A recent New York Times article, “They Started I.V.F., Then Split. Now Who Gets Custody of the Embryos?” examines the complex case of attorney Erin Millender and her ex-husband, Adam Rubin, who helps run a Long Island HVAC company.
Millender, a high-powered career woman, had always dreamed of – and planned on – having a baby. But for many years, she didn’t find the right partner. She met Rubin at 39, well aware that time was running out on her biological clock.
The couple endured several rounds of IVF, fibroid-removal surgery, a failed embryo transfer, “and throughout, a looming fear that [Millender’s] uterus was becoming less hospitable with every passing month.”
It was an emotionally grueling process.
Rubin and Millender have somewhat different versions of how their relationship broke down, but ultimately, the marriage did not survive. He wanted to prioritize healing their strained relationship before having a child. She agreed that they needed to work on better communication as a couple, but felt that pregnancy must take precedence – it was now or never. They had two viable embryos, and she needed to move forward immediately. She told Rubin he didn’t need to be around for this part; he could golf or “climb Machu Picchu” while she focused on a successful transfer. Rubin felt his role was being reduced to “sperm donor.” Millender worried her last chance at motherhood was slipping away.
Rubin revoked his consent for the embryo transfer. Millender begged him to change his mind and apologized for making him feel unloved or unneeded. But Rubin responded that the relationship was “beyond repair.”
Millender froze more eggs in hopes she could fertilize them with an anonymous donor, but she knew that, given her age, in her mid-40s, the odds were very much against success. ”The embryos Millender had created with Rubin would almost certainly be her only chance to bear a child.”
In their most recent round of IVF, the clinic had presented the couple with a contract – fairly standard practice in fertility clinics nationwide – to determine the fate of the embryos should the couple split. It offered three options:
- One party would be granted control of the embryos
- The embryos would be discarded
- The embryos would be donated
Millender and Rubin chose the first option. However, if they divorced, the question of which partner would be given the embryos would be in the hands of a New York divorce court.
As the article points out, this is where it gets even more complicated.
A woman who is pregnant when she divorces has an unambiguous legal right to carry the pregnancy to term if she chooses, and the parents must then work out a custody agreement. “But the legal question of who should have custody of frozen embryos is far more complicated — and still largely unsettled in American law. Only about one-third of states have considered the issue in an appeals court, where precedent is set. Courts in the vast majority of states have no established legal framework to use to make these decisions. Absent any precedent, individual judges are left to decide what outcome is most fair.”
According to an analysis cited in the article, lower courts have tended to side with the person who wants to use the embryos, while appellate courts have typically sided with the party that wants to donate or discard them.
Adding to the difficulty in this case, Millender and Rubin also had different religious perspectives. Rubin is Jewish, and he emphasized that the Torah directs parents to impress its teachings on their children, which he would not be able to do if he weren’t a part of the child’s life. Rubin’s lawyer said Rubin would opt to discard the embryos (though Rubin later said he intended to donate them to research, in keeping with a contract the couple made in an earlier IVF round). Millender is pro-choice but also a practicing Catholic, and she argued that as a couple they had agreed not to “waste life.” According to the article, to Millender, it “seemed a lot like [Rubin] was trying to kill her children.”
Late last year, Brooklyn Civil Court Judge Theresa Ciccotto granted Millender possession of the embryos.
Anticipating that Rubin might file an appeal, Millender hurried to schedule a transfer and presented the doctor with the court’s ruling. Rubin did indeed appeal, but by the time the appellate court halted the lower court’s ruling, Millender, now 47, was already pregnant.
Rubin’s legal team fought back, questioning the timing of the transfer and demanding her medical records.
Millender’s lawyer said Millender (who has a much higher income than her ex) would not seek parental support if Rubin waived his parental rights.
This case involves a web of complex legal and ethical questions and emotionally charged matters: infertility, religious beliefs, financial circumstances, gender roles/expectations, and the nature of a frozen embryo. Your own perspective, opinion, and feelings about it – including which party you most sympathize with in this story – may be largely tied to your own experiences and influences.
But it’s important for California couples to know that state law around this issue is still evolving.
Currently, in California, disputes over frozen embryos fall under contract and property law, not custody law. In other words, when it comes to who is granted possession, California courts do not view a frozen embryo the same as they would a child.
Still, frozen embryos are a sort of gray area – not legally children, but also not exactly property; plus, they can’t easily be split 50/50 under the state’s community property principles.
Therefore, judges typically look to existing contracts, like the type Millender and Rubin signed through the fertility clinic – explicit agreements made by the couple governing what happens to their embryos in the event of divorce.
If such a contract is deemed clear, unambiguous, and valid, courts tend to enforce it. But even where there is an existing agreement, California judges closely scrutinize the contract for fairness and to ensure it does not violate public policy.
And what if no contract exists? California law clearly states that a person cannot be forced into parenthood. Therefore, if the hopeful parents did not enter into a formal agreement when beginning the IVF process, courts tend to side with the party who does not want to become a parent. This may result in a ruling that embryos be donated or destroyed.
However, every case is unique, and when there is no contract, judges may apply a “balancing test,” weighing factors such as each party’s intentions (reasons for wanting to use the embryos vs. opposing their use), options (is there another option to achieve biological parenthood?), and how much each contributed to the IVF process (financially, logistically, emotionally).
There are also cases in which one party wants to use the embryos and the other does not oppose, provided that the person who does not want to be a parent can waive parental rights and financial obligations.
But precedent in these situations is somewhat limited.
All of this underscores the importance of skilled legal guidance. Infertility treatment can be very challenging for couples. Similar to a prenuptial agreement, making a contract with your partner during IVF does not indicate an intention to divorce, nor does it doom your partnership. It is a practical, wise step that provides clarity and streamlines highly sensitive issues in the event that your marriage doesn’t last. The skilled and caring family law attorneys at SFLG can help you draft a sound agreement or guide you through next steps if you’re already in a dispute.
By Debra Schoenberg
