Virginia judge uses slavery-era precedent to rule frozen embryos are property in divorce proceeding

A Virginia judge ruled last month that frozen embryos are property under the law based on a slavery-era precedent that dictates how to divide “goods and chattel” in the state.

Judge Richard Gardiner ruled on a divorce case in Fairfax County in which a husband and wife are battling over the fate of embryos they froze as a married couple. The wife wishes to use the embryos, while the husband does not agree. Gardiner issued a ruling in February saying the embryos amount to property, and under a Virginia state law enacted in the 19th century, can be applied to humans because it was once applied to slaves.

Gardiner previously appeared to lean toward the opinion that because the embryos could not be bought or sold, they could not amount to property, but after being prompted to reconsider by attorneys for the husband in the divorce proceeding, decided that because the law had applied to human slaves at one point, the embryos could also be considered property to be contested in a divorce proceeding.

Activists and scholars alike have criticized the judge’s ruling. “I would like to think that the bench and the bar would be seeking more modern precedent,” said president of the Old Dominion Bar Association, Solomon Ashby, to The Associated Press. “Hopefully, the jurisprudence will advance in the commonwealth of Virginia such that … we will no longer see slave codes” cited to justify legal rulings.”

The ruling is not final but a preliminary opinion written by Gardiner. A final ruling is forthcoming.