FAIRFAX, Va. (CN) — In 2018, with their relationship in tatters, Honeyhline and Jason Heidemann ended their marriage but were unable to settle an important issue: What would become of two frozen embryos?
It has come back to haunt them. While the two had one child, a 7-year-old daughter, with the help of a fertility clinic, Ms. Heidemann wants to use the embryos to become pregnant again. Mr. Heidemann does not want another little one with his ex.
But there’s more.
The Heidemanns return to court this week to settle the matter. And the trial, before Judge Dontaè L. Bugg, could signal a sea change in the way these cases are litigated — namely, whether Virginia’s partition statute may resolve disputes between the progenitors of human embryos.
Each year, more than 1 million embryos are frozen at fertility clinics nationwide, according to TMRW Life Sciences, a fertility technology company involved in cryostorage. The practice has become commonplace in the years since 1981, when Elizabeth Carr became the first U.S. baby born as the result of in vitro fertilization at the Jones Institute in Norfolk, Virginia. But the law that governs a constellation of issues surrounding IVF continues to evolve.
This case is not about family law, argued Ms. Heidemann’s attorney Jason Zellman as the trial got underway Monday. “This has been brought as a partition.”
Not everyone agrees that it should be a partition — the legal division of the equitable interest in real property among co-owners unable to make the decision. Carrie Patterson, the attorney for Jason Heidemann, put it this way in a recent court filing: “No court in Virginia (or in any other state or jurisdiction of the United States) has ever used partition to resolve questions concerning the future use and disposition of human embryos.”
It’s a case of first impression not just in Virginia, she asserted, but in the United States.
A potential lifeform
The Heidemann case comes at a time when limitations to IVF have become an unintended consequence of the U.S. Supreme Court’s elimination of the constitutional right to abortion in 2022. This year, the Alabama Supreme Court validated this concern when it ruled that embryos created through in vitro fertilization should be considered children.
The Heidemann case first made headlines — and raised an uproar — with a controversial ruling last fall. Attorneys for Mr. Heidemann had argued that embryos are not “goods and chattels” that could be partitioned because each embryo is distinct, unique and nonfungible. But after researching the law’s history, Judge Richard Gardiner ruled that human embryos are ‘chattel’ based on centuries-old slave laws. The ruling drew criticism from the bar, and this week’s bench trial is before Bugg, a jurist who presided over a previous proceeding involving the couple.
As the trial opened, Zellman told Bugg that he disagreed with Gardiner’s reasoning. But the Surovell Isaacs and Levy partner believes Gardiner reached the right conclusion. “Embryos are property,” he said.
Patterson, of the family law firm Patterson Bookwalter PLLC, holds a different view. Across the country, “courts are concluding that embryos belong to a category distinct from property,” she argued in court filings. As embryos have a potential for human life, they are given special respect.
Contracts and consequences
Ms. Heidemann, the plaintiff, was diagnosed with stage three breast cancer in June 2017. One month later, her husband said he wished to end the marriage. After the divorce, Ms. Heidemann produced two other children with donor sperm.
Those two children are genetically related. Ms. Heidemann argues using the embryos from her marriage means their shared daughter would have a genetic sibling. Under cross-examination from Patterson, Ms. Heidemann recalled telling her then-husband that if she had 13 embryos, they would have 13 children.
In court filings, she is described as paranoid, abusive and fascinated by the occult. She once brandished a knife when her husband wanted to take the child to see his mother. He has primary custody of Emma and believes his ex-wife is an unfit parent.
For her part, Ms. Heidemann testified that her husband has “anger issues. And Kathleen Hanagan, a psychotherapist who treated Ms. Heidemann, described her as a “remarkably resilient woman” who wanted to spend as much time with her daughter as she could. She thought Mr. Heidemann couldn’t see the problems with his own behavior.
The two might not be in court if they had a more detailed contract spelling out what would happen in the event of divorce. In happier days, when the couple went to the fertility clinic, they were given a form asking them to designate what they wanted done with frozen embryos not used to initiate a pregnancy. They selected an option saying that if the embryos were suitable for donation, they could go to another patient and her partner.
The two were not asked to determine what to do with the embryos in the event of death or divorce. Later, during their divorce, the embryos were part of a paragraph under the subheading “Division of Personal Property.” Along with the division of household items, life insurance and the family cars, a paragraph acknowledges the embryos. “Pending a court order or further written agreement of the parties as to the disposition of the aforesaid embryos, the parties agree that neither of them will remove such embryos from storage.”
Neither document confronts a question that’s not asked often enough: What happens if the relationship ends?
This issue is experienced by both heterosexual and same-sex couples according to Colleen Quinn, a Richmond attorney who founded Quinn Law Centers. An embryo-donation agreement would allow couples to donate the embryos and be free from responsibility for any child.
Even so, the issue remains a legal minefield. Mr. Heidemann does not intend to relinquish parental rights. Partitioning the embryos “will not end the disagreement between parties,” Patterson wrote. “Rather than disentangling the parties and promoting peace and harmony, partition will bind ever more closely in dissension two parties who have already chosen to divorce one another.”