Who Gets the Embryos? What an IVF Custody Case Shows

When Frozen Embryos Become a Legal and Emotional Question

IVF can create possibilities that once felt out of reach. It can also create decisions that patients may not fully anticipate at the start of treatment, especially when embryos are frozen for future use. What happens if a couple separates? Who decides whether the embryos can be used, donated, discarded, or kept in storage? And what happens when one person sees the embryos as a last chance at parenthood while the other no longer wants to become a parent?

Those questions are at the center of a recent case highlighted in The New York Times’ May 24, 2026 report on IVF embryo custody after a couple split. The article focuses on Erin Millender, a 47-year-old woman for whom the embryos may represent her last realistic chance to become a mother, while her husband no longer wants to have a child with her.

The case is difficult because both sides involve deeply personal rights. One person may be trying to preserve a chance at genetic parenthood. The other may be trying to avoid being forced into parenthood after the relationship has ended. Fertility law often has to hold both realities at once.

Why Embryo Disputes Can Happen After Separation

Frozen embryos are biologically unique, emotionally meaningful, and legally complicated. They are not the same as ordinary property, but they are also not treated the same way as children already born. That middle ground is one reason disputes can become so painful and difficult to resolve.

During IVF, patients often make embryos together with the hope of building a family. At that moment, the relationship may feel stable and the future may feel shared. But relationships can change. Divorce, separation, illness, financial stress, or shifting beliefs about parenthood can make decisions that once seemed simple feel impossible.

That is why embryo disposition should never be treated as a throwaway form. It is a major decision point in IVF planning, especially for couples creating embryos together. If you are still comparing preservation options, egg freezing versus embryo freezing explains why embryos can carry different legal and emotional considerations than unfertilized eggs.

Why Consent Forms Matter So Much

Fertility clinics usually ask patients to complete consent forms before embryos are created or stored. These forms may ask what should happen to embryos if the couple separates, if one partner dies, if storage fees go unpaid, or if the patients no longer want to use them. The language can feel administrative in the moment, but it can become central if a disagreement later reaches court.

Consent forms are important because they can show what both people agreed to before conflict arose. They may help avoid prolonged litigation, reduce uncertainty for the clinic, and give patients a clearer record of their intentions. But even strong forms may not prevent every dispute. Some courts may enforce prior agreements closely, while others may weigh changed circumstances, state law, public policy, or each person’s reproductive rights.

The NYT case is powerful because it shows how much can be at stake when the question is no longer abstract. In Caroline Kitchener’s New York Times article about frozen embryos and custody after IVF, the conflict is not only about stored embryos. It is about time, age, biology, relationship breakdown, and the meaning of consent when two people no longer want the same future.

The Core Legal Tension

Many embryo disputes come down to a painful balance: one person’s desire to use embryos to become a parent versus another person’s right not to become a parent against their will. Neither concern is small. Both can affect identity, family life, finances, emotional wellbeing, and future relationships.

Courts may look at several factors, including:

• What the consent forms or storage agreements say
• Whether one person has other realistic options for biological parenthood
• Whether the embryos were created before a major medical treatment or age-related fertility decline
• Who underwent physical procedures, paid for treatment, or carried the medical burden
• Whether using the embryos would impose unwanted legal, financial, or emotional parenthood on the other person
• How state law treats embryos and reproductive agreements

Because laws vary, patients should not assume one case predicts what would happen in another state or another clinic. The most protective step is to ask questions before embryos are created, update documents when life changes, and seek qualified legal guidance when decisions involve shared embryos.

What Patients Can Ask Before Creating Embryos

These conversations can feel uncomfortable, especially at the beginning of IVF when everyone wants to focus on hope. Still, asking hard questions early can be an act of care for your future self.

Helpful questions include:

• What happens to embryos if we separate or divorce?
• Can either person use embryos without the other’s consent?
• What happens if one partner changes their mind later?
• Are our clinic forms legally binding in our state?
• Should we speak with a reproductive law attorney before signing?
• How often can we update our embryo disposition instructions?
• What happens if we stop paying storage fees?

These questions are not pessimistic. They are practical. IVF already asks patients to make medical, financial, emotional, and ethical decisions under stress. Clear documentation can help reduce confusion later.

For broader context on legal planning in assisted reproduction, law and IVF: understanding legal protections in surrogacy and assisted reproduction explains why agreements and parentage planning matter before treatment decisions become urgent.

The Emotional Weight of Embryo Decisions

Embryo disputes are not only legal conflicts. They can carry grief, anger, hope, regret, and fear. One person may feel that losing access to embryos means losing a future child. Another may feel that using the embryos would bind them forever to a parenthood decision they no longer consent to.

Both experiences deserve compassion. Patients should not have to navigate these questions alone or feel ashamed for needing support. Counseling, legal guidance, and clear medical information can help people slow down, understand their options, and make decisions with more steadiness.

It can also help to remember that embryo storage itself is a long-term responsibility. If you want to understand the storage side of embryo freezing, how long frozen embryos can remain viable offers a patient-friendly overview of cryopreservation and future-use planning.

How This Connects to Her Serenity

At Her Serenity, we know that fertility journeys can involve difficult and deeply personal decisions. IVF is not only a medical process. It can touch relationships, identity, finances, legal rights, and the emotional meaning of family.

Our role is to provide education, support, and guidance so women can navigate each step with confidence and care. That includes helping patients understand not only the science of IVF, but also the decisions that come with embryo creation, storage, consent, and future use.

The lesson from cases like this is not that patients should be afraid of IVF. It is that patients deserve clear information before they sign, compassionate support when decisions feel heavy, and guidance that respects both hope and consent.