Are Human Embryos Goods?

The UCC's definition of goods seems so simple.  Goods are anything moveable at the time identified to the contract.  And then there are some exceptions and special rules, which for the most part clarify what is in the category and what is out.  Still, there are hard cases.  Is a distributorship agreement a contract for the sale of goods?  Is electricity a good?  How about a couple's frozen embryos?

The Heidemanns went to an IVF clinic in 2015.  They agreed that any resulting unused embryos would be jointly owned.  They did not provide for the possibility of divorce, which occurred in 2018.  In their divorce settlement agreement, they provided that they would be jointly responsible for the storage of the embryos and that neither would remove them from storage.

In 2019, Ms. Heidemann, rendered infertile due to chemotherapy, wanted to use the embryos to conceive more biological children.  Her ex-husband rejected the request.  Ms. Heidemann filed a complaint for partition of personal property and asked the court to award her the embryos.  The court initially reasoned that the embryos could not be treated as goods or chattel because, under federal law, the court was initially persuaded, they cannot be sold.  The court thus denied her request, and she sought reconsideration.

In February, a Virginia county court issued a provisional opinion in the matter.  On reconsideration, the court found that the embryos were goods for two reasons.  First, the embryos were among the items designated personal property to be divided in their divorce agreement.  Second, the court relied on statutory language, unchanged since 1877, which was adapted from earlier versions which predated the passage of the 13th Amendment.  Those earlier versions, dating from 1849 and 1819, made clear, in the court's view, that slaves were treated as goods or chattel, rather than as attached to the land.  On that basis, the court concluded that Virginia law "permits the partition or, in the alternative, the sale of 'goods or chattels' regardless of whether they are found on real property, to be partitioned."

Upon further investigation, the court discovered that there is no federal law prohibiting the sale of frozen embryos.  The statute on which Mr. Heidemann relied relates to tissue from a dead human embryo.  The court thus vacated its earlier ruling, which had granted Mr. Heidemann's demurrer to Ms. Heidemann's complaint.  It is not clear where the case goes from here.

Two aspects of the court's ruling drew a lot of attention and moral outrage.  As Antonio Planas reports on NBCnews.com, commentators were puzzled that the court thought the  ante-bellum statutes relevant to buying and selling enslaved people was necessary.  Second, the court unnecessarily ruled that there is no federal law regarding whether frozen embryos can be bought and sold.  NBC provides the following reaction

“It’s repulsive and it’s morally repugnant,” said Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics who is also an expert in reproductive technology law.

Crockin said she’s not aware of any other judge in the country who has concluded that human embryos can be bought and sold. She said the trend, if anything, has been to recognize that embryos have to be treated in a more nuanced way than as property.

More nuanced indeed, but how?  

Mr. Heidemann claimed that his 14th Amendment interest in procreational autonomy would be violated if his ex-wife were given custody of the embryos.  The court dodged that issue, deeming it premature.  That is a very difficult issue with which the court will need to wrestle before it can determine the disposition of the embryos.   

As to the question of the legal status of the embryos, it seems like the court could have decided this part of the case based on the parties' designation of the embryos as "personal property" without getting into the issue of whether ante-bellum statutes relating to slavery were relevant, nor did it need to explore questions relating to an imagined market in frozen embryos.  But I assume that the parties' agreement which referred to the embryos as personal property was fairly standard, and so the case raises questions with which we all are going to grapple in this post-Dobbs world.  

Treating frozen embryos as goods or as any other kind of property seems de-humanizing.  The opposite extreme would be to recognize their personhood, which would have significant consequences for reproductive rights.  Susan Crockin wants a nuanced approach.  I would love to hear more.