In Fairfax, Virginia, a judge has ruled that embryos cannot be considered property to be divided like assets, overturning a previous court suggestion that such fertilized eggs could be viewed as divisible “goods or chattel,” a concept traced back to 19th-century slave law. This decision comes nearly ten months after final arguments were heard in a case between Honeyhline Heidemann, a cancer survivor, and her ex-husband Jason Heidemann, concerning access to two embryos frozen during a 2015 in vitro fertilization process, which they agreed to keep stored during their divorce proceedings in 2018.
During the trial, Honeyhline Heidemann explained that the embryos represented her last hope to have another biological child post-cancer treatment. Meanwhile, Jason Heidemann’s legal representation contended that he did not wish to become a biological father against his will, even if he was not required to assume parental responsibilities. This case gained national interest in 2023 when Judge Richard E. Gardiner, no longer involved with this case for unrelated reasons, cited slavery-era legal precedents when disputing Jason Heidemann’s claim that state partition statutes did not cover embryos. In a letter dated March 7, Judge Dontaè L. Bugg criticized Gardiner’s use of outdated laws from before the passing of the 13th Amendment, which abolished slavery.
Bugg highlighted that since 1865, Virginia legislators have eradicated references to slavery to remove outdated and unethical practices from state law, effectively emphasizing that human beings, and by extension embryos, should not be subject to property division as a matter of policy.
This verdict emerges amid an escalating national discussion over fetal personhood, where seven states have incorporated definitions of embryos or fetuses as “person,” “human being,” or “another” in their homicide laws. The Alabama Supreme Court, for instance, declared in 2024 that frozen embryos qualify as people. Moreover, the same year saw a setback for U.S. Senate Democrats who attempted to enact legislation ensuring nationwide access to in vitro fertilization, which was blocked by Senate Republicans.
This case marked a relatively unexplored territory in Virginia regarding embryo treatment laws. Honeyhline Heidemann’s attorney, Jason Zellman, acknowledged the case’s sensitive nature but implied that Judge Bugg could resolve it without setting a broad legal precedent. Honeyhline, who already shared a daughter with Jason Heidemann from the same IVF cycle, testified she wished to retain both remaining embryos but was open to a settlement where each party received one embryo.
Jason Heidemann’s lawyer, Carrie Patterson, argued against selling or dividing embryos, pointing out that despite Virginia courts’ authority to direct property sales, the American Society for Reproductive Medicine deems such transactions unethical. In his ruling, Judge Bugg noted a lack of legal precedent for treating fertilized eggs as commodifiable assets, as well as the absence of a practical method for executing such transfers due to embryos’ intrinsic nature.
“It is clear that these two human embryos, if implanted and brought to term, would result in two distinct individuals, unique like any members of the human population, including siblings with the same biological parents,” Bugg remarked.