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.

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.