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A Virginia judge has been slammed for using a slave code from 1849 to rule that frozen embryos are 'property' after an infertile woman requested to use ones made with her ex-husband.

Honeyhline Heidemann, 45, is locked in a bitter dispute with her ex-husband Jason, 43, over whether she can use two frozen embryos the pair made when they were married.

In an extraordinary ruling, Fairfax County Circuit Court Judge Richard Gardiner said Ms Heidemann could take the case to trial because frozen embryos can be considered 'goods or chattels'.

In reaching his decision, he drew on a 19th-century law that defined enslaved people as property, sparking outcry within the legal profession.

Solomon Ashby, president of the Old Dominion Bar Association, which is made up primarily of Black lawyers, said: 'I would like to think that the bench and the bar would be seeking more modern precedent.'

Judge Richard Gardiner ruled that Honeyhline Heidemann could claim custody of frozen embryos made with her ex husband, stating that a 19th-century code that treated slaves as property bore striking parallels with the case

The ruling at Fairfax County Circuit Court has sparked outcry within the legal profession

He added: 'Hopefully, the jurisprudence will advance in the commonwealth of Virginia such that...we will no longer see slave codes [cited to justify legal rulings].'

Neither party's lawyers raised the precedent of slavery. Ms Heidemann's representatives even distanced themselves from the language used by Judge Gardiner, saying the court 'cited authorities that were not raised by either party'.

The Heidemanns froze two embryos in 2015. They separated two years later and entered a written agreement stating the embryos would not be used without a court order or consent of both parties.

They divorced in 2018, but the following year Ms Heidemann asked her ex-husband if she could use the embryos after chemotherapy had left her infertile.

Mr Heidemann refused and so Ms Heidemann asked the court to decide on the matter.

Judge Gardiner initially sided with Mr Heidemann, saying that because embryos could not be bought or sold, they couldn't be treated as property and as such Ms Heidemann had no claim to take custody of them.

But her lawyer asked Judge Gardiner to reconsider, prompting him to delve into the history of law.

He found an 1849 code that classed 'slaves' as property that could be divided and sold and drew a parallel to the current case, saying the code used 'language almost identical' to current law.

'As there is no prohibition on the sale of human embryos, they may be valued and sold, and thus may be considered 'goods or chattels,' he wrote in his ruling.

Susan Crockin, a lawyer at Georgetown University's Kennedy Institute of Ethics and an expert in reproductive technology law, described his judgment as 'repulsive' and 'morally repugnant'.

She said she wasn't aware of any other judge in the US who has concluded that human embryos can be bought and sold.

Sofia Vergara's ex Nick Loeb lost his final appeal in Los Angeles to gain custody of two embryos that were frozen seven years ago when the couple was still engaged; seen in 2014

In 2015, a Chicago court ruled that a woman could have custody of frozen embryos made with her ex-boyfriend, despite his objections.

The court ruled that there had been an oral contract between the parties — Karla Dunston and Jacob Szafranski.

Most famously, a Los Angeles court ruled in favor of Modern Family actress Sofia Vergara, who rebutted attempts by her ex-fiance Nick Loeb to gain custody of two embryos the couple made when they were still engaged.

A Los Angeles court sided with Vergara, granting her request for a Permanent Injunction and preventing Loeb from using the frozen embryos 'to create a child without the explicit written permission of the other person'.

Judge Gardiner's decision, issued in March, is not final as he has not yet ruled on the argument over whether Mr Heidemann has autonomy over his own fatherhood.

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