Maintaining custody of embryos: The importance of embryo disposition agreements

Since IVF’s rise, courts stress the importance of clear embryo agreements to prevent disputes. Without them, courts decide based on fairness, risking unpredictable outcomes. Couples should formalize plans early to secure their wishes.

Since the birth of the first child conceived via in vitro fertilization (IVF) in 1978, the procedure has enjoyed rapid growth as a safe and reliable means of family formation. As noted by the American Society for Reproductive Medicine, for the first time in 2024, children born via IVF exceeded 100,000 in a calendar year.

This meteoric rise is due to a confluence of factors, which no doubt include a recent shift in demographic trends. Specifically, studies have shown that births in individuals over the age of forty now exceed teenage births.

Often times, however, individuals of so-called “advanced maternal age” require the intervention of modern medicine in order to successfully conceive of a child. While this shift represents significant progress in the United States’ efforts to decrease the number of teenage parents, it presents a rising challenge for court systems confronting disputes over the possession of embryos created via IVF.

This article discusses the legal framework underpinning New York’s handling of embryos conceived via IVF both before and after the enactment of Article 5-C of the New York Family Court Act (FCA) (commonly known as the Child-Parent Security Act, or CPSA) on Feb. 15, 2021, and the resulting importance of a well-drafted embryo disposition agreement.

New York jurisprudence prior to the enactment of the CPSA

New York’s handling of embryos created via IVF can be traced to the seminal matter of Kass v. Kass, 91 N.Y.2d 554, 557 (1998). In Kass, the parties engaged the John T. Mather Memorial Hospital in Port Jefferson, Long Island (the IVF Provider), in hopes of conceiving a child. Prior to the final IVF procedure, the parties executed consent forms which stated, inter alia, that with respect to the disposition of any pre-zygotes, in the event of divorce, the release of same was to be as directed by court order.

After the execution of the above-noted forms, 16 eggs were retrieved from the appellant-wife, resulting in the creation of nine pre-zygotes. Of these, four were transferred to the appellant-wife’s sister (acting as a surrogate) and five were cryopreserved. After the transferred pre-zygotes failed to result in pregnancy, the parties opted to dissolve their marriage pursuant to an uncontested divorce agreement which provided that the pre-zygotes were to be disposed of in a manner consistent with the previously-executed consent form.

Shortly after the execution of the above-noted agreement, the appellant-wife informed the IVF Provider that she opposed such destruction, before commencing the underlying matrimonial through which she sought sole custody of the pre-zygotes.

Although the appellant-wife was initially granted custody of the pre-zygotes, such decision was reversed on appeal and affirmed by the Court of Appeals, which stated: “Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding in any dispute between them”, and that, “parties should be encouraged in advance, before embarking on IVF and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing.” Such advance agreements, the Kass Court opined, “are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable.”

Two decades after Kass, and absent further statutory guidance, the First Department in Finkelstein v. Finkelstein, 162 A.D.3d 401 (1st Dep’t 2018), leave app. dismissed, 32 N.Y.3d 1140 (2019), reached a similar conclusion.

In Finkelstein, through their IVF process the parties executed documents which stated, inter alia, that with respect to the use of any cryopreserved embryos, same would be retained for the parties’ “own use”, and further that an individual signatory may unilaterally withdraw his or her consent.

After multiple failed IVF attempts, the appellant-husband commenced an action for divorce. On Jan. 23, 2014, the Supreme Court entered an Order, inter alia, finding that nothing in executed documents prevented the respondent-wife from moving forward with implantation. Notwithstanding, on March 5, 2014, the appellant-husband both: (a) executed and notarized pre-printed forms from the parties’ IVF provider on which he handwrote that he was revoking his consent for the utilization of his genetic material; and (b) signed a notarized statement indicating the same.

With these newly-signed documents in hand, the First Department reversed the Supreme Court’s decision, stating that it was, “required to choose the construction that ‘will carry out the plain purpose and object of the [agreement]’”. Accordingly, the First Department found that the “remaining cryopreserved embryo may not be used for any purpose by either party”, and awarded the appellant-husband the remaining cryopreserved embryo for disposal.

One year later, the same concepts were applied in Heldt v. Watnik, 2019 N.Y. Misc. LEXIS 2992 (Sup. Ct. N.Y. Cnty. 2019). In Watnik, the parties worked with Reproductive Medicine Associates of New York (RMA) to create embryos from their genetic material. Prior to such creation, the parties executed documentation including a “disposition plan” which specified that in the event of the separation of non-married couples, upon presentation of “legal documentation” the parties agreed that the defendant was to retain any embryos created and may use them to establish a pregnancy.

Thereafter, the plaintiff commenced an action seeking a preliminary injunction preventing RMA from releasing the successfully-created embryos to defendant, while defendant submitted counterclaims seeking, inter alia, declaratory judgment that she be permitted to utilize the successfully-created embryos. Finding the “Disposition plan” unambiguous, Justice Andrew Borrok granted defendant’s counterclaim, and accordingly the ability to utilize the successfully-created embryos for any purpose, “upon providing legal documentation of separation” from plaintiff.

The Suffolk County Supreme Court held similarly in K.G. v. J.G., 72 Misc. 3d 593 (Sup. Ct. Suffolk Cnty. 2021). There, the parties executed documentation provided by Reproductive Medical Associates of New York, including the “consent for cryopreservation of embryo(s) by couples with joint custody” (the Cryopreservation Agreement), which specified that in the event of divorce, the plaintiff-wife would retain control over any extracted embryos with the specific right to establish a pregnancy. Again applying the concepts of contract interpretation, the K.G. Court granted the plaintiff-wife’s application for declaratory judgment relating to rights under the Cryopreservation Agreement.

Enactment of the CPSA and subsequent case law

In an attempt to provide guidance and structure to an increasingly fraught corner of New York jurisprudence, the CPSA was enacted on Feb.15, 2021.

As relevant to this article, FCA §581-306 identifies the requirements that must be met in the drafting of an embryo disposition agreement between intended parents with “joint dispositional control of an embryo”. Such requirements include, inter alia, that the embryo disposition agreement be in writing, and that each intended parent be represented by independent counsel (which may be paid for by either intended parent). §581-306(a)—(b).

Notably, FCA §581-306(d) advises that embryo disposition agreements which are not in compliance with subdivision (a) of the section may still be found to be enforceable after the court balances the, “respective interests of the parties.” This subsection provides a critical “catchall” for the court system where the requirements of FCA §381-306(a) have not been met.

The foregoing subsections of the CPSA were discussed recently in E.L. v. A.S., 88 Misc. 3d 952 (Sup. Ct. N.Y. Cnty. 2025), where the parties had engaged the services of Boston Reproductive Medicine Physician Group, PLLC and New York Medical Sciences, P.C. (collectively, the IVF Labs) for IVF treatment and the storage of any successfully-created embryos.

In connection with such procedures, the parties executed identical documents titled, “Disposition of Embryos: Declaration of Intent” (the Declarations of Intent) on Sept. 12, 2020. Such Declarations of Intent provided for three options with respect to disposition of any embryos, and from which the parties selected the option specifying that in the event of divorce, a court decree, settlement agreement, or written instructions signed and notarized by the parties shall govern the use of the embryos.

Rejecting the plaintiff-husband’s argument that FCA §581-306 should be retroactively applied to the Declarations of Intent to invalidate same, Justice Capitti distinguished the language contained in the Consent Agreement executed in Finkelstein, supra, from the matter before her, holding that the parties had expressly considered circumstances in which they may divorce or separate, and, “unequivocally consented under the current circumstances for this court to issue a decree… ‘directing use to achieve pregnancy in [A.S.]’”.

The ongoing saga of Millender v. Rubin

At the forefront of this issue is the ongoing saga of Erin Millender-Rubin and Adam Rubin, made famous by a recent New York Times article.

As with many women throughout the country, Erin had waited until later in life to attempt to conceive a child. When she received an infertility diagnosis at the age of 41, the parties engaged NYU Langone Fertility Center (NYU) to guide them through the IVF process.

Before NYU began its work with the parties, Erin and Adam executed documentation indicating that in the event of separation or divorce, any embryos retrieved would be transferred to the partner stipulated in a settlement (or other binding) agreement, or pursuant to order of the Court. By leaving the disposition of the embryos open to a future agreement, Adam and Erin resigned to fate the decision as to which party would retain the embryos.

Unsurprisingly, when their marriage broke down, the parties had diametrically opposed viewpoints as to the handling of the embryos: Erin sought to use the embryos successfully retrieved by NYU to conceive of a child, and Adam opposed such request. After considering the parties’ respective positions, Justice Ciccotto awarded exclusive possession and use of the embryos to Erin on Dec. 17, 2025 (the December Order).

As noted by the New York Times, Justice Ciccotto opined in her ruling it was Erin’s, “sense of urgency in having children due to her advancing age” that the Court found “truthful and credible”. On Jan. 4, 2026, Adam filed a notice of appeal, with a stay of the December Order issued by the Second Department on Feb. 2, 2026. However, prior to the issuance of such stay, Erin had successfully moved forward with the implementation of an embryo. Oral argument on the matter was conducted before the Second Department on June 2, 2026.

Given Erin’s prior implementation of the embryo, such argument is likely an exercise in futility. By failing to execute an embryo disposition agreement, Erin and Adam left the issue up to the whims of the New York court system, and are now left to deal with the repercussions of this life-altering decision.

Conclusion

New York jurisprudence has continued to shift and evolve since the holding by the Court of Appeals in Kass. With the enactment of the CPSA in 2021 parties are now afforded the opportunity to make binding and enforceable agreements concerning embryo disposition. These agreements are critical to heading off future disputes in the event of the breakdown of a couple’s relationship, such as what has occurred in Millender v. Rubin, No. 2026-00102 (2d Dep’t 2026).

Absent the existence of such agreements, the decision as to whether parties will embark on what may rightfully be considered the most significant journey in one’s life—childrearing—is left in the hands of the justice assigned to the matter. Accordingly, practitioners are urged to discuss the importance of embryo disposition agreements with their clients, either for inclusion in pre- or post-nuptial agreements, or as standalone agreements.

Mike Grogan is an associate in Withers' family law team.

Reprinted with permission from the [September 16, 2026 edition of the “New York Law Journal”] © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.