that her right to the embryos outweighs her ex-husband’s objections, partly because he would have no legal obligation to be their parent and partly because she has no other options for fathering biological children after undergoing cancer treatments that have left her infertile.
The Associated Press contributed to this report.
