Frozen Embryos Considered Goods Under Slavery-Era Law

• Pages: 24-24
• Date: 01 October 2024
• Author: Shirin Afsous
• Subject Matter: Derecho Civil

Frozen Embryos

Considered Goods

Under Slavery-Era

Law

By Shirin Afso us, Litigation News

Contributing Editor

In a case of f‌irst impression, a state

court has relied on a centuries-old

statute to hold that frozen embryos

are goods and chattels and may be

partitioned based on this ancient law.

American Bar Association members

believe that while the decision is well

reasoned, it also is problematic given

the court’s reliance on a state statute

closely related to slavery.

In Heidemann v. Heidemann, a

Virginia Fairfax County Circuit Court

considered ownership and a request to

partition two frozen embryos. Prior to

their divorce, the parties used in vitro

fertilization (IVF) and completed a form

from the IVF clinic. As the court noted,

“The form did not address what would

happen with the embryos upon one

of the party’s death or in the event of

divorce.” After completing the IVF pro-

cess, two embryos remained cryopre-

served.

The parties subsequently separated

and executed a Voluntary Separation

and Property Settlement Agreement

which provided limited language about

the future of the frozen embryos,

agreeing that neither party would

remove the embryos from frozen stor-

age without a court order or written

agreement.

After the divorce was f‌inalized,

the plainti sought to reopen the

divorce to determine disposition of

the embryos, but the court no longer

had jurisdiction over the embryos as

marital property. The plainti then f‌iled

a Complaint for Partition of Personal

Property, seeking ownership or parti-

tion of the embryos.

Virginia Code Section 8.01-93 states

that “[w]hen an equal division of

goods or chattels cannot be made in

kind among those entitled, a court of

equity may direct the sale of the same,

and the distribution of the proceeds

according to the rights of the parties.”

The Heidemann court analyzed section

8.01-93 to determine whether frozen

embryos were goods or chattels that

could be partitioned. First, relying on

the language of the parties’ agreement,

the court held that “[t]he embryos are

listed under the ‘Division of Personal

Property’ section of the agreement.

Thus, by the parties’ own admission,

the embryos are considered goods or

chattels.”

Next, the court delved into a discus-

sion of statutory language from 1849,

including “[w]hen an equal division of

slaves, goods or chattels cannot be

made in kind…” (emphasis in original).

It concluded the embryos could be par-

titioned.

Some ABA members are troubled

by the court’s rationale to support its

decision. “The court’s decision was

well-reasoned but not because of the

court’s needless historical analysis,

wherein the court seemed to be com-

paring or even equating cryopreserved

embryos to slaves who were consid-

ered to be goods or chattels before

the 13thAmendment was passed,”

notes Eshigo P. Okasili, Silver Spring,

MD, Co-Chair of the ABA’s Family Law

Section. “I am not aware of any other

jurisdiction that has rendered a deci-

sion on this by relying on the tortured,

historical analysis of how slaves were

viewed in the 19thcentury,” Okasili

opines.

Better contracting might have

avoided reliance on a pre-Civil War

statute. “Attorneys whose practice

areas foreseeably entail cryopreserved

embryos have an imperative responsi-

bility to inquire of their clients whether

or not they have any ownership interest

in any cryopreserved embryo,” advises

Okasili. If this is the case, attorneys

should “counsel them to make sure

that they have written agreements

that specify how the cryopreserved

embryos should be disposed of in the

event of the disability, death of either

or both parties,breakdown or the end

of the parties relationships,” counsels

Okasili.

Practitioners should advise their

clients early on about the benef‌its of

clear contractual language in IVF cir-

cumstances. “If you have a contract

that outlines your positions and desires

and what is going to happen to the

embryos in any scenario, including

a divorce, a court will likely enforce

that contract. The parties can decide

upfront what will happen, leaving the

court as the enforcer, not the decision

maker,” says Brooke C. Tigchelaar, New

Orleans, LA, ABA member and family

law practitioner.

Court Clarif‌ies Scope

of Patient Safety

Act’s Protections

By Whitney J. Ja ckson, Litigation

News Contributing Editor

A state appellate court has determined

that an “investigative report” related

to a hospital visitor’s slip and fall injury

is privileged under the Patient Safety

and Quality Improvement Act of 2005

(PSQIA). Although the title of the

act reads “Patient Safety and Quality

Improvement,” the court acknowledged

that the PSQIA also protects reports

related to injuries involving persons

other than those receiving services

from a health care provider.

The PSQIA creates a voluntary pro-

gram through which health care pro-

viders can share information relating

to patient safety events with patient

safety organizations with the aim of

improving safety and quality of care

nationwide. The PSQIA attaches privi-

lege and conf‌identiality protections to

this information without fear of liability.

In ABA Litigation Section leaders’ opin-

ion, the objectives of the PSQIA were

furthered and the court’s ruling is in line

with a clear reading of the statute.

In Shands Teaching Hospital and

Clinics, Inc. v. Beylotte, the plainti

brought a negligence suit against

Shands Teaching Hospital and Clinics

after she slipped and fell while visiting

a patient at the hospital. The plainti

sought discovery of an “investigative

report” that the hospital prepared as

a result of her fall. The hospital con-

tended that the report was not dis-

coverable, and the plainti moved to

compel its production.

The hospital argued that the report

was placed in the hospital’s patient

safety evaluation system, “prepared

solely for submission to [a] patient

safety organization[,]” and was eventu-

ally submitted. The hospital therefore

claimed that the report was protected

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