Queensland Health guidance issued in February advises fertility clinics to treat lesbian couples as separate families if both partners seek to have children through assisted reproductive technology (ART).
Under the guidance, providers have been told that if two women wish to have children using the same sperm donor, they should be considered two separate families. Because there is a limit on the number of families a donor can help create, the interpretation has reduced options for some same-sex couples.
Legal experts and equality advocates have questioned whether the guidance correctly reflects the law and have called on the Queensland Government to provide clarification.
In Queensland, donated sperm or eggs cannot be used to create more than 10 Australian families. The restriction is designed to reduce the risk of unintentional relationships between genetic siblings. Under the Assisted Reproductive Technology Act 2024, a family is defined as a parent, their children, and their spouse, if applicable.
Under the guidance, if one woman in a lesbian couple carries a child and her partner later wishes to carry a second child using the same donor, the couple may be treated as two separate families. As a result, some families have been prevented from having additional children where their donor has already reached the maximum number of families permitted under the new counting methodology.
The ABC has reported the story of Kate Cantrell, 39, and her fiancée Jessie Fraher, 36, who say their plans for a second child have been affected by the guidance.
Under the current interpretation, Cantrell would not be able to carry a child conceived using the same donor because the donor has reached the family limit. However, Fraher could potentially proceed because she carried the couple’s first child conceived using that donor.
Heather Corkhill, Equality Director at Rainbow Families Australia, told the ABC the guidance was “devastating for people who are halfway through creating their families”.
She said the legislation was drafted to avoid discrimination against same-sex couples, not create it.
A spokesperson for Queensland Health told OUTinPerth that amendments made to the Act in 2025 included provisions allowing providers to apply for exemptions to the donor family limit.
“The Assisted Reproductive Technology Act 2024 was amended in 2025 to support ART providers and people who are trying to conceive through IVF.
“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. This discretion did not exist in the Act as originally passed.
“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.”
Rodney Croome from Just.Equal said the interpretation adopted by Queensland Health was discriminatory toward some same-sex couples seeking to start or expand their families.
“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.
“Either way it has shown itself to be out of step with the majority of Australians who support same-sex couples raising children.
“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,” Croome said.
A spokesperson for Queensland Health Minister Tim Nicholls said the original laws introduced by the former Labor government had been improved through subsequent amendments.
“Under Labor’s laws these couples may not have been able to carry the child at all,” the spokesperson said.
“We made these amendments so that there was a pathway for them to be able to achieve this.”
Shadow Health Minister Mark Bailey said the focus should be on eliminating discrimination rather than assigning blame.
“Rather than playing the petty politics of blame and finger-pointing, Minister Nicholls needs to focus on ensuring his department understands his amendments and can provide the appropriate advice to LGBTIQ couples,” Bailey said.
