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A Fairfax County judge has ruled that frozen embryos cannot be divided as property, dismissing a cancer survivor’s lawsuit seeking access to two embryos stored with her former husband.

Fairfax Circuit Court Judge Dontaè L. Bugg issued the decision nearly 10 months after closing arguments. In a March 7 opinion letter, Bugg rejected an earlier court analysis that treated fertilized eggs as potentially divisible “goods or chattel” under Virginia law rooted in the era of slavery.

Honeyhline Heidemann brought the partition lawsuit against her former husband, Jason Heidemann. Partition is a legal process one property owner can use against another to divide or sell jointly owned assets.

The couple froze the two embryos during an in vitro fertilization cycle in 2015. When they divorced three years later, they agreed to keep the embryos in storage.

During the bench trial, Honeyhline Heidemann said cancer treatment left the embryos as her final opportunity to conceive another biological child. Jason Heidemann’s attorney argued that he should not be forced to become the biological father of another child, even if he would have no obligation to serve as a parent.

The former couple already had a daughter through the same IVF cycle. Honeyhline Heidemann testified that she wanted both remaining embryos but would accept a decision giving one to each former spouse.

Earlier Ruling Drew National Attention

The case gained widespread notice in 2023 after Judge Richard E. Gardiner relied on slavery-era law while rejecting Jason Heidemann’s argument that Virginia’s partition statute did not cover embryos. Gardiner is no longer assigned to the case for reasons unrelated to the dispute.

Bugg objected to using state law that predated the 13th Amendment, which abolished slavery. He noted that Virginia lawmakers have spent the years since 1865 removing slavery-related provisions from state law.

That history supports a legislative policy that people—and, by extension, embryos they create—should not be subject to partition, Bugg wrote.

Before the trial, Virginia had little case law addressing how courts should treat embryos.

Jason Zellman, an attorney for Honeyhline Heidemann, acknowledged the case’s sensitive questions but argued that Bugg did not need to set a broad legal precedent to resolve it.

Carrie Patterson, an attorney for Jason Heidemann, urged the court not to find that embryos could be divided or sold. Although Virginia courts can order property sales, she noted that the American Society for Reproductive Medicine considers the sale of fertilized eggs unethical.

Bugg found no case law supporting the valuation, purchase or sale of embryos. He also said the evidence did not establish any practical way to conduct such a transaction given the nature of the embryos.

The two embryos were not interchangeable, Bugg wrote. If implanted and carried to term, they would develop into two different individuals, as distinct as any siblings with the same biological parents.

The ruling arrives amid a broader national fight over the legal status of embryos and fetuses. A September report from Pregnancy Justice found that seven states define embryos, fertilized eggs or fetuses as a “person,” “human being” or “another” in their homicide laws.

The Alabama Supreme Court ruled in 2024 that frozen embryos are people. Later that year, Senate Republicans blocked legislation that would have established nationwide access to IVF and other fertility treatments after then-Senate Majority Leader Chuck Schumer called a vote on the proposal.