Commentary on Magdalin V. Commissioner
FEMINIST JUDGMENTS: REWRITTEN TAX OPINIONS, Bridget Crawford & Anthony Infanti eds, Cambridge University Press (2017)
Posted: 28 Mar 2018
Date Written: March 26, 2018
This Chapter in FEMINIST JUDGMENTS: REWRITTEN TAX OPINIONS, Bridget Crawford & Anthony Infanti eds., Cambridge University Press (2017) page 243 comments on Jennifer Bird-Pollan’s rewritten opinion in Magdalin v. Commissioner, 96 T.C.M. (CCH) 491 (2008). In the original Magdalin opinion, United States Tax Court Judge Wherry denied the taxpayer, a single male, a medical expense tax deduction for the reproductive medical costs he incurred for in vitro fertilization, egg donation, and gestational surrogacy. Magdalin raises significant concerns — including feminist concerns — about forms of assisted reproduction technology (ARTs) and access to parenting and family formation, in particular for gay and lesbian would-be parents. The Commentary begins with a technical explanation of the tax deductibility of the costs of various types of ARTs to bear children. It proceeds to the important ancillary question of which taxpayers are allowed to deduct the medical costs of ARTs. Infertile different-sex couples, same-sex couples, and individuals increasingly use ARTs to become parents, and family law has developed new “intentional” and “functional” parentage tests to legally recognize the parent-child relationship of “intended” parents who nurture children conceived and born with ARTs. Bird-Pollan rewrites the Magdalin opinion to hold that Mr. Magdalin can deduct all of his fertility treatment costs as “medical care,” because fertility treatment promotes his reproductive “functioning.” Bird-Pollan’s opinion illustrates the potentially far-reaching implications of the 2015 same-sex marriage decision in Obergefell v. Hodges for the reproductive freedom of gay and lesbian would-be parents. Following Obergefell, Courtney Megan Cahill argued that the decision rendered legal distinctions between sexual procreation and alternative reproduction “constitutionally suspect.” Bird-Pollan’s opinion bears out Cahill’s argument that Obergefell could alter the legal conceptualization of alternative reproduction. In addition, Bird-Pollan’s approach is consistent with Cahill’s more recent argument to reject “reproductive binarism” (legal distinctions between sexual reproduction and alternative reproduction) in favor of a unitary legal approach to reproduction, with a focus on procreative intent instead of procreative mechanics.
Keywords: medical expense deduction, IVF, egg donor, surrogate, reproductive care, sexuality, Obergefell v. Hodges, family formation, intended parents, reproduction, procreation
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