This seems odd.
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A Virginia judge relied in part on a 19th century law that defined enslaved people as property in a recent decision to allow a divorced woman to pursue using embryos that she shared with her former husband — a ruling that has drawn criticism.
The request by the woman, Honeyhline Heidemann, 45, represented an issue that had not been previously addressed by the court, Richard E. Gardiner, a Fairfax County Circuit Court judge, wrote in an opinion last month.
While previous cases asking for the division of frozen embryos have been considered within the legal context of splitting up marital property, the judge wrote in February, Ms. Heidemann was already divorced from her former husband, Jason Heidemann. So Judge Gardiner took a different approach, delving into earlier versions of Virginia’s current property law on “goods or chattels” to see whether embryos could be divided as property between people who are no longer spouses.
One version, an 1849 code, categorized “slaves” as property that could be divided and sold. The judge cited it to draw a parallel to the human embryo case, saying the code used “language almost identical” to current law.
“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,’” he wrote.
One of Ms. Heidemann’s lawyers, Adam T. Kronfeld, said on Wednesday that the judge’s ruling meant that the case could now proceed to trial. “As of yet, all that has happened is the court is allowing the case to go forward,” he said.
But some criticized the judge’s use of an old law governing “slaves” in reaching his decision, which The Associated Press wrote about this month.
. . . The Heidemann case goes to the heart of how courts are struggling to interpret laws that can address custody of stored embryos when a couple separates. Some judges have awarded frozen embryos to one partner against another’s wishes, such as in a case in Chicago, or ordered them destroyed, as with a case in California.
State laws can be lacking in addressing the nuances of parental relationships and the right to procreate, as the Heidemann case appears to suggest.
Related material:
- Code of Virginia: § 8.01-93. Partition of goods, etc., by sale, if necessary.
- Click here for the judges' decision.
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