A Virginia circuit court vacated its order that a divorced couple couldn’t partition their frozen embryos under Code § 8.01-93, analyzing more than 100 years of statutory history to reach its conclusion.
The couple’s separation agreement didn’t determine what to do with their two frozen embryos, so the ex-wife tried to partition the embryos. When the trial court sustained her ex-husband’s demurrer, she moved the court to reconsider.
In what he called a matter of first impression in Virginia, Fairfax Circuit Court Judge Richard E. Gardiner vacated the prior holding.
“Upon independent research, this court was unable to find any Virginia law prohibiting the purchase or sale of human embryo, nor has either party cited a federal law prohibiting the activity,” he wrote. “As there is no prohibition on the sale of human embryos, they may valued and sold, and thus may be considered ‘goods or chattels’ within the meaning of Code § 8.01-93.”
The opinion is Heidemann v. Heidemann (VLW 023-8-010).
Honeyhline Heidemann and Jason Heidemann divorced in November 2018 in Fairfax County. Prior to their divorce, the Heidemanns used in vitro fertilization, or IVF, to produce three cryopreserved embryos. They conceived a daughter with one of the embryos.
The Heidemanns completed a form from the IVF clinic titled “Legal Statement – Embry (sic) Ownership.”
They elected to own any stored embryos jointly, but the form did not address what would happen with the embryos in the event of divorce or death.
The Heidemanns still had two frozen embryos when they separated in 2017. Their property settlement agreement said neither party would remove the embryos and they would share costs pending a court order or further agreement between them.
After the divorce, Ms. Heidemann asked Mr. Heidemann if she could use the embryos because cancer treatments had left her infertile. Mr. Heidemann refused and they weren’t able to reach a resolution.
Ms. Heidemann reopened the case in July 2019, but the court said it had lost jurisdiction to rule on disposition of the embryos. In November 2021, she filed suit under Code § 8.01-93, asking the court to either give her the embryos or partition them in kind.
The court sustained Mr. Heidemann’s demurrer to the partition suit with prejudice in December 2022. Reading the statute in context, the court reasoned that Code § 8.01-93 only applied to goods or chattels found on real property being partitioned.
The court also credited Mr. Heidemann’s representation that federal law prohibited the sale of frozen embryos, meaning the embryos don’t have a market value and, therefore, can’t be considered “goods or chattels” under Code § 8.01-93.
After the court found that she hadn’t stated a cause of action, Ms. Heidemann moved for reconsideration.
Gardiner noted this was a case of first impression in Virginia.
“Although there are two cases involving disposition of cryopreserved embryos, those cases arose in the context of equitable distribution of marital property,” he pointed out.
In his demurrer, Mr. Heidemann first argued that his ex-wife couldn’t bring suit to change the disposition of the embryos because their agreement determined and settled all questions of property rights between them.
But Gardiner said that argument lacked merit because the agreement didn’t provide for disposition of the embryos.
“Instead, the parties agreed that the embryos would remain in storage ‘pending a court order or further written agreement of the parties as to the disposition [of the embryos]’ and that they would remain in storage ‘pending their future disposition,’” he wrote. “It is clear from these statements that the disposition of the embryos was not settled, and in fact contemplated further negotiation or litigation.”
Finding that an order now would be consistent with the Heidemanns’ agreement, Gardiner pointed to Jessee v. Jessee, a 2021 Court of Appeals of Virginia case where similar language in a separation agreement didn’t determine the disposition of frozen embryos.
“Because the disposition of the embryos was not settled in the Agreement, the Agreement cannot be enforced as to the embryos and an order as to their disposition would be consistent with the Agreement,” the judge wrote.
Mr. Heidemann then claimed Code § 8.01-93 didn’t apply because embryos aren’t “goods or chattels” that can be partitioned or sold like parcels of land because “each embryo is distinct, unique, and not fungible[.]”
But Gardiner pointed out that the Heidemanns listed the embryos under the “Division of Personal Property” section of their agreement.
“Thus, by the parties’ own admission, the embryos are considered goods or chattels,” he said.
“While the court initially viewed this language as applying only to ‘goods or chattels’ on land being partitioned, upon extensive review of the origins and evolution of Code § 8.01-93, the court now concludes that partition of ‘goods or chattels’ pursuant to Code § 8.01-93 is not restricted to ‘goods or chattels’ on land being partitioned.”
— Fairfax Circuit Court Judge Richard E. Gardiner
The judge then reviewed the court’s earlier interpretation of Code § 8.01-93, which provides that “[w]hen an equal division of goods or chattels cannot be made in kind among those entitled, a court of equity may direct the sale of the same, and the distribution of the proceeds according to the rights of the parties.”
Gardiner said that “[w]hile the court initially viewed this language as applying only to ‘goods or chattels’ on land being partitioned, upon extensive review of the origins and evolution of Code § 8.01-93, the court now concludes that partition of ‘goods or chattels’ pursuant to Code § 8.01-93 is not restricted to ‘goods or chattels’ on land being partitioned.”
The judge noted that the language of Code § 8.01-93 has remained identical since 1887; since 1950, the language has been codified under the “Partition” provision of the “Civil Remedies and Procedure” section.
The 1849 version of the statute was almost identical; however, it referred to slaves as chattel subject to partition or sale.
“[B]y 1849 slaves were partitionable in kind or subject to sale as they were considered personal property not annexed to the land,” Gardiner wrote. “Thus, ‘goods or chattels’ also would have been partitionable in kind as personal property not annexed to the land.”
In 1819, Virginia’s legislature declared that slaves were considered personal property.
“From that, it follows that the versions of the Code discussed, supra — resulting in today’s Code § 8.01-93 — equally contemplated that ‘goods or chattels’ are personal property not attached to the land,” the judge wrote.
Here, Gardiner recanted the court’s prior opinion that only goods or chattels found on real property could be partitioned.
“The court is now of the opinion, however, based on the origins and evolution of Code § 8.01-93, that Code § 8.01-93 permits the partition or, in the alternative, the sale, of ‘goods or chattels’ regardless of whether they are found on real property being partitioned,” he wrote.
No market value
Gardiner rejected Mr. Heidemann’s argument that embryos don’t have market value because it’s illegal to pay for an embryo in the United States.
“It is unclear whether Mr. Heidemann attempted to mislead the court intentionally, or whether Mr. Heidemann failed to research the issue fully, but Mr. Heidemann’s interpretation of the term ‘human fetal tissue’ is contrary to the statutory definition of the phrase,” Gardiner wrote.
In fact, federal law defined “human fetal tissue” to mean “‘tissue or cells obtained from dead human embryo or fetus after a spontaneous or induced abortion, or after a stillbirth,’” the judge noted.
“Thus, contrary to what Mr. Heidemann suggested to the court, the statutory definition of ‘human fetal tissue’ does not include cryopreserved human embryos.”