“In determining whether the IRS properly denied a taxpayer’s claimed deduction on his 2011 return, we must decide two important and (as it turns out) interesting questions. First up: 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.”
So, what was the claim made to substantiate the claim for the tax benefit?
“In an effort to bring his case within Section 213(d)’s terms, Mr. Morrissey contends that all of the IVF-related expenses that he incurred—including the costs attributable to the identification, retention, compensation, and care of the women who served as the egg donor and the surrogate—were made for the purpose of affecting his body’s reproductive function. Br. of Appellant at 6. In particular, Mr. Morrissey asserts that because he and his male partner are physiologically incapable of reproducing together, IVF was his only means of fathering his own biological children. Accordingly, Mr. Morrissey claims, it was medically necessary to involve third parties—a female egg donor and a female surrogate—in order to enable his own body to fulfill its reproductive function.”
However, this would require denying actual biological reality:
“In Magdalin v. Commissioner … a single man who was not infertile but was (of course) unable to conceive and bear children without a woman’s participation sought to claim deductions of IVF-related expenses for an egg donor and a surrogate. The Tax Court held that the donor- and surrogacy-related IVF processes had not ‘affected’ the taxpayer’s body’s own structures and functions, which ‘remained the same before and after those processes.'”
Indeed, it is not that the man couldn’t be able to successfully engage in a “reproductive function”, it is that he wouldn’t by choice do so.
Even the claim that equality in marriage has not bearing since not only neither the egg donor nor surrogate was the man nor a spouse of said man, but that same denial of tax benefit was applied to a man and his fiancee.
“Similarly, in Longino v. Commissioner, the Tax Court addressed the deductibility of IVF-related costs that a fertile male taxpayer had incurred on behalf of his fiancée. The court held that the expenses were not deductible because (as relevant here) they were not made for the purpose of affecting the structure or function of the taxpayer’s own body. This Court affirmed on the ground that the Tax Court had found that the taxpayer ‘had presented no evidence that any of the alleged care involved him, his spouse, or a dependent.'”
Thus, regardless of the composition of a marriage, costs spent on someone outside that confine is not applicable, regardless of whether that composition is of two people of the same sex or of the opposite sex.