Rachel Abrams: From the New York Times, I'm Rachel Abrams and this is the Daily. In recent years, more and more Americans have been turning to IVF to have children, which means more and more embryos are being stored in fertility clinics all over the country. And that has made one question increasingly urgent. What should happen to those embryos if a couple breaks up? In much of the country, the legal system has no clear answer to that question. Nor does it have clear rules for weighing one person's desire to become a parent against another person's desire not to. Today, my colleague Caroline Kitner tells us the story of one couple that found themselves caught in this exact limbo.

Rachel Abrams: It's Thursday, September 10th. Caroline, you recently chronicled this really heart-wrenching fight over embryos that this one couple had made when they were still together. And the fight and how it unfolded touched on all kinds of issues that really felt very much of our time like modern fertility treatments, the question of when life begins, the shape of what a family looks like in our day and age. So tell us how all of that fits into what you cover and how you came to the story.

Caroline Kitchener: So, I cover a really broad range of issues related to women and families, but I've been paying particular attention over the last year or so to IVF because we've been hearing about that more and more from our politicians, especially. I mean, the Trump administration has talked about IVF more than any other president ever, starting with his campaign promise to make IVF free and widely accessible for all. And as we're hearing more about IVF, as more and more families are turning to IVF to have children, I think that there are a lot of really new, complicated, and totally fascinating questions around life when you engineer it in a lab.

Rachel Abrams: I think most of us are familiar with the broad outlines of IVF. Like IVF is a process that helps people have children, right? But when you talk about these questions that it raises as more and more people use it, what are those questions?

Caroline Kitchener: So IVF or in vitro fertilization is a process by which egg and sperm are combined together to create an embryo in a lab outside of the uterus. And often embryos are frozen and stored for future use. And that has totally transformed how we think about reproduction and how families are made. Because suddenly you can create a future child years, even decades before you actually want to have them. And if you make embryos and then circumstances change, you break up or one person dies, what happens? Who owns those potential lives? Who gets to decide what happens to them?

Rachel Abrams: And I recently came across a case out of New York that I think really captured a lot of these dilemmas. and tell us about the couple at the center of that case.

Caroline Kitchener: So, the woman is Aaron Miller and the man is Adam Rubin. Adam declined an interview with me, but he did provide answers to a detailed list of questions that I sent him and he also outlined his point of view very clearly in court records.

Caroline Kitchener: I did however spend a lot of time with Aaron and talk to her for many hours about her story.

Aaron Miller: My name is Aaron Alice Millander. I was born and raised in New York City.

Caroline Kitchener: Aaron grew up in Manhattan. She is very much a New Yorker, she talks really fast, she's super ambitious, and she's also just really warm and funny.

Aaron Miller: I always knew I wanted to be a mother. Since I can remember, I envisioned myself being a mom. I used to stuff dolls down my shirt.

Caroline Kitchener: Aaron grew up wanting to be a mother, but she also wanted to establish her career first.

Aaron Miller: And then I went to college and then I went to law school.

Caroline Kitchener: She becomes a defense attorney.

Aaron Miller: I was a public defender in Brooklyn for 8 years.

Caroline Kitchener: And then she starts her own small business helping other women build their brands and their businesses.

Aaron Miller: I would say that I spent the vast majority of my 20s and early 30s working, improving myself.

Caroline Kitchener: And then she hits her 30s. And as happens for so many women, she starts to feel the clock ticking.

Aaron Miller: The medical guidance at the time, you know, 35 is when they start calling you a geriatric pregnancy. But I saw women having their first children close to 40.

Caroline Kitchener: That's not to say that she doesn't date. She does and she dates very intentionally.

Aaron Miller: You know, the early as was the rise of dating apps, okay Cupid and e-harmony. And I had a non-traditional method.

Caroline Kitchener: Tell us.

Aaron Miller: She wrote an ad for herself that she put on Craigslist. There was a Container Store on 6th Avenue. I was like, if you find yourself at the Container Store on Saturday afternoon.

Rachel Abrams: Oh, wow.

Aaron Miller: Not that I by a mile think that I am the prettiest girl in New York City, but I am fun and I'm an attractive woman.

Caroline Kitchener: Like the Container Store is fine. Let's see what your philosophy of organization is.

Rachel Abrams: anybody who's ever joined a run club knows this.

Aaron Miller: 100%.

Caroline Kitchener: So, did this work, Eron? Did you find a guy that you were looking for at the Container Store?

Aaron Miller: No, I No, I did not. I mean, I kept myself entertained and I was like, you know, this is fun.

Caroline Kitchener: But Aaron gets to her mid-30s and the guy has not appeared yet. and she starts to feel increasingly anxious.

Aaron Miller: as time marches on, when I started to get to be about 37, 38, then you really start to feel it.

Caroline Kitchener: she realizes she stopped going to weddings and started going to like toddlers birthday parties.

Aaron Miller: it starts to get discouraging.

Caroline Kitchener: She said it started to feel like a game of musical chairs.

Rachel Abrams: Yeah. Everybody had their chair and there's nowhere for her to sit.

Rachel Abrams: Well, how does she eventually meet Adam?

Caroline Kitchener: So, they meet in 2018 through a mutual friend from a book club.

Aaron Miller: I met him the oldfashioned way, which I loved.

Caroline Kitchener: He works at an HVAC company. He helps run the HVAC company. He's about to turn 36. He's smart, he's handsome, he's funny. Aaron thinks that they hit it off.

Aaron Miller: We had really good conversation. I think uh we talked and watched basketball for like 4 or 5 hours.

Caroline Kitchener: And then a couple months in, they're going to have sex for the first time. A girl...

Rachel Abrams: right as they are in the heat of the moment,...

Aaron Miller: the first time we were intimate, I was very clear about the fact that...

Caroline Kitchener: I was 39, I did eventually want children. Aaron offers the fact that she is not using birth control and she says, "If we have sex right now, I could get pregnant. Are you okay with that?"

Aaron Miller: So, by that time, I was starting to have a solid feeling about his character and knew that he was an honorable man.

Caroline Kitchener: She's very upfront with him, and she says, "At this point in my life, I really want a family. And I don't want to get into a serious relationship with someone who does not want to have children."

Rachel Abrams: And just to be clear, she barely knows him at this point, right? So, this really shows where her head was at.

Caroline Kitchener: I wouldn't say he's a stranger at this point. I think they're about two months in. But in her mind, she's 39 years old and she feels like she doesn't have time to waste in a relationship that isn't going to lead to children.

Rachel Abrams: Okay, you and I can agree to disagree about whether that qualify as stranger vis-a-vis...

Caroline Kitchener: Fair enough. Well, Aaron, you know, she has thought through the fact that even if this didn't end up working out with Adam, she was fine having a baby on her own.

Aaron Miller: But I think the timelines are a little off. I told him, I was like, "Hey, you know, we're going to have to get going."

Caroline Kitchener: And at a certain point, she says to him, "Look, I can't waste one more day if I want to have a baby." And Adam says, "I need more time."

Aaron Miller: You know, I want time for a relationship to be established and to develop and mature before we do this.

Caroline Kitchener: And he's not ready. And and they actually break up. And then about five or six months later, they get back together.

Aaron Miller: You know, we had both waited so long to find our person, and we were like, we didn't want to let this go.

Caroline Kitchener: They get engaged in September of 2020 and they get married in April of 2021.

Aaron Miller: Well, we always knew that we were going to start as soon as we could after we got married.

Caroline Kitchener: When Aaron goes to the doctor to get checked out,...

Aaron Miller: the panic had kind of officially set in. Uh, especially since I had received an ultrasound report that showed diminished ovarian reserve.

Caroline Kitchener: And the doctor tells her that she has diminished ovarian reserve and that the chances of her getting pregnant naturally are extremely low.

Aaron Miller: and I was feeling the changes myself in my own body. What I later learned were symptoms of perimenopause.

Caroline Kitchener: And they start IVF.

Caroline Kitchener: Adam is very supportive. He was very involved in the doctor's appointments and taking care of the logistics.

Rachel Abrams: he's helping her with everything she needs.

Aaron Miller: He definitely I mean he more than showed up.

Caroline Kitchener: But pretty quickly things start to get more complicated. They find out that from several rounds of IVF, they only have three viable embryos.

Rachel Abrams: Mhm.

Aaron Miller: I mean the anxiety had ratcheted up about five more notches. And in the same period, my dad had a severe stroke that left him in need of 24-hour care.

Caroline Kitchener: his health is taking a turn for the worse.

Aaron Miller: And it pushed our timeline back, just getting him somewhere where he was safe.

Aaron Miller: And then, so by the time we transferred the first embryo, it was a full year after we had made the embryos.

Caroline Kitchener: They do their first embryo transfer to try to place the embryo inside of Aaron's uterus.

Caroline Kitchener: They do that with the strongest of all the embryos.

Caroline Kitchener: And they find out that the transfer failed.

Aaron Miller: Um, it was incredibly heavy. Um, it was exacerbated by the grief I was feeling over my father.

Caroline Kitchener: And that starts to create this really difficult distance between them.

Caroline Kitchener: Unfortunately, like I said, I didn't get to talk to Adam directly for this story, but I know from what Adam wrote to me and also from what he said in court that he experienced this period very differently. He felt really shut out and isolated by Aaron as she was dealing with her father's illness and also the pain of the failed transfer.

Caroline Kitchener: She moved into a different bedroom.

Aaron Miller: I needed space. I needed a minute.

Caroline Kitchener: She said she didn't want to do couples counseling anymore.

Aaron Miller: Couples counseling, we had been doing it for months. It didn't seem like it was helping.

Caroline Kitchener: that was really really difficult.

Rachel Abrams: Mhm.

Caroline Kitchener: And I thought I would just read a few of his words directly.

Rachel Abrams: Please.

Caroline Kitchener: So Adam says, I was devastated by these decisions particularly the exclusion from family planning decisions. I was asked to offer blind support without full knowledge and was not even kept informed.

Caroline Kitchener: Adam says, "I was shocked and hurt, especially given the intimate and collaborative nature of our IVF journey."

Caroline Kitchener: you know at some point Aaron remembers Adam saying something along the lines of "If we can't figure out how to be married, I don't know if we should be having kids."

Caroline Kitchener: She told me she said to Adam, "Look, we have the rest of our lives to work on the marriage, but I have to have this baby now."

Caroline Kitchener: Adam then asked for a divorce. Aaron is just totally shocked by that, she says. And then very quickly too, her mind goes to the two remaining embryos.

Rachel Abrams: And is there a question or what is she thinking about them?

Caroline Kitchener: Well, Aaron had been hoping to go into the clinic for an embryo transfer in a couple of weeks.

Rachel Abrams: Mhm.

Caroline Kitchener: I think still at that point, she's not giving up. she is still thinking that they could co-parent or she could raise the child on her own, as they had discussed early on.

Aaron Miller: So I called the clinic and they told me, "Well, actually your husband called and revoked his consent to use the embryos a couple weeks ago."

Caroline Kitchener: And she finds out that Adam has actually revoked his consent to use the embryos.

Rachel Abrams: Oh wow. And he had not given her any indication that he was going to do that? No warning?

Aaron Miller: When the doctor told me he had revoked his consent, it not only was the fact itself shocking, but the implication of it hit me: I might never be a mother.

Caroline Kitchener: And so she knows those embryos that she created with Adam, those are her best and really only chance of becoming a biological mother.

Caroline Kitchener: But then months go by and there are only these two embryos left and they decide to take it to court.

Rachel Abrams: and so this really brings us to the heart of the court case and the question of how the legal system deals with this.

Rachel Abrams: So what is each person's argument before the court?

Caroline Kitchener: So Erin's side is making the case that this is her last chance to have biological children given her age and her medical diagnoses. She argues that she made her intentions clear from day one, and by creating embryos with her, Adam committed to helping her become a parent.

Rachel Abrams: And what about Adam's side? What does he say?

Caroline Kitchener: Well, Adam is arguing that Aaron doesn't have an absolute right to biological parenthood. And more importantly, he has a right not to become a parent against his will. He argues that he should not be forced into fatherhood and forced to co-parent with someone he is divorcing.

Caroline Kitchener: And in fact, the judge rules in her favor. The judge found that Aaron's interest in achieving biological parenthood outweighed Adam's desire not to procreate, and awarded her the embryos.

Rachel Abrams: Wow.

Caroline Kitchener: But Aaron also knows Adam is probably going to appeal this decision, which means he could ask for a stay to block her from using them.

Aaron Miller: I was running back and forth between the clinic and the court trying to see if a stay had been issued.

Caroline Kitchener: But at that point, it was too late. Not long before the stay was announced, Aaron had already gone to the clinic and had the embryo transferred.

Aaron Miller: and you can see them like insert the catheter and there's this little bright light on the ultrasound screen, and that's the embryo.

Rachel Abrams: And how does Adam react to this news when he finds out?

Caroline Kitchener: Well, he doesn't know for a while. He actually is told by Aaron's lawyer the night before their next court hearing.

Caroline Kitchener: And so I'm actually there in the courthouse for the moment when they see each other after he finds out. The tension in that hallway was palpable.

Aaron Miller: She says that for so long she had imagined what she always thought would be this joyous moment of celebrating a pregnancy with her partner, and instead they were sitting in a cold courthouse hallway as adversaries.

Rachel Abrams: Wow. So, at this point, as I understand it, Aaron is pregnant. There's one remaining embryo in storage.

Rachel Abrams: Well, can you talk a little bit more about that? Like what are the implications here? What does this mean for the legal landscape around embryos?

Caroline Kitchener: Well, this area of law is kind of like the wild west. I mean 2/3 of states have no statutes or definitive case law on embryo disputes. Courts across the country are applying completely different standards: some look strictly at the clinic contracts, some balance the parties' competing interests, and others lean toward preserving the potential life of the embryo.

Caroline Kitchener: last year a very similar case to Aaron and Adams went all the way up to the Michigan Supreme Court, where the justices wrestled with entirely different legal interpretations.

Caroline Kitchener: So, my big takeaway from doing the story and learning about the legal landscape is that technology has moved so much faster than the law. Couples sign boilerplate consent forms at clinics without ever anticipating how messy things will get if their relationship falls apart.

Caroline Kitchener: Well, I actually asked Aaron that question. Erin, I think that some people might see this and say that it's unfair to force Adam to become a parent against his wishes. How do you respond to that?

Rachel Abrams: Wow.

Aaron Miller: Outside of IVF, if a man changes his mind 5 days after conception and wants to withdraw his DNA, there is no remedy for that. Nature doesn't offer a remedy for that. For years, we had a shared goal of building a family together. So is one person allowed to deviate from the plan unilaterally and change the entire course of somebody else's future? That's how I view this. That's how I experience this.

Caroline Kitchener: You know, when I started working on this story, I was thinking about a similar thing to Aaron. And I was thinking about how this all would have played out differently if the baby had been conceived naturally rather than through IVF. But that's not the situation we're in. They didn't get pregnant the old-fashioned way. And man, that changes everything. And that is why this case is so interesting and I think so important because the reality is that there are so many more embryos that are out there. I mean hundreds of thousands of embryos and we'll have to see what is the most fair way to think about this. What is the way forward in these really thorny, messy situations where life is created outside of the womb? I don't think we know yet.

Rachel Abrams: Caroline Kitchener, thanks so much.

Caroline Kitchener: Thank you so much for having me.

Rachel Abrams: We'll be right back. Here's what else you need to know today. Iran has signaled it is willing to escalate its fight with the United States with senior leaders issuing increasingly sharp warnings in recent days after attacking American warships for the first time. The US military said Tuesday that it had destroyed five Iranian oil tankers in retaliation for attempted strikes on a US Navy warship, while Iran said that it launched strikes at a base used by American forces in Jordan in response. The attacks occurred 3 days after Iran made its first known attempt at striking an American military vessel. The recent clashes have reignited fears of an escalating regional war. And in a highly unusual move, President Trump used a speech at a Republican campaign event on Wednesday night to promise every American a $5,000 payment if they vote to keep Republicans in control of Congress. "So if the Republicans win, you win with us and you get $5,000. It will be called the Trump dividend. We'll call it the Trump dividend. Congratulations. Now all we have to do is win."

Rachel Abrams: Such a payment predicated on the outcome of an election seems legally dubious and financially impractical since it would likely cost more than $1 trillion. Analysts said it highlights Trump's worries about Republicans unpopularity in November elections.

Rachel Abrams: Today's episode was produced by Stella Tam. It was edited by Liz O Balin with help from Lisa Chow and Ben Calhoun. It was fact checked by Susan Lee and contains original music by Marian Lozano and Dan Powell. And additional music by Leah Shaw Dearon and Pat McCusker. Our theme music is by Wonderly. Episode was engineered by Alyssa Moxley. Special thanks to Peter Walston. That's it for the daily. I'm Rachel Abrams. See you tomorrow.