Appendix 4 - Judicial Decisions - Treatment of Human Embryos and Organs in Tax Cases

AuthorMaureen McTeer
[ 192 ]
– appendix 4 –
Judicial Decisions — Treatment of
Human Embryos and Organs in
Tax Cases
Citation Zieber v R, 2008 TCC 328
Summary Taxpayer and wife (“spouses”) entered into surrogacy agreement
with another couple to carry embryo. In computing income
for 2005 taxa tion year, taxpayer caimed medical expenses
reated to surrogacy process. Minister of National Revenue
assessed taxpayer under Income Tax Act (“ITA” ) and disallowed
medical expenses caimed in amount of $2, 987.21 ( “disallowed
expenses”). Disallowed exp enses were composed of legal costs
for preparation of surrogacy agreement; travel costs for surro-
gacy information sessions attended by spouses; and ultrasound
and prescription costs for surrogate mother. Taxpayer appealed.
Holding Appeal allowed
Reasoning Appeal was allowed except for sum of $16 .44 conceded by
taxpayer, and the matter was referred to minister for reassess-
ment on that basis. Disallowed expenses were allowable under
s 118. 2(2)(l.1 ) of ITA, as they were incurred by taxpayer on behalf
of patient who required organ transpant
Embryo transpant in case at bar constituted “organ trans-
pant” within meaning of s 118. 2(2)(l. 1). Embryo was “organ” as
described in s. 118 .2(2)(l. 1).
Embryo satisfied dictionar y definition of “organ.” Court
accepted taxpayer’s evidence that disallowed expenses were
paid, either on behalf of spouses or surrogate mother, in order
to enable embryo to be transpanted into surrogate mother.

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