Judge Analyzes Tax Deduction for Gay Parenthood in His First Opinion

“This is a tax case. Fear not, keep reading.”

So began the first published opinion of Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit, who was confirmed by the U.S. Senate last month. As Newsom viewed it, the dispute over Section 213 of the Internal Revenue Code required a detailed analysis of the birds and the bees.

At issue was an appeal by a gay man who maintained the Internal Revenue Service should have granted a $9,539 tax refund for $36,000 in medical services he funded in 2011 trying to conceive a baby through in vitro fertilization and a surrogate mother. Joseph F. Morrissey claimed the tax code allowed the deduction and the IRS violated his equal protection rights by denying it.tax deduction

The IRS rejected the claim on the grounds Morrissey’s medical expenses didn’t meet the definitions of Section 213, which allows deductions for medical care of a “taxpayer, his spouse, or a dependent.”

Morrissey sued, but U.S. District Judge Richard A. Lazzara in Tampa ruled for the IRS. The Eleventh Circuit held oral argument on Aug. 24. Newsom, Circuit Judge Charles Wilson and visiting U.S. District Judge Federico Moreno of Miami affirmed a month later.

In the 25-page ruling, Newsom dissected the tax code as it applied to human reproduction. He noted the code defined “medical care” as “amounts paid … for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

Morrissey’s brief argued, “Because reproduction is a bodily function, the medical procedures employing Morrissey’s sperm to assist his biological conception of a child affected a function of his body. Morrissey therefore satisfies the statutory standard, as do the heterosexuals for whom the IRS allows the deduction of the very expenses denied here.”

But in the opinion, Newsom used Webster’s dictionary definitions of “affect” and “function” to rephrase Morrissey’s claim to show its failings: that his expenses for egg donation and surrogacy were incurred “for the purpose of materially influencing or altering (i.e., “affecting”) an action for which Mr. Morrissey’s own body is specifically fitted, used, or responsible (i.e., his body’s “function.”)

That position “mistakes the entire reproductive process for his own body’s specific function within that process,” Newsom added.

He offered “a primer on the science of human reproduction,” starting with asexual organisms and leading in humans to “the bottom line: the male body’s distinctive function in the reproductive process is limited and discrete” to providing healthy sperm.

If the $1,500 Morrissey spent on providing that sperm for the in vitro process had been a sufficient percentage of his adjusted gross income, those expenses could have been deducted, Newsom wrote. But the rest of the $36,000 spent on conception and surrogacy in 2011 didn’t affect Morrissey’s own reproductive function, so they couldn’t be deducted from his income.

On Morrissey’s equal protection claim, Newsom held that, although procreation is generally considered a fundamental right, procreating through in vitro fertilization of eggs from an unrelated third-party donor and the use of a surrogate is not.

How gay dads manage without paid paternity leave

When his first daughter was born in 2009, Brent Wright, like many parents, did not have paid paternity leave.

Unlike many parents, he and his spouse faced some unique challenges. Because both are men, neither parent had access to a paid maternity leave policy. Because they adopted, their time away from the office began with travel to a nearby city to meet the birth mother.gay parents adoption

To make time for bonding at home with their new daughter, they cobbled together vacation and sick days while Wright, 51, negotiated a leave of absence to stay home with newborn Olivia. Scrambling to finagle time with their daughter complicated their entry into parenthood.

“That was very stressful,” Wright said.

Wright is not alone. The federal Family and Medical Leave Act guarantees eligible workers up to 12 weeks of job-protected, unpaid leave. But when it comes to paid paternity leave, just 14 percent of civilian workers had access to paid family leave in 2016, according to Pew Research Center.

In contrast, nearly every member of the European Union provides at least 14 weeks of paid maternity leave, according to the Institute for Women’s Policy Research, and 84 countries offer some paid leave to fathers.

Limited leave policies disproportionately impact gay dads and adoptive parents, argues Paid Leave for the United States, an organization pushing for expanded paid leave. A June report examined policies at 44 of the country’s largest employers and found the majority gave little or no paid parental leave to dads and adoptive parents. This makes the first weeks of parenthood for gay dads difficult — scrambling to find time to settle in a new son or daughter, securing and paying for child care.

By Allison Bowen, Contact reporter, September 26, 2017

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Rejected by adoption agencies, the Dumonts from Dimondale is suing the state

DumontKristy and Dana Dumont have been married for six years.

DIMONDALE –  Kristy Dumont had nine Cabbage Patch Kids dolls when she was a kid. She always knew she wanted to be a mom. 

But, as an adult, she didn’t want to have children without the security of a legal marriage.

“Being gay threw a wrench into that,” she said.

But she met Dana Dumont on Match.com when she was 28. On the five-year anniversary of their first kiss, Dana and Kristy married in Vermont. It was 2011, and same-sex marriages were legal there.

The couple now lives in a Dimondale subdivision with a cat and two Great Danes. They bought the red brick house in February because they want to become parents and liked the district.

After the state launched a marketing campaign to encourage families to adopt foster children, Dana, a property specialist with the Michigan Department of Natural Resources, began forwarding emails with pictures of the children to Kristy.

“You start to think, life is pretty good,” Dana said. “But, maybe it’s not for some of these kids and maybe we could help with that.”

 

Kristy contacted the Lansing office of St. Vincent Catholic Charities in 2016 about adoption. The organization told her it does not work with same-sex couples, she said. She contacted Bethany Christian Services in 2017. They told her the same thing, she said.

By Sarah Lehr, Lansing State Journal, September 26, 2017

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UK High Court awarded woman damages for surrogacy following missed cervical cancer diagnosis

In a legal first, the UK High Court has awarded costs of £74,000 to a woman for surrogacy following a delay in detecting cancer in smear tests and biopsies.

This first of its kind award from a UK High Court formed part of an overall damages award of £580,600.

As a result of a delayed diagnosis, the claimant developed invasive cancer of the cervix and required chemo-radiotherapy treatment.  This treatment rendered her infertile and caused severe damage to her bladder, bowel and vagina.  The late diagnosis meant she was unable to undergo fertility sparing surgery, which would otherwise have been available to her. The claimant, then 29, had always wanted a large family and postponed urgent cancer treatment twice for alternative medical opinions.  She also underwent a cycle of ovarian stimulation and harvested and froze 12 eggs before undergoing surgery and chemo-radiotherapy. The Defendant admitted liability and the case focused on the level of damages to be awarded to the Claimant.UK high court

Women awarded damages for surrogacy following missed cervical cancer diagnosis

In a legal first, the English High Court has awarded costs of £74,000 to a woman for surrogacy following a delay in detecting cancer in smear tests and biopsies. This first of its kind award formed part of an overall damages award of £580,600.

Michaelmores Blog by By Louisa Ghevaert

As a result of a delayed diagnosis, the claimant developed invasive cancer of the cervix and required chemo-radiotherapy treatment.  This treatment rendered her infertile and caused severe damage to her bladder, bowel and vagina.  The late diagnosis meant she was unable to undergo fertility sparing surgery, which would otherwise have been available to her. The claimant, then 29, had always wanted a large family and postponed urgent cancer treatment twice for alternative medical opinions.  She also underwent a cycle of ovarian stimulation and harvested and froze 12 eggs before undergoing surgery and chemo-radiotherapy. The Defendant admitted liability and the case focused on the level of damages to be awarded to the Claimant.

In giving judgment Sir Robert Nelson allowed the claim for the cost of two surrogacies in the UK but rejected the claim in respect of costs for surrogacy in California on UK public policy grounds.  He also rejected a claim for the cost of donor eggs saying this was not truly restorative of the claimant’s loss.

Louisa Ghevaert, Head of the Fertility and Parenting team at Michelmores, provided expert evidence in this case.  In doing so, Louisa expressed the view that surrogacy law in the UK is “due for reform as life has moved on”.  In relation to that evidence Sir Robert Nelson stated:

“… Ms Ghevaert may be right in saying that attitudes have changed and are indeed changing in relation to surrogacy but such change must be brought about by the Law Commission and Parliament, or perhaps the Supreme Court.”

Michelmores Blog by By Louisa Ghevaert, September 19, 2017

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In the Age of Celebrity Surrogate Families, What Exactly Is Surrogacy?

Kim Kardashian and Kanye are reportedly expecting their third child via surrogate — many other celebs have done so too.

But surrogacy is nothing new, with more and more Americans opting for it. In 2011, 1,593 babies in the U.S. were born to gestational surrogates, up from 738 in 2004, according to data from the Society for Assisted Reproductive Technology (SART), an Alabama-based nonprofit.

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New York Magazine, and their online presence, The Cut, have produced this video to better explain the surrogacy process.

NYMag.com via thecut.com- September 14, 2017

Click here to view the video.

Utah couple heads to state Supreme Court over law that prevents married gay men from having biological children through surrogacy

Jon and Noel started talking about having a family not long after they married in 2013.

An author and a professor who have been together more than a decade, the couple considered adoption, but settled on surrogacy out of a strong desire to have a biological child.more gay couples are embracing surrogacy

That plan was derailed last year when a southern Utah judge denied their petition to enter a surrogacy agreement with a woman who wanted to help make their family complete.

Jon and Noel started talking about having a family not long after they married in 2013.

An author and a professor who have been together more than a decade, the couple considered adoption, but settled on surrogacy out of a strong desire to have a biological child.

That plan was derailed last year when a southern Utah judge denied their petition to enter a surrogacy agreement with a woman who wanted to help make their family complete.

The Salt Lake Tribune – by Jennifer Dobner

September 13, 2017

Click here to read the entire article.

Edie Windsor, Equality’s Champion, Dies at 88

Edie Windsor, a tireless advocate for LGBTQ rights who became a worldwide icon at age 84 when her lawsuit against the US government led the Supreme Court, in 2013, to strike down the key provision of the Defense of Marriage Act, has died at the age of 88.

“I lost my beloved spouse Edie, and the world lost a tiny but tough as nails fighter for freedom, justice, and equality,” said Judith Kasen-Windsor, who married Windsor last September, in a written statement. “Edie was the light of my life. She will always be the light for the LGBTQ community, which she loved so much and which loved her right back.”

Roberta Kaplan, the civil rights litigator who represented Windsor in her successful DOMA challenge, said, “Representing Edie Windsor was and will always be the greatest honor of my life. She will go down in the history books as a true American hero. With Edie’s passing, I lost not only a treasured client, but a member of my family. I know that Edie’s memory will always be a blessing to Rachel, myself, and Jacob. I also know that her memory will be a blessing not only to every LGBT person on this planet, but to all who believe in the concept of b’tzelem elohim, or equal dignity for all.”edie windsor

Windsor’s victory at the Supreme Court, which came on a 5-4 vote on June 26, 2013, meant that the federal government was obligated to recognize all legal marriages of same-sex couples on the same terms as those of different-sex couples. Windsor arrived before the Supreme Court in her challenge to a federal estate tax bill of more than $360,000 after the 2009 death of her first wife, Thea Spyer.

Windsor and Spyer, both New Yorkers who began dating in 1965, had traveled to Toronto in 2007, where they legally married. The following year, a New York court ruled that the state would recognize legal same-sex marriages from other jurisdictions, despite the fact that such marriages could not yet be formalized within the Empire State. Regardless of New York’s recognition of their marriage, the Internal Revenue Service viewed Windsor and Spyer as legal strangers.

Although Justice Anthony Kennedy’s majority opinion in the DOMA case made clear that the court was not ruling on the underlying question of whether same-sex couples have a constitutional right to marry — but instead on the narrower issue of whether the federal government must recognize those marriages legally recognized by the states or foreign governments — over the following two years, district and appeals courts, in a blizzard of pro-equality rulings, drew on the logic of the Windsor decision to find just such a constitutional right. On June 26, 2015, two years to the day after the Windsor ruling, the Supreme Court, in the same 5-4 split, ruled that same-sex couples have a right to marry.

by Paul Schindler, gaycitynews.com – September 12, 2017

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Lesbian couples can now have children who are a part of each of them

Over the years I’ve had many lesbians tell me they want children but don’t see themselves being pregnant. It’s not part of their “body image.”

At some level, I understand this feeling. Our gender identity and sexual identity are tied up in our body image and feelings of sexual desire. Being pregnant and carrying a baby inside is an incredibly unique, womanly experience. Men have no idea what this is like, despite how much some may try.

As an experienced obstetrician who’s cared for many pregnant women throughout their pregnancies and deliveries, and as a gynecologist who has cared for and has performed gynecologic surgeries for women for the past thirty years, I’ve seen first-hand the many phases of reproductive health (and experiences with ill health) that only women can experience.IVF

I understand that some women may not identify with parts of that spectrum. For a lesbian couple it is sometimes easy to decide who will carry the pregnancy, while other couples struggle mightily with this uniquely lesbian decision. For single lesbian women, the choice can become more complex: to carry oneself and maybe go into new self-awareness territory, or to utilize the reproductive assistance of a gestational carrier.

We usually reserve gestational surrogates for women with a clearly defined medical need for surrogacy, yet lesbian women can often have very real issues that educate their life choices. Is body image a medical necessity for surrogacy? I believe that it can be if it’s tied into a woman’s sexual identity and sense of self.

We are very fortunate to live in a country where reproductive options are now available for all individuals regardless of gender, sexual identity, or marital status. This is not the case across Europe and other parts of the world. In my practice I see many patients from across the globe – from China, Europe and elsewhere – who travel for reproductive treatment options that are illegal where they live.

All women, and in particular lesbians, who might consider having children someday should talk with their doctor about reproductive options available, or ask for a referral to a fertility specialist to review the treatments that may best apply to their situation. It is imperative that lesbian women seek out a practice that is comfortable providing care to lesbians and same-sex couples.

By Dr. Guy Ringler, LGBTQNation.com – September 12, 2017

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These two gay papas are showing why gay surrogacy is beautiful

Full of adorable ‘first moments’ from baby steps to messy plates of spaghetti their Instagram is cute central

Meet Papas Manuel from Spain and Bud from New Jersey. Together they run the Two Gay Papas Instagram posting the most adorable family pictures with four-year-old Álvaro and two-year-old Carmen

With over 50K followers, we are not the only the only ones loving the adorable pictures they post.

Living in Spain where same-sex marriage has been legal since 2005, and the two dads have the kids through surrogacy.

The Two Gay Papas story starts as a blog in 2012 to chronicle their surrogacy journey. Now they use Instagram create positive stories about LGBT families with their day to day life.

Gay Star News caught up with the awesome Dads whose future dreams include opening a Paella restaurant together. Tuck in.

Because it is important that people see families like ours, that they become accustomed to seeing them, so it just becomes normal. We think this is the only way our kids will be able to live in a more tolerant society.

We have received many messages from people who had never seen a family with two dads before and then they see us and follow us on social media. And they congratulate us and thank us for showing them our children growing up happy even though they aren’t in a traditional type of family.

gaystarnews.com, September 8, 2017

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