Section 213 of the Internal Revenue Code permits a deduction for an individual’s fertility expenses, but it does not do so evenhandedly. This paper focuses on the current discriminatory effects of §213 doctrine as it is applied to the deductibility of fertility treatments for single persons and/or homosexual couples, as compared to heterosexual, married couples. Traditional economic analysis of the Code fails to explain such discrimination, thus a new approach is required. Utilizing tools from anthropological theory, this paper recognizes and analyzes our tax code (and specifically §213) as a cultural artifact and therein challenges the presumed objectivity of our conception of what is “medical,” “natural/normal” reproduction, and “fertility/infertility.” By revealing and reforming the normative consistencies underlying the seemingly inconsistent pre- and post-Magdalin v. Commissioner §213 doctrine, I propose that we can embrace new forms of parenthood enabled by reproductive technologies and remedy the current discriminatory application of §213 as applied to fertility treatment expenses.
Tessa Davis, Reproducing Value: How Tax Law Differentially Values Fertility, Sexuality & Marriage, 19 Cardozo J.L. & Gender 1 (2012-2013).