The House of Windsor: Accentuating the Heteronormativity in the Tax Incentives for Procreation

Abstract

89 Washington Law Review 1185 (2014)Following the Supreme Court's decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this Article plumbs the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of the federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which heteronormativity pervades the federal tax laws and of identifying means of eliminating that heteronormativity. To further this work and in keeping with the theme of this symposium issue, Compensated Surrogacy in the Age of Windsor, this Article explores the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate.

More Than a Biological Condition: The Heteronormative Framing of Infertility

“…It must be noted, however, that the underutilization of services by female-to-male patients may be a consequence of these patients not identifying with typical gender roles attributed to women, like motherhood [11]. Additionally, the limited service uptake by transgender patients may be associated with the substantial difficulties faced by LGBT subgroups, including limited financial resources, discrimination, and poorly-educated health professionals [1,2,15,19,20]. Further research is needed to examine utilization of fertility services in LGBT subgroups, specifically transgender individuals, to substantiate these deductions.…”

“…When discussing policies related to reproductive technologies and procreation, it is important to be aware that they have been, and still are, largely designed from a heteronormative perspective [20,23]. An example of this can be seen through the discriminatory federal tax incentive for procreation offered by the Internal Revenue Service in the U.S., which allows a tax deduction for medical expenses, including IVF and other assisted reproductive technologies [20]. The way the law is written may result in heterosexual couples and same-sex couples being treated differently in qualifying for the deduction.…”

“…The way the law is written may result in heterosexual couples and same-sex couples being treated differently in qualifying for the deduction. The deduction may not be available to same-sex couples, even if one or both partners are infertile, because the law stipulates that it is only available to (medically diagnosed) infertile couples who would otherwise be able to reproduce naturally (i.e., heterosexual couples) [20]. Policies such as these reinforce systemic discrimination that perpetuates heteronormativity, and thus contributes to the further disadvantage of LGBT individuals.…”