Reproducing Value: How Tax Law Differentially Values Fertility, Sexuality & Marriage

Cardozo Journal of Law and Gender 19 Cardozo J. of L. and Gender 1 (2012)

49 Pages Posted: 17 Jul 2012 Last revised: 23 Mar 2018

See all articles by Tessa Davis

Tessa Davis

University of South Carolina - School of Law

Date Written: July 17, 2012

Abstract

Section 213 of the Internal Revenue Code permits a deduction for an individual’s fertility expenses, but it does not do so evenhandedly. This paper focuses on the current discriminatory effects of §213 doctrine as it is applied to the deductibility of fertility treatments for single persons and/or homosexual couples, as compared to heterosexual, married couples. Traditional economic analysis of the Code fails to explain such discrimination, thus a new approach is required. Utilizing tools from anthropological theory, this paper recognizes and analyzes our tax code (and specifically §213) as a cultural artifact and therein challenges the presumed objectivity of our conception of what is “medical,” “natural/normal” reproduction, and “fertility/infertility.” By revealing and reforming the normative consistencies underlying the seemingly inconsistent pre- and post-Magdalin v. Commissioner §213 doctrine, I propose that we can embrace new forms of parenthood enabled by reproductive technologies and remedy the current discriminatory application of §213 as applied to fertility treatment expenses.

Keywords: Taxation, Sexuality, Fertility, Gender, Discrimination

Suggested Citation

Davis, Tessa, Reproducing Value: How Tax Law Differentially Values Fertility, Sexuality & Marriage (July 17, 2012). Cardozo Journal of Law and Gender 19 Cardozo J. of L. and Gender 1 (2012). Available at SSRN: https://ssrn.com/abstract=2111385

Tessa Davis (Contact Author)

University of South Carolina - School of Law ( email )

1525 Senate Street
Columbia, SC 29201
United States

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