11th Circuit: Gay Man Cannot Deduct Costs To Father Children Through In Vitro Fertilization As Medical Expenses

Morrissey v. United States,  No. 8:15-cv-02736 (11th Cir. Sept. 25, 2017)(citations omitted):

This is a tax case. Fear not, keep reading. In determining whether the IRS properly denied a taxpayer’s claimed deduction on his 2011 return, we must decide two important and (as it turns out) interesting questions. First up: Was the money that a homosexual man paid to father children through in vitro fertilization — and in particular, to identify, retain, compensate, and care for the women who served as an egg donor and a gestational surrogate — spent “for the purpose of affecting” his body’s reproductive “function” within the meaning of I.R.C. § 213? And second: In answering the statutory question “no,” and thus in disallowing the taxpayer’s deduction of his IVF-related expenses, did the IRS violate his right to equal protection of the laws either by infringing a “fundamental right” or by engaging in unconstitutional discrimination?

We hold that the costs of the IVF-related procedures at issue were not paid for the purpose of affecting the taxpayer’s own reproductive function — and therefore are not deductible — and that the IRS did not violate the Constitution in disallowing the deduction. ...

Our understanding of Section 213’s plain language is confirmed by existing Tax Court precedent. That court has consistently rejected efforts by male taxpayers to deduct IVF-related expenses that were paid to cover the care of unrelated female egg donors and gestational surrogates. In Magdalin v. Commissioner, for instance, a single man who was not infertile but was (of course) unable to conceive and bear children without a woman’s participation sought to claim deductions of IVF-related expenses for an egg donor and a surrogate. The Tax Court held that the donor- and surrogacy-related IVF processes had not “affected” the taxpayer’s body’s own structures and functions, which “remained the same before and after those processes.” Affirming, the First Circuit reiterated that the IVF treatments for which the taxpayer had paid were “not for the purpose of affecting any structure or function of [his] body,” but rather “affected the bodies of the gestational carriers ….” 

Similarly, in Longino v. Commissioner, the Tax Court addressed the deductibility of IVF-related costs that a fertile male taxpayer had incurred on behalf of his fiancée. The court held that the expenses were not deductible because (as relevant here) they were not made for the purpose of affecting the structure or function of the taxpayer’s own body. This Court affirmed on the ground that the Tax Court had found that the taxpayer “had presented no evidence that any of the alleged care involved him, his spouse, or a dependent.” 

We are thus constrained by I.R.C. § 213’s plain language to reject Mr. Morrissey’s statutory claim. Because the human reproductive process entails distinct male and female functions, because Mr. Morrissey’s body’s own function within that process is to produce and provide healthy sperm, and because Mr. Morrissey was and remains capable of performing that function without the aid of IVF-related treatments, those treatments did not “affect[]” any “function of [his] body” within the meaning of Section 213(d)—and accordingly do not qualify as deductible “medical care” within the meaning of Section 213(a). ...

We hold (1) that the Internal Revenue Code does not permit Mr. Morrissey to deduct the expenses attributable to the identification, retention, compensation, and care of the women who served as the egg donor and the gestational surrogate in his IVF process, and (2) that the IRS’s disallowance of Mr. Morrissey’s claimed deduction neither violates any fundamental right nor discriminates on the basis of any suspect (or quasi-suspect) characteristic. Accordingly, we affirm the district court’s order granting summary judgment and dismissing Mr. Morrissey’s claims.

(Hat Tip: Jonathan Adler, Victoria Schwartz.)