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Litigation News

Litigation News | 2023

Frozen Embryos Considered Goods Under Slavery-Era Law

Shirin Afsous


  • In Heidemann v. Heidemann, a Virginia court considered the ownership and partitioning of two frozen embryos in a divorce case.
  • The court determined that the frozen embryos could be considered goods or chattels under Virginia Code Section 8.01-93, allowing for their partitioning.
  • Some members of the ABA expressed concern about the court's historical analysis, drawing an analogy between the embryos and slaves, and stressed the importance of clear contractual language in IVF cases to avoid such legal disputes.
Frozen Embryos Considered Goods Under Slavery-Era Law

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In a case of first impression, a state court has relied on a centuries-old statute to hold that frozen embryos are goods and chattels and may be partitioned based on this ancient law. American Bar Association members believe that while the decision is well-reasoned, it also is problematic given the court’s reliance on a state statute closely related to slavery.

In Heidemann v. Heidemann, a Virginia Fairfax County Circuit Court considered ownership and a request to partition two frozen embryos. Prior to their divorce, the parties used in vitro fertilization (IVF) and completed a form from the IVF clinic. As the court noted, “The form did not address what would happen with the embryos upon one of the party’s death or in the event of divorce.” After completing the IVF process, two embryos remained cryopreserved.

No Clear Agreement on Ownership of Frozen Embryos

The parties subsequently separated and executed a Voluntary Separation and Property Settlement Agreement which provided limited language about the future of the frozen embryos. It stated that “[p]ending a court order or further written agreement of the parties as to the disposition of the aforesaid embryos, the parties agree that neither of them will remove such embryos from storage at GIVF.”

After the divorce was finalized, the plaintiff sought to reopen the divorce to determine disposition of the embryos, but the court no longer had jurisdiction over the embryos as marital property. The plaintiff then filed a Complaint for Partition of Personal Property, “requesting that the court award [her] sole ownership of the embryos or, in the alternative, partition the two embryos in kind.”

Frozen Embryos Are Goods or Chattels

Virginia Code Section 8.01-93 states 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.” The Heidemann court analyzed Section 8.01-93 to determine whether frozen embryos were goods or chattels that could be partitioned. First, relying on the language of the parties’ agreement, the court held that “[t]he 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.”

Next, going back to 1849, the court examined the code directly preceding the 1887 Code and delved into a discussion of the statutory language, including “[w]hen an equal division of slaves, goods or chattels cannot be made in kind…” (emphasis in original). “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,’” including frozen embryos.

Well-Reasoned But Problematic

Some ABA members are troubled by the court’s rationale to support its decision. “The court's decision was well-reasoned but not because of the court's needless historical analysis, wherein the court seemed to be comparing or even equating cryopreserved embryos to slaves who were considered to be goods or chattels before the 13th Amendment was passed,” notes Eshigo P. Okasili, Silver Spring, MD, cochair of the ABA’s Family Law Section. “I am not aware of any other jurisdiction that has rendered a decision on this by relying on the tortured, historical analysis of how slaves were viewed in the 19th century,” Okasili opines.

“I do not think the court had to discuss slavery to get to the decision it wanted to get to," agrees Brooke C. Tigchelaar, New Orleans, LA, ABA member and family law practitioner. “Maybe the court was attempting to skirt the issue of having to decide whether embryos are persons or things and property, but I do not believe the analogy of embryos being compared to slavery needed to be in the decision in order to say embryos were divisible property; it doesn’t further where we should be going,” she adds.

Put It in the Agreement

Better contracting might have avoided reliance on a pre-Civil War statute. “Attorneys whose practice areas foreseeably entail cryopreserved embryos have an imperative responsibility to inquire of their clients whether or not they have any ownership interest in any cryopreserved embryo,” advises Okasili. If this is the case, attorneys should “counsel them to make sure that they have written agreements, regardless of marital status, that specify how the cryopreserved embryos should be disposed of in the event of the disability, death of either or both parties, breakdown or the end of the parties relationships,” counsels Okasili.

Practitioners should advise their clients early on about the benefits of clear contractual language in IVF circumstances. “Contract, contract, contract. If you have a contract that outlines your positions and desires and what is going to happen to the embryos in any scenario, including a divorce, a court will likely enforce that contract. A contract also gives the court an 'out' so it doesn’t have to make bright line, controversial decisions on a difficult issue. The parties can decide upfront what will happen, leaving the court as the enforcer, not the decision maker,” adds Tigchelaar.