How Virginia divorce law handles frozen embryos could be changing

A trial in a Virginia court could have dramatic implications for how divorce law addresses the division of frozen embryos. This complex issue is unfolding in Fairfax County, where a divorced couple’s dispute has sparked a broader conversation on the legal status of embryos during a separation. Essentially, at issue is whether frozen embryos created during a marriage are marital property subject to division during divorce.

The case involves two former spouses who are at odds over the use of two frozen embryos they created together during their marriage. The former wife has undergone cancer treatment that left her infertile. She views the embryos as her final opportunity to have a biological child following infertility caused by cancer treatment. However, the former husband opposes being made a biological father against his wishes.

The complexities involved

Previously, a Fairfax County Circuit Court judge suggested that embryos could be considered “chattel,” a legal term that refers to personal property like clothing, furniture and pets. Chattel that is marital property (that is, acquired during the marriage and belonging to both spouses) is subject to division in divorce under commonwealth law. However, the judge in the original trial referenced a law dating back to the 19th century that had to do with slavery. That judge has since been replaced.

Much of the issue is that Virginia has almost nothing on the books regarding how to treat embryos in divorce. Other states have statutes or court decisions that consider embryos something in between chattel and human life. Although the trial’s outcome may not set a sweeping precedent, as the current judge has indicated, it could still influence how similar cases are approached.

Asset division can get personal

While the division of frozen embryos may not be a common issue for divorcing couples, asset division can be an emotionally charged aspect of any separation. In these situations, the guidance of an experienced divorce attorney can provide clarity and support.