Virginia judge rules cancer-surviving woman cannot use embryos created with now-ex-husband

The case involved Honeyhline Heidemann, who was diagnosed with Stage 3 breast cancer in 2017. Two years earlier, she and her then-husband, Jason Heidemann, had frozen embryos through in vitro fertilization (IVF). Following their divorce in 2018, the settlement designated the embryos as property to remain in storage until either a mutual decision or a court ruling determined their fate, according to the Washington Post.

In 2019, Honeyhline sought permission to use the embryos to have more children, but Jason objected, arguing that doing so would violate his personal liberty and privacy. She then sued her ex-husband for access, offering to take full custody of both embryos or split them “in kind,” allowing each former spouse to receive one.

The case previously gained attention after a judge referenced a 19th-century Virginia law on the division of enslaved people as precedent for allowing the lawsuit to proceed.

Honeyhline, who already has a biological child with Jason and has since had two more children through donor embryos, argued that the two frozen embryos would be her last opportunity to have a biological child after undergoing cancer treatment. She also said she would consent to not requiring Jason’s involvement in raising the child.

Jason, who has primary custody of their child, opposed the request on the grounds that he does not want to become a father again, regardless of whether or not he is involved in the child’s life. He also testified in court that he believes his ex-wife has made poor parenting decisions in the past.

Now, Fairfax Circuit Court Judge Dontaè L. Bugg has dismissed the lawsuit with prejudice, ruling that human embryos “do not constitute goods or chattels capable of being valued and sold” and, therefore, cannot be divided as property under Virginia law.

The decision marks a significant development in ongoing legal debates across the country regarding the legal definition of personhood. Judge Bugg also addressed the previous judge over the case, Richard E. Gardiner, who rejected Jason’s argument that embryos could not be considered property by citing a law from the 1800s that said enslaved people could be considered “goods or chattels.”

Bugg wrote that he was “not persuaded” that human embryos should be categorized as property. He also criticized Gardiner’s application of a state law that predated the abolition of slavery, stating that applying such a law to frozen embryos “is a strained construction never envisioned” by the Virginia General Assembly. Additionally, he rejected the notion of assigning embryos a monetary value, emphasizing that their unique nature makes an equal division impossible.

“It is obvious that these two human embryos, if implanted and carried to term, would not result in the same two people,” the judge wrote. “In fact, the embryos are as unique as any two people that may be selected from the population, including siblings with the same biological parents.”