A Couple Breaks Up. Who Gets Custody of Their Embryos?

Caroline Kitchener (0:00)

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That's a mouthful.

Rachel Abrams (0:31)

From The New York Times, I'm Rachel Abrams, and this is The Daily.

In recent years, more and more Americans have been turning to IVF to have children, which means more and more embryos are being stored in fertility clinics all over the country. That has made one question increasingly urgent. What should happen to those embryos if a couple breaks up? In much of the country, the legal system has no clear answer to that question, nor does it have clear rules for weighing one person's desire to become a parent against another person's desire not to. Today, my colleague Caroline Kitchener tells us the story of one couple that found themselves caught in this exact limbo.

It's Thursday, September 10th. Caroline, you recently chronicled this really heart wrenching fight over embryos that this one couple had made when they were still together, and the fight and how it unfolded touched on all kinds of issues that really felt very much of our time, like modern fertility treatments, the question of when life begins, the shape of what a family looks like in our day and age. So tell us how all of that fits into what you cover and how you came to this story.

Caroline Kitchener (2:03)

So I cover a really broad range of issues related to women and families, but I've been paying particular attention over the last year or so to IVF because we've been hearing about that more and more from our politicians especially. I mean, the Trump administration has talked about IVF more than any other president ever starting with his campaign promise to make IVF free and widely accessible for all. As we're hearing more about IVF, as more and more families are turning to IVF to have children, I think that there are a lot of really new, complicated and totally fascinating questions around life when you engineer it in a lab.

Rachel Abrams (2:51)

I think most of us are familiar with the broad outlines of IVF. IVF is a process that helps people have children.

But when you talk about these questions that it raises as more and more people are doing it, what specifically about IVF is at issue here?

Caroline Kitchener (3:07)

IVF or in vitro fertilization is a process by which egg and sperm are combined together to create an embryo in a lab outside of the uterus. Often, embryos are frozen and stored for future use.

There are a lot of murky gray areas that people are just starting to explore and think about differently, one of which is the question of what happens to those embryos if a couple breaks up, who has custody of the potential for life. And I recently came across a case out of New York that I think really captured a lot of these dilemmas.

Rachel Abrams (3:55)

And tell us about the couple at the center of that case.

Caroline Kitchener (3:58)

So the woman is Erin Millender and the man is Adam Rubin. Adam declined an interview with me, but he did provide answers to a detailed list of questions that I sent him. And he also outlined his point of view in extensive affidavits that he filed for the case.

I did, however, spend a lot of time with Erin and talked to her for many hours about her story.

Erin Millender (4:25)

My name is Erin Alice Millender.

Caroline Kitchener (4:28)

Erin is a lawyer. She is 47 years old.

Erin Millender (4:33)

This would be a very different discussion if I was 27 and not 47

But he met me at almost 40 He knew what the stakes were. We both did. And I think that has to be considered.

Caroline Kitchener (4:47)

And I think Erin is really still running back over in her mind to the conversations they had, the heartbreak that they experienced together, remembering, especially, I think, the commitment she said they made about the family that they wanted to build.

Erin, I want to start by getting us to travel back in time a little bit. Take me back to the first moment you remember wanting to be a mom.