Davis: How Tax Law Differentially Values Fertility, Sexuality & Marriage

Tessa Davis (Tulane), Reproducing Value: How Tax Law Differentially Values Fertility, Sexuality & Marriage, 19 Cardozo J.L. & Gender 1 (2012):

Section 213 of the Internal Revenue Code permits a deduction for an individual’s fertility expenses, but it does not do so evenhandedly. This paper focuses on the current discriminatory effects of § 213 doctrine as it is applied to the deductibility of fertility treatments for single persons and/or homosexual couples, as compared to heterosexual, married couples. Traditional economic analysis of the Code fails to explain such discrimination, thus a new approach is required. Utilizing tools from anthropological theory, this paper recognizes and analyzes our tax code (and specifically § 213) as a cultural artifact and therein challenges the presumed objectivity of our conception of what is “medical,” “natural/normal” reproduction, and “fertility/infertility.” By revealing and reforming the normative consistencies underlying the seemingly inconsistent pre- and post-Magdalin v. Commissioner § 213 doctrine, I propose that we can embrace new forms of parenthood enabled by reproductive technologies and remedy the current discriminatory application of § 213 as applied to fertility treatment expenses.