Frozen embryos can be sold under chattels statute, Va. judge rules

A lab technician removes a container with frozen embryos and sperm being stored in liquid nitrogen at a fertility clinic in Fort Myers, Florida. (AP Photo/Lynne Sladky)

RICHMOND, Va. — A Fairfax County judge has reconsidered his earlier finding and ruled that frozen embryos in a long-running divorce dispute can be sold under the state’s goods or chattels statute.

Where the court previously ruled that a divorced couple’s frozen embryos could not be partitioned under the goods or chattels statute because the statute “refers only to partition of goods or chattels found on real property being partitioned,” on reconsideration Fairfax County Circuit Court Judge Richard Gardiner  now rules that the statute permits the partition or, in the alternative, the sale, of ‘goods or chattels’ regardless of whether they are found on real property being partitioned.”

Gardiner had drawn criticism for basing his decision in part on a 19th century law governing the treatment of slaves.

The case

Prior to their divorce, Honeyhline Heidemann and Jason Heidemann “engaged in in vitro fertilization (‘IVF’) due to difficulty with conceiving children. The IVF process would produce embryos that could be cryopreserved for later use.” Three embryos were frozen. One was used to conceive the couple’s daughter.

The parties separated in 2017. Their Voluntary Separation and Property Settlement Agreement provided that neither party would remove the embryos from storage and would share the cost of preserving them.

After the divorce, Ms. Heidemann sought Mr. Heidemann’s consent to utilize the embryos because cancer treatments left her infertile. Mr. Heidemann refused. The parties could not come to a resolution.

Ms. Heidemann reopened the divorce case for a ruling on the embryos’ disposition. The motion was dismissed for lack of jurisdiction. She then filed a new case, seeking partition of personal property to either be awarded the remaining two embryos outright or to partition them between her and Mr. Heidemann.

“The court entered an order on December 2, 2022 sustaining the demurrer with prejudice, reasoning that the partition of goods or chattels statute, Code § 8.01-93, refers only to partition of goods or chattels found on real property being partitioned, as the statute must be read in the context of the other statutes in Title 9 (‘Partition’) which refer to real property.

“The court further reasoned – based upon Mr. Heidemann’s representation that the cryopreserved embryos could not be sold pursuant to 42 U.S.C. § 289g-2(a) – that, because the cryopreserved embryos do not have a market value and because Code § 8.01-93 relies on goods or chattels having monetary value, the cryopreserved embryos were not goods or chattels within the meaning of Code § 8.01-93.”

The court ruled that Ms. Heidemann had not stated a cause of action and sustained Mr. Heidemann’s demurrer.

Ms. Heidemann moved for reconsideration.


“This is 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. …

“Ms. Heidemann is asking the court to partition the embryos as goods or chattels, as her request to address the embryos as marital property was denied in May 2020 for lack of jurisdiction. …

“In his demurrer, Mr. Heidemann argues that Ms. Heidemann is precluded from bringing suit seeking to change the disposition of the embryos because the Agreement determines and settles all questions of property rights between the parties. …

“The court finds Mr. Heidemann’s arguments to be without merit as the Agreement did not provide for the 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.’ …

“Mr. Heidemann argues that Code § 8.01-93 does not apply because embryos are not ‘goods or chattels’ that can be partitioned, nor can they be sold. …

“The court first finds that the two remaining embryos owned jointly by the Heidemanns were intended by the parties to be ‘goods or chattels’ for purposes of Code § 8.01-93. The embryos are listed under the ‘Division of Personal Property’ section of the Agreement. Thus, by the parties’ own admission, the embryos are considered goods or chattels.

“Turning to the interpretation of Code § 8.01-93, in its order of December 2, 2022, the court focused only on Code § 8.01-93 (‘Partition of goods, etc., by sale, if necessary’), which reads as follows:

“‘When 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.’

“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.”


“Mr. Heidemann argues that Code § 8.01-93 cannot apply because the preceding code sections under the Partition article contemplate an appraisal prior to partition, and embryos cannot be appraised because they do not have a market value. Mr. Heidemann states that embryos do not have a market value because: ‘it is illegal in the United States to pay for an embryo.’ …

“Mr. Heidemann cites, and purports to quote, 42 U.S.C. § 289g-2.a, adding brackets to insert what is in fact his interpretation of ‘human fetal tissue’ to include, ‘e.g., a human embryo.’ 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.

“42 U.S.C. § 289g-2.e states: ‘for purposes of this section: (1) the term “human fetal tissue” has the meaning given such term in section 289g-1(g) of this title.’

“42 U.S.C. § 289g-1(g) is titled ‘Human fetal tissue defined’ and states that ‘the term “human fetal tissue” means tissue or cells obtained from dead human embryo or fetus after a spontaneous or induced abortion, or after a stillbirth.’ (emphasis added).

“Thus, contrary to what Mr. Heidemann suggested to the court, the statutory definition of ‘human fetal tissue’ does not include cryopreserved human embryos. Consequently, Mr. Heidemann’s argument that embryos cannot be sold pursuant to 42 U.S.C. § 289g-2.a fails.

“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.”

The court vacates it previous order and now ruled that Mr. Heidemann’s demurrer is overruled.

Heidemann v. Heidemann, from the Fairfax County Circuit Court (Gardiner). Jesse Beringer, Lily Becker, Adam Kronfeld for the parties.


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