Lesbian and other same-sex female couples seeking fertility treatment in the Australian State of Queensland face a confusing new hurdle under guidance that can count them as two separate families when both partners carry a child using the same donor.
The Queensland Health guidance applies specifically when calculating limits on the number of families created using donated sperm, eggs or embryos. It does not generally declare the couple to be separate families outside the assisted reproductive technology system.
However, LGBTQ+ advocates and family law experts say the interpretation is discriminatory and could force couples to seek special permission to give their children genetically related siblings.
How Queensland’s Donor Family Limit Works
Queensland Health issued the guidance to fertility providers in February to explain the state’s assisted reproductive technology legislation.
Under section 25 of the Assisted Reproductive Technology Act, donated sperm, eggs or embryos cannot be used if doing so would create more than 10 donor-related Australian families.
The restriction, known as the family limit, is intended to reduce the possibility that genetically related people could unknowingly form intimate relationships later in life.
Queensland Health states that “a donor-related Australian family includes a parent, their spouse (if they have one), and their children”.
However, its guidance adds that using the same donor to create a pregnancy carried by the second woman in a same-sex couple can count as the creation of another family.
“The family limit means that once 10 families have been created using a particular donor’s sperm or eggs, a person may not be able to have another child with this same donor, if it would create another family,” the guidance states.
“This applies even if they already have a child conceived with this donor and want their children to be genetically related.”
“Belinda and Lily” Counted as Separate Families
Queensland Health illustrates the policy through a hypothetical same-sex couple named Belinda and Lily.
“Belinda and Lily are a same-sex couple who wish to create their family using a single donor. Belinda carried their first child, and Lily wishes to carry their second. They plan to raise their children together as one family unit.”
Despite remaining together and intending to raise both children in the same home, the guidance says the pregnancies are treated separately when calculating the donor limit.
“Under the Act, each pregnancy counts as a separate family—even though Belinda and Lily remain a couple and co-parent in the same household. Lily’s pregnancy counts as an additional family over the donor’s 10 family limit. For Lily to use the same donor, Belinda and Lily’s provider must apply for an exception.”
Queensland Health says an exception may be reasonable because both children would be raised by the same parents, the couple intends to grow one household rather than expand the donor’s genetic connections across unrelated families, and approval would support equitable reproductive choice.
However, only assisted reproductive technology providers can submit applications for exceptions. Families cannot apply directly, and the ABC reports that Queensland Health aims to assess most applications within 90 days.
Couple Told They Needed Another “Family Spot”
Queensland couple Kate Cantrell and her fiancée, Jessie Fraher, encountered the new interpretation while attempting to conceive their second child.
Fraher carried their daughter, Evie, who was born in 2022. The couple planned for Cantrell to carry their next baby using sperm from the same donor.
When they contacted their fertility clinic, they were told Cantrell would need a separate “family spot” for the donor. None were reportedly available at the time.
Because Fraher carried their first child, the guidance would allow her to carry another child using the donor under the family’s existing allocation. Cantrell carrying the pregnancy, however, could require another allocation or an exemption.
“I think it’s incredibly unfair,” Cantrell told the ABC.
“It’s the symbolic significance of what that says to you when you have your government telling you you’re no longer considered a family.”
The clinic later clarified that Cantrell had reserved a vial of sperm that could count as an allocation. However, the couple remained uncertain about what would happen if the first attempt was unsuccessful and another vial was required.
Lawyer Calls Guidance a “Misinterpretation”
Family creation lawyer Sarah Jefford told the ABC that Queensland Health had misinterpreted the legislation.
“The legislation, I believe, is very clear,” Jefford said. “It’s per family.
“However, the government has issued a notice to say that it should be two allocations, one per woman.
“The clinics are then applying that for the use of donor sperm, and that is causing problems, particularly for lesbian couples.”
Advocates argue that a couple raising children together should be treated as one family regardless of which partner carries each pregnancy.
They also say requiring exemptions adds administrative work, uncertainty and possible delays to a process that is already financially and emotionally demanding.
Rainbow Families Demands Correction
Rainbow Families representative Ashley Scott called on Queensland Health and Health Minister Tim Nicholls to revise the guidance.
“An exemption pathway is not a fix, it’s acknowledgement that the guidance is not inclusive of all families. If LGBTQ+ families now need to apply for special permission just to be treated as a family, then Queensland Health has built discrimination into the process and called it a solution,” he said.
“We’re calling on Minister Nicholls to correct the guidance now, not force more families through a case-by-case appeals process for something the law never intended to restrict in the first place.”
Scott said the interpretation undermined legislation intended to prevent discrimination against LGBTQ+ families.
“Queensland Health has taken a law that was explicitly designed to stop discrimination against LGBTQ+ families and applied it in a way that recreates exactly that.
“When a couple who both want to carry a pregnancy are counted as two separate families instead of one, that’s not a technicality, it’s the government deciding our families count differently to everyone else’s. And that’s not ok.”
Just.Equal Calls for Anti-Discrimination Action
Just.Equal Australia spokesperson Rodney Croome also criticised the Queensland Government’s handling of the issue.
“At best the Queensland Government doesn’t care about same-sex couples’ journey to parenthood, or at worst it is deliberately getting in the way out of old-style anti-gay prejudice,” he said.
“Either way it has shown itself to be out-of-step with the majority of Australians who support same-sex couples raising kids.
“The Queensland Government should be given a deadline to rectify this problem, and if it fails it should be made to answer before the state’s anti-discrimination tribunal.”
Queensland Health Points to Exemption Process
Queensland Health did not directly answer the ABC’s question about whether its interpretation of the legislation was correct.
A spokesperson instead highlighted amendments allowing providers to apply for exceptions to the family limit.
“The amended Act allows for case-by-case discretion enabling ART providers to apply to exceed the donor-related family limit where it might impact a family wanting to use the same donor,” the spokesperson said.
“Following changes to the Act, Queensland Health provided guidance to all Queensland ART providers to support them when calculating the family limit, and when applying to exceed the family limit.”
A spokesperson for Nicholls said the government had created the exemption pathway because the original legislation could have prevented some couples from growing their families using their chosen donors.
Advocates maintain that the pathway does not address the central issue: couples who remain together and raise their children in one household should not need special approval to be recognised as a single family.
