Breast-feeders deserve a tax break!

But the IRS equates nursing expenses with cosmetic surgery and diamond-studded bifocals.


Ellen Waldman
July 19, 2001 11:26PM (UTC)

When I was eight months pregnant, my obstetrician recommended I attend a class on breast-feeding. Led by a nurse practitioner, the class began in Socratic fashion. Going around the room, the instructor asked each of us to list the advantages of breast-feeding. A number of women mentioned bonding with baby; the few men in the room mumbled something about "natural birth control." The instructor, armed with articles from top medical journals and research undertaken around the world, listed no fewer than 12 health-related benefits enjoyed by infants who nursed.

At this point, it is widely known that breast-feeding confers unique immunological and developmental benefits. Breast-fed infants are at reduced risk of gastrointestinal, respiratory and urinary tract infections, asthma, juvenile rheumatoid arthritis, diabetes, cancer and childhood obesity. Because breast-fed infants are less likely to require prescription drugs, hospitalizations and physician office visits, it is estimated that breast-feeding an infant saves more than $1,000 a year in medical costs.

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For all these reasons, the American Academy of Pediatrics recommends that women breast-feed exclusively for six months and continue breast-feeding for at least a year. One would assume that public agencies would coordinate their policies to support this goal. Who could argue with a strategy designed to both conserve the healthcare dollar and improve public health?

The Internal Revenue Service, apparently.

According to the IRS, expenses related to breast-feeding, including breast pumps and lactation consultants, are not deductible medical expenses. Rather, they are nondeductible personal expenses that reflect lifestyle choices -- akin to cosmetic surgery or diamond-studded bifocals. This position is consistent with other long-standing IRS rulings and court decisions that refuse to recognize preventive care as a medical expense. But it is a stance that runs counter to current healthcare trends that emphasize preventive care as a means of controlling healthcare expenditures and raising the general level of health in American communities.

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Section 213 of the Internal Revenue Code allows a taxpayer to deduct medical expenses that exceed 7.5 percent of the taxpayer's adjusted gross income. The deduction was enacted during World War II to relieve the burden of catastrophic wartime expenses. It was conceived as a provision that would affect a relatively small portion of the population; but today, determinations by the IRS and the courts as to what constitutes a medical expense under Section 213 have taken on heightened importance. This is true because employer-provided cafeteria plans -- plans that allow employees to pay for health-related expenses with pre-tax dollars -- may only reimburse expenses that the IRS has determined are "medical expenses" under Section 213.

In this new context, judgments by the IRS and the courts as to what constitutes a medical expense don't just affect taxpayers suffering extremely high expenses relative to their income, but all workers who participate in a cafeteria plan and anticipate being able to "flex" their health-related expenses.

So what is a "medical expense" under the IRS code?

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IRS regulations define medical care expenses as "expenses incurred for the diagnosis, cure, mitigation, treatment or prevention of disease" as well as expenses "paid for the purpose of affecting any structure or function of the body." The language sounds generous, but it has been interpreted with great parsimony and shortsightedness.

Expenses incurred to enhance or preserve general health -- such as breast-feeding -- are not considered medical expenses. A taxpayer can only deduct or flex an expense if she can show that the expense was incurred to prevent the existence or imminent probability of a particular defect or illness. Thus, in order to claim a breast pump as a medical expense, a new mother would have to establish that her child lacked sufficient muscle control to nurse, or that her breast was infected or was otherwise wounded in a way that precluded nursing. Being a working woman and wanting to provide to one's infant the most healthful (and cost-effective) imunological boost possible would not suffice.

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In a similar vein, a patient who, upon a physician's recommendation, embarked on a weight-loss or smoking-cessation program to improve her general health would not be able to deduct or flex that expense. The cost of the program would only be considered a medical expense if the patient already suffered from cancer or asthma, or could establish the imminent probability of the onset of a smoking- or obesity-related disease. The simple fact that losing weight, quitting smoking and breast-feeding are all measures that improve health and reduce healthcare costs is irrelevant to the Internal Revenue Service's analysis.

The agency's crabbed definition of medical expenses is particularly nonsensical given the emphasis placed on preventive care by both private and governmental actors. Health maintenance organizations justify their continued growth by touting the increased attention to preventive care that patients enjoy in HMOs as opposed to fee-for-service plans. The surgeon general, commenting on the Health and Human Services white paper for improving public health in the next 10 years, said that the report details "what can be done through life style change and preventive care." Clearly, preventive care is at the forefront of this country's effort to improve overall health while curbing runaway health costs. Why, then, would our tax policy thwart, rather than encourage, this effort?

One legislator has noticed this anomaly. Rep. Carolyn Maloney, D-N.Y., has introduced a bill called the Breast-feeding Promotion Act, which would amend Section 213's definition of medical care to include breast pumps and breast-feeding consultation services. This is a good start. Working mothers who wish to breast-feed should be encouraged, not discouraged. They should benefit from tax incentives, not confront disincentives.

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But the bill should be viewed as a conversation starter, not an endpoint. Now that we are thinking of good preventive care for infants, we should continue thinking about good preventive care for adults as well. Adults who incur expenses in an effort to lose weight, quit smoking and improve their general health are entitled to view those expenses as medical ones.

It is in the public interest to provide financial incentives to individuals attempting to improve their health in a way that will forestall future costly healthcare interventions. Section 213's definition of what constitutes a medical expense needs to be broadened to include preventive care that has been empirically proven to improve individual health and lower overall consumption of scarce healthcare resources -- like breast-feeding.


Ellen Waldman

Ellen Waldman, an author and lecturer in the area of medical ethics, is a professor at the Thomas Jefferson School of Law in San Diego, Calif.

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