This Article considers whether federal tax law permits taxpayers to deduct medical expenses (or exclude flexible spending account reimbursements) for fertility treatment costs, including the costs of in vitro fertilization (IVF), egg donor, and surrogate procedures. Magdalin v. Commissioner (December 2008) calls into question the deductibility of IVF, egg donor, and surrogacy costs, and, perhaps unintentionally, the deductibility of the costs of various other types of reproductive medical care (e.g., sterilizations, birth control pills, legal abortions, and vasectomies). This Article explores the tax implications of the case for infertile and fertile taxpayers, including opposite-sex married and unmarried couples, gay and lesbian same-sex couples, and single women and men. The case indicates that the tax deductibility of fertility treatment costs turns on: (1) whether the taxpayer (or “his spouse”) has been diagnosed with “medical” infertility; (2) how we constitute “the body,” “of” “the taxpayer, his spouse, or dependents;” (3) the taxpayer’s sex, marital status, and sexual orientation; and (4) what the IRS and judges implicitly consider to be “natural” or “normal” reproduction. As the case illustrates, most legal discourse - including tax discourse - regarding assisted reproductive technologies assumes that: (1) the need for fertility treatment arises because of medical infertility; (2) women, not men, are infertile; and (3) fertility treatment is undertaken to allow an opposite-sex married couple to bear a child in the context of a traditional nuclear family. This Article also addresses the taxpayer’s argument that the status-based distinctions in section 213 are unconstitutional, discusses the circumstances in which section 213 does and does not aggregate “bodies,” and notes the ways in which law constitutes “the body,” based on notions of what is “natural” or “normal.”
