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Can same-sex couples deduct fertility treatments?

On Behalf of | Nov 8, 2021 | Uncategorized |

Same-sex couples in California looking to have a child continue to face difficulties when attempting to get payment for fertility treatments that will allow them to become parents. Although you may be lucky enough to have an insurance policy that may pay for some of the costs, the Internal Revenue Service (IRS) continues to take a narrow view regarding out-of-pocket expenses that you may incur.

Certain deductions not allowed under Section 213

Early in 2021, the IRS issued a Private Letter Ruling in response to a male couple’s request that fertility treatments and the cost of a gestational surrogate be allowed as medical deductions for federal income taxes. The letter affirmed that the agency would continue to take a narrow stance in national laws/cases pertaining to fertility and surrogacy. Thus, same-sex couples will not be able to deduct costs for the following as medical expenses when related to fertility:

  • Medical expenses for one or both spouses
  • Egg retrieval
  • Sperm donation
  • In-vitro fertilization
  • Childbirth expenses for the surrogate
  • Medical insurance for the surrogate
  • Other medical costs incurred by the surrogate
  • Legal and agency fees related to the surrogacy

The ruling indicates that these services do not qualify as medical care because they are not involved in the treatment of disease.

What are the options for same-sex couples?

Same-sex couples have the same options as before when determining if they want to become parents. However, they cannot count on the ability to deduct fertility and birth expenses, which can make the process more difficult.

The IRS ruling does raise the question of whether male couples have a lesser status under the law than female couples. The latter can use sperm donation as a deductible medical expense, setting the stage for unequal rights under current law.