Monday, October 8, 2018
Tessa R. Davis (South Carolina) presented Freezing the Future: Elective Egg Freezing and the Limits of the Medical Expense Deduction, 106 Ky. L. Rev. ___ (2019), last Friday at Kentucky as part of its Faculty Speaker Series:
Section 213 of the Internal Revenue Code (the Code) allows a deduction for unreimbursed expenses for medical care. To qualify as medical care, an individual’s outlay must meet the statutory definition of “medical care” set forth in § 213. Specifically, an outlay must be for care that is either for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” Many costs raise few interpretive challenges. When an individual receives chemotherapy, for example, the costs tied to that care clearly satisfy the disease prong of §213. But as medicine advances, emerging technologies test the breadth of the Code’s concept of medical care.
This Article examines the case of elective egg freezing — an increasingly available technology and, in some cases, a new employer-provided benefit — analyzing the likely treatment of such costs under current law. More broadly, this Article argues that the Internal Revenue Service’s (the Service) treatment of elective egg freezing under §213 will clarify its position on when reproductive care is qualifying medical care, its view on the proper scope of the structure/function prong, and may be predictive of its approach to emerging medical technologies. Because the Service’s chosen categorization could establish important and far-reaching precedent, this Article lays the groundwork for a principled discussion of the doctrinal and policy concerns at issue in categorizing elective egg freezing and similar emergent medical technologies.