Our Bodies, Our (Tax) Selves

Abstract

This Article considers important consequences of the commodification of human reproduction. Anyone who has opened a campus newspaper has seen advertisements seeking to match an infertile couple with a young woman who will “donate” her egg (in return for a fee). Some college-age men earn thousands of dollars through regular visits to a sperm bank. The characterization of human ova and sperm cells as transferrable “property” is the very foundation upon which the entire fertility industry rests. But the law of donative transfers has largely ignored the commercial market for human reproductive material. This Article considers how courts and the Internal Revenue Service -- unevenly and incompletely -- treat transfers of human bodily material. The Article reveals how classifying human eggs or sperm as descendible and devisable property could have far-reaching and even absurd consequences for human sexual relations. Property-related laws should never be the primary lens for considering complex questions regarding human reproduction, but the particular failure of tax law to address these transfers may create a de facto tax preference for work that many people may find objectionable or immoral.