Deducting the costs of fertility treatment: Implications of Magdalin v. Commissioner for opposite-sex couples, gay and lesbian same-sex couples, and single women and men

Wisconsin Law Review

Volumn 2009, Issue 6, 2009, Pages 1283-1347

  Pratt, Katherine ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 77956211552     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (471)

1. See Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEY J. GENDER L. & JUST. 18, 74 (2008) [hereinafter Daar, Invisible Barriers] ("The majority of U.S. states do not require insurance carriers to provide coverage for infertility treatment, and in the handful of states that do mandate coverage, evidence suggests that employer-based insurance providers often exempt key forms of treatment or impose insurmountable co-payment requirements that dissuade utilization.").
2. All section references in this Article are to the Internal Revenue Code, unless otherwise indicated.
3. I.R.C. § 213(a) (2006).
4. I.R.C. § 105(b) (2006).
5. I.R.C. § 213(d)(1)(A) (2006).
6. This Article also updates an earlier article on the tax classification of fertility treatment expenses. Katherine Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 CORNELL L. REV. 1121 (2004).
7. In addition, it corrects an erroneous conclusion some readers have drawn from that earlier article, with respect to deductibility of certain fertility treatment costs where the taxpayer is not medically infertile. See, e.g., Justin Trent, Health Care Law Chapter: Assisted Reproductive Technologies, 7 GEO. J. GENDER & L. 1143, 1159-60 (2006) (interpreting Pratt, supra, as concluding that all fertility treatment costs are deductible under section 213 by all taxpayers, regardless of the context within which the fertility treatment costs are incurred). Trent cites my 2004 article, supra, as support for the proposition that gay and lesbian couples can deduct all fertility treatment costs, with no recognition of possible distinctions being drawn between (1) fertile and infertile taxpayers, (2) female and male taxpayers, and (3) opposite-sex couples and same-sex couples. This Article explores these issues, which I did not address in the prior article.
8. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
9. Sedgwick v. Comm'r, No. 10133-94, LEXSTAT 94 PTT 13-53 (T.C. filed June 14, 1994).
10. Decision, Sedgwick v. Comm'r, No.10133-94 (T.C. Nov. 20, 1995) (on file with author).
11. Magdalin, 96 T.C.M. (CCH) at 493.
12. Id. at 491-93.
13. Lisa C. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47 HASTINGS L.J. 1007, 1028 (1996).
14. Professor Ikemoto uses the term "dysfertile" to refer to medically fertile gay and lesbian individuals and couples who want to have children, but cannot without assistance from a third party of the opposite sex. Id. at 1009. Professor Daar uses the term "structural infertility" (as opposed to "functional infertility") to describe the infertility that "occurs when an individual or couple desires to reproduce but must do so through means other than sexual intercourse because of the social structure in which they self-identify." Daar, Invisible Barriers, supra note 1, at 24.
15. Medical infertility affects around 12 percent of the reproductive-age population in the United States. American Society for Reproductive Medicine, Frequently Asked Questions About Infertility, http://www.asrm.org/Patients/faqs. html#Q2 (last visited Jan. 30, 2009). Infertility is attributable to (1) female factors in about one-third of cases; (2) male factors in about one-third of cases; (3) a combination of male and female factors in about 10 percent of cases; and (4) "unexplained" causes in about 20 percent of cases. Id.
16. RESOLVE, NAT'L INFERTILITY ASS'N, RESOLVING INFERTILITY: UNDERSTANDING THE OPTIONS AND CHOOSING SOLUTIONS WHEN YOU WANT TO HAVE A BABY 5 (1999).
17. Id.
18. Although conventional treatment is the norm, the annual number of ART cycles, in absolute terms, is large. See Sarah B. Lawsky & Naomi Cahn, Embryo Exchanges and Adoption Tax Credits 3 (George Wash. Univ. Law Sch. Pub. Law & Legal Theory, Working Paper No. 468, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1394046# (estimating that almost 140, 000 ART cycles and 50, 000 live births occurred in 2006).
19. Surrogacy procedures are relatively uncommon. See Bridget J. Crawford, Taxation, Pregnancy, and Privacy, WM. & MARY J. WOMEN & L. (forthcoming) (manuscript at 13), available at http://ssrn.com/abstract=1437830 (noting that in 2005, "[l]ess than 1% of [ARTs]" involved gestational carriers).
20. State laws do not directly prohibit single individuals, unmarried opposite-sex couples, and same-sex gay and lesbian couples from using most types of ARTs, such as IVF, sperm donor, and egg donor procedures. Mary Patricia Byrn, From Right to Wrong: A Critique of the 2000 Uniform Parentage Act, 16 UCLA WOMEN'S L.J. 163, 217-18 (2007) ("[N]o state prohibits gays and lesbians from being parents or from utilizing ART, and would face serious constitutional challenges if it attempted to do so.").
21. Judith F. Daar, State Regulation of Reproductive Technologies in the United States: A Study in Comity and Contrast 6 [hereinafter Daar, State Regulation of ARTs] (on file with author) (noting that while most "state laws do not prohibit anyone from accessing ART services on the basis of gender, marital status, sexual orientation, health status, or any other basis other than ability to pay . . . the lack of legal barriers does not always translate into access to treatment").
22. Professor Daar notes that "single women and same-sex couples face reduced access [to ARTs, in part due to] provider discrimination." Daar, Invisible Barriers, supra note 1, at 43.
23. In addition, the parental rights of intended parents who use third-party ARTs are less certain for singles, gays, and lesbians than for married couples. Daar, State Regulation of ARTs, supra, at 5-6, 8-9 (explaining that state law creates greater uncertainty about the parental rights of single and same-sex intended parents who use artificial insemination by donor).
24. Many states regulate surrogacy, but approaches to surrogacy regulation vary. See id. at 21-26, 36-59.
25. Various states (1) prohibit all surrogacy procedures; (2) void commercial surrogacy contracts; (3) prohibit enforcement of traditional surrogacy contracts, but not gestational surrogacy contracts; or (4) allow enforcement of surrogacy contracts and award parental rights to the intended parents. JUDITH F. DAAR, REPRODUCTIVE TECHNOLOGIES AND THE LAW 465 - 72 (2006) [hereinafter DAAR, REPRODUCTIVE TECHNOLOGIES].
26. Some states require a legal marriage to use a surrogacy procedure. See id.
27. This type of marriage requirement deters use of surrogacy procedures by same-sex couples. In addition, some states allow surrogacy procedures only if the intended mother can establish that she suffers from medical infertility. See FLA. STAT. ANN. § 742.1 5 (West 2005).
28. 750 ILL. COMP. STAT. ANN. § 47/20 (West 1993).
29. N.H. REV. STAT. ANN. § 168-B:17 (LexisNexis 1955).
30. In the alternative, gays and lesbians might form a family by adopting. See Benjamin C. Morgan, Adopting Lawrence: Lawrence v. Texas and Discriminatory Adoption Laws, 53 EMORY L.J. 1491, 1500 (2004) (discussing state laws that permit adoption by gays and lesbians).
31. Many states permit same-sex couples to adopt, either in a joint adoption by both partners, or in a two-step adoption proceeding (in which one partner adopts the child, and the second partner subsequently also adopts the child, as a "second parent" or stepparent). See id. (summarizing state laws regarding stepparent and second-parent adoption by gays and lesbians).
32. Adoption by gays and lesbians is prohibited in some states, however. Id. at 1503-05 (explaining statutory restrictions on homosexual adoption in Florida, Mississippi, and Utah).
33. For a summary of state adoption laws, see Lambda Legal, Overview of State Adoption Laws, http://lambdalegal.org/issues/adoption-parenting/overview-of- state-adoption.html (last visited Jan. 30, 2010).
34. In states that permit adoption by gays and lesbians, the traditional preference for adoption by heterosexual married couples may make it difficult nonetheless for gays and lesbians to adopt. See, e.g., EVAN B. DONALDSON ADOPTION INST., EXPANDING RESOURCES FOR CHILDREN: IS ADOPTION BY GAYS AND LESBIANS PART OF THE ANSWER FOR BOYS AND GIRLS WHO NEED HOMES? 12 (2006), available at http://www.adoptioninstitute.org/publications/2006-Expanding- Resources-for-Children%20-March-.pdf (documenting the "prevailing attitude" of adoption agency workers that adoption by gays or lesbians is in conflict with community standards used to evaluate prospective parents).
35. Morgan, supra, at 1526 (describing the "archetypal" argument that the "traditional family is the optimal structure for nurturing the development and socialization of children" because "married, heterosexual households, which include both male and female authority figures, provide greater stability and proper gender identification for children").
36. Pamela Paul, The Battie Over a Baby, N.Y. TIMES, Jul. 26, 2009, at 38 (noting that a 1999-2000 "survey of adoption agencies found that only 60 percent accepted applications from gays [and lesbians]").
37. This procedure is referred to as "Artificial Insemination by Donor" (AID). See DAAR, REPRODUCTIVE TECHNOLOGIES, supra note 18, at G-l (glossary of terms).
38. In addition, under state law, this type of collaborative reproduction may strengthen the parental claim of the genetic, nongestational mother with respect to the child. See Trent, supra note 6, at 1147-51 (concluding that collaborative reproduction may strengthen the parental claim of the partner who donates the egg).
39. A "traditional" surrogate provides the egg and gestates the child. Crawford, supra note 17, at 10.
40. Crawford, supra note 17, at 12 (noting that "gestational surrogacy [is] the most common form of surrogacy"); Daar, Invisible Barriers, supra note 1, at 20 n.6.
41. I.R.C. § 262 (2006).
42. Similarly, taxpayers can exclude from their income reimbursements from flexible spending accounts (FSAs) for their medical expenses. I.R.C. § 105 (2006).
43. See, e.g., Havey v. Comm'r, 12 T.C. 409, 413 (1949) (denying medical expense deduction for vacation recommended by taxpayer's doctor). Throughout this Article, references to deductibility of expenses, under section 213, apply equally to excludability of reimbursed expenses under section 105.
44. See, e.g., William D. Andrews, Personal Deductions in an Ideal Income Tax, 86 HARV. L. REV. 309, 314 (1972).
45. See also Pratt, supra note 6, at 1162-68 (summarizing medical expense literature based on "ability to pay").
46. Andrews, supra note 27, at 334-37.
47. The amount of tax saved from a tax deduction is a function of the taxpayer's tax rate, because the deduction reduces the amount of income that is multiplied by the taxpayer's applicable tax rate. See Lily L. Batchelder et al. Efficiency and Tax Incentives: The Case for Refundable Tax Credits, 59 STAN. L. REV. 23, 24 (2006).
48. See infra notes 61-67 and accompanying text.
49. See Pratt, supra note 6, at 1170-71 (describing the narrowing of private and government health insurance coverage to contain healthcare costs, but retention of broad coverage under section 213).
50. I.R.C. § 213(a) (2006). AGI is defined as gross income minus the deductions specified in I.R.C. § 62(a). For purposes of computing the tax due under the alternative minimum tax, the taxpayer is allowed to deduct medical expenses in excess of 10 percent of AGI. I.R.C. § 56(b)(1)(B) (2006).
51. I.R.C. §§ 62, 213 (2006).
52. I.R.C. § 63(d) (2006). For 2009, the inflation-adjusted standard deduction is $11, 400 for a married couple filing a joint return, $8, 350 for a head of household (an unmarried individual with a dependent child or parent), and $5, 700 for a single individual. I.R.C. §§ 2(b), 63(c)(2) (2006); Rev. Proc. 2008-66, 2008-2 C.B. 1107, § 3.10(1).
53. I.R.C. §§ 105(b), 106(a), 106(c)(2) (2006). Section 105(b) cross-references the definition of medical care in section 213(d). Other tax provisions also use the section 213(d) definition. For example, section 223, applicable to tax favored health savings accounts, also incorporates the section 213(d) definition of medical care. I.R.C. § 223(d)(2)(A) (2006).
54. Generally, the tax saved from a deduction or exclusion equals the product of multiplying the deduction or exclusion by the taxpayer's marginal tax rate. See Batchelder et al., supra note 29, at 24.
55. The exclusion of employer-provided health benefits, including FSA reimbursements, saves taxpayers more tax than would be saved by claiming medical expenses of an equal amount, because the section 213 deduction is subject to the AGI floor. I.R.C. § 213(a) (2006).
56. In addition, the section 213 deduction is allowed only if the taxpayer itemizes deductions. I.R.C. § 63(a)-(e) (2006) (taxpayers deduct itemized deductions if itemized deductions exceed the standard deduction, and section 213 deduction is an itemized deduction). Most Americans take the standard deduction. Jerome Kurtz, Two Cheers for the Income Tax, 27 OHIO N. U. L. REV. 161, 165 (2001) (stating that 75 percent of taxpayers take the standard deduction).
57. I.R.C. § 213(d)(1)(A) (2006) (emphasis added); Treas. Reg. § 1.213-l(e) (as amended in 1979).
58. See, e.g., Treas. Reg. § 1.213-l(e)(l)(v)(a) (as amended in 1979) (The "cost of medical care includes the cost of attending a special school for a mentally or physically handicapped individual, if his condition is such that the resources of the institution for alleviating such mental or physical handicap are a principal reason for his presence there.") (emphasis added). The traditional broad interpretation of the term "disease" also is consistent with language in the cosmetic surgery exception to section 213, which refers to "illness," "disease," and "deformity" resulting from "congenital abnormality, a personal injury resulting from an accident or trauma, or disfiguring disease." I.R.C. § 213(d)(9) (2006).
59. Treas. Reg. § 1.213-1(e)(1)(ii) (as amended in 1979) ("[A]n expenditure which is merely beneficial to the general health of an individual, such as an expenditure for a vacation, is not [deductible].").
60. Rev. Rul. 79-151, 1979-1 C.B. 116.
61. Rev. Rul. 2002-19, 2002-1 C.B. 778-79.
62. See, e.g., Evanoff v. Comm'r, 44 T.C.M. (CCH) 1394 (1982) (denying a medical expense deduction for the cost of a home pool used for therapy, where there was a community pool nearby).
63. See, e.g., Havey v. Comm'r, 12 T.C. 409, 412 (1949).
64. See, e.g., France v. Comm'r, 690 F.2d 68 (6th Cir. 1982) (cost of dancing lessons not a deductible medical expense, even though taxpayer's doctor recommended them as therapy).
65. Monahan v. Comm'r, 27 T.C.M. (CCH) 1157 (1968) (cost of swimming and golf lessons not deductible as medical care).
66. Havey v. Commissioner, in which the court denied a medical expense deduction for the cost of medically recommended vacation travel, is also typical of this class of section 213 cases. 12 T.C. 409 (1949).
67. 414 F.2d 448 (6th Cir. 1969), rev'g, 49 T.C. 522 (1968).
68. Id. at 453.
69. Id. In Revenue Ruling 71-281, 1971-2 C.B. 165, the IRS ruled that it would follow the appellate court decision in Gerstacker.
70. 695 F.2d 57 (2d Cir. 1982), aff'g, 42 T.C.M. (CCH) 763 (1981), cert, denied, 462 U.S. 1132 (1983).
71. Id. at 58, 61.
72. See Huff v. Comm'r, 69 T.C.M. (CCH) 2551 (1995): Certain treatments are inherently medical in nature (i.e., surgery), and taxpayers have little difficulty convincing the Commissioner or courts that such procedures fit within the section 213 definition. Other treatments, however, such as a massage, are more commonly recognized as nonmedical procedures intended for an individual's general well-being. In those instances where a normally nonmedical procedure is claimed as a basis for a medical deduction, the burden is on such taxpayers to show that the procedure comes within the requirements of the statute.
73. Id. at 111 (emphasis added) (citation omitted).
74. The 213 Treasury Regulations provide the following illustrative list of inherently medical care: "hospital services, nursing services, . . . medical, laboratory, surgical, dental and other diagnostic and healing services, X-rays, medicine and drugs . . ., artificial teeth or limbs, and ambulance hire." Treas. Reg. § 1.213-1(e)(1)(ii) (as amended in 1979).
75. Professor Kelman challenges this assumption, pointing out the income elasticity and price elasticity of medical care. Mark G. Kelman, Personal Deductions Revisited: Why They Fit Poorly in an "Ideal" Income Tax and Why They Fit Worse in a Far From Ideal World, 31 STAN. L. REV. 831, 866-68 (1979).
76. Id. at 864-65 (richer taxpayers buy more amenities, such as luxurious private hospital rooms). Consistent with the assumption that medical care is necessary, Treasury Regulations provide that "[a]mounts paid for operations or treatments affecting any portion of the body . . . are deemed to be for the purpose of affecting any structure or fimction of the body," and add that payments for the following types of care qualify as medical care: "hospital services, nursing services, . . . medical, laboratory, surgical, dental and other diagnostic or healing services, X-rays, medicine and [prescription] drugs, . . . artificial teeth or limbs, and ambulance hire." Treas. Reg. § 1.213-l(e)(l)(ii) (as amended in 1979).
77. An emergency room visit to stop arterial bleeding is an example of an "involuntary" medical expense. Kelman, supra note 51, at 865-66.
78. In addition, even if a medical procedure, such as a mammogram or chemotherapy, might be life-saving, it is often impossible to know in advance in a specific case whether a medical procedure would be life-saving or not.
79. Medical care, including preventive care, generally is elective because a patient's informed consent is required for non-emergency medical procedures. See, e.g., Joan H. Krause, Reconceptualizing Informed Consent in an Era of Health Care Cost Containment, 85 IOWA L. REV. 261, 264 (1999) (describing informed consent law and noting that "the right to make decisions regarding one's own health care appears to be a fundamental tenet of American law").
80. Richard S. Saver, Critical Care Research and Informed Consent, 75 N.C. L. REV. 205, 230 (1996) (noting that "[a]ll jurisdictions recognize an exception to informed consent for medical treatment in emergency care situations"). Examples of elective preventive medical care include prenatal care, well baby exams, immunizations, annual physical exams, and medical care to prevent hypertension and diabetes.
81. Examples of elective diagnostic care include mammograms, pap smears, PSA screening for prostate cancer, and colonoscopies.
82. See, e.g., Monahan v. Comm'r, 21 T.C.M. (CCH) 1157 (1968) (denying a medical expense deduction for golf lessons).
83. See infra note 60 and accompanying text.
84. Treas. Reg. § 1.213-l(e)(l)(ii) (as amended in 1979).
85. See, e.g., Rev. Rul. 73-200, 1973-1 C.B. 140 (cost of birth control pills is a section 213 medical expense).
86. Rev. Rul. 73-201, 1973-1 C.B. 140 (cost of a legal abortion or vasectomy is a section 213 medical expense).
87. Rev. Rul. 73-603, 1973-2 C.B. 76 (cost of a female taxpayer's sterilization procedure is a section 213 medical expense).
88. IRS, PUBLICATION 502: MEDICAL AND DENTAL EXPENSES 6, 12-14 (2009), available at http://www.irs.gov/pub/irs-pdf/p502.pdf[hereinafter PUBLICATION 502] (deductible medical expenses include the costs of prescription birth control pills, pregnancy test kits, sterilization procedures, and vasectomy).
89. See infra note 87 and accompanying text. The extent to which courts respect or defer to agency interpretation of statutes is, under current law, controversial. It is unclear whether the relevant test for deference to agency interpretations is determined under Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944) (holding that less judicial deference is due to agency interpretation).
90. under other cases, such as Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (holding that greater judicial deference is due to agency interpretation).
91. See generally Kristin E. Hickman & Matthew D. Krueger, In Search of the Modem Skidmore Standard, 107 COLUM. L. REV. 1235, 1238, 1262-63 (2007) (discussing the controversy and identifying "two conceptions of Skidmore that compete in both the Supreme Court's and lower courts' opinions: the independent judgment model, which effectively denies any deference to agencies, and the sliding-scale model, which tailors deference in accordance with Skidmore's factors").
92. Ryan C. Morris, Comment, Substantially Deferring to Revenue Rulings After Mead, 2005 BYU L. REV. 999, 1004 (criticizing lack of respect shown recently by courts for revenue rulings under Skidmore).
93. Opening Brief for Respondent at 16-19, Magdalin v. Comm'r, No. 7880-07 (T.C. June 30, 2008) [hereinafter Respondent's Opening Brief] (citing various authorities to support the argument that, even if an expense satisfies the "structure or function" prong, "an expense must be directly or proximately related to a medical condition to be deductible under section 213").
94. The argument that the first prong always must be met-along with a new, much narrower definition of "disease" advocated by the IRS in O'Donnabhain v. Comm'r, No. 6402-06, slip op. (T.C. Feb. 2, 2010)-would exclude prenatal and obstetrical care from the definition of medical care. In O'Donnabhain, an IRS expert witness, Dr. Dietz, stated that he would define the section 213(d)(1)(A) term "disease" narrowly to require that the taxpayer establish that the taxpayer's condition results from "a pathological process," adding that "[i]t is not necessary that this process be fully known or understood, but it is necessary that the pathology occur within the individual and reflect abnormal structure or function of the body at the gross microscopic, molecular, biochemical, or neurochemical levels . . . ." Id. at 21.
95. See infra Part III.C.l. (discussing the meaning of the term "the body," and whose body matters for purposes of section 213).
96. I.R.C. § 213(d)(9)(A) (2006).
97. See, e.g., Rev. Rul. 76-332, 1976-2 C.B. 81 (ruling that taxpayer could deduci cosmetic surgery costs as "medical care").
98. See also IRS Gen. Couns. Mem. 36, 515 (Dec. 11, 1975), available at 1975 WL 37528 (same).
99. Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 11.342(a), 104 Stat. 1388-471.
100. I.R.C. § 213(d)(9)(A) (2006).
101. I.R.C. § 213(d)(9)(B) (2006).
102. Id. (defining "cosmetic surgery" as "any procedure which is directed at improving the patient's appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease"). The legislative history of the 1990 amendment states: [U]nder the provision, procedures such as hair removal, electrolysis, hair transplants, [liposuction], and face lift operations generally are not deductible. In contrast, expenses for procedures that are medically necessary to promote the proper function of the body and only incidentally affect the patient's appearance or expenses for treatment of a disfiguring condition arising from a congenital abnormality, personal injury or trauma, or disease (such as reconstructive surgery following removal of a malignancy) continue to be deductible under present-law rules. 136 CONG. REC. S15, 629, 115 (1990).
103. See also Rev. Rul. 2003-57, 2003-1 C.B. 959 (teeth whitening is cosmetic because it primarily changes appearance, not functioning; but laser eye surgery to correct vision is not cosmetic because it primarily changes functioning and only incidentally improves the taxpayer's appearance).
104. I.R.C. § 213(d)(1)(A) (2006).
105. Rev. Rul. 68-452, 1968-2 C.B. 111.
106. Id. at 111-12.
107. For example, if the prospective donor in Revenue Ruling 68-452, had not been a match for the taxpayer, the taxpayer still could have deducted the expenses incurred by the prospective donor, because the prospective donor's costs would have been incurred for the purpose of treating the taxpayer or mitigating the taxpayer's kidney disease. Rev. Rul. 73-189, 1973-1 C.B. 139.
108. Treas. Reg. § 1.213-l(e)(l)(iii) (as amended in 1979).
109. Rev. Rul. 64-173, 1964-1 C.B. 121.
110. Id. at 122.
111. Estate of Baer v. Comm'r, 26 T.C.M. (CCH) 170, 173 (1967).
112. For a discussion of tax issues related to the costs of disabilities, see Theodore P. Seto & Sande L. Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. PA. L. REV. 1053, 1100-05 (2006) (justifying tax benefits for incremental living costs attributable to disabilities under an "ability to pay" norm).
113. See, e.g., Gerstacker v. Comm'r, 414 F.2d 448, 450 (6th Cir. 1969).
114. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491 (2008) (memorandum decision), affdmem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
115. Id. at 493.
116. Pratt, supra note 6, at 1144, 1161, 1199.
117. Id. at 1132 n.49. For an apt criticism of the assumption that patients receiving fertility treatment are opposite-sex married couples, see Ikemoto, supra note 12, at 1027-33, 1053-57. Professor Ikemoto is correct, as the discussion of the Magdalin case in this Article illustrates. See infra Part III.C.3.
118. See, e.g., Brietta R. Clark, Erickson v. Bartell Drug Co.: A Roadmap for Gender Equality in Reproductive Health Care or an Empty Promise?, 23 LAW & INEQ. 299, 314-16 (2005) (describing male- and female-factor causes of infertility, diagnosis of infertility, and treatments for infertility).
119. Pratt, supra note 6, at 1130-35 (same).
120. See infra notes 191-224 and accompanying text for discussion of whether, for purposes of section 213, sperm removed from a male taxpayer, and embryos created with that sperm, are part "of" the taxpayer's "body.".
121. Pratt, supra note 6, at 1198.
122. See, e.g., Adler v. Comm'r, 330 F.2d 91, 93 (9th Cir. 1964) (holding that language in a taxpayer publication does not estop the government from making a contrary argument at a later date).
123. MICHAEL I. SALTZMAN, IRS PRACTICE AND PROCEDURE 3.04[8], at 3-78 (2d ed. 1991) (stating that taxpayer publications "perform a useful and laudable function," but "may not be relied on by taxpayers in planning future transactions").
124. See PUBLICATION 502, supra note 60, at 8. This language has appeared in Publication 502 for years.
125. See Pratt, supra note 6, at 1139 n.102 (citing IVF language in the 2002 version of Publication 502).
126. The long-standing reference to "eggs" in Publication 502 may be an erroneous reference to "embryos" because the freezing of embryos has been a very common occurrence for many years, but egg cryopreservation is a recent technological development. See Daar, Invisible Barriers, supra note 1, at 24 n.15 (noting that "egg cryopreservation is just now emerging as a method of fertility preservation for women").
127. Daar, State Regulation of ARTs, supra note 18, at 20 (noting "widespread" practice of freezing extra embryos after IVF and estimating that "there are about 400, 000 frozen embryos [currently in] storage in the United States"). This Article uses the generic term "embryo" to refer to pre-embryos and embryos.
128. IRS Priv. Ltr. Rul. 200318017 (Jan. 9, 2003) (ruling that egg donor expenses and related costs are medical care expenses within section 213). The IRS allowed deductions for the fee paid to the egg donor; the fee paid to the agency representing the donor; the fee paid for psychological testing of the donor; the cost of insurance for post-procedure medical and psychological care of the donor; and the legal fees for preparing the contract between the taxpayers and the donor. Id. at 1.
129. The ruling states that the taxpayer had "unsuccessfully undergone repeated assisted reproductive technology procedures" to try to conceive and bear a child, and notes the taxpayer's inability to conceive "using your own eggs," which indicates that the party requesting the ruling was female or a married couple that included a female. Id.
130. It is not clear from the ruling whether "the taxpayer" was married or single; the ruling repeatedly uses the pronoun "you," which could apply to a single female taxpayer or married taxpayers. See id.
131. The ruling does not discuss whether the IVF procedure used in conjunction with the egg donation constitutes medical care, because the taxpayer's insurance covered the IVF costs. Id.
132. Id. at 2 (citing Rev. Rul. 73-201, 1973-1 C.B. 140 (holding that the cost of a legal abortion or vasectomy is a section 213 medical expense).
133. Rev. Rul 73-603, 1973-2 C.B. 76 (holding that the cost of a female taxpayer's sterilization procedure is a section 213 medical expense)).
134. Id. ("Rev. Rul. 73-201 . . . and Rev. Rul. 73-603 . . . hold that vasectomies and operations that render a woman incapable of having children affect a structure or function of the body and thus may qualify as medical care under § 213. A procedure for the purpose of facilitating pregnancy by overcoming infertility similarly affects the structure or function of the body and may be medical care.").
135. Id. (stating that "[e]xpenses preparatory to the performance of a procedure that qualifies as medical care that are directly related to the procedure may also constitute medical care for purposes of § 213").
136. Id. (internal citation omitted).
137. Rev. Rul. 68-452, 1968-2 C.B. 111 (holding that taxpayer, a kidney transplant patient, could deduct amounts taxpayer paid to a third-party prospective kidney donor for prospective donor's medical and transportation costs). This ruling is discussed supra note 73.
138. IRS Priv. Ltr. Rul. 200318017, at 2 (Jan 9, 2003).
139. 414 F.2d 448 (6th Cir. 1969), rev'g, 49 T.C. 522 (1968).
140. Id. at 450.
141. 62 T.C. 813 (1974).
142. Id. at 820 (legal fees paid in a divorce proceeding that may have improved the taxpayer's depression were not deductible medical expenses, because the taxpayer would have paid the legal fees even if the taxpayer had not been depressed).
143. IRS Priv. Ltr. Rul. 200318017, at 2 (Jan. 9, 2003).
144. See I.R.C. § 6110(k)(3) (2006). The IRS sometimes considers such rulings internally, however, to determine its position on an issue. See SALTZMAN, supra note 87, at 1 3.03[3][c], at 3-31.
145. In addition, judges sometimes consider private letter rulings in deciding cases. See, e.g., Shaev v. Saper, 320 F.3d 373, 381 n.5 (3d Cir. 2003) ("Although a private letter ruling may not be cited as precedent, . . . the District Court may have deemed it instructive.").
146. Judge Wherry cited and distinguished the egg donor ruling in his Magdalin opinion. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491, 493 & n.7 (2008), (memorandum decision), aff'd mem.. No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
147. In discussing the implications of Magdalin, I reconsider my earlier conclusion in view of Dr. Magdalin's argument that his sperm and embryos are part of his "body." See infra notes 191-224 and accompanying text.
148. Rev. Rul. 68-452, 1968-2 C.B. 111.
149. Estate of Baer v. Comm'r, 26 T.C.M. (CCH) 170 (1967).
150. See Pratt, supra note 6, at 1160-61.
151. Sedgwick v. Comm'r, No. 10133-94, LEXSTAT 94 PTT 13-53 (T.C. filed June 14, 1994) (on file with author).
152. There was no reported opinion in the case, but the stipulated decision states, "there is no deficiency due from . . . the petitioners . . . . " Id.
153. See IRS Info. Ltr. 2002-0291 (2002) (on file with author) (concluding that surrogacy expenses are not deductible medical expenses).
154. Mrs. Sedgwick had received fertility treatment over a six-year period from 1984-1990. Transcript of Record at 8-9, Sedgwick v. Comm'r, No. 10133-94 (T.C. Oct. 10, 1995) [hereinafter Sedgwick Trial Transcript]. She testified that the years of unsuccessful treatment included numerous surgeries to diagnose and treat reproductive disease, two life-threatening ectopic pregnancies, and two IVF procedures, and caused severe psychological distress. Id. at 29-30, 39-40.
155. Mrs. Sedgwick's doctors eventually concluded that she could not carry and bear a child, and advised her to try surrogacy. Id. at 47.
156. Most of the surrogacy expense was paid to a third party, the Center for Surrogate Parenting, for: psychological testing and counseling, medical tests for the surrogate, a fee paid to the surrogate, and legal fees for a lawyer for the surrogate. Id. at 10-15.
157. Id. at 25.
158. See Clark, supra note 84, discussing a Title VII case that rejected a narrow construction of the Pregnancy Discrimination Act: [A] recurring reason for [employers] excluding both prescription contraception and infertility treatment is the perception that they are merely a luxury or lifestyle choice, and not medically necessary health care. In fact, infertility treatment is often likened to "elective" procedures such as cosmetic surgery. These justifications are easily challenged since they are not consistent with sound medical judgment about the causes and treatment necessary to correct infertility. Id. at 333-34.
159. Id. at 329 ("[T]he characterization of infertility treatment as not medically necessary may simply be due to ignorance of the medical causes and forms of infertility.").
160. See supra notes 15-16 and accompanying text (noting that 85-90 percent of fertility treatments are conventional treatments).
161. See supra note 63 and accompanying text.
162. Sedgwick Trial Transcript, supra note 109, at 14-15 (stating that medical expenses of the taxpayer, his spouse, and dependents are qualified medical expenses).
163. See, e.g., Kilpatrick v. Comm'r, 68 T.C. 469, 472-73 (1977).
164. see also Sedgwick Trial Transcript, supra note 109, at 15-22.
165. infra notes 184-188 (discussing Kilpatrick).
166. Sedgwick Trial Transcript, supra note 109, at 5-6, 26.
167. See id. at 26.
168. Rev. Rul. 64-173, 1964-1 C.B. 121, 121-22 (ruling that taxpayers can deduct amounts paid to a blind child's human guide at school).
169. Treas. Reg. § 1.213-1(e)(1)(iii) (as amended in 1979) (stating that a blind taxpayer is allowed a medical expense deduction for the cost of a seeing-eye dog).
170. Estate of Baer v. Comm'r, 26 T.C.M. (CCH) 170, 173 (1967) (holding that taxpayers can deduct as medical expenses amounts paid to a person who took class notes for their deaf child).
171. Rev. Rul. 68-452, 1968-2 C.B. 111, 112 (holding that a kidney transplant patient could deduct amounts he paid for third-party kidney donor's medical and transportation costs).
172. IRS Priv. Ltr. Rul. 200318017, at 2 (Jan. 9, 2003) (discussing Rev. Rul. 68-452 and concluding that, "[s]imilarly, expenses the taxpayer pays to obtain an egg donor, including the donor's expenses, are directly related and preparatory to the taxpayer's receiving the donated egg or embryo").
173. Sedgwick Trial Transcript, supra note 109, at 26.
174. Rev. Rul. 64-173, 1964-1 C.B. 121, 121-22 (ruling that taxpayers can deduct amounts paid to a blind child's human guide at school).
175. Estate of Baer v. Comm'r, 26 T.C.M. (CCH) 170, 173 (1967) (holding that taxpayers can deduct as medical expenses amounts paid to a person who took class notes for their deaf child).
176. Sedgwick Trial Transcript, supra note 109, at 27-50.
177. Id. at 70.
178. Id. The parties' stipulated decision stated that "there is no deficiency due from . . . the petitioners . . . ." Decision, Sedgwick v. Comm'r, No. 10133-94 (T.C. Nov. 20, 1995) (on file with author).
179. IRS counsel requested the conference in chambers and agreed in that conference to concede the deficiency. Sedgwick Trial Transcript, supra note 109, at 70.
180. Rev. Rul. 68-452, 1968-2 C.B. 111.
181. I.R.C. § 213(d)(1)(A) (2006) (stating that "medical care" includes 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") (emphasis added).
182. Rev. Rul. 64-173, 1964-1 C.B. 121-22.
183. Estate of Baer v. Comm'r, 26 T.C.M. (CCH) 170, 173 (1967).
184. See supra notes 59-60.
185. Rev. Rul. 73-189, 1973-1 C.B. 139-40 (ruling that two prospective kidney donors were allowed to deduct amounts they paid for medical and related costs to determine whether their kidneys were a good match; prospective donor whose kidney was a good match also was allowed to deduct his transplant costs).
186. Id.
187. Id.
188. Rev. Rul. 68-452, 1968-2 C.B. 112.
189. I.R.C. § 213(a) (2006).
190. Rev. Rul. 73-189, 1973-1 C.B. 139.
191. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
192. Id. at 491-93.
193. Reply Brief of Petitioner at 6, 8, Magdalin v. Comm'r, No. 7880-07 (T.C. July 27, 2008) [hereinafter Petitioner's Reply Brief]; Magdalin, 96 T.C.M. (CCH) at 493.
194. IRS counsel emphasized this fact in the briefs. See, e.g.. Respondent's Opening Brief, supra note 62, at 14: [P]etitioner was able to conceive a child through natural processes. There was nothing wrong with petitioner's sperm which prevented him from fathering a child normally . . . . In fact, . . . petitioner already had twin boys from his prior marriage to Deborah Magdalin. The twins were born through natural processes without the use of IFV or surrogates. Id.
195. See also Magdalin, 96 T.C.M. (CCH) at 491 (noting that Magdalin had normal sperm and did not require fertility treatment to have "twin sons from a marriage to his former spouse, Deborah Magdalin").
196. Magdalin, 96 T.C.M. (CCH) at 491.
197. Id. at 491-92.
198. Respondent's Opening Brief, supra note 62, at 6-8. The egg donor expenses included fees paid to the egg donors, and legal fees, for the donors and the taxpayer, incurred in connection with the egg donor contracts. Id.
199. Magdalin, 96 T.C.M. (CCH) at 491-92.
200. Respondent's Opening Brief, supra note 62, at 7-8. The surrogacy expenses included fees and expenses paid to the surrogates; the costs of prescription drugs for the surrogates; hospital charges for the delivery of one of the children; and legal fees for the surrogates and the taxpayer incurred in connection with the surrogacy contracts.
201. Respondent's Opening Brief, supra note 62, at 2. The total medical expenses claimed by the taxpayer were $52, 310 for 2004, and $43, 593 for 2005. Magdalin, 96 T.C.M. (CCH) at 492 n.3. After reducing these expenses by 7.5 percent of the taxpayer's AGI, as required by section 213(a), the taxpayer deducted $34, 050 of medical expenses for 2004, and $28, 230 for 2005. Id. at 492.
202. The case was submitted for decision without a trial pursuant to Tax Court Rule 122. Respondent's Opening Brief, supra note 62, at 2 (citing TAX CT. R. 122) (providing for submission of case without trial)).
203. Magdalin, 96 T.C.M. (CCH) at 493.
204. See id. at n.6.
205. Id. For articles discussing the tax consequences to a surrogate of surrogacy, see Crawford, supra note 17, at 19 (noting that surrogates often fail to include surrogacy fee in income).
206. James Edward Maule, Federal Tax Consequences of Surrogate Motherhood, 60 TAXES 656, 661-64 (1982).
207. Magdalin, 96 T.C.M. (CCH) at 493.
208. Id.
209. Id. at 492.
210. Respondent's Opening Brief, supra note 62, at 16-19.
211. Magdalin, 96 T.C.M. (CCH) at 492 (quoting Treas. Reg. § 1.213-1(e)(1)(ii) (as amended in 1979)).
212. Id.
213. 12 T.C. 409 (1949) (medical expense deduction denied for the costs of medically recommended travel).
214. 62 T.C. 813 (1974) (legal fees paid in a divorce proceeding that may have improved the taxpayer's depression were not deductible medical expenses, because the taxpayer would have paid the legal fees even if the taxpayer had not been depressed).
215. Magdalin, 96 T.C.M. (CCH) at 491-92.
216. Id. at 492.
217. Id. at 493.
218. Opening Brief of Petitioner at 7-9, Magdalin v. Comm'r, No. 7880-07 (T.C. June 25, 2008) [hereinafter Petitioner's Opening Brief] (arguing for the "civil right" to reproduce and choose the method of reproduction, and that "[i]t is a matter of sex discrimination that these rights should apply equally and allow both men and women the ability to choose how they will reproduce with the goal of rearing children").
219. Magdalin, 96 T.C.M. (CCH) at 493.
220. I.R.C. § 213(a) (2006) (further providing that the term "dependent" is "defined in section 152, determined without regard to [section 152] (b)(1), (b)(2), and (d)(1)(B)").
221. See Theodore P. Seto, The Assumption of Selfishness in the Internal Revenue Code: Reframing the Unintended Tax Advantages of Gay Marriage 11 (Loyola Law Sch. L.A., Legal Studies Paper No. 2005-33, 2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=850645 ("[O]ne of the principal purposes of the [IRC] related-party rules [applicable to spouses] is to prevent tax-abusive transactions whenever the assumption of selfishness fails . . . .").
222. Some tax aggregation rules benefit the taxpayer. See, e.g., I.R.C. § 132(h)(2) (2006) (for purposes of determining whether employees can exclude from income certain employer-provided fringe benefits, use by the spouse or dependent child of an employee is treated as use by the employee).
223. Many aggregation rules are anti-abuse rules that constrain taxpayers, however. See Seto, supra at 51-52 (discussing examples of anti-avoidance rules in the tax law, and concluding that the goals of anti-avoidance rules would be served by recognizing gay marriage for purposes of the federal income tax).
224. I.R.C. § 6013 (2006) (stating that a "husband and wife" may file a joint return).
225. Nancy J. Knauer, Heteronormativity and Federal Tax Policy, 101 W. VA. L. REV. 129, 144-45 n.67 (1998) (noting that "the vast majority of all married couples file joint returns").
226. I.R.C. § 6013 (only a "husband and wife" may file a joint return); see also IRS, PUBLICATION 17: YOUR FEDERAL INCOME TAX 22 (2009) ("In general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.").
227. Under state law, a same-sex, long-term committed relationship may be called a "marriage," a "domestic partnership," or "civil union." See, e.g., Patricia A. Cain, Taxing Families Fairly, 48 SANTA CLARA L. REV. 805, 805, 835 (2008).
228. 1 U.S.C. § 7 (2006).
229. Id.
230. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. Id.
231. In some states, same-sex couples can file joint state income tax returns, despite the DOMA prohibition at the federal level. See Cain, supra note 168, at 833, 836. State tax returns typically are based on amounts shown on the federal income tax return, which creates an accounting problem for same-sex couples whose filing status is different for federal and state purposes. Id. at 835-36.
232. Such couples must prepare and file separate federal tax returns and prepare a "mock federal joint return," which is used as the basis for the state joint return. Id. at 836.
233. If the couple resides in a common law property state, filing separate state tax returns (married, filing separately) can eliminate some of these accounting difficulties, but this approach does not work in community property states, where income and deductions must be allocated between the two partners in the couple (and in a different fashion than on the separate federal returns). Id. at 836-37, 844 (citing IRS Chief Couns. Adv. Mem. 200608038 (Feb. 24, 2006), which advised that community property income splitting would not apply to California Registered Domestic Partners for federal tax purposes).
234. I.R.C. § 213(a) (2006) (stating that a medical expense deduction is allowed for medical care of "the taxpayer, his spouse, or a dependent"). See Anthony C. Infanti, Dismembering Families 2 (Univ. of Pittsburgh Sch. of Law, Legal Studies Research Paper Series, Working Paper No. 2009-11, 2009), available at http://papers.ssrn.com/sol3/papers.cftn?abstract- id=1374492 ("[S]ection 213 privileges traditional over nontraditional family arrangements through the construction, corporealisation, and even dismembering of families.").
235. 1 U.S.C. § 7 (2006).
236. I.R.C. § 151(c) (2006) (allowing an exemption for each dependent of "the taxpayer").
237. I.R.C. §§ 213(a), 152(a), 152(c) (2006).
238. I.R.C. §§ 213(a), 152(a), 152(d) (2006). An unrelated third party, including a surrogate or egg donor, who lives in the taxpayer's household and is supported by the taxpayer, could be a "qualifying relative" and thus the taxpayer's dependent. Id. § 152(d).
239. 31 Fed. CI. 121, 129(1994).
240. Id. at 129 (denying dependent exemption in 1991 for child who was born in 1992).
241. Treas. Reg. § 1.213-l(e)(3) (as amended in 1979).
242. Id.
243. See Infanti, supra note 171, at 13 ("By treating the traditional family as a single 'body, ' section 213 elides questions about the necessary identity of the recipient of medical treatment.").
244. I.R.C. § 213(a) (2006) (stating that a medical expense deduction is allowed for medical care of "the taxpayer, his spouse, or a dependent").
245. 68 T.C. 469 (1977).
246. Id. at 470-71.
247. Id. at 472-73. See also Hornish v. Comm'r, 37 T.C.M. (CCH) 919 (1978) (denying deduction for delivery costs of adopted dependent child, due to lack of proof that the expenses were specifically attributable to care of the child, not the birth mother).
248. Kilpatrick, 68 T.C. at 471.
249. Id. at 473. The court noted: [W]e are unable to determine from the record before us which services rendered to the [birth] mother were so proximately or directly related to the health of the child as to constitute medical care for the child. Certainly, the medical services rendered to the natural mother after the child was born do not constitute medical care for the child. And as for those medical services rendered prior to or during the birth of the child, it is insufficient to show only that the health of the unborn child was promoted generally by such services. More is required.
250. Petitioners have simply failed to show that all, or a portion, of the expenses in question were directly or proximately related to the 'diagnosis, cure, mitigation, treatment, or prevention of disease' in the unborn child. It is possible that some of these expenses were so related. However, from the evidence presented we are unable to identify such expenses or estimate the amount thereof. Id.
251. Id. The judge allowed the taxpayers to deduct expenses that were specifically attributable to the child, such as the costs of the child's stay in the hospital nursery and the cost of circumcision. See id.
252. Id.
253. Respondent's Opening Brief, supra note 62, at 12-13.
254. Id. at 13.
255. Petitioner's Reply Brief, supra note 143, at 4-5. Dr. Magdalin argued that the fertility treatments at issue in the case were [P]erformed on living tissue originating from the Petitioner . . . . The resultant embryos, underwent further therapeutic treatment, through implantation into surrogates to sustain normal biological activity, and affect cell function, alleviate illness and death to the embryo. In medicine, parts of the body, even liquids such as blood or semen are considered tissue. This tissue, albeit combined with other tissue originating from the donor eggs, has the function of turning into a person. The sole purpose of this tissue and its function is to differentiate into a human: A natural process of the body. As the process continues the tissue differentiates into an embryo which is a "structure" of the Petitioner's body. The surrogate affects the "structure" of the Petitioner's body to grow and alleviate death of this "structure." Id. at 4-5 (emphasis omitted).
256. In the surrogacy context, as in Magdalin, the child frequently, but not always, has a genetic connection to one or both intended parents. The IVF part of a gestational surrogacy procedure combines eggs (which may or may not be the eggs of the wife and intended mother) and sperm (which may or may not be the sperm of the taxpayer and intended father). Dr. Magdalin argued that, if the taxpayer or his spouse contributes eggs or sperm, surrogacy affects the parts of their bodies that result in the fertilized egg and embryo because the embryo can survive only by being frozen or implanted. Petitioner's Reply Brief, supra note 143, at 4-5.
257. 282 U.S. 101 (1930).
258. Id. at 109.
259. Id. at 111-12.
260. Id. at 118.
261. See I. Glenn Cohen, The Right Not to Be a Genetic Parent, 81 S. CAL. L. REV. 1115, 1146-47 (2008) (discussing search and seizure cases in which courts have held that the Fourth Amendment is not violated by "the seizure and analysis of 'abandoned' bodily materials," including saliva on a coffee cup or cigarette butt, hair, and excrement). Professor Cohen also discusses a civil case involving a claim for conversion of sperm. Id. at 1117, 1147.
262. Phillips v. Irons, No. 03-2992, 2005 WL 4694579 (III. App. Ct. Feb. 22, 2005). The defendant in Phillips allegedly "lied about being unable to engage in intercourse or to conceive . . . and agreed to prevent conception of children prior to marriage, but then intentionally engaged in oral sex so she could harvest his semen to artificially inseminate herself." Id. at *2.
263. The defendant also allegedly told the plaintiff she was divorced, although she was married. Id. at *1.
264. The plaintiff broke off his relationship with the defendant when he discovered that she was married. Id.
265. The defendant subsequently brought a paternity action, and DNA tests established that the plaintiff was the father of her daughter. Id.
266. The plaintiff sued the defendant for conversion and other causes of action. Id.
267. The court noted that "[c]ases from other jurisdictions have recognized the existence of a 'property right' in materials derived from the human body," but dismissed the conversion claim after concluding that the plaintiff had no right to possession of the semen (because he intended for the defendant to "discard his semen, not return it to him"). Id. at *7.
268. 59 Cal. Rptr. 2d 222 (Cal. Ct. App. 1996) (depublished).
269. Id. at 224.
270. Id. After considering whether the sperm donations were made due to Hecht's undue influence, and whether the decedent had the mental capacity to make the sperm donations, the court concluded that the decedent's children "failed to sustain their burden to prove lack of capacity or undue influence." Id. at 225.
271. Id. at 223.
272. Id.
273. Id. at 224. The decedent's children hoped to reduce the number of sperm vials controlled by Hecht, and thereby reduce the likelihood that Hecht would bear the decedent's child posthumously. See id.
274. Id. at 226-27.
275. Id. at 226 (holding that Hecht "lacked the right and legal power" to waive her right to use the sperm in exchange for receiving additional estate property). The court stated: "[t]he law should not permit anyone . . . to treat the decedent's 'fundamental interest' in procreation as an item for negotiation and trade." Id.
276. Publication 502 provides that the costs of "sperm" and "egg" storage are deductible medical costs, supra note 60, at 8, but Judge Wherry held that the fertility treatment language in Publication 502 was inapplicable to Dr. Magdalin because he did not suffer from medical infertility. See infra note 229 and accompanying text.
277. Dr. Magdalin's argument that a fetus and child are part "of" the "body" of his or her genetic parents for purposes of section 213, see Petitioner's Reply Brief, supra note 143, at 4-5, would provide more significant tax benefits for genetic reproduction than for procreation with no genetic connection. This sort of distinction would favor medically fertile taxpayers, who can produce genetic children, over medically infertile taxpayers, who cannot produce genetic children, which seems counterintuitive.
278. In Magdalin, genetic connection and control (based on state law and the donor and surrogacy contracts) align. Dr. Magdalin is the genetic father and sole "intended parent" of the children delivered by the two surrogates, and was awarded sole custody of the children by a Massachusetts Court. Judgment, Magdalin v. Lawrence General Hospital and [the gestational surrogate]. No. 05E0068GC1 (Ma. Prob. & Fam. Ct. May 31, 2006) (on file with author). Dr. Magdalin's genetic connection, authority to exercise control over the sperm and embryos, and legal custody of the children delivered by the gestational carriers do not necessarily establish that the embryos, fetuses, and children to which he is genetically connected are part "of" his "body," for purposes of section 213, however.
279. 48 P.3d 261 (Wash. 2002).
280. Id. at 264-65.
281. Id. at 264.
282. Id. at 263-65.
283. Id. at 263.
284. Id. at 269. Similarly, in Moore v. Regents of the University of California, the California Supreme Court distinguished between a patient's surgically excised spleen cells and a valuable, patentable cell line that doctors generated from those cells, and held that the doctors were not guilty of conversion. 51 Cal. 3d 120, 145 (Cal. 1990) (holding that Moore's complaint did not state a cause of action for conversion), cert, denied, 499 U.S. 936 (1991). The court observed that California's hazardous biological waste statute "limit[s], drastically, a patient's control over excised cells." 51 Cal. 3d at 140-41 ("By restricting how excised cells may be used and requiring their eventual destruction, the statute eliminates so many of the rights ordinarily attached to property that one cannot simply assume that what is left amounts to 'property' or 'ownership' for purposes of conversion law."). In addition, the court concluded that, although die doctors used Mr. Moore's cells to produce the patented cell line, the cell line at issue was "factually and legally distinct from the cells taken from Moore's body." Id. at 141 (noting the "inventive effort" and "art" required to develop patentable cell lines from cells).
285. Cohen, supra note 196, at 1117-18 & n.3 (discussing state supreme court decisions regarding "prembryo disposition disputes"). Cohen distinguishes between (1) a woman's right not to be a "gestational parent," (2) a right not to be a "legal parent," and (3) a right not to be a "genetic parent." Id. at 1119.
286. 842 S.W.2d 588 (Tenn. 1992).
287. Id. at 595-96.
288. Id. at 597.
289. Even if extracorporeal embryos are treated as part of Dr. Magdalin's body, a biological and legal transformation occurred when the embryos were implanted in the surrogates.
290. The egg donor relinquished control and parental rights to Dr. Magdalin, and he controlled the disposition of the embryos. See Petitioner's Reply Brief, supra note 143, at 6.
291. Lori B. Andrews, Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood, 81 VA. L. REV. 2343, 2373-74 (1995) (stating that the surrogate is in control during the pregnancy).
292. Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 GEO. WASH. L. REV. 1457, 1468-74 (2008) (concluding that "the principle of reproductive equality . . . limits regulation of embryos or fetuses only within the womb, but gives government great latitude to enact laws that regulate extracorporeal embryos and fetuses, so long as such regulation operates in an evenhanded fashion").
293. Andrews, supra note 220, at 2372 ("[C]ontract law, tort law, and constitutional law provide a basis to avoid [Professor Richard] Epstein's scheme for enforcing contractual provisions that require surrogate mothers to abort the pregnancy, follow doctors' orders, or undergo a caesarean section at the whim of the contracting couple.").
294. See also Planned Parenthood of Mo. v. Danforth, 4 2 8 U.S. 5 2, 69 (1976) (holding that "the State may not constitutionally require the consent of a spouse" for an abortion).
295. Rao, supra note 221, at 1464-65 (stating that abortion cases are based on "the principle of bodily integrity").
296. See, e.g., Danforth, 428 U.S. 52.
297. See Pratt, supra note 6.
298. Infanti, supra note 171, at 5.
299. Pratt, supra note 6, at 1132 n.49, 1144-46, 1158-59. The logical extension of this argument would seem to allow a medical expense deduction for the costs of an adoption attributable to medical infertility, but I.R.C. § 23 does not allow parents to claim the adoption credit for the costs of bearing a child with the help of surrogate. I.R.C. § 23(1), (d)(1) (2006).
300. In my 2004 article, I noted at least one possible reason why surrogacy costs are excluded from section 23. Pratt, supra note 6, at 1159-60 (stating "legislative history of § 23 . . . indicates that members of Congress specifically excluded surrogacy expenses from the scope of § 23 precisely because they assumed that those surrogacy expenses would be deductible under § 213 as medical expenses").
301. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491, 493 n.7 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
302. Id. (quoting PUBLICATION 502, supra note 60, at 8).
303. Id. at 493.
304. Pratt, supranote 6, at 1143-44, 1157-58.
305. Rev. Rul. 68-452, 1968-2 C.B. 111.
306. Reply Brief of Respondent at 9, Magdalin v. Convn'r, No. 7880-07 (T.C. July 27, 2008) [hereinafter Respondent's Reply Brief] (arguing that in Revenue Ruling 68-452, expenses for care performed on donor's body related to taxpayer's kidney disease and were for the purpose of affecting the functioning of the taxpayer's body, but fertility treatment in Magdalin did not relate to "any disease, structure, or function of petitioner's male body").
307. Respondent's Opening Brief, supra note 62, at 14-19.
308. See supra notes 8-9 and accompanying text.
309. See supra notes 169-170 and accompanying text.
310. See supra note 170 and accompanying text.
311. I.R.C. § 213(d)(1)(A) (2006).
312. See supra note 180 and accompanying text.
313. See supra note 170 and accompanying text.
314. IVF, with Intracytoplasmic Sperm Injection (ICSI), is used to bypass certain male infertility disorders. See Pratt, supra note 6, at 1134.
315. Respondent's Opening Brief, supra note 62, at 11, 15 (twice stating that "respondent does not believe that procreation is a covered function of petitioner's male body within the meaning of section 213(d)(1)").
316. See sources cited supra note 14.
317. See Rev. Rul. 68-452, 1968-2 C.B. 111, discussed supra notes 71-72, 130-131, and accompanying text.
318. Rev. Rul. 73-189, 1973-1 C.B. 139, discussed supra notes 135-137 and accompanying text.
319. In the Magdalin briefs, IRS counsel argued that a taxpayer must satisfy the "disease" prong to deduct the cost of medical care. See sources cited supra notes 62, 233. If the costs of ARTs performed on an infertile lesbian partner were deductible as care for a "disease," but the costs of ARTs performed on her fertile partner were not deductible, under the "structure or function" prong, section 2 1 3 would encourage treatment of the less fertile partner.
320. Infanti, supra note 171, at 12.
321. See PUBLICATION 502, supra note 60, at 8.
322. Respondent's Opening Brief, supra note 62, at 11, 15.
323. Rev. Rul. 73-201, 1973-1 C.B. 140.
324. Rev. Rul. 68-452, 1968-2 C.B. 111.
325. Pratt, supra note 6, at 1133-34.
326. Ikemoto, supra note 12.
327. Id. at 1011.
328. Id. at 1037 ("[M]en comprise half of those diagnosed as infertile. But whether it is a man or a woman who is infertile, the technology is used on the woman. And it is the woman who is not pregnant. Therefore, as a normative matter, it is the woman who is in/fertile.").
329. Id. at 1032-33.
330. Also, the focus on medical infertility has cast infertile, middle-class, white women as needing medical care, including "high tech" medical care, to overcome their childlessness and fulfill their traditional maternal roles. Id. at 1037-38.
331. This makes childbearing seem to be the norm, and treats childlessness as a medical problem that must be overcome through treatment. Id. at 1041.
332. Id. at 1040-41. See also Byrn, supra note 18, at 171 (criticizing the 2000 amendments to the Uniform Parentage Act for failing to address the parentage of children of same-sex intended parents).
333. Ikemoto, supra note 12, at 1012.
334. See, e.g., Cohen, supra note 196, at 1164 n.156 (noting religious and ethical objections to ARTs and destruction of embryos).
335. Lawsky & Cahn, supra note 17, at 12 (noting the view, expressed by one of the sponsors of the bill that created the federal adoption tax credit, that "surrogacy and other ART procedures [are] 'riskier, more expensive!, ] and [more] ethically dubious' than adoption" (quoting Prepared Testimony of Congressman Christopher H. Smith Before the H. Ways & Means Comm. on Human Resources, 106th Cong. 143 (July 20, 1999)).
336. Feminist commentators also have expressed reservations about ARTs. See, e.g., Rao, supra note 221, at 1467 (noting that "some feminists contend that ARTs actually aggravate rather than alleviate inequality by reinforcing women's primary role as that of child-bearer, reducing women to their wombs and perpetuating patriarchy").
337. Professor Ikemoto also notes that the discussion itself creates a risk "that we will lose something simply by exposing the connections to questioning." Ikemoto, supra note 12, at 1022.
338. DAAR, REPRODUCTIVE TECHNOLOGIES, supra note 18, at 401-03, 408-10, 422-27, 524-26.
339. See, e.g., Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (addressing conflict between surrogate and intended parents).
340. In re Baby M, 537 A.2d 1227 (N.J. 1988) (same).
341. see also Daar, State Regulation of ARTs, supra note 18, at 5-6, 8-9 (discussing uncertainty, under state law, about the parental rights of intended parents who use ARTs).
342. Ikemoto, supra note 12, at 1022-27 (discussing state statutes and surrogacy cases).
343. Ikemoto, supra note 12, at 1028.
344. In cases involving conflicting parental claims of genetic parents and gestational surrogates, courts sometimes elevate genetic ties over gestational ties, a practice which Professor Ikemoto criticizes. Id. at 1026 (arguing that "preferring the genetic link while devaluing pregnancy and childbirth subordinates women as mothers").
345. In the Magdalin case, Dr. Magdalin was awarded sole custody of the child delivered by the first gestational surrogate. See sources cited supra note 207. The gestational surrogate's name will not appear on the child's birth certificate. See id.
346. Ikemoto, supra note 12, at 1029.
347. Id. 265. Id.
348. id.
349. Id. at 1053-54.
350. Id. at 1033 ("[S]terility now includes those whom I call the 'dysfertile, ' those rendered childless by their failure to fit the definition of infertile, because they are unmarried and/or lesbian or gay.").
351. Id. at 1056.
352. Id. at 1054, 1056-57, 1060.
353. When a heterosexual woman . . . chooses to become a single mother, we still can read the possibility of marriage and "normalcy" into her future. Or we can provide explanations for her deviant fertility that refer to marriage-she just couldn't find the right man. In other words, this single mother's identity is still made contingent on a male presence. But we cannot read a male presence into the lesbian woman who chooses to become a mother. With or without a woman partner, this family structure asserts itself as intact and defies the reference to marriage and the necessity of a male presence. . . . The practice also claims entitlement to the credentials of womanhood that have been conflated with motherhood. So pushing the boundaries of motherhood may move it away from marriage. And it may naturalize lesbians as women. Id. at 1056-57.
354. Id. at 1055 (summarizing the stereotypical view that fatherhood exists as a mere supplement to the "stability and nurturing capacity" of motherhood).
355. Id. See also Clifford J. Rosky, Like Father Like Son: Homosexuality, and the Gender of Homophobia, 20 YALE J.L. & FEMINISM 257, 260 (2009) ("Opponents [of adoption by homosexuals] claim that children should not be exposed to the 'homosexual lifestyle, ' and they ask gay men and lesbians to choose between homosexuality and parenthood.").
356. See sources cited supra notes 7-8.
357. see supra note 60 and accompanying text.
358. Sedgwick Trial Transcript, supra note 109, at 5, 22, 24, 27, 34.
359. Id. at 5. The Chief Judge of the Tax Court determines whether an opinion is a reviewed opinion, and all Tax Court judges participate in a reviewed opinion. I.R.C. § 7460(b) (2006).
360. See also GERALD A. KAFKA & RITA A. CAVANAGH, LITIGATION OF FEDERAL TAX CONTROVERSIES ¶ 2.06 (2006) (noting that an opinion may be a reviewed opinion if the case is "high profile or [involves] a significant policy issue," but adding that reviewed opinions are uncommon because they require significant Tax Court resources).
361. Sedgwick Trial Transcript, supra note 109, at 22.
362. Id. at 22-23.
363. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
364. KAFKA & CAVANAGH, supra note 275, at ¶ 2.06[2]-[3]: A [regular opinion] is issued where a matter of first impression is involved or where the case is so well developed by the litigants that it serves as a vehicle for establishing precedent for future cases.
365. Memorandum opinions tend to be issued in fact-intensive cases or in situations where the matter is not sufficiently developed to warrant precedential treatment. Memorandum decisions are not considered to be binding precedent by the Tax Court, and sometimes are used as a "trial balloon" as to a particular application of law which is later reflected in a regular opinion. Id. (citing cases in which the court stated that revenue rulings and memorandum opinions are not binding precedent).
366. The Chief Judge of the Tax Court determines whether an opinion will be a regular opinion or memorandum opinion. Id. at ¶ 2.06.
367. PUBLICATION 502, supra note 60, at 8; Pratt, supra note 6, at 1139 n.102 (citing IVF language in the 2002 version of Publication 502).
368. IRS Priv. Ltr. Rul. 200318017, at 2 (Jan. 9, 2003) (ruling that egg donor expenses and related costs are section 213 medical expenses).
369. Decision, Sedgwick v. Comm'r, No.10133-94 (T.C. Nov. 20, 1995) (on file with author).
370. Magdalin v. Comm'r, 96 T.C.M. (CCH) at 491-92.
371. See supra notes 252-255 and accompanying text.
372. Magdalin, 96 T.C.M. (CCH) at 493 (emphasis added).
373. Id. at 493 & n.6.
374. Id. at 493 n.7 (quoting IRS Priv. Ltr. Rul. 200318017, at 1 (Jan. 9, 2003)).
375. Id.
376. Respondent's Opening Brief, supra note 62, at 16 (arguing that the taxpayer must always satisfy the "disease" prong of the definition, because the legislative history of section 213 and Treasury Regulation 1.213-1(e)(l)(ii) indicate that a deduction is allowed only for expenses "incurred primarily for the prevention or alleviation of a physical or mental defect or illness" (quoting S. REP. NO. 77-1631, at 96 (1942) (emphasis omitted)).
377. See supra notes 59-60 and accompanying text.
378. Respondent's Opening Brief, supra note 62.
379. Petitioner's Opening Brief, supra note 162, at 9.
380. Respondent's Reply Brief, supra note 233, at 8 (arguing that the costs of prescription birth control pills are medical care because "birth control pills affect the structure and function of the female body by preventing pregnancy" and "could be prescribed for the cure, mitigation, or treatment of disease").
381. Petitioner's Opening Brief, supra note 162, at 9.
382. Respondent's Reply Brief, supra note 233, at 8 n.2.
383. Rev. Rul. 73-201, 1973-1 C.B.140.
384. Rev. Rul. 73-603, 1973-2 C.B. 76.
385. Magdalin, 96 T.C.M. (CCH) 491, 492 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
386. Id.
387. Respondent's Opening Brief, supra note 62, at 11, 15.
388. Magdalin, 96 T.C.M. (CCH) at 493 n.6.
389. Id.
390. Id. (stating that "respondent makes the unexplained assertion that respondent 'does not believe that procreation is a covered function of petitioner's male body within the meaning of section 213(d)(1)'").
391. See sources cited supra notes 14 and 254.
392. Consider the example given earlier, of a single infertile man, whose girlfriend undergoes IVF with ICSI to bypass her boyfriend's severe male-factor infertility. See supra text at notes 241-243.
393. See Ikemoto, supra note 12, at 1009 (using the term " dysfertile" in part to refer to medically fertile gay men and couples who want to have children, but cannot without assistance from a third party of the opposite sex).
394. The way in which the IRS discusses Revenue Ruling 73-200 in the Magdalin briefs (emphasizing that birth control pills can be used to treat disease) also suggests that the IRS might take the position that reproductive medical care of a woman is not section 213 "medical care" absent "disease." Respondent's Reply Brief, supra note 233, at 8. That position would be inconsistent with the statute and prior reproductive rulings, however, which do not require that the taxpayer satisfy both prongs of the section 213 definition of medical care.
395. See supra note 155 and accompanying text.
396. See supra note 288 and accompanying text.
397. See supra text at note 161 and accompanying text.
398. Respondent's Opening Brief, supra note 62, at 15 (emphasis added).
399. See supra note 191 and accompanying text. Dr. Magdalin does not appear to be making the more politically charged argument that the fertility treatment costs are the "but for" medical expenses of the fetus conceived as a result of the treatments. This argument would be much more controversial for a host of reasons, only one of which is that tax cases hold that a fetus does not become the taxpayer's dependent until birth. Cassman v. United States, 31 Fed. CI. 121, 129 (1994). If a taxpayer paid medical costs, which were specifically attributable to prenatal care of the fetus, after a child's birth, the special timing rule of section 213 would allow the taxpayer to deduct those prenatal costs as medical care of a dependent. Treas. Reg. § 1.213-1(e)(3) (as amended in 1979).
400. In addition, the Kilpatrick case leaves open the possibility that adoptive parents may be able to allocate some prenatal expenses to the child they adopt, if the adoptive parents can meet the burden of establishing that the cost of the care is allocable to the child, not the birth mother. Kilpatrick v. Comm'r, 68 T.C. 469, 472-73 (1977). The argument for a similar result is even stronger in the surrogacy context, because the child is conceived through medical procedures, whereas a child delivered by a birth mother, in the adoption context, is not conceived through medical procedures.
401. Respondent's Opening Brief, supra note 62, at 9 (emphasis added).
402. Id. at 10 (emphasis added).
403. Id. at 11 (emphasis added).
404. Id. at 14 (emphasis added).
405. Id. at 20 (emphasis added).
406. In addition, the taxpayer alleges that the IRS agent involved in his audit told the taxpayer that "[he] should have had children by conventional means-by marrying a woman." Petitioner's Opening Brief, supra note 162, at 12.
407. Petitioner's Reply Brief, supra note 143, at 7.
408. See, e.g., Anne Bloom, Rupture, Leakage, and Reconstruction: The Body as a Site for the Enforcement and Reproduction of Sex-Based Legal Norms in the Breast Implant Controversy, 14 COLUM. J. GENDER & L. 85, 88-89 (2005).
409. Id. at 88.
410. Cohen, supra note 196, at 1153 ("For years sociobiologists argued that adoption was also unnatural, that substitute parents will generally tend to care less profoundly for children than natural parents . . . . ") (internal quotation marks omitted).
411. Id. ("[I]n fact, studies show adoptive parent-child relationships working essentially as well as biological parent-child relationships.") (internal quotation marks omitted).
412. 388 U.S. 1 (1967).
413. Id. at 3, 12 (invalidating antimiscegenation statute, which prohibited interracial marriage, and quoting the trial court's views that God created separate races, on separate continents, and races would remain separate unless people interfered with God's natural design).
414. 505 U.S. 833 (1992).
415. Id. at 928 (Blackmun, J., concurring) ("This assumption-that women can simply be forced to accept the 'natural' status and incidents of motherhood-appears to rest upon a conception of women's role that that has triggered the protection of the Equal Protection Clause.").
416. Homosexuality is not classified as a mental "disorder." Morgan, supra note 19, at 1493 (noting that in 1973, "the American Psychiatric Association deleted homosexuality from its list of mental disorders").
417. The taxpayer rejected the IRS characterization of his use of IVF and surrogates as a "choice": "The Respondent's use of the word 'choice' has been frequently used by some people to demonize the LGBT community, and deny them their rights. It's not a choice." Petitioner's Reply Brief, supra note 143, at 8.
418. Daar, Invisible Barriers, supra note 1, at 22.
419. Id. at 27, 29-31. Although states generally do not directly limit access to most types of ARTs, access to surrogacy is directly limited by state statutes that render surrogacy contracts unenforceable, prohibit surrogacy outright, or limit surrogacy access to married couples. Id. at 35-36, 43-47.
420. Petitioner's Opening Brief, supra note 162, at 7-9.
421. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491, 493 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
422. See I.R.C. § 213(d)(1)(A) (2006) (stating that "medical care" is defined to include 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").
423. Judge Wherry concluded that IRS pronouncements, stating that taxpayers can deduct fertility treatment costs to overcome "the inability to have children," did not apply to Dr. Magdalin because medical infertility was not the cause of his inability to have children. See supra notes 286-287 and accompanying text.
424. See supra Part III.C.2.
425. See supra Part III. C. 1.
426. See supra Part III.C. 1.
427. See supra Part III.C.2.
428. See IRS Priv. Ltr. Rul. 200318017, at 1-2 (Jan. 9, 2003) (ruling that egg donor expenses and related costs incurred due to the taxpayer's medical inability to produce eggs are deductible medical expenses).
429. See supra notes 102-104 and accompanying text.
430. See supra notes 241-243 and accompanying text.
431. See supra Part III.C.3.
432. Magdalin v. Comm'r, 96 T.C.M. (CCH) 491, 493 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009).
433. Respondent's Reply Brief, supra note 233, at 9.
434. This conclusion is consistent with revenue rulings in which the IRS ruled that various types of reproductive care (e.g., sterilizations, legal abortions, and birth control pills) are medical care under section 213. See supra note 59 and accompanying text.
435. See supra notes 153-154 and accompanying text.
436. See supra note 242 and accompanying text.
437. Rev. Rul. 73-201, 1973-1 C.B. 140.
438. See supra Part I.
439. If courts agree with the broader argument the IRS made in Magdalin, that medically fertile taxpayers cannot deduct fertility treatments costs, medically fertile women (including lesbians and single women) also would be denied medical expense deductions for their fertility treatment costs.
440. Constitutional law distinguishes between "facial" challenges, to which stricter standards are applied, and "as applied" challenges, to which less strict standards are applied. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 893, 895 (1992) (distinguishing between "facial" and "as applied" challenges, and concluding that the challenge in the case should be treated as a facial challenge because it was "likely to prevent a significant number of women from obtaining an abortion").
441. U.S. CONST, amends. V, XIV § 1. The Fifth Amendment applies to the federal government, whereas the Fourteenth Amendment applies to the states. U.S. CONST, amends. V, XIV § 1. Both the Fifth and Fourteenth Amendments include a Due Process Clause. U.S. CONST, amends. V, XIV § 1. The Fourteenth Amendment also includes an Equal Protection Clause. U.S. CONST, amend. XIV § 1. Although the Equal Protection Clause does not appear in the Fifth Amendment, courts have interpreted the Fifth Amendment Due Process Clause to include an Equal Protection component. See, e.g., Washington v. Davis, 426 U.S. 229, 239 (1976) (stating that the Fifth Amendment Due Process Clause includes "an equal protection component prohibiting the United States from invidiously discriminating between individuals and groups").
442. Rao, supra note 221, at 1475-76 (internal citations omitted) (articulating a theory of "reproductive equality").
443. See, e.g., J.R. v. Utah, 261 F. Supp. 2d 1268, 1275-76, 1296 (D. Utah 2002) (invalidating a Utah statute that conclusively presumed a gestational surrogate to be the mother of a child she bore for intended parents on the grounds that the Utah law unduly burdened the intended parents' fundamental liberty interest to be the parents of the children they conceived through ARTs).
444. Jeffrey Williams observes that "[s]ex and sexual orientation discrimination claims assail the same bias by addressing different dimensions of that bias," and urges an "intersectional approach" that would "acknowledge how distinct and separate systems of bias can reinforce each other." Jeffrey A. Williams, Re-Orienting the Sex Discrimination Argument for Gay Rights after Lawrence v. Texas, 14 COLUM. J. GENDER & L. 131, 135, 158, 163 (noting also that "sex discrimination's intermediate scrutiny would still invalidate more legislation against homosexuals than would rational review").
445. Magdalin, 96 T.C.M. (CCH) 491, 493 (2008) (memorandum decision), aff'd mem., No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009). Dr. Magdalin's sex discrimination claim was based on an assumption, which may or may not be correct, that single women can deduct fertility treatment costs, but men cannot. Id. (taxpayer argued "that it is sex discrimination to allow women but not men to choose how they will reproduce").
446. See supra note 370 and accompanying text.
447. See, e.g., New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934) ("Whether and to what extent deductions shall be allowed depends on legislative grace: and only as there is clear provision therefor can any particular deduction be allowed.").
448. See, e.g., Yoseph Edrey, Constitutional Review and Tax Law: An Analytical Framework, 56 AM. U. L. REV. 1187, 1206 (2007) ("U.S. courts are . . . reluctant to subject tax law to constitutional review.").
449. 539 U.S. 558 (2003).
450. Id. at 579 (O'Connor, J., concurring).
451. See, e.g., New Colonial Ice Co., 292 U.S. at 440.
452. Klaassen v. Comm'r, No. 98-9035, 1999 U.S. App. LEXIS 6320 (10th Cir. Apr. 7, 1999) (upholding tax classifications despite the taxpayer's First Amendment, Due Process, and Equal Protection claims).
453. In Klaassen, the Tenth Circuit observed that the tax classifications at issue in the case were facially neutral and not designed to create distinctions based on religion, and thus created only an indirect burden on the taxpayer's exercise of religion. Klaassen, 1999 U.S. App. LEXIS 6320, at *9-12. The Court added that "even a substantial burden would be justified by the 'broad public interest in maintaining a sound tax system, ' free of 'myriad exceptions flowing from a wide variety of religious beliefs.'" Id. at *10 (citations omitted).
454. Noting the "compelling government interest" served by the "uniform application of the [alternative minimum tax] provisions," the Court rejected the First Amendment challenge. Id. at *12.
455. The Court also rejected the taxpayer's Due Process and Equal Protection claims, on the basis of its finding that the alternative minimum tax provisions "bear a rational relation to a legitimate governmental purpose." Id. (citations omitted).
456. Klaassen, 1999 U.S. App. LEXIS 6320, at *9-10 (citations omitted).
457. 539 U.S. 558, 578-79 (2003) (majority holding Texas anti-sodomy statute unconstitutional, under the Due Process Clause, and O'Connor concurring, but basing her conclusion on the Equal Protection Clause).
458. If the IRS blatantly ignored the "structure or function" prong of the section 213 definition, and required a showing of a disease or medical condition for a woman to deduct IVF costs in contravention of the theory underlying the reproductive care revenue rulings, supra note 59 and accompanying text, that decision might be more constitutionally suspect.
459. See supra notes 27-36 and accompanying text.
460. 448 U.S. 297 (1980).
461. Id. at 326 (upholding federal law that denied Medicaid funding for an indigent woman's medically necessary abortion).
462. 432 U.S. 464 (1977).
463. Id. at 474.
464. Id.
465. See I.R.C. § 213(d)(1)(A) (2006) ("medical care" is defined to include 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").
466. See supra note 60 and accompanying text (listing rulings that allow a medical expense deduction for various types of reproductive care).
467. See supra notes 332-337 and accompanying text.
468. See supra Part III.C.3.
469. The conclusion is the same, regardless of whether the woman or couple is infertile.
470. Respondent's Opening Brief, supra note 62, at 11, 15.
471. See, e.g., David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97, 97 (1982) ("[I]t is axiomatic that hard cases make bad law.").