A lady, living in a non-marital partnership for 12 years, deducted as a special expense (Sonderausgabe,§33 EStG) DM 24,000 on measures to counteract sterility by the so called in-vitro fertilization. In-vitro-fertilization (IVF) is unification of an egg cell with a sperm cell outside the human body and afterwards transferring the embryo into the uterus (ET). She applied to have these treatments paid by her statutory health insurance but the insurance refused because according to §27a I no. 3 SGB-V only married couples can have costs for the causation of a pregnancy to be reimbursed. The tax office also refused the deduction.
Extraordinary expenses (außergewöhnliche Belastung) can be deducted to reduce the taxable amount when a taxpayer has inevitably higher expenditures than the predominant majority of equal levels of income and marital status. These costs are extraordinary when they are not only by their amount but also by their reason lie beyond the usual.
The Federal Tax Court has built in its ruling case law several case groups for the different kinds of extraordinary expenses and their requirements. One such case group are costs to treat illnesses. The typical and direct costs of sicknesses are irrefutable extraordinary expenses. So far the Federal Tax Court denied the deductibility of costs for unmarried, conception-incapable women - even if they were in a solid partnership. The BFH has now abandoned this ruling.
The court argues that the incapability of conception of a woman is independent of her marital status a sickness. The only way to circumvent this illness is the artificial insemination - since a cure is not possible. The legal rules on deductibility do not require cure but rather only a relief suffices. This is comparable to glasses. You cannot cure shortsightedness but can ease the result with a pair of glasses. Even if married women have might have a greater position of constraint or the child's well-being demands that the parents be married, this does not justify denying deduction in taxation of these costs.
Only such expenditures for sterility treatments qualify for deduction that meet the guidelines of the physician's professional code of conduct. In accordance with the currently valid guidelines, the physician must come to the decision that the unmarried women is living together with an unmarried man in a solid partnership and this man will accept fatherhood to the so procreated child. Only the father's own sperm may be used.
