IT WAS NOT CLEAR WHICH EMBRYOS, CREATED BY IN VITRO FERTILIZATION DURING THE PARTIES’ MARRIAGE, WERE ENCOMPASSED BY THE PARTIES’ STIPULATION THAT PLAINTIFF SHOULD HAVE EXCLUSIVE POSSESSION AND CONTROL OF THEM; THEREFORE, PLANTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED; THERE WAS A COMPREHENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court’s grant of summary judgment to plantiiff, over an extensive and comprehensive dissent, determined there were questions of about which frozen embryos were the subject of a stipulation in which the parties agreed plaintiff should have exclusive possession and control of the embryos created by in vitro fertilization (IVF). The parties were married at the time of the in vitro fertilization and subsequently divorced:

Here, the parties’ failure to establish from which IVF cycle the disputed embryos derived and to submit an agreement that provides for the cryopreservation and disposition of the embryos formed in the November 2021 IVF cycle precludes the award of judgment as a matter of law. Significantly, while the parties have relied upon the March 2023 agreement in fashioning their arguments, they did not stipulate that the March 2023 agreement controlled the dispute. Further, by its terms, the March 2023 agreement did not pertain to previously cryopreserved embryos, and the parties have stipulated that the embryos in dispute were formed in 2021. Thus, the evidence submitted on the defendant’s motion and the plaintiff’s cross-motion established that the March 2023 agreement did not control the disposition of the embryos in dispute. “On this record, we must decline the parties’ invitation to award judgment as a matter of law” … .Millender-Rubin v Rubin, 2026 NY Slip Op 05780, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the issues raised in a divorce proceeding by embryos created by in vitro fertilization during the marriage.