A Judge Used an Old Slave Law to Determine Human Embryos Can Be Property

Brittany M. Hughes | March 10, 2023
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A Northern judge is catching all kinds of criticism for using a pre-Civil War era law concerning slavery to determine that frozen embryos can be considered personal property.

If you’re going, “HUH??” …allow me to explain.

The whole thing started with a dispute between Honeyhline Heidemann and her ex-husband, Jason Heidemann, a divorced couple in Northern Virginia's Fairfax County. Before the pair split, they had created embryos using her eggs and his sperm, and had them frozen in the hopes of one day having children.

Now that the couple has split, Honeyhline wants to use the embryos, arguing that they’re her property and that previous treatment for cancer has left her unable to have biological children any other way.

Jason, who doesn’t want to parent children with his ex-wife, is objecting, saying that Honeyhline using the embryos and giving birth to his child would be forcing him to procreate against his will. (Never mind the fact that the embryos already exist, meaning the “procreation” has already taken place - that's just inconvenient science.)

In trying to unravel this tangled ball of ethics yarn, Fairfax County Circuit Court Judge Richard Gardiner had originally ruled with the ex-husband based on generations-old case law pertaining to the division of “goods and chattels,” ultimately determining that embryos couldn’t be considered property because they can’t be bought or sold and leaving Honeyhline with no legal grounds to claim them as hers. But after being asked to reconsider his opinion by Honeyhline’s attorney, Gardiner began searching for some sort of legal precedent that could sort the whole mess out.

It turns out the centuries-old law on which he’d based his original opinion also applied to custody disputes over slaves. Without much else by way of legal precedent to go on, Gardiner said he determined that the same law that used to govern how to divide up ownership of slaves could also be applied to embryos, prompting him to reverse his earlier decision and declare that embryos can, in fact, be bought, sold, and claimed as personal property - or “chattel” - because there’s no law expressly prohibiting it.

“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 in his updated opinion.

Of course, that decision launched a flurry of outrage from those aghast that anyone, let along a sitting judge, would point to a law about slavery as having any modern-day applications. Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics, calling it “morally repugnant,” according to the Washington Times.

Critics argue that there was no reason to bring slavery into a debate about embryos, arguing it’s not appropriate to use a law that used to apply to slave disputes to figure out which parent has a right to the frozen human they helped create.  

Which is where I heartily disagree - in fact, nothing could be more logical.

Fir the past half a century, it is considered perfectly acceptable in most U.S. states to murder preborn children for convenience, sometimes up until the moment of birth - in fact, it happens to the tune of nearly a million a year. And while the vast majority of Americans say they want to see restrictions on legal abortion in the second and third trimesters, most support elective abortion up until at least week 13, after a baby has already developed functioning eyes, fingernails, and all its major organs.

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Children are routinely poisoned, dismembered, and forcibly miscarried if an ultrasound or neonatal test predicts they will be born with a disability, physical abnormality, a condition like Down syndrome, or if they happen not to be their parents' preferred gender. Babies born alive after botched abortions are regularly left to die alone, while leftist politicians reap praise for repeatedly voting down laws that would protect survivors. 

Scientists are actively working to create ways of genetically engineering human children to the specifications of parents who can afford it.

Babies are regularly created using donated sperm or eggs and gestated in the rented wombs of mothers they’ll never know to satisfy the desires of same-sex couples who lack the biology to procreate on their own.

Wealthy elites pay poor women to grow and birth children who aren’t biologically theirs, all so the rich don’t have to sacrifice their physique or take time off work for the plebeian tasks of pregnancy and childbirth.

It's estimated that across the country, hundreds of thousands of unused embryos have been abandoned by parents who decided they’d had enough children, or who simply changed their minds about parenthood. Countless more have been destroyed to save on storage fees.

Children are regularly treated as commodities in our society. It’s an open, relatively easy-to-access, multi-billion-dollar industry based on the idea that adults have a “right” to these innocent lives - a right to forcibly create them as we see fit, to engineer and manipulate them, or to discard them if they don’t meet our expectations or if parenthood suddenly seems too difficult or inconvenient.

For all intents and purposes, children are, as slaves once were, effectively property, no different from a couch we might order online, only to cancel or return it if it doesn’t live up to expectations. In our self-absorbed, instantly gratified, self-love-promoting society, that westerly-bound ship sailed long ago.

If it right? No. Regardless of the legality in the eyes of the state, it was morally and ethically wrong to treat humans as property then, and it's wrong to treat children as property today. But maybe it’s not this judge here who is in error.

Maybe we are - and this court case is simply calling us out on it.