Two Gelderland men who deducted part of the cost of paying for a surrogate mother in the US to have their baby via ivf treatment did face discrimination when the tax office rejected the claim, Dutch judges said on Wednesday.

A court in Arnhem ruled that the current rules, which do not allow the cost of ivf treatment to be deducted apart from cases of infertility, illness or physical disability, are discriminatory against a gay couple.

The two men could never have a child in the natural way and this is no different to a woman being unable to have a child because she is infertile, the judges said. The fact that she, but not the men, could deduct the medical expenses from income tax, they said is discrimination.

However, the court said it could not decide if the cost of the ivf treatment in this particular case could be deducted from tax because that would be going beyond its remit as an interpreter of the law.

Instead, MPs and minister should attempt to find a solution to this unequal treatment via legislation. ‘The choice is up to lawmakers,’ the court said.

The total cost of the treatment was around €140,000, and the biological father of the child had tried to deduct €37,000 from tax.