Family limit
Section 25 of the ART Act says that donated sperm, eggs or embryos can’t be used if this would create more than 10 donor-related Australian families. This is known as the family limit.
This safeguard helps reduce the risk that two genetic relatives might unknowingly have an intimate relationship in the future.
However, the Act recognises that applying the family limit may sometimes lead to unfair or unreasonably harsh outcomes. It could mean that someone can’t have a child who is genetically related to an existing sibling, or can’t use remaining embryos from earlier treatment that represent their only chance to have a child.
Section 39B allows an ART provider to apply for approval to use donor sperm, eggs or embryos in exceptional circumstances, even if it would go beyond the family limit.
What is considered a family
Under the Act, a donor-related Australian family includes a parent, their spouse (if they have one), and their children. This definition can create challenges for people whose families change or grow, including through separation and re-partnering, or those with non-traditional structures.
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. This applies even if they already have a child conceived with this donor and want their children to be genetically related.
The family limit aims to protect donor-conceived people, not to stop families from growing or from having genetically related siblings raised in the same household. For this reason, the Act allows a provider to make an application to exceed the family limit in exceptional circumstances. This recognises real-world family structures, while still maintaining important protections for donor-conceived people.
How a decision is made
We take into account the family limit aims to protect donor-conceived people by reducing the number of genetically related families. However, we recognise that some people counted as separate families under the Act are raising their children together as one family.
Guided by the core principles, we also take individual circumstances into account, including:
- How many families have already been created using the donor’s sperm or eggs?
- Will the child be raised in an existing family?
- Would approval still meet the purpose of protecting donor-conceived people? Would it reduce the likelihood of future close-relative relationships? Does it protect against emotional impacts of having many donor-conceived siblings?
- Does the donor support the application? Have they changed or withdrawn their consent since the sperm or eggs were collected?
- How will the decision affect the intended parent(s), person(s) yet to be born, donor, and existing donor-conceived people?
Refusal of an application
An application to exceed the family limit may be refused where the use is not considered reasonable. The provider can request review of that decision within 20 business days.
Scenario: Separation and family growth
Background
Olivia and Tom used donor sperm to have their daughter several years ago. They later separated. As a single parent, Olivia would like to have another child using the same donor so that her daughter can have a full genetic sibling.
Under the Act, Olivia and her second child would count as an additional family over the donor’s 10 family limit. To use the same donor, Olivia's provider must apply for an exception.
Why this may be considered reasonable
- Both children would be raised together in one household and know each other as siblings. This aligns with the intent of the family limit (to avoid large numbers of unconnected families).
- The donor supports the application.
- Olivia's intention is to allow a sibling relationship and avoid introducing a new donor.
Scenario: Same-sex female couple both carrying a pregnancy
Background
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.
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.
Why this may be considered reasonable
- Both children would be raised in the same home with the same two parents.
- Belinda and Lily's intention is to grow one family not to expand the donor’s genetic footprint across unrelated families.
- The donor supports the application.
- Approving the application supports equitable reproductive choice.
How to apply
Only ART providers can apply for approval. Contact ART@health.qld.gov.au for the required forms and guidance materials.