Title

  • Deducting the Costs of Fertility Treatment: Implications of Magdalin v. Commissioner for Opposite-Sex Couples, Gay and Lesbian Same-Sex Couples, and Single Women and Men

Creator

Published In

Date

  • 2009

Volume

  • 2009

Issue

  • 6

Bibliographic Citation

  • 2009 Wis. L. Rev. 1283 (2009)

Abstract

  • This Article considers whether federal tax law permits taxpayers to
    deduct medical expenses (or exclude flexible spending account
    reimbursements) for fertility treatment costs, including the costs of in vitro
    fertilization (IVF), egg donor, and surrogacy procedures. Magdaiin v.
    Commissioner calls into question the deductibility of IVF, egg donor, and
    surrogacy costs and, perhaps unintentionally, the deductibility of the costs
    of various other types of reproductive medical care (e.g., sterilizations,
    birth control pills, legal abortions, and vasectomies).
    This Article also explores the tax implications of the Magdalin case
    for infertile and fertile taxpayers, including opposite-sex married and
    unmarried couples, gay and lesbian same-sex couples, and single women
    and men. The case indicates that the tax deductibility of fertility treatment
    costs turns on: (1) whether the taxpayer (or "his spouse") has been
    diagnosed with "medical" infertility; (2) how we constitute "the body," "of" "the taxpayer, his spouse, or a dependent"; (3) the taxpayer's sex,
    marital status, and sexual orientation; and (4) what the Internal Revenue
    Service and judges implicitly consider to be "natural" or "normal"
    reproduction. In addition, this Article addresses the taxpayer's argument
    that the status-based distinctions in Internal Revenue Code section 213 are
    unconstitutional, discusses the circumstances in which section 213 does and
    does not aggregate "bodies," and notes the ways in which law constitutes
    "the body," based on notions of what is "natural" or "normal."

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