Fragmented Assisted Reproductive Technology (ART) laws and inconsistent donor limits across Australia are creating compliance challenges for ART providers in the area of donor conception. ART providers and families alike would benefit from harmonised legislation and a national donor register to improve oversight and accountability.
ART and donor conception in Australia
Assisted Reproductive Technology in Australia is a constantly evolving sector which remains governed by individual and piecemeal state and territory legislation. The calls for consistent, harmonised legislation and a national donor register are not new and have been echoed by patient advocate groups and the industry alike.1
One area in which this varied legislation is causing challenges for providers is in the regulation of donor conception, including regarding donor family limits. A growing demand for donor gametes, i.e. sperm and eggs, and a shortage of Australian donors have resulted in an increased reliance on overseas suppliers such as US sperm banks.
Reports of unregulated donor markets and ‘super donors’, alongside a growing awareness of the rights of donor conceived offspring, have shone a spotlight on the need for regulation in this area.
In the first insight in our ART in Focus series, Recent developments in assisted reproductive technology, we discussed the three-month Rapid Review of ART and in-vitro fertilisation regulation and accreditation in Australia (Rapid Review) undertaken by federal health ministers. The Victorian-led review recognised the challenges of patchwork regulation across Australia, but stopped short of proposing a national law and/or donor registry.2
In the second insight of our ART in Focus series, we focus on the challenges faced by accredited providers in the growing area of donor conception.
Current legislative overview
While the recent Rapid Review indicated that an independent accreditation body will be in place by January 2027 and will be guided by updated national standards, the standards appear likely to be limited to areas such as performance monitoring, workforce and staffing guidance. ART legislation will continue to operate independently throughout each Australian state and territory.
The following table provides an overview of the current landscape in each jurisdiction.
| ACT | NSW | NT | QLD | SA | TAS | VIC | WA | |
|---|---|---|---|---|---|---|---|---|
Legislation |
No |
Yes (in part)3 |
No |
|||||
Donor Registry |
Yes |
Yes |
No |
Not yet |
Yes |
No |
Yes |
Yes |
Family Donor Limit |
five families within ACT; 10 families nationally4 |
five women ‘globally’ |
No limit |
Will be 10 families5 |
10 families |
No limit |
10 women |
five families |
Donor family limits
Donor family limits refer to the maximum number of families that a single donor can help create through gamete donation. The restrictions in Australia aim to strike a balance between minimising the risk of consanguineous relationships between donor-siblings and not unreasonably restricting the supply of donor gametes. Media reports in 20246 of donor conceived individuals facing the prospect of having up to 700 siblings raised community concern about the potential harms of unrestricted ‘super donors’.
The rationale for these restrictions is difficult to challenge, particularly where prior to their introduction, serial donors could contribute to creating an unmanageable number of genetic relatives. However, whilst the reasoning for these restrictions is sensible, there is a lack of consistency across Australian states and territories regarding the number of families allowed to be conceived by a given donor.
Depending on the jurisdiction, a provider who provides ART treatment using a donated gamete may commit an offence if the treatment is likely to result in the relevant family limit being exceeded.7
Donor conception registers
Five jurisdictions in Australia currently maintain some form of registry to track donors and enable donor-conceived people to access their genetic history and key information about their genetic parent. These databases are managed independently and are not linked between states and territories, thus increasing the risk of a single serial donor donating multiple times across multiple jurisdictions undetected.
As public awareness regarding donor conception increases, calls for a national donor register are also on the rise. A national register would assist in monitoring the donor landscape across the country and ensure that ART providers can more readily and accurately track donors and their ‘family-limit’ status.
Challenges for ART providers
Compliance with family limits
Compliance with varying family donor limits across Australian jurisdictions is difficult, given that donor information is not captured consistently - or sometimes not at all – depending on location. In the absence of effective regulatory oversight by a national body, much of the burden falls to the ART providers.
Recent developments in New South Wales have highlighted the ongoing challenges faced by ART providers. NSW Health recently wrote to various IVF providers advising that the state’s ‘five family limit’ applied globally, and did not just apply to donors and women residing within NSW or indeed Australia. This attracted media attention when Monash IVF and other providers temporarily paused donor treatments in order to investigate information held by, or accessible to them, regarding donors. NSW Health subsequently announced an exemption which would enable treatments currently in progress to proceed without penalty.8
Jurisdiction shopping
The variation in laws, limits and requirements among Australian states and territories has led to reports of jurisdiction shopping, where those seeking access to ART services travel to jurisdictions with more favourable regulations. Similar considerations apply for donors seeking to donate gametes.
For example, a serial sperm donor who has exceeded the family limit (of five) in New South Wales, could cross the border to ACT, where donor family limits arguably permit them to contribute to a further five families within the ACT up to a total of 10 families nationally. Travelling north to Queensland (where the donor family limit and donor conception register have not yet come into effect), or to the Northern Territory (which has no register and no current family limits) would then theoretically provide further lawful opportunities for donation.
This scope for jurisdiction shopping raises legal and ethical concerns, particularly as it undermines the intent of local laws designed to protect donor-conceived individuals, and may result in uneven distribution of donor resources.
The absence of a national donor register results in the lack of an accurate record for donors and donor-conceived siblings. It also impacts the ability of ART providers to ensure compliance with donor family limits, as without an accessible and reliable point of truth regarding donor information they are reliant on the veracity of information provided by the donor themselves.
Global interaction
When NSW Health recently indicated that the statewide ‘five-family limit’ applies globally, this highlighted legal and practical challenges as to whether a ‘global’ limit can be imposed, how this would be tracked and enforced, and how it would interact with the laws and practices of other countries.
As noted above, the importing of gametes from international donor banks is an increasing practice in Australia due to donor shortages. However, the quality and safety of protocols, the traceability of donors, and both the data collected and consent obtained at the time of donation are likely to vary significantly between overseas suppliers.
ART providers may face difficulty addressing these matters retrospectively in respect of existing gametes.
Key takeaways
The above issues highlight the challenges that inconsistent ART regulation across Australia poses in relation to donor conception.
Increased recognition of the rights of donor-conceived individuals has shone a spotlight on the need for regulation. Currently, patchwork legislation increases the risk of jurisdiction shopping among serial donors and makes it difficult for ART providers to adhere to varying family donor limits across the different jurisdictions. A national donor conception register and clear and consistent donor family limits would offer providers and patients a single, coherent framework across the country to help them combat some of the risks facing this part of the sector.
We anticipate that in the wake of the Rapid Review and the various incidents in the sector in 2025, the push for national consistency and tighter regulation may intensify. ART providers, in particular those operating across multiple states and territories, should continue to keep themselves apprised of developments in this area.
Providers should also review and update contracts with gamete providers in light of the various laws across the country regarding donor information requirements and conception limits.
We will continue to monitor this space with interest.
1 FSANZ: Findings, Recommendation and Framework for an Australian 10-year Fertility Roadmap (November 2024).
2 The shortcomings have been described as a ‘missed opportunity’ in introducing a national law.
3 The second stage of the Queensland legislation is expected to take effect in March 2026.
4 The ACT provides for a limit of five families within the ACT or 10 families Australia-wide.
5 The Queensland Donor Limit is set to take effect from mid-to-late 2026
6 Katherine's biological father was a prolific sperm donor. She could now have 700 siblings - ABC News
7 For example s 27 Assisted Reproductive Technology Act 2007 (NSW)
8 Fertility treatments impacted by donor limit mix-up can proceed under NSW Health exemption - ABC News
