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Anonymous
Not applicable

We tried IUI, I know we cannot claim the fertility treatments, however, can we claim expenses for the prescriptions during the treatments or the cost of the sperm?

We are a lesbian couple who tried IUI. I know we cannot claim the fertility treatments since being a woman is not a medical condition. However, can we claim expenses for the prescriptions during the treatments or the cost of the sperm? Everything I have read thus far is about IVF. Thanks.

2 Replies
Opus 17
Level 15

We tried IUI, I know we cannot claim the fertility treatments, however, can we claim expenses for the prescriptions during the treatments or the cost of the sperm?

As you probably know, the relevant law says this:

"In pertinent part, I.R.C. § 213(a) states as follows: “There shall be allowed as a deduction the expenses paid during the taxable year, not compensated by insurance or otherwise, for medical care of the taxpayer, his spouse, or a dependent?” Particularly important to this appeal is Section 213(d)'s definition of the term “medical care” as it is used in Section 213(a)—as relevant here, “[t]he term ‘medical care’ means amounts paid ? for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” I.R.C § 213(d)."

In 2015 the Court of Appeals affirmed the IRS denial of a tax deduction for IVF and surrogacy expenses for a gay male couple, on the grounds that the surrogacy expenses were not for the cure of a disease of the taxpayer, or to affect the body of the taxpayer (the gay man who claimed the deduction).  MORRISSEY v. UNITED STATES

However, I am having a hard time finding similar case law for lesbians (maybe I just don't know the right places to search).  Anything that is done to affect your body (assuming you are going to be biological parent -- egg donor and gestational parent) would seem to be covered by the statute.  You don't meet the "diagnosis, cure, mitigation, treatment, or prevention of disease" clause, but it does seem to meet the "for the purpose of affecting any structure or function of the body" clause.

(Of course, if IVF treatments are deductible for lesbian couples because the treatment affects the taxpayer's body, in a way that IVF and surrogacy don't affect the taxpayer for gay men, this could be argued by some to create an unequal treatment issue. I don't think the courts have addressed this, and of course the best way to get childbearing expenses for gay couples deductible would be to actually change the law at Congress.)

The most restrictive argument would be that nothing is deductible because you aren't sick.  Or, that fertility prescriptions would be deductible if the taxpayer had an underlying fertility problem that had to be treated at the same time as the IUI procedure.

The most generous argument would be that anything that affects the function of the taxpayer's body is deductible, and that would include the drugs as well as the IUI procedure.  (The cost of the sperm I would consider the most dodgy.)

So I agree it is tough to find information that is specific to lesbians and IUI.  Maybe someone else will have more thoughts.
*Answers are correct to the best of my ability at the time of posting but do not constitute legal or tax advice.*
TomD8
Level 15

We tried IUI, I know we cannot claim the fertility treatments, however, can we claim expenses for the prescriptions during the treatments or the cost of the sperm?

I would deduct both the prescription drug costs and the cost of the sperm.  IUI definitely "affects a structure or function of the body" (think of the uterus).  Since pregnancy cannot occur without sperm, the sperm is a medically necessary expense for the procedure.  The only caveat is that you can't deduct drugs from other countries (such as drugs you might buy in Canada), unless the FDA has approved them for import to individuals.

Remember that medical expenses are deductible only to the extent that they exceed the 7.5% of AGI threshold.

**Answers are correct to the best of my ability but do not constitute tax or legal advice.

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