The House of <i>Windsor</i>: Accentuating the Heteronormativity in the Tax Incentives for Procreation

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.