The Problem Nobody Wants to Talk About Clearly

An estimated 1 million cryogenically frozen embryos are sitting in storage facilities across the United States right now, according to the University of Notre Dame's Right to Life program. That number grows every day.

When marriages and relationships fall apart, those embryos become the most contested asset in the divorce — and the courts have no consistent answer for what to do with them.

According to DivorceNet, a significant share of Americans have had personal experience with assisted reproductive technology in recent years. IVF is mainstream. So are IVF divorces.

The Case That Puts a Face on It

The New York Times profiled Erin Millender, 47, who is likely facing her last biological chance at motherhood. Her husband no longer wants a child with her. The embryos they created together are now at the center of a legal fight.

What the Law Actually Says — Which Isn't Much

Embryos are neither children nor property under most U.S. legal frameworks. They exist in a legal no-man's-land.

According to reproductive attorney Melissa Brisman of Reproductive Possibilities, courts have been forced to resolve these disputes on a case-by-case basis because no unified standard exists. The judicial system can divide a house, split an investment account, or set a parenting schedule for living children. Embryos don't fit any of those boxes.

Most fertility clinics require couples to sign disposition agreements before freezing embryos — covering scenarios like death, separation, or divorce. But as Brisman notes, courts will typically uphold those agreements only if doing so doesn't force someone into parenthood against their will.

In most contested cases, that caveat becomes the deciding factor.

The Courts Are All Over the Map

Two cases show just how inconsistent the outcomes are.

In McQueen v. Gadberry (2015), the Missouri Court of Appeals treated frozen embryos as marital property. Jalesia McQueen wanted to implant embryos she and her ex-husband Justin Gadberry had created together — they already had twin boys from the same IVF process. Gadberry refused. Missouri sided with Gadberry, ruling he could not be forced into parenthood. Missouri law explicitly states life begins at conception, but even that didn't flip the outcome in McQueen's favor.

Illinois reached the opposite conclusion in Szafranski v. Dunston. Jacob Szafranski wanted to block his ex-girlfriend Karla Dunston from using their jointly created embryos. The Illinois Court of Appeals sided with Dunston — partly because she had medical issues making IVF her only realistic path to pregnancy, and partly because the court held that Szafranski had already effectively consented to parenthood when he agreed to create the embryos in the first place.

Same basic facts. Two different states. Two opposite outcomes. According to the Notre Dame Right to Life analysis, courts generally fall into three camps: treating embryos as marital property (usually favoring the party opposed to implantation), treating them as something closer to children (usually favoring implantation), or balancing competing interests case by case with unpredictable results.

What Mainstream Coverage Gets Wrong

The New York Times frames this primarily as a sympathetic human interest story — Erin Millender's heartbreak is real and worth covering. But the piece avoids the harder philosophical question underneath all of this: What exactly is a frozen embryo?

That question has massive legal, ethical, and yes, political consequences. Left-leaning outlets are reluctant to engage it directly because any answer that grants embryos elevated legal status bumps up against abortion politics. So they soft-pedal it.

Conservative outlets, meanwhile, often use these cases to score points in the abortion debate without acknowledging the genuine legal complexity — including the fact that courts in conservative states like Missouri have also ruled against implantation.

The Real Problem: Legal Framework Is Years Behind

According to attorney Stacy Barrett of UC Law San Francisco, writing for DivorceNet, this is a "rapidly developing field" — which is lawyer-speak for "nobody has figured this out yet."

Fertility clinics are doing their part by requiring disposition agreements upfront. But those agreements are only as good as the courts willing to enforce them — and enforcement stops where forced parenthood begins.

Some reproductive law experts estimate there may be as many as 1.5 million frozen embryos in the U.S. — a number that dwarfs the legal infrastructure in place to manage disputes over them.

What This Means for Regular People

If you've gone through IVF with a partner, you need a signed, specific disposition agreement before anything goes wrong in the relationship. Not a verbal understanding. Not a clinic form you signed without reading. A real legal document reviewed by a reproductive attorney.

Because if you end up in court over this, you are rolling the dice. The outcome depends on which state you're in, which judge you draw, and whether your circumstances mirror the handful of precedent cases that exist.

The law is not protecting people here. It's reacting to them — slowly, inconsistently, and expensively.