Virginia county judge to rule whether frozen embryos are property

Fairfax County Circuit Court Judge Dontae Bugg heard arguments on Thursday from a divorced couple at odds over what should happen to two frozen embryos. The couple had the eggs created through in vitro fertilization while they were married.

What is the disagreement about? Honeyhline Heidemann said the embryos represent her last chance to conceive a biological child after cancer treatments left her infertile. She argues that the embryos should be considered property and divided equally between herself and her ex-husband. But Jason Heidemann says he doesn’t want to be a biological father to another child and argues that he shouldn’t be forced to become one. His attorney argues that his competing interest in preserving his procreational autonomy supersedes any right his ex-wife may have to the embryos.

Is there any legal precedent for this? In vitro fertilization is a relatively new technology, and there is little case law in Virginia governing the treatment of frozen embryos. Last year, a different judge in the case, U.S. District Judge Richard Gardiner, ruled that the embryos could be considered property to be divided under state law. In his reasoning, he cited a 19th-century law governing the treatment of slaves. He was ultimately reassigned away from the case for unrelated reasons. Bugg is expected to issue a ruling at a later date.

The practice of in vitro fertilization has been debated throughout the United States in recent months. In February, the Alabama Supreme Court ruled that embryos created through in vitro fertilization are children.

Dig deeper: Read a report by Leah Savas in Vitals on whether the Alabama Supreme Court’s ruling will cancel IVF.