Queensland Health Minister Orders Review of Fertility Clinic Guidance After 'Discriminatory' Family Limit Interpretation

Queensland's health minister has instructed the state's health department to review its fertility clinic guidance after several women were told they could not proceed with their treatments.

It follows ABC reporting of a lesbian couple who were informed they were no longer the same family under Queensland Health guidelines and told they may not be able to conceive using the same sperm donor.

In Queensland, donated sperm or eggs cannot be used to create more than 10 Australian families, which the state's legislation defines as a parent, their children and their spouse, if any.

But in February, Queensland Health released general guidance advising fertility providers to count lesbian couples who both conceive using the same donor as two separate families.

Surrogacy and fertility lawyer Stephen Page said Queensland Health's interpretation of the donor-related family limit was "clearly discrimination against lesbian couples".

"The legislation is quite clear that family is you, your partner and your children," he said.

"We've long recognised lesbian couples under the Status of Children Act in Queensland and under the Family Law Act, and of course under the Marriage Act."

While the health department is due to complete its review in the coming weeks, Queensland women and fertility clinics are still subject to the "discriminatory" guidance.

'Heartbreaking' impact on patients

Deborah Poerio, 36, has been trying to get pregnant through IVF for six years. After creating four embryos in April, she thought she may finally get the chance.

However, in a "heartbreaking" call on July 23 from her fertility provider, Monash IVF, she was told she could not go ahead with an embryo transfer because there were no more family spots available with her sperm donor.

In a follow-up email, the clinic told Ms Poerio there were 10 families allocated to her donor, one or more of which were same-sex couples who, under the updated guidance, now used more family spots.

"Until Monash IVF received further guidance from Queensland Health about the interpretation of the family limit, these couples had been considered as one family allocation," the clinic wrote in an in an email.

"As a result of this clarified advice, we are required to apply individual allocations under the family limit.

"This is why you were previously able to create embryos using this donor, but following the clarified advice, the donor is now considered to be over the family limit under the Queensland ART Act."

Ms Poerio was crushed by the news.

"The embryos are mine," she said.

"I created them with pain and with hope and they step in and say, 'You actually can't [transfer] because we misinterpreted the law'.

"No thank you, let me transfer my embryo."

Monash IVF applied to Queensland Health to allow Ms Poerio to use her embryos, and eight days later, the department granted her an approval.

But Ms Poerio said she felt it was "ridiculous" she needed to ask for an exemption in the first place.

"It has been a week filled with headaches, tears, worries, heartbreak and no-one is going to give me this week back," she said.

Guidance review as 'matter of priority'

In a statement, Health Minister Tim Nicholls said he had received and considered feedback about Queensland's family limit guidelines.

"I share many of the concerns that have been raised in relation to the Department of Health's interpretation of the law and guidance to service providers," he said.

"I have asked the department to seek further advice as a matter of priority, and that guidance materials be reviewed following the provision of this advice."

The ABC understands this review process is expected to be complete within a matter of weeks.

Advocate calls for immediate clarification

Michelle Galea, founder of Assisted Reproductive Treatment Families Australia and Australian Solo Mothers by Choice, said Queensland Health was "making the donor pool smaller for no good reason" by requiring lesbian couples to use two family allocations.

"I want a clarification and I need it today," Ms Galea said.

"We can't wait another month, we can't wait another two weeks.

"We have got women who are in the midst of their procedures and their mental health is just debilitating."

In a statement, a spokesperson for Monash IVF said the company understood "how distressing the recent regulatory changes to donor limits in Queensland have been for patients across the IVF sector".

"Monash IVF supports family limits to protect donor-conceived people and would support a national approach to these regulations," the spokesperson said.

"However, the new regulations in Queensland, which revise the definition of a family, are having unintended consequences for some patients, affecting their ability to access treatment using their existing donor embryos.

"Monash IVF is in discussions with Queensland Health and would support Queensland Health in a review of the regulations to ensure they achieve the intended purpose while also supporting continuity of care for patients, especially those who created embryos before the new regulations came into effect."

Queensland Health was contacted for comment.