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

• Author: Maureen McTeer
• Pages: 192-193

[ 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.