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89 Cornell L. Rev. 1121 (2003-2004)
Inconceivable? Deducting the Costs of Fertility Treatment

handle is hein.journals/clqv89 and id is 1135 raw text is: INCONCEIVABLE? DEDUCTING THE COSTS OF FERTILITY TREATMENT Katherine T. Prattt This Article considers whether infertile taxpayers can deduct their fertil- ity treatment costs as medical expenses under Internal Revenue Code § 213 and whether they should be able to deduct them. Internal Revenue Code § 213 defines medical expenses as amounts paid-for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure orfunction of the body. This definition is interpreted by refer- ence to a baseline of normal biological functioning, which includes reproduc- tive functioning. Most people conceive and bear children without having to incur expenses for fertility treatment. Expenses incurred to approximate the baseline of normal reproductive health are deductible, even if the taxpayer winds up better off, with a child, after the fertility treatment. The medical profession recognizes that infertility is a disease or condition. Infertility is a loss, just as a broken leg is a loss. Fertility treatment costs are thus medical expenses under § 213. In addition, given the existence of the medical ex- pense deduction, taxpayers should be able to deduct the cost of fertility treat- ments, including IVF, egg donor, and surrogate procedures, under either an ability-to-pay or consequentialist normative approach. Reproduction is ex- tremely important to most people. In addition, allowing taxpayers to deduct the costs of fertility treatment will encourage infertile taxpayers to elect the most effective treatment option and reduce the rate of risky multifetal pregnancies. This Article concludes that fertility treatment costs are deducti- ble as medical expenses under current law and should be deductible as medi- cal expenses. INTRODUCTION ................................................. 1123 I. THE EXPERIENCE OF INFERTILITY ......................... 1126 A. The Extreme Emotional Distress Caused by Infertility ........................................... 1126 B. The Medical Treatment of Infertility ................ 1130 C. The Cost of Medical Treatment for Infertility ....... 1135 t Professor of Law, Loyola Law School, Los Angeles. B.A., University of Florida;J.D., UCLA School of Law; LL.M. (Taxation), New York University School of Law; LL.M. (Cor- porate Law), New York University School of Law. The author thanks Ellen Aprill, Brietta Clark, Catherine Fisk, Tim Greaney, Tom Griffith, Mary Heen, Lisa Ikemoto, Lily Kahng, Larry Solum, and participants in a Loyola Law School Faculty Workshop for their helpful advice and comments. Thanks also to Loyola Law School Librarians Marlene Bubrick, Ruth Hill, Bob Nissenbaum, and Demetrio Orlino for research support, and Karin Bohmholdt, Meg Eisenberg, Michelle Choy, Richard Luftman, Sarah Soifer, and Steve Weerts for research assistance. 1121