Joseph F. Morrissey v. United States, 871 F.3d 1260

Background

Joseph F. Morrissey, a gay man, paid ~ $57,000 in 2011 for IVF-related services to father children: ~$1,500 for sperm tests/collection and ~$55,000 for locating, compensating, and caring for an egg donor and a gestational surrogate.
Morrissey amended his 2011 return to claim $36,538 in medical-expense deductions under I.R.C. § 213, seeking a refund; IRS denied the deduction in full.
IRS reasoned § 213 permits deductions only for medical care provided to the taxpayer, spouse, or dependent; most costs here were for third parties.
District court granted summary judgment for the IRS; Morrissey appealed, raising (1) statutory interpretation of § 213(d) ("affecting any structure or function of the body") and (2) an equal protection challenge under the Fifth Amendment.
The Eleventh Circuit considered whether the third-party IVF expenses were paid to affect Morrissey’s own bodily function and whether denial of the deduction violated equal protection.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IVF-related third-party expenses are deductible under I.R.C. § 213 as amounts paid "for the purpose of affecting any structure or function of the body."	Morrissey: All IVF expenses (including donor/surrogate fees/care) were paid to affect his reproductive function and thus are deductible.	IRS: § 213 covers care affecting the taxpayer’s own body; donor/surrogate expenses affect third parties, not Morrissey’s bodily function.	Held: Expenses for donor and surrogate services did not affect any function of Morrissey’s body and are not deductible.
Whether the denial of the deduction infringes a fundamental right to procreate, triggering strict scrutiny under equal protection principles.	Morrissey: Denial infringes his fundamental right to reproduce via IVF/surrogacy.	IRS: The asserted right (IVF with third-party donors/surrogates) is not historically or traditionally a fundamental right; rational-basis review applies.	Held: The particular right is not fundamental; heightened scrutiny not warranted.
Whether the IRS discriminated on the basis of sexual orientation in denying the deduction (requiring heightened scrutiny).	Morrissey: Denial had a disparate effect on him as a gay man and reflects discriminatory intent.	IRS: § 213 is facially neutral; IRS has consistently treated similar heterosexual claims the same; no evidence of purposeful anti‑homosexual intent.	Held: No showing of different treatment of similarly situated heterosexuals or purposeful discrimination; equal protection claim fails.
Whether Tax Court/agency precedent supports nondeductibility and consistent application.	Morrissey: IRS has allowed some fertility-related deductions historically; settlements show unequal treatment.	IRS: Binding guidance and Tax Court precedent reject deducting third‑party donor/surrogate expenses; settlements are not evidence of legal entitlement.	Held: Agency practice and Tax Court case law support nondeductibility; settlements do not show disparate treatment.

Key Cases Cited

Skinner v. Oklahoma, 316 U.S. 535 (1942) (recognizes procreation as a fundamental interest in context of compulsory sterilization)
Bolling v. Sharpe, 347 U.S. 497 (1954) (principle of reverse incorporation: Fifth Amendment restraints on federal government analogous to Equal Protection)
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (equal protection requires proof of purposeful discrimination)
Washington v. Glucksberg, 521 U.S. 702 (1997) (test for whether a liberty interest is "fundamental": deeply rooted in history and tradition)
Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005) (framework for defining asserted fundamental rights and scrutiny analysis)
Lofton v. Secretary of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) (equal protection analysis related to sexual orientation classifications)
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) (describes when strict scrutiny attaches: fundamental rights or suspect classes)