## Facts

- Joseph F. Morrissey, a gay man in a long-term same-sex relationship, sought to have a genetically related child using IVF with an egg donor and a gestational surrogate.
- The process involved collecting Morrissey’s sperm, fertilizing donated eggs, and implanting embryos into a surrogate.
- From 2010–2014, Morrissey paid over $100,000 in IVF-related expenses; in 2011 he paid nearly $57,000 out of pocket.
- On his 2011 federal return, Morrissey claimed a medical-expense deduction under I.R.C. § 213, asserting the IVF expenses were for the purpose of affecting his reproductive function.
- Only a small portion of the 2011 expenses (about $1,500) related directly to Morrissey’s own medical procedures; most costs were for identifying, retaining, compensating, and caring for the egg donor and surrogate.
- The IRS allowed the portion directly tied to Morrissey’s own procedures and disallowed the remainder.
- Morrissey paid the assessed tax and sued for a refund, also arguing the disallowance violated equal protection.

## Issues

1. Whether IVF-related payments primarily for an egg donor and gestational surrogate qualify as “medical care of the taxpayer” under I.R.C. § 213 as amounts paid “for the purpose of affecting any structure or function of the body.”
2. Whether disallowing the deduction violated equal protection by burdening a fundamental right or discriminating based on sexual orientation (or another suspect or quasi-suspect classification).

## Decision

- The Eleventh Circuit affirmed judgment for the United States.
- The court held the challenged IVF-related expenses were not deductible under § 213 because they were not paid for the purpose of affecting Morrissey’s own bodily structure or function.
- The court held the IRS’s disallowance did not violate equal protection because it did not directly and substantially interfere with a fundamental right, did not rest on a suspect or quasi-suspect classification, and satisfied rational-basis review.

## Legal Principles

- I.R.C. § 213 permits deductions only for “medical care of the taxpayer,” including amounts paid for the purpose of affecting the taxpayer’s own bodily structure or function.
- Where the taxpayer is not medically infertile and can perform the relevant reproductive function without treatment, expenses for medical services directed at third parties (e.g., egg donors and surrogates) are generally not “medical care of the taxpayer” under § 213.
- Equal protection challenges to tax classifications generally receive rational-basis review unless a law burdens a fundamental right or targets a suspect or quasi-suspect class.
- Denial of a tax deduction typically does not amount to a direct and substantial interference with procreation or family formation; it reflects a refusal to subsidize a chosen method rather than a prohibition.

## Conclusion

The Eleventh Circuit held that IVF-related costs paid primarily for an egg donor and gestational surrogate were not deductible as the taxpayer’s medical care under I.R.C. § 213, and that the IRS’s denial of the deduction did not violate equal protection because it neither burdened a fundamental right nor constituted class-based discrimination and was rationally related to legitimate tax-administration interests.


Morrissey v. United States, 871 F.3d 1260 (11th Cir. 2017)