11th Circuit Denies Tax Deduction For Gay Man’s Reproductive Expenses

The Issue

Joseph Morrissey is a law professor at Stetson University in Florida.  I suppose that makes him a Florida man, but I resolved to pass on that trope for this decision. He and his male partner decided to have children with Mr. Morrissey serving as the biological father. All told they spent over $100,000 on the process.  In 2011, the year at issue, nearly $57,000 was spent.  He did not claim the amount as a medical deduction on his original return.  Rather he filed an amended return and then sued in District Court when the IRS turned down his refund claim.

I’m thinking that Mr. Morrissey, who teaches Constitutional Law, is in this for the principle of the thing rather than the money.  A $9.539 refund is pretty low stakes for this kind of legal work.  He might have made it to the 11th Circuit by claiming the deductions on his original return and then going to Tax Court, which based on the Magdalin decision would likely have ruled against him.  There is very good chance, though, that his deduction would have just sailed through on an original return.  He would have had his nine grand, but not the chance to make history.

The Law

The definition of medical care contained in Code Section 213(d)(1)(A) is 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” That definition  comes to us, word for word, from the Revenue Act of 1942 (section designation is different as the Code was reorganized in 1954).  In 1942, you could find a more advanced version of contemporary reproductive technology in Aldous Huxley’s Brave New World, but in the real world not so much, unless you count “in vivo” artificial insemination which is reported as early as 1884 in people and 1780 in animals.  Regardless, we can be pretty certain little thought went into the topic of whether surrogacy should be included, when the definition was crafted in 1942.

Kevin Newsom,  President Trump’s recent appointee to the Eleventh Circuit has managed to disappoint a major LGBT organization with his very first decision. In Morrissey v United States Judge Newsom wrote :

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.

Mary Bonauto, Civil Rights Project Director of GLAD (GLBTQ Legal Advocates & Defenders) wrote me:

We think the court got it wrong. Medically assisted reproduction has become necessary for many couples to have children. When a couple cannot have a child together, the IRS has recognized that medical treatments for reproduction and family building are deductible medical expenses. In family law, many states look beyond genetics to factors like intent and conduct in assessing legal parentage. And in Obergefell, the Supreme Court linked same-sex couples’ right to marry to the ability to exercise associated rights like having and raising children.