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.
