VIRGINIA SPEAKS ON THE SUBJECT OF CRYOBABIES
In happier times and faced with fertility problems, Honeyhline and Jason Heidmann were married and willing to pay a third party to preserve frozen embryos should they want children. In 2018 the relationship fractured in their home state of Virginia and they divorced. When they contracted to have a third party preserve the embryos cryogenically they were married and agreed that they owned this genetic material jointly. After their divorce, one party wanted to make use of the frozen material to conceive a child. The other party opposed. A court in Fairfax County Virginia was asked to decide. In their divorce the parties agreed to their joint ownership and joint responsibility to pay to preserve the embryos. But the issue of what to do in the case of conflict was not addressed. In July, 2019 one party filed a motion to decide what should happen. The Court dismissed the request stating that it had already divided any property before the divorce and that was a final determination,
In 2021 the former wife filed a petition to divide the embryos by means of partition. Partition is a fairly ancient remedy to resolve jointly owned property where the terms of division are not agreed. In a far different age and time, the remedy was typically to sell the disputed property and divide the property proceeds equally. Needless to say, that’s not a remedy where we are talking about a human embryo. The former wife said this could be resolved because there were two embryos; thus each party would have control of one.
The Court dismissed the petition saying it could not treat unformed human beings as common property as might be the case with commodities or animals. Because these were not goods or chattels (personal property) the partition action would not lie; which is to say require a judicial decision.
Virginia has two cases from 2017 and 2021 where genetic material was identified as “marital property” (acquired during marriage) and divided in equitable distribution. Because the “distribution” of this property was not substantively addressed (they agreed to preserve the embryos, not divide them) the former husband asserted that he should not be forced to become a father against his will; that partition is restricted to “good and chattels” which an embryo is not. Lastly, he said the partition is a request to “re-write” an agreement that otherwise did not address distribution of the embryos. In the decision before the court, a big piece of the argument was over whether the court has jurisdiction to undertake next steps where the divorce was final but the disposition of the embryos was not “final.”
The Virginia Court said that husband’s argument that he had a right to block procreation as a matter of constitutional law was premature. That would seem to be a “make weight” argument as we have to assume that the partition action was not brought to keep embryos in storage. But that is what the court ruled.
But then the court decided that given what they wrote in their agreement about preserving the embryos the parties effectively imbued the embryos with the status of chattels. The Virginia Court then reviews 19th century law related to division of chattels. Unfortunately, those statutes make explicit reference to human slaves as “chattels.” Then the Court dives deeper into a troubled past through an analysis of whether slaves were real estate or personal property. Sadly, this invites the question of whether adoption of this kind of historical analysis would allow black embryos to have different status than white embryos. We won’t find any cases suggesting that a landowner’s children in ante-bellum Virginia somehow were conveyed as part of a land sale. Such an analogy is not just specious, it is undeniably offensive.
Finally, the court looks at federal law and suggests that where husband notes that human fetal tissue may not be sold he is misleading the court because an embryo is not “human fetal tissue.” 42 U.S.C. 289 g-2.a.
But the Court concludes this analysis with a sentence that is almost as frightening as its foray into ante-bellum slave rights in a 21st century property context. It writes:
“As there is no prohibition on the sale of human embryos they may be “valued and sold”… as chattels under the Virginia partitions laws. Va. Law. 8.01-93.” The ruling concludes that an “appropriate” order will issue.
Those who are familiar with Richmond, Virginia know that within the city limits is Lumpkin’s Jail. Robert Lumpkin bought and sold human beings in Shockoe Slip within three blocks of Virginia’s magisterial capitol building for more than two decades ending in 1865 when the Union Army captured Richmond. There can be no question that two human embryos frozen in a laboratory present questions of immense sensitivity. It cannot be found in this nine page letter ruling.
The decision:
While the historical precedent employed by the Court is problematic, the Court was searching for a solution to a problem the parties had created and then perpetuated in their divorce settlement agreement, viz., what to do with these embryos. Perhaps the better solution is for courts to abstain from these kinds of issues, thereby sending the clear message that division of this “property” is to be addressed in the divorce in contrast to “whenever”. A divorce court is imbued with the powers to divide property. The Virginia partition law also contains that explicit power. It seems odd that the court needed to cite chattel slavery laws and make the analogies it did when it seems a direct answer would have been: “The parties described the embryos as personal property in their agreement and, under partition laws, each is entitled to one embryo under those laws.”
Ironically, much of this was reviewed by the Virginia case of Jessee v. Jessee, 866 S.E.2d 46 (Va. App 2021). This case is decided under the Virginia divorce law and contains a thorough review of how other states have addressed this decision. The case was remanded to the trial court to consider these factors:
- The relative interests of the parties in the embryo(s).
- Whether either party is acting to bad faith to lever himself/herself into an advantageous position.
The problem with this analysis is that it ignores the basic issues. First, we know that in a biological sense women have a fixed number of years during which they create eggs. Men are not so limited in terms of their “powers” to reproduce. So, the woman starts out with a clear disadvantage in the vast majority of cases and courts will be inclined to award her the embryos because of her inherent disadvantage. What wasn’t discussed was whether a man has the legal choice to not reproduce. Mr. Jessee wanted to stop the child process. Perhaps his motive was to lever this into a financial settlement. But how is a court supposed to figure that out especially in a world where settlement negotiations are typically inadmissible in litigation. Perhaps he simply did not want to wander the world wondering whether the kid at the airport who looks just like him, is, in fact, his child. To its credit, Virginia law is clear that if a party proceeds to conceive a child through IVF after a divorce is filed, the other parent has no legal responsibility unless he or she “signs on” as a parent. Va. Code § 20-158(C). But the true legal question is whether a man who authorized creating and freezing an embryo has the right to stop others from taking the process further.*
These are indeed challenging issues. But they are not good ones for courts to decide without legislative guidance. In fact, it might be wise for legislatures to require all of these issues to be decided before genetic materials are collected and stored.
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*IVF involves removing eggs from the ovaries, fertilizing them to create embryos, letting them grow for several days and then freezing them. When thawed, the fertilized eggs — embryos — can be implanted either in the patient or in another person.
