Can a same sex couple claim fertility treatment?

[Opus 17]

Medical expenses are deductible if they are to treat a disease or medical condition.  For example (at the risk of being indelicate) two women could not deduct the cost of artificial insemination, because being a woman is not a disease or condition.  But if part of the cost was hormone treatments to help the woman conceive due to her own infertility, that would be a deductible expense.  

Also note that you can only deduct medicL expenses for yourself, a spouse, or a dependent.  So if the same sex relationship is not a marriage, you may not be able to deduct expenses you pay for your partner.  However, your partner can deduct them as if they paid them, because your payment can be treated as a gift to them.

[Rainman12]

Per IRS Pub 502:  "Fertility Enhancement

You can include in medical expenses the cost of the following procedures to overcome an inability to have children.

• Procedures such as in vitro fertilization (including temporary storage of eggs or sperm).

• Surgery, including an operation to reverse prior surgery that prevented the person operated on from having children."

[Opus 17]

Current case law is that same sex couples can't deduct fertility treatments that are due to solely to the nature of a same sex relationship.  A gay man (who spent over $100,000 on surrogacy and lost the deduction in audit) is suing in federal district court in Florida to overturn this policy arguing it is discriminatory, but the case has not been decided yet.  Whether the taxpayers here want to be trailblazers and take the risk is up to them.

[Opus 17]

This is a pretty good summary of the case and includes a link to the Magdalin case which is the basis of the denial of the deduction (that the Florida case seeks to overturn).
<a rel="nofollow" target="_blank" href="http://davidsilversmithcpa.blogspot.com/2016/03/lbgt-and-irs.html?m=1">http://davidsilversmithcpa.bl...>

[Rainman12]

Thanks, Opus 17 - hadn't seen that case before, but have seen multiple refs where Surrogacy was not deductible. Apparent key premise is 'medical deduction = correcting defect', so I doubt we'll see any Male SS couples claiming  a deduction - but Females, conceivable ...