Estranged couple locked in bitter fight over frozen embryo after undergoing IVF as single mom, 47, fights to give birth again
A New York court awarded Erin Millender control of two frozen embryos created with her estranged husband, Adam Rubin, allowing her to pursue another pregnancy. The dispute highlights the competing interests involved when former partners disagree over embryos and raises questions about how courts weigh consent, contracts and the parties’ circumstances.
Millender, 47, gave birth to a daughter in September after using one of the embryos; Rubin, 45, had withdrawn his consent before the transfer. The couple signed two clinic agreements: a 2021 contract said the embryos would be donated for research if they divorced, while a 2023 contract deferred to a divorce settlement or other binding agreement. A Brooklyn court ruled in Millender’s favour in December 2025, with the judge considering the biological time constraints she faced.
In short
- Millender gave birth using one embryo created with her estranged husband.
- A Brooklyn court awarded her control of both frozen embryos.
- The dispute centres on consent, clinic contracts and reproductive rights.
Steelman: both sides, in good faith
The strongest fair case each way — we don't pick a winner.
The case for
Millender’s strongest case is that the later agreement left the embryos’ fate to a divorce settlement or other binding agreement, and the court could reasonably give weight to her limited opportunity to carry another pregnancy. She may also argue that, after investing in IVF and relying on the embryos to build her family, control should not automatically pass to an ex-partner who has withdrawn consent.
The case against
Rubin’s strongest case is that creating a child should require continuing agreement from both genetic parents, so his withdrawal of consent ought to prevent a transfer that could make him a parent against his wishes. He can also point to the couple’s 2021 agreement for research donation if they divorced, arguing that it recorded their shared plan and that courts should uphold such agreements to protect predictability and reproductive autonomy.
Explained simply
IVF can create embryos by fertilising eggs with sperm in a laboratory, then freezing them for possible use later. When a couple separates, they may disagree about whether the embryos should be used, donated or kept in storage.
The dispute involves Erin Millender and Adam Rubin, who signed agreements with their fertility clinic about what should happen to their embryos. Their agreements differed, raising questions about how courts interpret changing consent and written arrangements.
Such cases involve both former partners’ wishes and the potential for one person to have a child using an embryo. Courts may also consider the circumstances of each person, including the time limits associated with fertility.
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