MoxVib

The Fairfax County Circuit Court recently issued a preliminary opinion regarding a dispute over embryos between a divorced couple. Before their divorce in 2018, Honeyhline and Jason Heidemann had agreed to store their embryos. Now, Honeyhline Heidemann wanted to use the embryos, but that would make Jason Heidemann a father against his wishes. The court was left to decide whether to keep them in storage or allow Honeyhline Heidemann to use them. The question at the center of the case was: Can the embryos be considered property, and if so, who owns them?

In his search for an applicable legal framework that would treat the case as a property dispute rather than a paternity case, Judge Richard E. Gardiner looked to the laws of slavery and the historic practice of human ownership to find that the embryos could be understood as property to be redistributed.

Historically, enslaved people were bought, sold, mortgaged, loaned and inherited, revealing an intricate web of transactions that required legal scaffolding for addressing complex property disputes and claims. Appropriating that framework to decide in favor of Honeyhline Heidemann, Gardiner included language from Virginia slave codes to determine that the divorced couple’s embryos could be considered part of real estate or categorized as personal property and divided between the two parties. But this historical throwback is so fraught that it points to the need for new frameworks for navigating legal disputes around new reproductive technologies.

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Slave laws protected the rights of enslavers to own and sell Black people, which involved exerting control over reproduction. For example, a 1662 law in Virginia made slavery inheritable through enslaved women. At the time, English Common law determined most cases involving inheritance on the basis of the paternity of the child. But new laws were created in the colonies and these slave laws ensured that enslavers maintained legal access to the reproductive capacities of enslaved women.

For centuries, every child born to an enslaved woman made enslavers wealthier. Reproduction could be forced, a result of sexual violence or involve consent between an enslaved woman and a lover. But the historical application of the laws governing human property and reproduction during slavery stripped Black women of procreational autonomy. The law allowed for the ongoing sexual exploitation of enslaved women and tied their reproductive labor to the wealth of enslavers, the slave market and the creation of the dominant labor force of states like Virginia.

Jason Heidemann’s lawyers argued that embryos cannot be considered “goods or chattels,” or property, because each embryo is unique, and not fungible. Unfortunately, this line of argument would not have stood in an antebellum court deciding the fate of an enslaved person. One 1819 Virginia law allowed for the possibility that one enslaved person could not be divided between heirs, or that a group of enslaved people might not be equally divided. In that case, it would be lawful for the courts to intervene, direct the sale of enslaved people and then distribute the money arising from the sale appropriately to an enslaver’s heirs.

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A revised Virginia slave code passed in 1849 reaffirmed the legal recognition of human property under the system of slavery stating, “When an equal division of slaves, 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 right of the parties.”

Matters regarding the financial entitlements of enslavers not only appeared in property disputes, business transactions and inheritance claims, but in cases where enslaved people retaliated against enslavers. Throughout the 19th century, distribution of funds for the value of enslaved people appeared in legal cases involving the alleged capital crimes of enslaved women and girls.

When enslaved women and girls stood accused of crimes such as murder, poison, infanticide and arson, the Virginia legislature either sold or executed those they found guilty. If they were executed, the state compensated enslavers at a value determined by the court. In cases of infanticide, enslavers received the amount for the enslaved woman executed and the deceased child.

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The state consistently viewed African American women and their reproductive capacities in terms of their economic value. Slavery ended after the Civil War when Congress passed the 13th Amendment, making forced labor illegal except in instances involving convicts.

As the South began to rebuild a war-ravaged landscape and revitalize racial hierarchies, state legislatures criminalized Black women for minor or even fabricated offenses and judges sentenced them to convict labor camps that also served as sites of sexual exploitation. While Black children no longer inherited slavery from their mothers, the legacy of race continued to shape the discrimination and criminalization they faced after emancipation.

And sexual violence against Black women persisted through the era of Jim Crow segregation, a social and political climate of White terrorism. Historians such as Crystal Feimster and Danielle McGuire remind us that Black women were not deemed worthy of protection from rape in Southern courts.

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Black women’s bodies and reproductive autonomy remained vulnerable well into the 20th century, with a climate of unchecked racial and sexualized violence and the threat of forced sterilization. States sought to forcibly limit the number of Black pregnancies to serve eugenic goals.

More recent state efforts to force women and girls to keep unwanted and life-threatening pregnancies are part of the same exercise of power over their reproductive autonomy. Legal scholar Michele Goodwin shows how recent fetal protection and personhood laws strip expectant parents of rights to make medical decisions. And in some cases, such as those involving incarcerated mothers, the fetus in utero has been considered the property of the state, with antiabortion laws in place to determine the outcome.

As a result, women and girls become subject to policing and surveillance with menstrual cycles even scrutinized. These policing practices particularly affect poor Black and Latinx women and girls. Goodwin states, “where planters once controlled Black women’s reproduction on their plantations and elsewhere, now the state controls what Black women (and others) may do with their bodies during pregnancy.”

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American slave law made the sexual exploitation of enslaved women profitable and tied Black racial identity to bondage. The sexual and economic vulnerability of Black women became an ongoing reality of life under Jim Crow and beyond, as the state alternated between forcibly sterilizing them and forcing them to give birth. The nexus of slavery, race, crime and poverty show that Black women continue to remain under surveillance of a law that deprives them of bodily autonomy.

Old laws rooted in human bondage cannot ethically address new legal challenges driven by reproductive technology or legally shape a more democratic future. Returning to the logic of slavery to understand battles today over new reproductive technologies resurrects a very troubling history that has never accorded Black women agency over their own reproduction — but has instead historically rendered their bodies vulnerable to sexual violence and viewed their reproductive capabilities through the lens of White economic gain.

The Heidemanns’ case underscores the urgent need for jurisprudence that is relevant to the legal challenges of today arising from the use of new reproductive technologies — rather than resuscitating the legal culture of slavery that for more than a century after slavery ended, continued to harm Black women.

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