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After Honeyhline Heidemann received a Stage 3  breast cancer diagnosis in 2017, she faced a grim reality: The disease would significantly impede her ability to have another biological child.

But the Fairfax County, Va., woman knew her chances of having children were not completely gone, despite multiple rounds of chemotherapy. She and her then-husband still had two frozen embryos.

“To me, you can’t put a price on it,” she would later say during court testimony. “I would not have any other biological children without these embryos.”

Now in 2024, with the couple divorced, the question of whether Heidemann should be allowed to use those embryos is the focus of a legal dispute that will be decided by a judge.

Heidemann and her former husband, Jason, squared off in court this month over two embryos they froze during a 2015 cycle of in vitro fertilization, or the process by which a person’s egg is fertilized by sperm outside of the uterus.

In a Fairfax Circuit Court bench trial, Judge Dontaè L. Bugg is tasked with weighing what should happen to the Heidemanns’ embryos after Honeyhline Heidemann filed a partition lawsuit — a legal action taken by one property owner at odds with another — against her former husband. Closing arguments in the case are scheduled for May 9, court records show.

Honeyhline Heidemann’s attorney, Jason Zellman, argued that the embryos should be treated as property in light of a 2018 settlement agreement that the Heidemanns signed, which listed the embryos as such. Signed during their divorce, the settlement said that the Heidemanns would keep the embryos in storage until a decision is reached on what to do with them — either by court order or a written agreement between the two.

In court, Honeyhline Heidemann testified that she preferred to be awarded both embryos, but that she would also accept the court dividing the embryos “in kind,” meaning each ex-spouse gets one.

“I don’t really care about my insurance or anything like that,” she said, referring to another part of the couple’s divorce settlement. “But I care about my embryos.”

The Heidemanns’ court battle comes amid a<b> </b>legal and ideological debate <a href="https://www.washingtonpost.com/nation/2024/03/29/fetal-personhood-laws-states-abortion/" target=_blank>across the country</a> involving the future of IVF and whether fetuses should be considered people. At least five states have defined fetuses as a “person,” “individual” or “human being” in their legal codes, according to Pregnancy Justice’s <a href="https://www.pregnancyjusticeus.org/wp-content/uploads/2022/12/fetal-personhood-with-appendix-UPDATED-1.pdf" target=_blank>fetal personhood report</a>. In February, the Alabama Supreme Court ruled that <a href="https://www.washingtonpost.com/politics/2024/02/19/alabama-supreme-court-embryos-children-ivf/" target=_blank>frozen embryos are people</a> and said that those who destroy them can be held criminally liable. Since that Alabama ruling, multiple fertility clinics in the state have <a href="https://www.washingtonpost.com/nation/2024/02/22/third-alabama-ivf-clinic-pauses-treatment/" target=_blank>halted IVF treatments</a>.

Jason and Honeyhline Heidemann declined to be interviewed until after the trial is over.

But in court, Jason Heidemann has argued that the embryos should remain in storage unless he and his former wife can agree on what to do with them.

For Honeyhline Heidemann, the two embryos represent her only chance to have another biological child after battling her cancer, which is in remission, she testified in court.

In 2016, the Heidemanns had a daughter through the same in vitro cycle in which they froze the two other embryos, the couple testified. Since their 2018 divorce, Honeyhline Heidemann, who works for Microsoft, said she had two more children through donor embryos, in 2021 and in March of this year.

Jason Heidemann argued that it would be a heavy burden for him to co-parent more children with his former spouse. But Honeyhline Heidemann said she would consent to her ex-husband not being involved in raising the new children.

On the witness stand, Jason Heidemann, the primary custodian of their daughter, described incidents during which he felt his former wife had made poor parenting decisions. He said she had left her toddler in a parked car on two occasions. The ex-husband, who is an attorney-adviser for the U.S. International Trade Commission, also described a 2017 incident in which he said his then-wife brandished a knife after he expressed interest in taking their child to visit the boy’s paternal grandmother.

The Heidemanns’ case previously sparked public outcry when Judge Richard E. Gardiner referenced a slavery-era law to <a href="https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/opinions/cl-2021-15372-honeyhline-heidemann-v-jason-heidemann.pdf" target=_blank>overrule Jason Heidemann’s contention</a> that the embryos are not covered under the state’s partition statute. In an opinion letter, Gardiner cited a 19th-century state law that said that enslaved people could be considered “goods or chattels,” separate from the land they worked on rather than part of it.

“As shown … by 1849 slaves were partitionable in kind or subject to sale as they were considered personal property not annexed to land,” Gardiner wrote.

Jason Heidemann’s attorney, Carrie Patterson, argued that the judge should reject the idea that the embryos are property that can be partitioned. Nor can the embryos be sold, she said. Although Virginia law says that the court can “direct the sale” of property that cannot be divided, the American Society for Reproductive Medicine has deemed <a href="https://www.asrm.org/practice-guidance/practice-committee-documents/guidance-regarding-gamete-and-embryo-donation-2021/" target="_blank">the sale of embryos unethical</a>.

American University, MA journalism and public affairs; University of Richmond, BA in journalism and international studies

Olivia Diaz covers criminal justice in Fairfax County.

Olivia Diaz

Va. woman wants access to two frozen embryos. Her ex-husband says no.

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