New York Lawyer Fights Ex-Husband Over Right to Use Frozen Embryo

A bitter legal battle in New York has erupted over a frozen embryo, pitting a 47-year-old mother against her estranged husband as she fights for the right to carry her second child to term. Erin Millender, a high-powered attorney at AI infrastructure firm Hyperscience, welcomed a baby girl in September after using one of two embryos created with her ex-husband, Adam Rubin. Now, she is locked in a dispute over the remaining viable embryo.

The couple’s journey began with a diagnosis of infertility. They married and immediately started in vitro fertilization (IVF) treatments. The process took a heavy toll on their relationship. Rubin, 45, who works in the HVAC industry, filed for divorce in June 2023. He claims he revoked his consent to use the embryos at that time.

Millender saw the separation differently. She believed they needed a pause, not an end. "I think we were both really struggling under the weight of all the pressure," she explained. "I knew we needed a break in some way, just to, in my mind, that just meant sort of going to our respective corners in the house, taking some personal time to reflect, settle our nervous systems."

Rubin disagreed. He said Millender told him she wanted to stop couples' therapy and proceeded with an embryo transfer despite his objections. Before the divorce proceedings officially began, the couple learned they had two viable embryos. Millender moved quickly to undergo the transfer procedure.

A Brooklyn court ruled in Millender's favor in December 2025, granting her possession of the two embryos. The judge’s decision hinged on several factors, with time being the most significant. "Time is not biologically equal," Millender noted. "Medically, I was told that these embryos were my only realistic chance of being a biological mother."

The legal complexities are tangled in the contracts the couple signed with NYU Langone Fertility Clinic. Under New York law, embryos are considered unique biological material with a "special character." Courts look to prior written agreements to make final determinations.

In a 2021 contract, Millender and Rubin agreed to donate any embryos for scientific research if they legally separated or divorced. However, a second contract signed in 2023 changed the terms. It stated that the embryo should be transferred to "the partner stipulated in the divorce or dissolution settlement or other binding agreement."

Rubin expressed shock at the court's decision. "My heart sank," he said. "Never at any point in time did I think I'm signing these contracts, they should protect me from having this 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," Mazor stated. The outcome of this fight will likely set a precedent for how courts handle disputes over frozen embryos in New York.

Mazor pointed out that the legal framework remains stubbornly ambiguous because the judiciary refuses to engage with the core question: does this property merit special protection? "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," he explained. The hesitation carries weight in New York, where abortion rights are firmly established. Mazor warned that granting embryos unique legal status could unravel that precedent. "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?'"

The stakes became personal and immediate after the court ruling. Rubin filed an appeal, but the timeline had already shifted. Millender, a high-powered attorney for the AI and software infrastructure firm Hyperscience, was already pregnant with one of the embryos. The revelation arrived in mid-March, during a scheduled court appearance. "Her lawyer informed Rubin a day before the hearing," Millender told The New York Times in May. Rubin initially reacted with surprise, assuming she had found a new partner. Then the reality settled in. "And within a few seconds, I realized what happened. And there is no way to describe that feeling," he recalled.

Millender has given birth to her first child, a daughter she calls "Baby Girl Millender." Now, her focus turns to the remaining embryo. She is determined to pursue a second pregnancy, despite the daunting prospect of raising two children as a single mother over 50. "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."

The divorce between Millender and Rubin remains unfinalized. For Rubin, the process feels less like a legal proceeding and more like a suspended animation. "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. Millender acknowledged that the past few years have been far from ideal. She described the situation as not being "the circumstances that I had ever hoped to bring a child into the world under." Yet, she holds onto a sense of purpose. "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.

Financially, the situation is precarious. Millender launched a GoFundMe campaign before the birth. On October 21, she confirmed the baby's arrival and thanked donors for their support. The note was honest about their immediate needs. "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," she wrote. The Daily Mail reached out to both Millender and Mazor for further comment.