'Repulsive and morally repugnant': Virginia judge slammed for using antebellum slavery law in embryo ruling

In the antebellum South — before the U.S. Civil War and the abolition of slavery — Virginia was a slave state. And it had laws governing the treatment of slaves.

In 2023, a judge in Fairfax County, Virginia is drawing vehement criticism after referencing that 19th Century law in a case involving a divorced man and his ex-wife who are in disagreement over two embryos that have been frozen. Virginia resident Honeyhline Heidemann, who is 45, wants to use the embryos, but her ex-husband, Jason Heidemann, objects.

Fairfax County Circuit Court Judge Richard E. Gardiner, the Associated Press (AP) reports, has ruled that human embryos can be considered property or "chattel." And he based his decision in part on that 19th Century law.

Gardiner, according to AP reporter Matthew Barakat, "conducted a deep dive into the history of the law" and "found that before the Civil War, it also applied to slaves."

"The judge then researched old rulings that governed custody disputes involving slaves, and said he found parallels that forced him to reconsider whether the law should apply to embryos," Barakat reports in an article published on March 9. And Gardiner wrote, "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.'"

Susan Crockin, a legal scholar at Georgetown University in Washington, D.C., slammed Gardiner for his argument in the embryo case and told AP, "It’s repulsive and it's morally repugnant."

Solomon Ashby, president of the Old Dominion Bar Association, was also critical of the judge but was not as biting as Crockin. Ashby told AP, "I would like to think that the bench and the bar would be seeking more modern precedent."