Time limit
Section 27 of the ART Act says that donated sperm, eggs or embryos can’t be used if the sperm or eggs were collected from the donor more than 15 years ago. This is known as the time limit.
This safeguard helps protect the welfare of donor-conceived people by reducing the chance of very large age gaps between donors and donor conceived people or between donor related siblings. Research and lived experience show that many donor-conceived people want the option to form connections with their donor and with donor-related siblings. When donated sperm, eggs or embryos have been stored for a long time before being used, this can become more difficult, or sometimes impossible.
However, the Act recognises that applying the time 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 of the Act allows an ART provider to apply for approval to use donated sperm, eggs or embryos in exceptional circumstances, even if the 15-year time limit has been exceeded.
What is the time limit
The 15-year time limit starts from the date the sperm or eggs were first obtained from a person. If an embryo is being donated, then the 15-year time limit starts from the earliest date that sperm or eggs used to create that embryo were obtained.
How a decision is made
We take into account the time limit aims to protect the opportunity for donors, donor-conceived people and their families to form relationships. However, we want to make sure that people have fair opportunities to create or grow their families.
Guided by the core principles, we also take individual circumstances into account, including:
- How old are the donated sperm or eggs?
- Would approval still protect donors, donor-conceived people and donor-related people and their opportunity to connect if they want to in the future?
- 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 Have they changed or withdrawn their consent since the sperm or eggs were collected?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 time limit may be refused where the use is not considered reasonable.
The ART provider can request review of that decision within 20 business days. If this time has passed, or if a review is requested and the decision remains the same, the provider must dispose of the donated sperm, eggs or embryos within 90 days.
The requirement to dispose of donated sperm, eggs or embryos cannot be overturned.
90-day disposal requirement
If an application has been refused, and no review has been requested within the time limit, the 90 days start from the date notice of the decision is given to the provider.
If an application has been refused, and a review requested but the decision hasn’t been overturned, the 90 days start from the date notice of the outcome of the review is given to the provider.
An application to use sperm, eggs or embryos outside of the time limit should only be made when someone wants to use them. Refusal of the application means they can’t be used and no further applications are possible.
It would be potentially unsafe and harmful to keep in storage sperm, eggs or embryos that cannot be used. Disposal further reduces the risk that new donor-conceived people won’t have the chance to form relationships in the future.
Scenario: Using donated embryos to create a full genetic sibling
Background
Maria and Alex used donated embryos to have their daughter, who is now 12. The couple still have one embryo stored at the clinic. The embryo was donated 13 years ago. The donated sperm used to create the embryo was obtained from the donor 16 years ago, so the provider will need approval to use it outside of the time limit.
Maria and Alex would like to have a second child. They would like their daughter to have a full genetic sibling. They feel it is important for family connection.
Why this may be considered reasonable
- The donation of the embryo was originally made for the purpose of creating this family.
- The child would have a clear connection within an existing family.
- The original donor is still contactable and supports the application.
- The age gap between siblings would be significant but still within a range where forming relationships is possible.
Scenario: Using sperm donated by a family friend
Background
More than 15 years ago, Sam donated sperm to help his close friends, Priya and Ethan, conceive their first child. One child was born, and several vials of the sperm remain in storage.
Priya and Ethan would like to have another child using the same donor so that their children share a genetic connection. Using the sperm would be outside of the time limit, so the provider must apply to use it.
Why this may be considered reasonable
- The original donor (Sam) is still alive, well and supports the application.
- The parents want to maintain continuity within their family and minimise the number of donors involved in their children’s lives.
- The new child would enter a clearly established family with an existing sibling.
- The donor and both families already know each other, increasing the likelihood of an ongoing and meaningful connection for the donor-conceived child.
How to apply
Only ART providers can apply for approval. Contact ART@health.qld.gov.au for the required forms and guidance materials.