The IRS rejected Joe Morrissey’s claim to deduct $36,538 in medical expenses — the amount he spent in 2014 to have his twin boys through surrogacy — on the basis that being gay is a choice.
Morrissey, a law professor at Stetson University in Florida, has sued the IRS for discrimination. His case argues the law has been applied differently to him than it has been to heterosexual taxpayers — and that the IRS should broaden its rules to include surrogacy in its list of deductible “fertility enhancement” medical expenses.
The IRS allows deductions for some procedures "to overcome an inability to have children," according to its 2014 guidelines, including "procedures such as in vitro fertilization (including temporary storage of eggs or sperm)."
The IRS does not suggest, in its documentation, that straight guys try impregnating someone other than their partner in order to have kids the old-fashioned way.
Yet, that’s essentially what the IRS said Morrissey could have done instead of using surrogacy — that being in a same-sex relationship doesn’t qualify as a medical condition the way infertility among heterosexual couples does.
"In particular, the examining Revenue agent described Morrissey’s sexual orientation as a "choice” and suggested that he could have chosen to have children using more traditional methods," Forbes reports.
Surrogacy remains a gray area for tax deductions. At the time of the services, the surrogate and the fetus don't fall under "qualifying relatives," so the IRS says the expenses aren't attributable to the taxpayer.
Morrissey's case argues this must change. "Morrissey noted that, in his case, the surrogate would not have any parental rights and the child would be the dependent of the taxpayer, not the surrogate," Forbes reports.