A 47-year-old New York mother is facing a legal battle over a frozen embryo created with her estranged husband as she tries to have a second child.
Erin Millender spent years undergoing in vitro fertilization after holding onto her dream of becoming a mother. In September, she gave birth to a daughter using one of the embryos she created with her husband, Adam Rubin, ABC News reported.
Millender, an attorney at AI and software infrastructure firm Hyperscience, and Rubin began IVF treatment soon after marrying, following doctors’ advice that she was infertile.
The emotional and physical strain of the fertility process eventually put pressure on the marriage. Rubin, 45, who works in the HVAC industry, filed for divorce in June 2023, he told the outlet.
Millender said she understood that the couple needed time apart, but was caught off guard when Rubin decided he wanted to end the marriage altogether.
“I think we were both really struggling under the weight of all the pressure,” Millender said. She believed they needed a temporary separation, which to her meant taking space at home and allowing each other time to reflect and calm down.
Before the divorce case moved forward, the couple learned that two embryos had developed successfully. Millender then pursued an embryo transfer, despite Rubin’s objections.
Rubin said Millender told him she no longer wanted to continue couples therapy before arranging to undergo the transfer on her own.
Erin Millender, 47, welcomed a baby girl in September after using one of two embryos created with her estranged husband, Adam Rubin
Millender and Rubin began IVF treatment immediately after marrying, following her infertility diagnosis. Rubin later filed for divorce (source: LinkedIn)
“In June of 2023, I let her know that she should find [legal] counsel [for a divorce]. I revoked my consent to use the embryo,” Rubin recalled.
Although Rubin attempted to prevent the transfer, a Brooklyn court ruled in Millender’s favor in December 2025, granting her possession of the two embryos, according to the report.
Millender said the judge considered several issues, with the most important appearing to be the unequal impact of time on each spouse’s reproductive options.
“Medically, I was told that these embryos were my only realistic chance of being a biological mother,” she told the outlet.
Under New York law, embryos are treated as unique biological material with a “special character.” Courts also review any agreements the parties signed before making a final decision.
Millender and Rubin signed two agreements with NYU Langone Fertility Clinic. The first, completed in 2021, stated that the embryo would be donated for scientific research if the couple separated or divorced.
A second agreement signed in 2023 instead directed that the embryo be transferred to “the partner stipulated in the divorce or dissolution settlement or other binding agreement,” according to the publication.
Rubin said he was stunned when he learned that the court had awarded Millender control of the embryos.
After learning that two embryos were viable, Millender quickly underwent a transfer procedure despite Rubin’s objection. A New York court later granted her custody of the embryos
“My heart sank,” Rubin said. “Never at any point in time did I think that, by signing these contracts, they should protect me from a situation where I don’t have control of my own genetic material.”
His attorney, Morgan Mazor, told ABC News that this case could potentially rewrite reproductive rights laws.
‘The law right now is very clear, it’s the contract. 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,’ Mazor explained.
‘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?”‘
Millender is a high-powered lawyer for the AI and software infrastructure company Hyperscience
After the ruling, Rubin filed an appeal, but Millender had already become pregnant with one of the embryos.
The two of them had shown up for court in mid-March when Rubin spotted his now-pregnant wife, Millender told The New York Times in May. Her lawyer informed Rubin a day before the hearing, she said.
At first, Rubin was happy for her because he thought that she had possibly met someone new, but then it hit him.
‘And within a few seconds, I realized what happened. And there is no way to describe that feeling,’ he recalled.
Now that she had given birth to her first child, Millender said she is determined to try and have a second child with the 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,’ she said.
‘I still feel incredibly bonded to those lives.’
Millender and Rubin’s divorce is still not finalized, and their legal battle has only gotten more intense and confusing.
‘My life has basically been on hold with more questions than answers. It’s tough to heal from all this when you’re still stuck in the middle of it,’ he shared.
His estranged wife said the past few years have not been easy, and not ‘the circumstances that I had ever hoped to bring a child into the world under.’
Millender and Rubin’s divorce is still not finalized, and their legal battle has only gotten more intense and confusing, but she plans to have a second child with the remaining embryo (Source: GoFundMe)
‘I have a lot of regret about that. 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,’ she added.
Millender started a GoFundMe page before the birth of ‘Baby Girl Millender,’ she said.
On October 21, she announced that the child was born and thanked those who donated for their generosity.
‘For now, we’re safe and surrounded by family. But our joy is tempered by the reality that we still have no permanent home secured beyond the end of this year. If you feel moved to continue sharing our story and this fundraiser, it would mean the world to us,’ Millender wrote.
The Daily Mail contacted Millender and Mazor for comment.