Queensland Fertility Guidance Impacts Same-Sex Couples' Family Expansion

Some lesbian couples in Queensland have been told they are no longer the same family in fertility clinic guidance from the state's health department.

The Queensland Health advice, issued in February and given to fertility providers to help navigate the state's assisted reproductive technology (ART) legislation, has had a "devastating" impact on some same-sex couples trying to have more children, advocates say.

In Queensland, donated sperm or eggs cannot be used to create more than 10 Australian families, to reduce the risk of unintentional incestuous relationships between genetic siblings.

Under the Assisted Reproductive Technology Act 2024, a family is defined as a parent, their children and their spouse, if any.

Kate Cantrell, 39, and her fiancee Jessie Fraher, 36, thought they would have met that definition, after Ms Fraher gave birth to the couple's daughter, Evie, in 2022.

But when the women reached out to their fertility clinic earlier this year to begin the process of conceiving their second child, they were told this was no longer the case.

In an email, the couple was informed that if Ms Cantrell wanted to carry their next baby, she would require her own "family spot", and unfortunately, there were none available with their existing donor.

The clinic's advice falls in line with updated Queensland Health guidance which, for the purpose of calculating the family limit, considers a same-sex couple who both carry a pregnancy as two families.

Ms Cantrell said she and her fiancee had received no warning about the "shocking" policy change, or that it could derail the couple's plans to expand their family.

"I think it's incredibly unfair," Ms Cantrell said.

Because Ms Fraher carried their first child, she maintains a place within the family limit, and under the legislation and guidance, could legally carry another baby from the same donor.

She said she felt they would have been "cheated" if her fiancee was not allowed to give their daughter a genetically related sibling.

"I think the journey of motherhood can be so different from the person that's carrying the baby and the person that's not carrying the baby," Ms Fraher said.

"I've gone through that already and it's just such a beautiful process.

'Misinterpretation' of the law

Family creation lawyer Sarah Jefford said Queensland Health's guidance for calculating the family limit was a "misinterpretation" of the law.

"The legislation, I believe, is very clear," Ms 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."

Equality director at Rainbow Families Australia, Heather Corkhill, said the guidance was "devastating for people who are halfway through creating their families".

She said the laws were explicitly drafted to avoid discrimination against same-sex couples.

"All the way along, we've argued that a family is a family," she said.

"We're not two single people with children, and so it is important that the donor limit is set by family unit, not perhaps by woman or by the number of children created, because otherwise it indirectly discriminates against our families.

Exemption pathway 'should be unnecessary'

In a statement, a Queensland Health spokesperson did not provide a clear answer when asked if the ART legislation was being interpreted correctly for same-sex couples.

Instead, the spokesperson said the laws were 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," 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 Queensland Health Minister Tim Nicholls said the original Assisted Reproductive Technology Act, introduced by the former Labor government, was a "poorly drafted law" that "could have prevented some couples from growing their family using their chosen donor".

"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."

Queensland Shadow Health Minister Mark Bailey urged the government to ensure the legislation's guidelines were applied in a "non-discriminatory way for the LGBTIQ community".

"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," he said in a statement.

The ABC understands Queensland Health aims to assess most applications to exceed the family limit within 90 days.

Ms Corkhill said the exemption option should be unnecessary "because the law is clear on its face".

"We would like to see the government step in and fix this before we have to get people going through multiple hurdles to have a family."

Clinics 'fumbling in the dark'

Ms Cantrell said her clinic, City Fertility, eventually clarified that she did hold a reservation for a vial of her donor's sperm, which could count as a family allocation.

However, Ms Cantrell said the clinic was unable to advise if she would retain that reservation and family spot if she used the sample and it did not work.

"Their advice to us has been 'Call us when you receive a false test, and we'll quickly try and reserve some more sperm under your name', which puts so much pressure on you at a time when you're already feeling incredible pressure," Ms Cantrell said.

Ms Cantrell's donor is from New South Wales — which has its own ART legislation and family limit — and Ms Cantrell said City Fertility could not say "what the implications of that dynamic are moving forward".

In a statement, a spokesperson for City Fertility said it could not comment specifically on Ms Cantrell and Ms Fraher's situation because of patient privacy.

"Generally, any reservation of donor sperm means that that person has reserved a family allocation from that donor," the spokesperson said.

"Provided that the reservation continues and there is sperm available from that donor, the allocation is unaffected."