Couple who split after undergoing IVF go to court over 2nd embryo

A New York woman who gave birth in September following a legal fight with her estranged husband over the use of their frozen embryo says she hopes to become a mom for the second time with the former couple's sole remaining embryo.

“While the idea of being a single mom of two over 50 is very daunting, it was always my intention to give both of these embryos a chance at life,” Erin Millender said in an exclusive interview with ABC News' Linsey Davis that aired Thursday on "ABC News Live Prime." “I still feel incredibly bonded to both of those lives.”

Millender will have to rely on a court to decide whether she is allowed to keep their second embryo. Her estranged husband, Adam Rubin, said he does not want their second frozen embryo used for pregnancy.

"It should be donated to science," Rubin said in a separate interview with Davis that also aired Thursday on "Prime."

Earlier this month, an appellate court kicked the matter back to the same lower court that previously ruled in favor of Millender to use the first embryo that resulted in a baby girl, to decide the fate of their second embryo.

Years prior, when the couple was still together, they produced two healthy embryos through in-vitro fertilization, or IVF.

In the IVF process, ovulation is induced and eggs are removed from a patient's ovaries. The eggs are then fertilized with sperm outside of the body, and the resulting successful embryos are either placed in the patient's uterus in the hope of pregnancy or are stored in a laboratory for future use, according to the American College of Obstetricians and Gynecologists.

“I think we were both a little blindsided by just how challenging it would be,” Millender told Davis of the fertility journey.

By 2023, Millender said she felt their marriage needed a break.

"I think we were both really struggling under the weight of all the pressure,” Millender said. “I knew we needed a break in some way, just to, in my mind, that just meant sort of going to our respective corners in the house, taking some personal time to reflect, settle our nervous systems.”

Rubin remembers it differently. He said Millender told him she wanted to stop couples' therapy and proceed with the frozen embryo transfer by herself.

“June of 2023, I let her know that she should find [legal] counsel [for a divorce],” Rubin said. “I revoked my consent to use the embryo.”

Millender said that when she learned Rubin wanted a divorce three years into their IVF journey, “The first emotion I really felt was just terror."

In December 2025, a Brooklyn court heard arguments over the fate of the embryos and ultimately ruled in Millender’s favor, granting her possession of the two embryos.

“The judge's ruling turned on a number of factors, the most crucial of which seemed to be that time is not biologically equal,” Millender said. “Medically, I was told that these embryos were my only realistic chance of being a biological mother.”

According to New York law, an embryo is viewed as unique biological material with a "special character," with courts generally looking to prior written contracts to determine its disposition.

At the heart of this case are two contracts that Rubin and Millender signed with the NYU Langone Fertility Center in New York.

In the first contract they signed in 2021, both Rubin and Millender had agreed to donate the embryos for research purposes should they divorce or legally separate.

But in the contract they signed in 2023, Rubin and Millender chose the option to transfer the embryo to "the partner stipulated in the divorce or dissolution settlement or other binding agreement." The court sided with Millender and granted her possession of the embryos.

"My heart sank," Rubin said of his reaction to the ruling. "Never at any point in time did I think I'm signing these contracts, they should protect me from having this situation where I don't have control of my own genetic material.”

Morgan Mazor, Rubin's lawyer, says this landmark case could potentially have bigger implications for reproductive rights in the state of New York.

"The law right now is very clear; it's the contract," Mazor told ABC News. "The law has been so clear because [the courts] don't want to touch the issue of whether or not this property should be given this special consideration."

He continued, "In New York, you're allowed to get an abortion, if we start saying 'we have to give it special consideration because there's going to be a child,' we are creating a platform for somebody to say, 'if it's a child in a divorce situation, why isn't it a child for an abortion situation?'"

Rubin filed an appeal with the appellate court in the state of New York. But Millender had already become pregnant with one of the embryos during the legal process.

“My initial reaction was actually a sense of relief thinking that she, maybe, met someone,” Rubin said of Millender's pregnancy. “And within a few seconds, I realized what happened. And there is no way to describe that feeling.”

Now with the second embryo, Millender and Rubin, whose divorce is still ongoing, face new questions about the future.

"My life has basically been on hold with more questions than answers," Rubin said. "It's tough to heal from all this when you're still stuck in the middle of it."

Millender said the past few years are not "the circumstances that I had ever hoped to bring a child into the world under."

"I have a lot of regret about that," she added. "But now is when I focus on making sure that I do everything I can to let my child know that they were made with love and intentionality and to give them the most joyful life that I can."