Virginia Courts Won’t Split Ownership of Divorced Couple’s Embryos
Property divisions during divorces can often be acrimonious, but for Honeyhline and Jason Heidemann the matter reached a whole new level of import. The couple couldn’t decide who should retain ownership of the frozen embryos created with Honeyhline’s eggs and Jason’s sperm. This dispute has given rise to a novel legal case in Virginia.
A cancer survivor whose chemotherapy left her infertile, Honeyhline Heideman wanted to use the frozen embryos to conceive another child. She argued that ownership of the embryos could be addressed under Virginia’s “goods and chattels” statute.
But in a March 7, 2025, opinion letter, Judge Dontae L. Bugg disagreed, dismissing Honeyhline Heidemann’s suit and holding that “human embryos are not subject to partition” under Virginia law “as they do not constitute goods or chattels capable of being valued and sold.”
Bugg goes on to suggest that there’s no way that two embryos can be divided equally between two people because “the unique nature of each human embryo means that an equal division cannot conveniently be made.”
How the Heidemanns Got Here
The Heidemanns used in-vitro fertilization (IVF) in 2015. They conceived one daughter with the embryos that were created, and they cryogenically stored two remaining embryos. An agreement they signed at the time specified that any frozen embryos would be owned jointly but did not say what would happen in the event of divorce.
In 2018, the Heidemanns divorced.
At the time, the Heidemanns addressed the question of the frozen embryos in a Voluntary Separation and Property Settlement Agreement, stipulating that neither party would remove the embryos from storage “pending a court order or further written agreement of the parties” and that Honeyhline and Jason split the cost of storing the embryos.
In 2019, Honeyhline Heidemann sought her ex-husband’s consent to use the embryos to conceive more children. Jason Heidemann said no.
Honeyhline next tried reopening their divorce case and filing a “Motion to Determine Disposition of Cryopreserved Human Embryos.” But the court dismissed this, saying it no longer had jurisdiction over the Heidemanns’ marital property.
Honeyhline then filed a Complaint for Partition of Personal Property, seeking a court order awarding her ownership of both embryos or, barring that, at least one embryo. Her request fell under the jurisdiction of Virginia’s partition law.
This attempt also floundered at first, with a court holding in 2022 that the embryos were neither “goods or chattels” under the definitions supplied by Virginia statute.
But Honeyhline subsequently filed a motion to reconsider, and the case came before Judge Richard E. Gardiner.
“Although there are two cases involving disposition of cryopreserved embryos, those cases arose in the context of equitable distribution of marital property,” Gardiner noted in a 2023 opinion letter. “Here, Ms. Heidemann is asking the court to partition the embryos as goods or chattels, as her request to address the embryos as marital property was denied in May 2020 for lack of jurisdiction.”
Are Embryos ‘Goods or Chattels’?
Jason Heidemann objected to his wife’s motion, arguing that 1) a court couldn’t order the embryos be treated differently than the ex-coupled had agreed upon in their earlier legal agreement, 2) allowing his ex-wife to conceive children with the embryos violated his 14th Amendment right to “procreational autonomy,” and 3) the embryos were still not “goods or chattels” under Virginia’s legal definition of such.
The constitutional argument is the most interesting, but Gardiner found that it was premature. Meanwhile, Gardiner found fault with Jason’s other arguments. “Because the disposition of the embryos was not settled in the Agreement, the Agreement cannot be enforced as to the embryos and an order as to their disposition would be consistent with the Agreement,” he wrote.
As to the question of whether embryos could count as goods or chattels, Gardiner pointed to the statute that would later become Virginia’s current goods and chattels statute—a measure that once referred to the “division of slaves, goods or chattels.” It’s clear that the statute was not meant to apply only to “real property being partitioned,” Gardiner concluded. Rather, it permits “the partition or, in the alternative, the sale, of ‘goods or chattels’ regardless of whether they are found on r
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