Virginia ruling: embryos are not 'property'

A Virginia judge has concluded that frozen embryos should not be considered property for division following divorce proceedings.

The case concerned two frozen embryos created using Mr and Mrs Heidemann's eggs and sperm in 2015, prior to their divorce. Mrs Heidemann sued her ex-husband under Virginia partition laws, which apply to division of property. She sought to use the frozen embryos against Mr Heidemann's wishes to have another child, after cancer treatment left her infertile. Judge Dontaé Bugg rejected an earlier judge's decision that embryos could be considered divisible property.

'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,' said Judge Bugg, in his opinion letter. 'Virginia's partition framework presumes a market-based valuation and sale mechanism, which is inapplicable to human embryos.'

The case previously made headlines in 2023, when Judge Richard Gardiner relied on a 19th century law governing slave ownership to conclude that the embryos could be considered property. In his preliminary opinion, Judge Gardiner wrote, '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".'

Judge Gardiner granted a motion allowing Mrs Heidemann to re-file her suit under Virginia partition laws. Ten months after closing arguments, Judge Bugg published his decision, and departed from Judge Gardiner's earlier reasoning.

'The Court takes issue with reliance upon a version of the statute that pre-dates passage of the 13th Amendment to the United States Constitution in 1865,' Judge Bugg said. He added, 'human beings, and by extension the embryos they have created, should not as a matter of legislative policy be subject to partition.'

Judge Bugg also said that equal division would not be possible in this case due to the 'unique nature of each human embryo'.

The legal status of human embryos has been the subject of widespread debate in the USA. In 2022, the Alabama Supreme Court ruled that frozen embryos could legally be recognised as children, leading to concerns about access to IVF (see BioNews 1228 and 1229). In 2024, a divorced woman sought to appeal to the Texas Supreme Court to overturn a decision granting her ex-husband possession of their frozen embryos, arguing that they should be considered children rather than property (see BioNews 1239). The court declined to hear the case.

In his opinion letter, Judge Bugg acknowledged that questions remain over how such disputes should be handled. He said, 'There appears to be a gap in Virginia law for the disposition of human embryos', and added that this was an issue for the General Assembly.

The decision is currently in the form of an opinion letter, which recommends a separate order be made in April 2025 to formally dismiss the case. Mrs Heidemann's lawyer told Courthouse News that they plan to appeal once the final order is made.