Rich Vaughn Blog: Is Infertiity Treatment for Same-Sex Couples Tax Deductible

End-of-Year Tax Question: Does 2*Gay = Infertility?

A law professor at Stetson University in Tampa, Florida, is suing the IRS to treat his and his partner’s assisted reproductive technology costs in the same way it has treated infertility treatment expenses for heterosexual couples. The outcome of the case could have a significant impact on the tax liabilities of thousands of same-sex couples who have children via assisted reproductive technology.

According to an article in The Tampa Tribune, plaintiff Joseph F. Morrissey, a constitutional and business law professor at Stetson University College of Law, filed for more than $36,000 worth of medical expenses on his amended 2011 federal tax return. The IRS rejected the claim for expenses related to the egg donor and surrogate, on the basis that in order to qualify the services must be provided directly to the taxpayer, his spouse or his dependent rather than to a third party. When Morrissey’s appeal of the IRS ruling was denied in December 2014, he filed suit in U.S. District Court in Tampa.

Morrissey and his male partner, together for 15 years and engaged to be married, began trying to conceive via in vitro fertilization and surrogacy in 2010. The couple initially considered adoption, but at that time adoption by same-sex couples was illegal in Florida. The ban has since been overturned.

Over the next few years, the couple underwent several unsuccessful rounds of IVF before becoming parents, via egg donation and surrogacy, of twin boys in 2014. According to the lawsuit, “In the end, bringing twin boys into the world took nearly four years, seven IVF procedures (including those scrubbed at the last minute for failed medical exams), three surrogates, three egg donors, two clinics and more than $100,000.”

According to the lawsuit, the IRS agent who denied Morrissey’s appeal referred to his sexual orientation as a “choice,” The Tampa Tribune reports. The lawsuit argues that “despite the IRS’s backward and archaic thinking, plaintiff is not homosexual by ‘choice.’ ”

Courts have previously ruled against two men seeking tax deductions for expenses associated with assisted reproductive technology, the Tribune reports, but Morrissey’s lawsuit is the first to use the argument that the fact two men are unable to conceive constitutes medical infertility.

While the June U.S. Supreme Court ruling in Obergefell v. Hodges legalized same-sex marriage throughout the nation, thousands of federal, state and local laws still remain on the books that treat married same-sex couples differently than married heterosexual couples. Catherine Sakimura, deputy director of the National Center for Lesbian Rights, told the Tribune that because the government has chosen to provide a benefit to heterosexual couples who can’t conceive children, it would be discriminatory to deny the same benefit to gay and lesbian couples. Likewise, insurers have wildly varying criteria for how same-sex and straight couples are covered for infertility treatments, she said.

Writing in November for The New York Times’ Well blog, Stephanie Fairyington describes the efforts of a lesbian couple to get their insurer, UnitedHealthcare, to cover their IVF costs. UnitedHealthcare considers lesbians’ sexual orientation in much the same way as the IRS agent who denied Morrissey’s claim considered his: as a “choice,” Fairyington writes.

“While the UnitedHealthcare policy tacitly acknowledges single women and same-sex couples, many policies do not. Some even exclude unwed women. Notably, major insurers like UnitedHealthcare often do cover insemination treatments when the issue is male infertility.

“The Soller-Mihleks believe their plan’s criteria for granting medical coverage of fertility treatment reveals a subtle form of discrimination against lesbians…. The Soller-Mihleks say their concern is that a lesbian, by definition, is incapable of getting pregnant through heterosexual intercourse and requires medical intervention to conceive. They say the subtext of the UnitedHealthcare policy is that a lesbian could get pregnant by having sex with a man, she just chooses not to.”

The issue of reproductive health coverage parity between same-sex and heterosexual couples will no doubt be hammered out in courthouses and legislative bodies for years to come. In July the Maryland state legislature passed a law mandating that state-regulated insurers provide coverage for in vitro fertilization expenses for both same-sex and heterosexual married couples, The Baltimore Sun reports. The original law excluded lesbians from coverage because it required use of the husband’s sperm. The new law, which requires straight couples to demonstrate a two-year history of sexual intercourse without conception, allows lesbians to substitute a record of six unsuccessful rounds of IVF over a two-year period.

Multiply Maryland’s recent reform by the hundreds of laws in states and municipalities that treat individuals differently based on their marital status, gender or sexual orientation, and you’ll get a glimpse of what the future looks like in the ever-evolving field of fertility law. And, as the Florida IRS suit illustrates, the resolution of many of the remaining questions surrounding marriage equality will have an enormous financial impact for thousands of same-sex couples.

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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MOLLY O'BRIEN
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Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.