A 47-year-old New York mother is fighting to give birth to her second child while locked in a bitter fight over a frozen embryo she created with her estranged husband.
Erin Millender underwent years of in vitro fertilization (IVF) treatments after always dreaming of becoming a mother one day. In September, she welcomed a baby girl after using an embryo that she and her husband, Adam Rubin, created, ABC News reported.
Millender, a high-powered lawyer for the AI and software infrastructure company Hyperscience, and Rubin got married and immediately started IVF treatment after she was told that she was infertile.
But the journey soon grew difficult and took a toll on their marriage, and Rubin, 45, filed for divorce from Millender in June 2023, he told the outlet.
Millender knew their marriage needed a break, but she was blindsided when Rubin, who works in the HVAC industry, decided to throw in the towel completely.
'I think we were both really struggling under the weight of all the pressure. 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,' Millender said.
But before divorce proceedings began, the couple learned they had two viable embryos, and Millender moved quickly to undergo an embryo transfer procedure despite Rubin's objections.
According to Rubin, Millender told him that she wanted to stop going to couples' therapy, and went on to have the embryo transfer by herself.
Erin Millender, 47, gave birth to a baby girl in September after using one of two embryos that she and her now-estranged husband, Adam Rubein, created
Millender and Rubin got married and immediately started IVF treatment after she was told that she was infertile. He later filed for divorce (source: LinkedIn)
'June of 2023, I let her know that she should find [legal] counsel [for a divorce. I revoked my consent to use the embryo,' he recalled.
Despite his efforts to stop the embryo transfer from happening, a Brooklyn court ruled in Millender's favor to have possession of the two embryos in December 2025, the report stated.
'The judge's ruling turned on a number of factors, the most crucial of which seemed to be that time is not biologically equal,' Millender told the outlet.
'Medically, I was told that these embryos were my only realistic chance of being a biological mother.'
Under New York law, an embryo is a unique biological material that has a 'special character.' Courts also look at prior written contracts to determine a final decision.
Millender and Rubin both signed two contracts with the NYU Langone Fertility Clinic, and in the first one, dated in 2021, they had agreed to donate the embryo for scientific research purposes in the case that they legally separate or divorce.
But in a second contract signed in 2023, the couple decided to transfer the embryo to 'the partner stipulated in the divorce or dissolution settlement or other binding agreement,' according to the publication.
Rubin recalled the shock he faced after learning that the court gave Millender custody of the embryos.
But before they started divorce proceedings, the couple was informed that they had two viable embryos, and Millender went in for a procedure to get one of them inside of her as fast as she could, despite Rubin's objection. A New York court also granted her custody of the embryos
'My heart sank. 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,' Rubin said.
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.
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