Who Gets the Embryos? Inside America's Quiet IVF Custody Wars

The room is colder than you would expect. In a back corner of a fertility clinic, behind a key card door and a sign warning of liquid nitrogen, a row of stainless steel tanks hisses softly. Inside each one, suspended at minus 196 degrees Celsius, sit thousands of tiny glass straws no bigger than a coffee stirrer. Each straw holds an embryo. Each embryo belongs, on paper, to two people who once decided to have a child together.

Increasingly, those two people are no longer together. And increasingly, they are calling lawyers instead of clinics.

A new feature in The New York Times this weekend turned a national spotlight on the painful, intimate, and legally unsettled world of embryo custody disputes after divorce. But the story is bigger than any one couple. According to data compiled by the Society for Assisted Reproductive Technology and RAND researchers, there are well over a million cryopreserved embryos stored across American fertility clinics, and the number grows every year. A small but rising share of them are now stranded in court.

An Old Tennessee Case Still Sets the Rules

Almost every modern embryo dispute leads back to a Tennessee courtroom in 1992. In Davis v. Davis, Mary Sue and Junior Lewis Davis fought over seven frozen pre-embryos after their marriage ended. She wanted to donate them. He wanted them destroyed. The Tennessee Supreme Court refused to call them property or people, settling instead on the awkward middle ground of "interim category" entities that deserved "special respect."

The decision created what lawyers now call the balancing test. When no written agreement exists, courts must weigh each side's burden, the pain of forced parenthood against the pain of losing the chance to have a biological child. In Davis, the husband won. The framework has shaped rulings in New York, New Jersey, Pennsylvania, and beyond ever since.

California chose a different path. In the 2015 case Findley v. Lee, Judge Anne-Christine Massullo ruled that a San Francisco woman could not use embryos she had created with her ex-husband because their fertility clinic consent form said the embryos would be discarded if the couple divorced. The contract, the court said, controlled. That ruling has been quietly cited in dozens of agreements ever since, and it is one reason your IVF clinic now asks you to check a box about death, divorce, and disaster before treatment even begins.

The Michigan Case That Rewrote the Conversation

The most consequential recent ruling came in April 2025, when the Michigan Supreme Court declined to disturb a lower court decision in Markiewicz v. Markiewicz. Sarah Markiewicz had used in vitro fertilization three times during her marriage to David Markiewicz. The remaining embryo was made with his sperm and an egg donated by her sister. After the marriage collapsed, Sarah argued it was likely her last chance to have another biological child. David said he should not be forced into fatherhood with a woman he no longer loved.

An appeals court awarded the embryo to David, reasoning that he had the closer genetic tie and that the law should not compel reproduction. The state's high court let the decision stand and explicitly invited the Michigan Legislature to write rules of its own. So far, lawmakers have not.

"Courts are being asked to do something they were never designed to do," said Naomi Cahn, the Justice Anthony M. Kennedy Distinguished Professor of Law at the University of Virginia, who has written extensively on reproductive technology. "They are trying to settle the deepest possible question about what an embryo is, on the back of an ordinary divorce file."

Arizona, Alabama, and the Personhood Tilt

If Davis and Findley represent the old order, the new one is being written in red state legislatures.

In 2018, Arizona became the first state to mandate that a frozen embryo go to whichever spouse intends to allow it to develop into a child, regardless of any prior contract. The law was passed in response to a Tucson woman whose embryos were awarded to her ex-husband for destruction even though she said they were her only chance at biological parenthood.

Then came Alabama. In February 2024, the Alabama Supreme Court ruled in LePage v. Center for Reproductive Medicine that frozen embryos qualify as "unborn children" under the state's 1872 Wrongful Death of a Minor Act. Within days, the University of Alabama at Birmingham paused IVF services. Other clinics followed. The state legislature scrambled to pass narrow civil and criminal immunity for IVF providers, but the underlying ruling, and the constitutional language declaring the "sanctity of unborn life," remains on the books.

The ripple effect has been national. Bioethicists warn that if more states adopt embryo personhood, divorce judges may lose the discretion to weigh competing interests at all. Once an embryo is a child in the eyes of the law, family court rules on the "best interests of the child" could in theory be applied, an outcome that would have been unthinkable a decade ago.

The Couples in the Middle

Roughly two percent of American babies are now born through assisted reproductive technology, according to the Centers for Disease Control and Prevention. Clinics routinely create more embryos than any single cycle requires, both because freezing is reliable and because patients want options. The result is a slow accumulation. The CDC's national surveillance data show that hundreds of thousands of embryos are added to storage every year, and only a fraction are ever transferred.

When a marriage ends, those embryos do not simply melt away. Couples must choose among unwelcome options.

• Destroy them, which can feel like a private grief.
• Donate them to research, which most states allow but many couples resist.
• Donate them to another infertile couple, often through a faith based agency.
• Leave them indefinitely in storage, paying hundreds of dollars a year and hoping for an answer that never comes.

Fertility clinics estimate that tens of thousands of embryos are now effectively abandoned, with clinics unable to reach the patients who created them.

A New Generation of Contracts

Family lawyers say the most important conversation about embryos happens before a couple ever creates one. "The form you sign at the clinic is doing the work of a prenuptial agreement, an estate plan, and a parenting plan all at once," said one veteran reproductive law attorney who advises clients in three states. "Most people sign it in five minutes while sitting on a vinyl couch."

Some clinics now require patients to initial each disposition option separately. A growing number of fertility lawyers recommend a stand alone embryo agreement, drafted with the same care as a will. A handful of states, including Illinois and Connecticut, have begun studying model legislation that would require informed, separately witnessed consent for every possible future scenario.

What Comes Next

For now, embryo custody remains one of the most fragmented areas of American law. A couple in Phoenix and a couple in Boston, with identical clinic paperwork and identical disagreements, can receive opposite rulings.

The 2026 election cycle is likely to bring the issue further into public view. Several Alabama Supreme Court seats and the state's attorney general race will turn in part on the IVF aftermath. Federal candidates in both parties have begun staking out positions on whether embryos should ever be classified as children. Advocacy groups on both sides are preparing model bills.

Back in the storage room, the tanks keep hissing. Inside, frozen at the very edge of life, sit potential families that no one can quite decide how to define. The science raced ahead. The law is still trying to catch up. And the couples who once dreamed together, then signed paperwork together, are left waiting for a judge to tell them what their hardest decision actually means.