U.S.|They Started I.V.F., Then Split. Now Who Gets Custody of the Embryos?

More than anything else in the world, Erin Millender longed to be a mother. She already had a day care picked out, a Pack ’n Play stashed in her basement. She’d tried Chinese pregnancy teas and midnight fertility ceremonies under a full moon in the Caribbean Sea. Whatever it took to have a child.

Now in her mid-40s, Millender knew she was running out of time. She had already spent several years attempting in vitro fertilization, with no luck. She’d decided to give I.V.F. one more try.

“What’s a good day to come in?” Millender asked when she called the clinic in July 2023, hoping to have an embryo placed inside her uterus within a few weeks.

The doctor then delivered the news that would upend Millender’s entire future. Her husband had revoked his consent. She could no longer make a baby with his DNA.

“We can’t move forward,” she recalled the doctor saying. “Our hands are tied.”

And with that, Millender arrived at the center of a contentious new debate dividing courts and couples across the country. As more women turn to in vitro fertilization to build their families — sometimes delaying motherhood into their 40s — some are wrestling with an unfamiliar set of moral and legal questions that arise when children are created in a lab. Among the most contentious: Who has custody of those children before they exist?

Standing on the street in downtown Manhattan, Millender took a cigarette out of her purse and started to pace. A few weeks earlier, in the doorway of their Brooklyn brownstone, her husband had brought up divorce for the first time. But surely, she’d thought, that was just a marital bump, the kind of conflict that might eventually bring a couple closer together. Not one that could destroy the most painstakingly laid plans for a family.