The Court Ruling
The couple tried to deduct the cost for a surrogated but was denied by the IRS. The case went to the Tax Court where it was argued by Professor Morrissey that, being a homosexual in a committed relationship, he could not have had a child with a woman in the traditional way. The IRS’ position was two-fold:
- Professor Morrissey was making a choice not to have a sex with a woman, and
- The law when he filed his tax return was that surrogacy expenses were not deductible.
In closing the original case and his appeal, Professor Morrissey contended that he was being discriminated against – that it was not a “choice” to take on this expensive and alternative route, but the only legal, ethical, and moral means by which he could have operated as a citizen of the United States and resident of Florida.
Obviously, Joseph Morrissey nor his partner carried this baby, so the in vitro process did not directly affect them physically. This matters because when a heterosexual couple uses a surrogate in a similar situation – where they cannot conceive without one – they cannot deduct the costs.
Now, given the law one is left to wonder, ‘why was this even an issue?’ The answer may lay in a 1995 case called Sedgwick v. Commissioner and in IRS Code § 213.
