Navigating the Complexities of Embryo Custody in IVF Cases

Erin Millender, aged 47, may be nearing her final opportunity to become a mother. Her husband has decided he no longer wishes to have a child with her, ending their shared plans for family.

Caroline Kitchener spent considerable time with Millender after a significant hearing in New York City and thoroughly reviewed numerous legal documents, medical records, emails, and text messages pertinent to the case.

The yearning to be a mother consumed Millender. She had already selected a day care and stored away baby essentials. She turned to various methods, including Chinese pregnancy teas and fertility rituals under Caribbean moonlight, in her quest to conceive. Approaching her late 40s, she recognized that her window to have a child was closing.

After years of unsuccessful attempts at in vitro fertilization (IVF), Millender resolved to try once more. In July 2023, she contacted the clinic to arrange for an embryo transfer.

“What’s a good day to come in?” she asked, hoping to proceed shortly.

However, Millender received unexpected and life-altering news. Her husband had withdrawn his approval, making it impossible for her to have a child using their shared genetic material.

“We can’t move forward,” the doctor informed her. “Our hands are tied.”

This decision thrust Millender into the midst of a challenging national debate affecting both legal systems and personal relationships. As women increasingly use IVF to start families later in life, they encounter new ethical and legal questions, such as determining embryo custody before their potential children are born.

Standing in a Manhattan street, reeling from the news, Millender lit a cigarette and paced. Just weeks prior, her husband mentioned divorce—a suggestion she hoped was a temporary marital issue that could ultimately strengthen their bond, not dismantle their long-held plans for a family.