// Virginia circuit court judge Richard Gardiner circulated a preliminary opinion last month in an ongoing custody battle over a pair of frozen embryos and he’s drawing on some curious precedent. You see, the embryos constitute “goods or chattels” for the purposes of divorce because Virginia law originally intended slaves to be considered chattel, so there’s no reason embryos shouldn’t be treated as personal property under the code.

It really seems as though you could reach an equitable division in this case without dipping into the legacy of slavery, but… original intent and all that:

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While the court initially viewed this language as applying only to “goods or chattels” on land being partitioned, upon extensive review of the origins and evolution of Code § 8.01-93, the court now concludes that partition of “goods or chattels” pursuant to Code § 8.01-93 is not restricted to “goods or chattels” on land being partitioned.

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The two main differences between Code § 8.01-93 and § 6 of Title 34, Chapter 124 of the Code of 1849 are the following. First, the title of § 6 is “Partition of slaves or other chattels.” Second, the language includes “slaves” as partitionable in kind or subject to sale. As shown, infra, by 1849 slaves were partitionable in kind or subject to sale as they were considered personal property not annexed to the land. Thus, “goods or chattels” also would have been partitionable in kind as personal property not annexed to the land.

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According to a footnote, “The removal of the reference to slaves between the 1849 and 1887 Codes was undoubtedly the result of the passage of the 13th Amendment to the United States Constitution in 1865.” You think?

The Guardian spoke with Susan Crockin of Georgetown University’s Kennedy Institute of Ethics.

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It’s repulsive and it’s morally repugnant.

Well, sure.

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The paper also spoke with Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, who said:

I would like to think that the bench and the bar would be seeking more modern precedent.

I hear you, but when we’ve got Alito over here basing constitutional law on 17th century witch hunters, a virulently racist 19th century precedent is par for the course.

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Or you could just not do any of this. It’s always an option.

Virginia judge uses 19th-century slavery law to rule frozen embryos are property [The Guardian]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Assisted Reproductive Technology (ART), Courts, Embryo Disputes, Frozen Embryos, Racism, Slavery