Donor limits Queensland: lesbian couples now one family

A lesbian couple using the same sperm donor should not become two families simply because both women want to carry a child. That is the straightforward principle behind Queensland Health’s reversal of its guidance on donor limits.

The revised guidance recognises those women as one family for the purposes of Queensland’s donor limit. It removes an interpretation that had created unnecessary barriers for couples planning their families and brings the guidance into line with the legislation’s definition of a family.

It is a welcome outcome for common sense and equality. However, an important complication remains: if a couple separates, the way their family is counted can change.

Why Queensland Has Donor Limits

Queensland’s Assisted Reproductive Technology Act 2024 was enacted with bipartisan support to regulate assisted reproductive technology, including IVF. One important question was how to limit the number of families created using sperm or eggs from a particular donor.

There is a sound reason for having a limit. Without one, particularly with sperm donation, a donor may have a very large number of genetically related children across different families.

Those children may not know the extent of their genetic connections. That creates questions about identity and relationships, as well as the risk of genetic siblings unknowingly forming an intimate relationship and having children together.

Donor limits are therefore a safeguard, but their design also affects access to fertility treatment. A limit needs to address those risks without unnecessarily restricting people’s opportunity to have a family.

Why the Limit Is 10 Families, Not 10 Children

Queensland adopted a limit of 10 donor-related Australian families. The distinction matters: the measure is families, rather than simply the number of children born using a donor’s sperm or eggs.

Some advocates supported a limit of five families. Stephen Page advocated for 10, for two principal reasons.

• Access to treatment: a lower limit can make donor material harder to access. Difficulties in New South Wales illustrate the practical concerns associated with tighter limits.
• Greater national consistency: a limit of 10 aligns with the approach taken in most Australian states.

Australia does not have a single, uniform donor-limit framework. Differences between jurisdictions make an already complicated area of fertility law harder to navigate.

The Fertility Society of Australia and New Zealand, of which Stephen Page is secretary, has advocated for one donor limit and one fertility law across the country. That national consistency has not yet been achieved.

What Counts as a Family?

A family-based limit only works fairly if the definition of “family” is understood and applied correctly.

For the relevant Queensland provision, a family comprises a parent, their spouse if any, and their children. The meaning of spouse is not confined to a husband or wife in a marriage.

Under Queensland’s statutory interpretation framework, it also includes a de facto partner and a registered partner in a civil partnership. A married, de facto or civil-partnered couple therefore falls within the family framework, whether or not they already have children.

Australian marriage law has recognised marriage equality since 2017. There is no sensible basis for treating a married lesbian couple as less of a couple when applying a family definition.

The legislation also draws boundaries around former spouses and additional spouses. Those relationships, together with the relevant children, can constitute separate families. This is where a straightforward definition can have complicated consequences.

The Act and the related interpretation provisions can be located through the official Queensland legislation database. The statutory wording matters because administrative guidance should reflect it, not create a different test.

How the Earlier Guidance Created Unequal Treatment

Queensland Health’s earlier guidance to IVF clinics included a scenario in which two women in a lesbian relationship, both using sperm from the same donor, were counted as separate families.

The difficulty was obvious. The women were a couple, but the guidance effectively divided their family according to which woman received treatment.

It also departed from the approach clinics had developed before the Act. Years earlier, some clinics had treated each woman separately. Clinics subsequently recognised the discriminatory nature of that approach and began treating the couple as one family.

When the Queensland guidance revived separate counting, clinics raised concerns that it was discriminatory and inconsistent with the legislation. Queensland Health initially maintained that its interpretation was correct.

The consequences were practical, not merely theoretical. One woman might already have a child using a particular donor, while her partner hoped to use the same donor. Counting the partner as another family could put that treatment beyond the donor’s permitted allocation.

For couples trying to build a family together, that was a significant and unnecessary obstacle. Recognition of their relationship and parental rights is also central to appropriate legal support for LGBTIQ families.

How Advocacy Led to a Change

IVF clinics were not alone in challenging the interpretation. Advocates, including Stephen Page, wrote to Queensland Health. The initial response remained firm: the department considered its position correct.

Community advocates then raised the issue with the Health Minister’s office, and media coverage brought further attention to its effect on lesbian couples.

The legal objection rested on more than fairness alone. Marriage law recognises the couple’s relationship. Family law recognises their shared parenthood in the relevant circumstances. Queensland’s Status of Children Act and Acts Interpretation Act also inform the recognition of parents and spouses.

Taken together with the wording of the donor-limit provision itself, those laws supported treating the women as one family.

Stephen Page called on Health Minister Tim Nicholls to have Queensland Health interpret the provision consistently with the legislation. The proposed solution did not require Parliament to rewrite the Act. It required the guidance to apply the existing words correctly.

The minister called a review. Queensland Health notified IVF clinics, then issued revised guidance recognising the couple as one family. This was a review that produced a meaningful result, rather than simply postponing the problem.

What the Revised Guidance Means for Couples

For lesbian couples using the same sperm donor, the revised guidance removes the separate-family counting problem while they remain together.

Couples affected by the earlier interpretation had contemplated, or begun, seeking exemptions because one partner had already had a child and the other was treated as exceeding the donor limit.

They should not have needed to ask for exceptional treatment merely to have their family recognised correctly. The revised guidance removes that particular hurdle.

It does not abolish donor limits or guarantee that every proposed treatment can proceed. Donor availability and the applicable family count still matter. However, the couple is no longer counted as two families simply because both women intend to use the donor.

The Remaining Catch: Separation

The revised guidance also confirms an important limitation. If the women separate, their position may change.

For example, one woman may have a child while the couple is together. If her former partner later seeks treatment using the same donor, she may be counted within a separate family. If the donor has reached the limit, that treatment may not be available.

Separation does not automatically prevent further treatment, but it can affect the family count. That distinction deserves careful attention before plans are made. Individual advice from experienced fertility lawyers can help clarify how the rules apply.

The broader outcome remains positive: families should be recognised as families. Queensland Health’s change is a clear step towards fairer treatment, while the separation provisions remain an issue to consider carefully.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy and fertility lawyers and an accredited family law specialist at Page Provan. His work encompasses surrogacy, donor arrangements and parental rights, alongside advocacy for equality and clearer fertility laws.