Tax Talk and Reproductive Technology

By Crawford, Bridget J. | Boston University Law Review, September 2019 | Go to article overview

Tax Talk and Reproductive Technology


Crawford, Bridget J., Boston University Law Review


Introduction

"Any tax is too high."1 That is the assessment of a woman who received money eight times for the transfer of human eggs from her body to one or more individuals who intended to have a baby, possibly with the assistance of a sperm provider, a gestational surrogate, or both.2 The same woman further reflected:

I can not [sic] say that I would not have donated if I knew about these taxes beforehand, but I would have been better prepared. The shots, the invasive procedures, the hours in the car driving to and from the appointments, the hours of missed work . . . . I donated eggs eight times to help people make families, families that ultimately will go on to pay more taxes.3

In other words, this woman believes that she should not pay any taxes on the money she received for her eggs because the egg transfers played a literal role in creating more taxpayers.4 This opposition to paying income tax typifies the resistance that many women voice when confronted with the reality that U.S. law imposes a tax on the income received for transferring human eggs.5

This Article explores compensated human egg transfers-commonly called egg "donation"6-and argues that the manner in which both compensated egg transferors and the fertility clinics operating as "brokers" between the potential egg transferors and the intended parent(s) talk (or, more often, fail to talk) about taxation is part of a larger cultural and legal story-the story of the way that the tax system both reacts to and helps create attitudes about the value of certain social behaviors and choices.7 The resistance to "tax talk" in the fertility context reveals the power of tax law to challenge the ways that legal actors perceive themselves. Women who receive compensation for providing eggs contest the notion that they are engaged in any sort of commercial activity, instead construing themselves as altruistic actors for whom any money they receive is a mere token of recognition for their extraordinary generosity and willingness to tolerate discomfort and inconvenience.8 This self-narrative of altruism, reinforced powerfully by fertility clinics, is what allows a multibillion-dollar fertility industry to flourish. Most of the industry profits go not to the egg transferors themselves, however; drug manufacturers, fertility clinics, and the doctors who own the clinics profit handsomely from the reproductive work of other individuals.

Part I of this Article provides an overview of the tax treatment of compensated human egg transfers in the United States, with a brief reference to limitations on such transfers in other countries, including Canada. In 2015, in a case of first impression, the United States Tax Court ruled in Perez v. Commissioner9 that the remuneration a woman received for the transfer of her eggs was, in fact, taxable income and should be reported on her annual income tax return.10 Although clear in its holding, the Perez decision represents a missed opportunity for the court to clarify important questions about the nature, extent, and character of income received from compensated human egg transfers.

Part II explores the reaction to the Perez case from women who have received compensation for egg transfers or who are contemplating doing so in the future. Through a content-based analysis of publicly available online fora and bulletin boards, Part II reveals that, notwithstanding the clarity of the Tax Court's holding in Perez, many women continue to insist that the amounts they receive are not income and object to paying any tax on those monies.11 Taxation seemingly does not square with women's perception of their activities. The Perez decision has not eliminated any confusion or convinced compensated egg transferors of their obligation to pay income taxes.12

Part III details the results of an empirical analysis of the websites of the twenty-five fertility clinics in the United States that conduct the greatest number of assisted reproductive technology ("ART")13 cycles involving embryos from so-called "donated" eggs to determine what tax-related information, if any, these clinics make publicly available. …

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