Frozen embryo custody fight tests IVF rights after divorce

Erin Millender’s fight over frozen embryos has become a national stress test for IVF rights after divorce, pitting one partner’s last chance at parenthood against the other’s right not to become a parent. At 47, Millender is facing what is likely her final shot at having a child, while her husband no longer wants to have one with her.

The dispute lands in a legal system with no single answer. Across the United States, embryo custody cases often turn on the consent or disposition agreement a couple signed with a fertility clinic before treatment. Those contracts can determine what happens if the relationship ends, but courts may also weigh each person’s remaining fertility options, leaving outcomes highly dependent on state law and local judges.

The American Society for Reproductive Medicine says fertility programs should have written policies for unclaimed embryos. Its ethics guidance says that if there are no specific written instructions, unclaimed embryos may be thawed and disposed of, but they may not be donated to other people for reproductive use or used in research. That guidance reflects how clinics are trying to manage embryos left behind after separation, divorce or abandonment, while avoiding new disputes over who can use them.

The legal landscape shifted sharply after the Alabama Supreme Court ruled on February 16, 2024, that frozen embryos are children under state law. Several Alabama IVF clinics paused services after the decision, underscoring how quickly a courtroom ruling can disrupt care for people already in treatment. In Michigan, the state’s supreme court recently left in place a lower-court ruling awarding possession of a frozen embryo to an ex-husband, another sign that the law remains unsettled and deeply state-specific.

Those battles are not rare. A 2022 review in Fertility and Sterility found that contested embryo disposition and ownership are a frequent basis of claims during domestic separation and divorce, with possible clinical liability for fertility providers caught in the middle. Louisiana is reported to be the only state that bans destruction of IVF embryos, though clinics there have reportedly worked around the 1986 law by shipping unused embryos out of state for storage.

The result is a patchwork that leaves families, doctors and judges making life-altering decisions under conflicting rules. As IVF protections face new scrutiny, embryo-custody fights like Millender’s are becoming a national test of who controls the future when a marriage ends and fertility treatment does not.