Fairfax County Circuit Judge Richard Gardiner has been highly disparaged over his ruling which states that frozen human embryos can be legally considered property, citing a 19th-century law governing the treatment of slaves.
In his Feb. 8 preliminary opinion, he defined the frozen embryos of a divorced couple as “goods or chattels.”
“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,” Gardiner wrote in his opinion.
Gardiner’s decision settled a long-running dispute between a divorced couple, Honeyhline and Jason Heidemann, who have two frozen embryos in storage. Honeyhline Heidemann, 45, wants to use the frozen human embryos to conceive but her ex-husband objects.
A ‘repulsive ruling’ on Frozen human embryos
The ruling was sneered at by legal luminaries who said it was unnecessary and wrong for Gardiner to cite a slave code to justify his ruling.
“It’s repulsive and it’s morally repugnant,” said Susan Crockin, a lawyer at Georgetown University’s Kennedy Institute of Ethics and an expert in reproductive technology law.
Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, found Gardiner’s ruling disturbing.
“I would like to think that the bench and the bar would be seeking more modern precedent,” Ashby said. “Hopefully, the jurisprudence will advance in the commonwealth of Virginia such that … we will no longer see slave codes (cited in legal rulings).”
Crockin said she has not heard of any other judge in the U.S. who has concluded that human embryos can be bought and sold. Crockin added that courts should recognize that embryos have to be treated in a more nuanced way than as mere property.
Frozen embryo’s case
Gardiner initially sided with Jason Heidemann on the case, ruling that Honeyhline Heidemann could not claim custody of thefFrozen human embryos because they couldn’t be bought or sold and therefore couldn’t be considered as “goods or chattels.”
But after Honeyhline Heidemann’s lawyer, Adam Kronfeld asked Gardiner to reconsider, Gardiner ,delved into the old rulings that governed custody disputes involving slaves. He found that before the Civil War, the “common law of goods or chattels” also applied to slaves.
After seeing similarities between the divorced couple’s dispute and the old rulings, Gardiner retracted his initial ruling.
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NOTE: The photo of a developing human embryo. Screengrab from YouTube