The Eleventh Circuit ruled earlier this week in Morrissey v. U.S. that the amounts a gay man paid to father biological children by paying for an egg provider, IVF, and a gestational surrogate are not deductible as medical expenses under IRC Section 213. This follows a similar result in reached by the First Circuit in Magdalin v. Commissioner, 96 T.C.M. (CCH) 491, 2008 WL 5535409 (2008), aff’d, 2009 WL 5557509 (1st Cir. 2009). In short, the reasoning in both Morrissey and Magdalin is that the medical expenses in question did not "affect" the "functioning" of the male taxpayer's body, as allegedly required by IRC Section 213. The reasoning in the Magdalin case has been sharply criticized in careful work by Anthony Infanti (Pitt) (here, e.g.) and Katherine Pratt (Loyola Law School LA) (here, e.g.). The Magdalin decision is also the subject of a (very convincing, in my view) rewrite by Jennifer Bird-Pollan (Kentucky) with commentary by Katherine Pratt in Feminist Judgments: Rewritten Tax Opinions (forthcoming 2017, Cambridge University Press; table of contents and intro chapter available here).
The Morrissey Court takes the matter further in addressing the taxpayer's equal protection argument, acknowledging that Supreme Court recognizes a constitutional right to reproduction in some situations, but that this case presents the question of "whether a man has a fundamental right to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate," to which the Eleventh Circuit says the answer is decidedly "no." The Eleventh Circuit dismissed without substantial analysis Mr. Morrissey's claim that he was discriminated against on the basis of his sexual orientation. The court reasoned that Mr. Morrissey could not show that other similarly-situated individuals received favorable treatment under the statute; and that the government did not discriminate against him based on a "constitutionally protected basis" (meaning his sexuality). I suspect (no pun intended) that it is this part of the Morrissey decision that will attract considerable attention from scholars who will seek to show how the facially-neutral statute discriminates against those who choose not to reproduce through traditional coitus or in the context of a male-female relationship.
Tax cases are exciting stuff!
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