Queensland sperm donor family limits explained

Queensland’s new sperm donor family limits were meant to provide sensible safeguards for children conceived through donor treatment. Instead, Queensland Health has adopted an interpretation that appears to split a female same sex couple into two separate families.

That position is difficult to reconcile with the law, common sense, and the lived reality of couples building a family together. If two women are married, in a de facto relationship, or in a civil partnership, and they agree to conceive a child using donor sperm, they are a couple. They are parents together. Their child is a child of their relationship.

They should be counted as one donor-related family, not two.

What are donor sperm family limits?

Family limits restrict the number of families that may be created using sperm from the same donor. They exist for a very good reason. No child should grow up only to discover that they have a large and unknown number of donor-conceived siblings.

Australia does not have one nationally uniform IVF regulatory system. There are multiple state and territory regimes, and the rules can vary considerably depending on where treatment occurs. Nevertheless, the broad approach across much of Australia has been a limit of 10 donor-related families.

New South Wales and Western Australia have generally applied a limit of five families. Tasmania has also operated on a five-family basis. The Australian Capital Territory has taken a mixed approach because of its smaller population: five families within the ACT, with 10 families permitted nationally.

Queensland’s Assisted Reproductive Technology Act 2024 adopts a 10-family limit. That is a sensible national figure in a country of approximately 28 million people. A limit that is too low may sound cautious, but it can create serious access problems for people who need donor sperm.

The real-world consequence of overly restrictive limits

The experience in New South Wales is an important warning. When New South Wales Health took the view that its legislation meant five women in New South Wales, donor sperm availability became dramatically more constrained.

The cost of donor sperm that may once have been around $2,000 can rise to between $40,000 and $60,000. This happens because overseas sperm banks may require a person to purchase all remaining vials allocated to that donor for the jurisdiction, rather than allowing them to buy the one or two vials they actually need.

That can leave an intended parent facing ownership of 20 vials when only a small number are required. For many, this is simply unaffordable.

The consequences are troubling:

• Some people seek treatment interstate.
• Some travel overseas.
• Some turn to unregulated private sperm donation arrangements, where there may be no effective cap on the number of families.
• Some abandon their plans to have a child altogether.

That is not a good public health outcome. A donor limit should protect children while still allowing genuine access to regulated fertility treatment. Families navigating these issues should obtain advice early from experienced fertility lawyers, particularly where treatment, donor allocation, parentage, or interstate arrangements are involved.

Queensland Health’s interpretation creates a discriminatory result

Under section 25 of the Assisted Reproductive Technology Act 2024, Queensland has set the limit at 10 donor-related families. The problem is Queensland Health’s apparent interpretation that two women living together as a couple are separate families for this purpose.

Consider what that means in practice. Two women decide together to have children using sperm from a particular donor. They may be married, de facto partners, or civil partners. They conceive and parent their children together. Yet Queensland Health’s approach may treat one woman as one family and the other woman as another.

That does not pass the pub test.

More importantly, it does not sit comfortably with the language of the legislation itself. Section 25(6) states that a family comprises:

• a parent
• that parent’s spouse, if any
• their children

Queensland’s interpretation legislation defines a spouse broadly. It includes a spouse in a marriage, a de facto partner, and a civil partner. Marriage in Australia has included marriage between two women or two men since 2017.

So where two women are a couple recognised by Queensland law, it is hard to see how they can suddenly become separate families for the sole purpose of allocating donor sperm.

Parentage law is crystal clear

This is not merely a question of terminology. Australian and Queensland parentage laws recognise the parental status of couples who undertake assisted reproductive treatment together.

Under the Family Law Act 1975, where a person and their spouse or de facto partner consent to an artificial conception procedure, both may be recognised as parents of the child. The child is treated as a child of their relationship.

Queensland’s Status of Children Act also recognises that where a female couple consents to a fertility procedure, both women are parents of the child.

The legal position is therefore straightforward:

• They are a couple.
• They are spouses or partners under Queensland law.
• They are parents together.
• The child is a child of their relationship.
• They are, plainly, one family.

It is difficult to justify a government policy that treats them as separate families despite this legislative framework. Such an approach appears to impose a disadvantage that heterosexual couples using donor sperm would not face in the same way.

This is not how IVF clinics have been operating

Queensland Health’s apparent view also seems out of step with the more recent practice of IVF clinics.

Years ago, some clinics treated each woman in a lesbian couple as a separate family for donor limit purposes. Clinics have since recognised that this approach is discriminatory. A couple building a family together should not consume two family allocations simply because both partners may want the opportunity to carry a child conceived with the same donor.

Modern fertility practice has increasingly moved towards recognising the family unit, rather than artificially dividing it according to the gender of the intended parents or which person carries the pregnancy.

Queensland should not return to an outdated approach that clinics themselves have moved away from.

Why this matters for LGBTIQ families

For many LGBTIQ couples, donor conception is not simply one fertility option among many. It is often central to their path to parenthood. Rules that restrict access unfairly can have profound emotional, financial, and practical consequences.

Same sex couples are entitled to equal recognition under the law. That includes recognition of their relationship, their children, and their family unit. Legal support for LGBTIQ parents and intending parents is available through Page Provan’s LGBTIQ legal services.

A policy that counts a same sex couple as two families risks forcing them into impossible choices. They may have to use different donors, incur enormous costs, leave Queensland for treatment, or give up on the family they had planned together.

None of that is necessary if the law is applied according to its ordinary meaning.

What should happen next?

The Queensland Health Minister, Tim Nicholls, should direct Queensland Health to apply the law consistently with its wording and purpose.

Two women who are a couple should be treated as one family for the 10-family donor limit. That approach reflects the Assisted Reproductive Technology Act, Queensland’s definitions of spouse and partnership, the Family Law Act, the Status of Children Act, and basic fairness.

People directly affected may consider their legal options, including an anti-discrimination complaint or proceedings in the Supreme Court. However, litigation is expensive, stressful, and daunting. Most people should not have to challenge the State simply to have their family recognised accurately.

The better outcome is clear administrative action now. Queensland Health should correct this interpretation before more couples are told that they miss out on access to the donor sperm they chose together.

Donor limits should protect children and promote responsible treatment. They should never be used in a way that divides a legally recognised couple into two separate families.

About Stephen Page

Stephen Page is widely regarded as Australia’s leading surrogacy lawyer and is an accredited family law specialist with decades of experience in fertility law, surrogacy, donor conception, parenting matters, and LGBTIQ family law. As a director of Page Provan, he assists intended parents and families across Australia and internationally to navigate complex fertility and family law issues with clear, practical advice.