A New York appellate court has ruled on a significant case regarding the custody of cryopreserved embryos in the divorce of Erin Alice Millender-Rubin and Adam L. Rubin. The court's decision, issued on October 7, 2026, addresses the rights of both parties concerning embryos created during their marriage through in vitro fertilization (IVF). This ruling is crucial as it sets a precedent for how similar cases may be handled in the future.

The case, Millender-Rubin v. Rubin (Docket No. 2026-00102), arose after the couple, who were married in 2021, began their journey to parenthood through assisted reproductive technology. The court's decision affects not only the couple but also has implications for future IVF agreements and the rights of individuals in similar situations.

BACKGROUND

Erin Alice Millender-Rubin and Adam L. Rubin were married in September 2021. Shortly after their marriage, they sought to have a child through IVF at NYU Langone Fertility Center. Their first IVF cycle took place in October 2021, resulting in one viable embryo, which they chose to cryopreserve.

In November 2021, they underwent a second IVF cycle, producing two additional viable embryos, also cryopreserved. Despite their efforts, including a third IVF cycle in March 2023 that did not yield viable embryos, the couple's relationship deteriorated. By November 2023, Millender-Rubin filed for divorce, seeking exclusive possession and use of the two cryopreserved embryos created during their marriage.

During the divorce proceedings, a stipulation was reached between the parties confirming that two embryos were in dispute. However, the couple disagreed on the rights to these embryos, leading to legal motions. Rubin sought summary judgment to declare his rights over the embryos, while Millender-Rubin cross-moved for exclusive possession.

THE RULING

The Appellate Division of the Supreme Court ruled on the matter, modifying the lower court's decision. The court denied Rubin's motion for summary judgment, which sought to establish his rights over the embryos, and also modified the lower court's ruling that had granted Millender-Rubin exclusive possession.

The court stated, "Neither party established entitlement to judgment as a matter of law, as neither party established the agreement that was made with respect to the embryos in dispute." The judges on the panel included Valerie Brathwaite Nelson, Barry E. Warhit, Phillip Hom, and Lisa S. Ottley.

The court emphasized the importance of clear agreements regarding the disposition of embryos created during IVF. It noted that the parties had not provided sufficient evidence to determine which IVF cycle the disputed embryos originated from, stating, "There are triable issues of fact as to whether the embryos in dispute are from the November 2021 IVF cycle or a combination of the October 2021 IVF cycle and the November 2021 IVF cycle."

IMPACT

This ruling highlights the complexities surrounding reproductive rights and the legal status of cryopreserved embryos. It underscores the necessity for couples undergoing IVF to have clear and detailed agreements regarding the disposition of embryos in the event of divorce or other disputes.

The decision also indicates that courts may not automatically grant exclusive rights to one party without clear evidence of agreements made prior to the dispute. This case may set a precedent for how future cases involving cryopreserved embryos are handled, emphasizing the need for well-defined legal frameworks in reproductive technology.

WHAT'S NEXT

The parties may seek further legal recourse, including the possibility of an appeal to a higher court. As of now, there are no indications of related cases pending that could directly affect this ruling.