Estranged Couple in Legal Battle Over Frozen Embryo After Wife Gives Birth
A New York woman has successfully used a frozen embryo to give birth, but faces a continued legal fight with her estranged husband over a second embryo.
A 47-year-old New York woman has given birth to a baby girl using a frozen embryo created with her estranged husband, continuing a legal battle over their reproductive future. Erin Millender, who underwent IVF treatments due to infertility, welcomed her daughter in September.
Millender and her husband, Adam Rubin, who works in the HVAC industry, married and began IVF treatments. However, their marriage faced difficulties under the strain, and Rubin filed for divorce in June 2023. Millender described the situation as a need for a break, while Rubin stated he intended to end the marriage.
Before their divorce proceedings began, the couple learned they had two viable embryos. Millender proceeded with an embryo transfer, despite Rubin's objections and his revocation of consent in June 2023. Rubin told ABC News that Millender had stopped couples therapy and proceeded with the transfer on her own.
In December 2025, a Brooklyn court ruled in Millender's favor, granting her possession of the two embryos. Millender stated the judge's decision considered that "time is not biologically equal" and that the embryos represented her only realistic chance of biological motherhood. New York law treats an embryo as a unique biological material with a "special character," and courts also examine prior written contracts.
The couple had signed two contracts with the NYU Langone Fertility Clinic. The first, dated 2021, stipulated that embryos would be donated for scientific research if they separated or divorced. However, a second contract signed in 2023 stated that embryos could be transferred to "the partner stipulated in the divorce or dissolution settlement or other binding agreement."
Rubin expressed shock at the court's decision, stating he never believed the contracts would lead to a situation where he lost control of his genetic material. His attorney, Morgan Mazor, suggested the case could impact reproductive rights laws, noting the legal distinction between an embryo's status in reproductive rights cases versus divorce proceedings.
After the ruling, Rubin filed an appeal, but Millender had already become pregnant. She informed Rubin of her pregnancy shortly before a court hearing in mid-March. Rubin initially felt happy for her, mistaking it for her having met someone new, before realizing the situation.
Millender plans to use the remaining embryo to try for a second child, despite the challenges of being a single mother over 50. She stated it was always her intention to give both embryos a chance at life and that she feels bonded to them.
Their divorce remains unresolved, and the legal dispute continues. Millender launched a GoFundMe page before her daughter's birth to help secure housing. She announced her daughter's birth on October 21, expressing gratitude to donors but also noting the uncertainty of their housing situation beyond the end of the year.