Photo: Zach Gibson / Stringer via Getty Images
  /  03.09.2023

Following the Supreme Court’s overturning of Roe v. Wade in June 2022, Sen. Lindsey Graham proposed a federal abortion ban that draws from an archaic law as its legal basis. In the latest instance of applying outdated rules to our contemporary society, a Virginia judge cited a 19th-century provision relating to the treatment of enslaved people to settle a dispute between a couple.

Jason and Honeyhline Heidemann are divorced but have two frozen embryos in storage from when they attempted IVF. Honeyhline wants to use them to conceive, while the ex-husband objected to her doing so, with his lawyers arguing that it would force him to procreate against his wishes. To resolve the issue, Fairfax County Circuit Court Judge Richard Gardiner sought to define what they would be considered under the law. He concluded that they can be considered property based on the legal books. 

The definition comes from a time when humans were allowed to be purchased in Virginia, subject to the same rules about buying and selling “goods or chattels.” Cryopreserved fetuses, in Gardiner’s view, fall in the same category. “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,’” the judge wrote in his opinion.

Solomon Ashby, president of the Old Dominion Bar Association composed primarily of Black lawyers, was troubled by the court’s decision. “I would like to think that the bench and the bar would be seeking more modern precedent,” he said, per The Associated Press. While there is little legal foundation pertaining to embryo custody in Virginia, Ashby wants to see the law catch up to society in the future. “Hopefully, the jurisprudence will advance in the commonwealth of Virginia such that … we will no longer see slave codes [cited in rulings].”

Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics, told the AP that she’s never heard of a judge coming to the conclusion reached with the couple. Instead, courts have treated cases such as these with increased sensitivity and nuance. “It’s repulsive and it’s morally repugnant,” she said of the outcome.

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