FAIRFAX, Va. (CN) — Human embryos can’t be partitioned in the manner of marital property, a Virginia judge ruled Friday, handing a setback to a woman who waged a high-profile court battle to become pregnant over the objections of her ex-husband.
Unlike divisible assets, such as land or financial instruments, human embryos are unique biological entities, wrote Fairfax County Circuit Court Judge Dontaé L. Bugg in a 10-page opinion: “Any division would require either allocating one embryo to each party, which does not ensure equal division, or ordering a sale, which is neither legally sanctioned nor ethically acceptable in Virginia. Virginia’s partition framework presumes a market-based valuation and sale mechanism, which is inapplicable to human embryos. This court cannot enforce a remedy that is fundamentally unworkable.”
The case was brought by Honeyhline Heidemann, who had sought to use the embryos developed at an infertility treatment center during her marriage to Jason Heidemann — who did not want to father another child with his ex-wife.
When a couple divorces, Virginia law governs the partition of property. In this couple’s case, a paragraph in divorce papers acknowledges the embryos this way: “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.”
But the two couldn’t agree on what would happen next.
“You can’t partition embryos. They are not property. They can’t be bought and sold,” summed up Carrie Patterson, an attorney for Jason Heidemann. She said her client was pleased with the outcome — which has been long coming. The Heidemanns squared off in court in April of last year, and 10 months have come and gone since.
“We appreciate the time and effort Judge Bugg took in considering the case and in rendering his decision,” wrote Jason Zellman, attorney for Honeyhline Heidemann, in an email. He had not yet had a chance to discuss the opinion with his client. “We respectfully disagree with his [Bugg’s] conclusion and once a final order is entered will consider our options on appeal.”
The Heidemann case made headlines with a controversial ruling in 2023. Jason Heidemann’s attorneys 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 his analysis of centuries-old slave laws. The ruling drew criticism from the bar.
Gardiner’s opinion relied on an earlier version of Virginia code, Bugg pointed out. “The court takes issue with reliance upon a version of the statute that predates passage of the 13th Amendment to the United States Constitution in 1865,” he wrote.
Gardiner’s ruling was simply that judge’s statement of reasoning in granting a motion to reconsider a dismissal order, Bugg concluded.
Bugg also indicated that his ruling would not be the final word in the increasingly tangled issues surrounding infertility treatments. “There appears to be a gap in Virginia law for the disposition of human embryos,” he wrote, adding that the matter should be left for the General Assembly if they are so inclined.
The Heidemanns’ court fight unfolded against a backdrop of complicated legal matters surrounding IVF. More than 1 million embryos are frozen at fertility clinics nationwide each year, according to TMRW Life Sciences, a fertility technology company involved in cryostorage.
The Heidemanns, aided by fertility treatments, produced one child before divorcing in 2018. After their divorce, she had two other children. In court, Jason Heidemann, who is not the father of the two younger children, criticized his ex-wife’s parenting.