Inconceivable? Deducting the costs of fertility treatment

This Article considers whether infertile taxpayers can deduct their fertility treatment costs as medical expenses under Internal Revenue Code section 213 and whether they should be able to deduct them. Internal Revenue Code section 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 or function of the body." This definition is interpreted by reference to a baseline of normal biological functioning, which includes reproductive 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 section 213. In addition, given the existence of the medical expense deduction, taxpayers should be able to deduct the cost of fertility treatments, including IVF, egg donor, and surrogate procedures, under either an "ability-to-pay" or consequentialist normative approach. Reproduction is extremely 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 deductible as medical expenses under current law and should be deductible as medical expenses.