Cancer survivor says embryos created with an ex-husband are her last chance to conceive a child. Ex-husband wants to avoid procreating against his will.
A trial is currently underway in Virginia to determine whether state law allows frozen embryos to be considered property that can be divided and assigned a monetary value.
Fairfax County Circuit Court Judge Dontae Pugh heard arguments Thursday from a divorced couple who disagreed over their ex-wife's desire to use two embryos they created when they married.
Hannehlen Heidemann says the embryos are her last chance to have a biological child after cancer treatment left her infertile. Jason Heidemann says he doesn't want to be forced to become another child's biological father.
The issue attracted national attention last year when another judge, Richard Gardiner, ruled that embryos could be considered “goods or chattels” that could be divided under state law. His analysis was based in part on Nineteenth century law Ruling on the treatment of slaves.
Gardiner was no longer assigned to the case, for reasons unrelated to his citing slavery as a precedent.
The case also comes as reproductive rights activists have expressed concern about the Alabama Supreme Court ruling that found Embryos can be considered children Under the law of that country.
There is little case law in Virginia governing the treatment of fetuses.
Honeylein Heidemann's lawsuit was filed under the zoning ordinance that governs the division of property between interested parties.
Jason Heidemann's attorney, Cary Patterson, said there is no precedent for this because this law is not designed to deal with fetuses. She said her primary goal is to regulate the division of real estate.
She said existing case law at the national level regarding embryos recognizes that they are not just property, but property with special characteristics that require courts to balance competing interests.
One of the things a judge must consider when evaluating such cases is a person's “right to reproductive autonomy.” In this case, Patterson said, her client had a strong interest in avoiding having children against his will.
Jason Zelman, Honeylein's attorney, said the zoning statute applies if the embryos are classified as property and if a monetary value can be assigned to them.
He said the documents Heidemann signed with the IVF provider specifically referred to the embryos as property, so their value could be assessed as the cost incurred in creating them.
He added that because there were two fetuses, the judge had an easy way to divide the property: award one fetus to each party.
Pugh, who said he would issue a ruling at a later date, expressed doubts about the idea of assigning a monetary value to the embryos.
Zelman acknowledged that the case raised some new issues, but also suggested to the judge that it did not need to “generate headlines” or create any sweeping precedent. He said the unique facts of the Heidemanns' case — including language in the divorce settlement requiring the embryos to remain in storage “pending court order” — will set it apart from future disputes.
The judge readily accepted that idea, saying, “I don't think anything I do in this case applies to anyone except the Heidemann family.”
