Taxation, Pregnancy, and Privacy

This Article frames a discussion of surrogacy within the context of existing income tax laws. A surrogate receives money for carrying and bearing a child. This payment is income by any definition, even if the surrogacy contract recites that it is a “reimbursement.” Cases and rulings on the income tax consequences of the sale of blood and human breast milk, as well as analogies to situations in which people are paid to wear advertising on their bodies, support the conclusion that a surrogate recognizes taxable income, although the Internal Revenue Service has never stated so. For tax purposes, the reproductive labor of surrogacy is “work.” This Article considers, and then rebuts, privacy-based objections to a surrogacy tax.

Disclosure of income from surrogacy is a reasonable consequence of the freedom to engage in that activity. The federal government should take steps to increase tax compliance.