Employee Benefits-Eleventh Circuit Holds That The Costs Of In Vitro Fertilization Procedures Are Not Deductible As Medical Care Expenses

In Morrissey v. United States, No. 17-10685 (11th Cir. 2017), the Eleventh Circuit Court of Appeals (the “Court) was called on to determine whether the IRS properly denied a taxpayer’s claimed deduction on his 2011 tax return.  In making this determination, the Court had to decide two questions.  First: was the money that a homosexual man paid to father children through in vitro fertilization (“IVF”)—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 Code Section 213 (and therefore deductible under that Section)?  Second: in answering the first 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?

Upon analyzing the case, the Court held 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 under Code Section 213—and that the IRS did not violate the Constitution in disallowing the deduction.