Lesbian Couples Defined As Seperate Families Under New QLD Health Fertility Guidelines

Same-sex female couples looking to create a family using fertility treatments in Queensland have discovered a peculiar new hurdle whilst accessing services.

New guidelines issued by Queensland Health now indicate that same-sex female couples who are both carrying a baby using the same sperm donor will be considered two seperate families.

The changes, which are intended to address donor limits are causing confusion for many same sex families.

Lesbian couples and same-sex female couples facing confusing hurdle when accessing fertility services

Earlier this year Queensland Health issued advice to fertility providers providing updates and direction on the assisted reproductive technology legislation in Queensland.

The updates specifically address limitations on access to donor sperm for the purposes of a “family limit” and specifically address same sex families in the updated information.

Under the section “What is considered a family” the direction states that “a donor-related Australian family includes a parent, their spouse (if they have one), and their children.”

It also states that “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.​”

It is this limit that is particularly causing confusion.

“​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” the directions continue.

“This applies even if they already have a child conceived with this donor and want their children to be genetically related.​”

Same-sex female parents are specifically addressed in the detailed explanations using a hypothetical scenario of “Belinda and Lily.”

“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.” it explains.

“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.”

Whilst it does not make it impossible for lesbian couples and same-sex female couples, it certainly makes it confusing, providing another hurdle with ART providers for couples forced to apply for exemptions.

The ABC reported on a couple Kate and her fiancee Jessie who experienced the confusing new process first hand. After contacting their ART provider to start the process of conceiving their next child they were told that they would require new “family spot” in order to continue.

“I think it’s incredibly unfair,” Kate told the ABC.

“It’s the symbolic significance of what that says to you when you have your government telling you you’re no longer considered a family.”

As Jessie carried their first child, the legislation would allow for her to carry their second child without issue, but not Kate.

Family creation lawyer Sarah Jefford also told the ABC she believed the directive was a “misinterpretation” of the legislation which she says is causing problems for lesbian couples.

Speaking to The Star Observer Ashley Scott from Rainbow Families called on Queensland Health to correct the guidelines.

“An exemption pathway is not a fix, it’s acknowledgement that the guidance is not inclusive of all families. If LGBTQ+ families now need to apply for special permission just to be treated as a family, then Queensland Health has built discrimination into the process and called it a solution” he said.

“We’re calling on Minister Nicholls to correct the guidance now, not force more families through a case by case appeals process for something the law never intended to restrict in the first place.”

“Queensland Health has taken a law that was explicitly designed to stop discrimination against LGBTQ+ families and applied it in a way that recreates exactly that.”

“When a couple who both want to carry a pregnancy are counted as two separate families instead of one, that’s not a technicality, it’s the government deciding our families count differently to everyone else’s. And that’s not ok.”

Rodney Croome from Just Equal called the government out-of-step and called on the state government to answer to the state’s anti-discrimination tribunal.

Queensland Health provided a response to the ABC that did not address whether or not the current interpretation of the legislation was being applied correctly.