Legislative Council

LC Paper No. CB(2)1782/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill
Minutes of the tenth meeting held on Wednesday, 3 March 1998 at 8:30 am in Conference Room B of the Legislative Council Building

Members Present:

Hon Cyd HO Sau-lan (Chairman)
Hon Michael HO Mun-ka
Hon CHAN Yuen-han
Dr Hon LEONG Che-hung, JP
Dr Hon TANG Siu-tong, JP
Hon LAW Chi-kwong, JP

Members Absent:

Hon MA Fung-kwok
Hon YEUNG Yiu-chung
Hon Ambrose LAU Hon-chuen, JP

Public Officers Attending:

Mr Gregory LEUNG Wing-lup, JP

Deputy Secretary for Health and Welfare 1

Mr Eddie POON

Principal Assistant Secretary for Health and Welfare (Medical) 3

Mr Clement LAU Chung-kin

Assistant Secretary for Health and Welfare (Medical) 6

Dr Thomas CHUNG Wai-hung

Principal Medical and Health Officer (3)

Miss Frances HUI

Government Counsel

Clerk in Attendance:

Ms Doris CHAN

Chief Assistant Secretary (2) 4

Staff in Attendance:

Mr LEE Yu-sung

Senior Assistant Legal Adviser

Mrs Eleanor CHOW

Senior Assistant Secretary (2) 4

I. Internal discussion
(LC Paper No. CB(2)1391/98-99(01))

The Chairman asked members' views on setting a timetable for the scrutiny of the Human Reproductive Technology Bill (HRTB). Dr LEONG Che-hung said that it was necessary to regulate the practice of reproductive technology (RT) as soon as practicable because some RT procedures such as sex selection were already in practice. The Chairman suggested and members agreed to aim at resuming the Second Reading debate on the HRTB in June 1999. Members were urged to indicate their stance on the outstanding issues in the checklist at the next meeting.

2. Dr LEONG Che-hung referred to the Code of Practice (COP) and said that since the COP could be amended at any time by the future Council on Human RT (the Council) when it considered that certain procedures needed to be improved, it was not necessary to study its provisions paragraph by paragraph. Rather, it should be for members to raise areas of concern identified in the COP for discussion by the Bills Committee. Members agreed.

II. Meeting with the Administration

Limiting RT services to infertile couples
(LC Paper No. CB(2)1409/98-99(01))

3. Members noted the paper which set out the Administration's view on the suggestion of adding an explicit clause in the HRTB to limit the provision of RT services to infertile couples.

4. Dr LEONG Che-hung recalled that when the Committee of Scientific Assisted Human Reproduction (SAHR) discussed the usage of RT, it was agreed that RT procedures should only be used as substitutes for natural fertilisation if a married couple was medically proven to be infertile. Since this important principle was not covered in the HRTB, it was necessary to add a clause into it. He agreed with the Administration that "infertility" should be defined clearly in the HRTB.

5. Deputy Secretary for Health and Welfare (DSHW) said that the Administration supported the principle. His major concern was whether the medical profession had a consensus on the definition of infertility. He pointed out that there were situations such as psychological impotency and low sperm count which might or might not be considered "infertility". It might be necessary for a doctor to carry out tests to verify that a person was infertile. After all, infertility must be certified by a doctor if the principle was to be implemented.

6. Dr LEONG Che-hung said that he believed that infertility could be defined in medical terms. He suggested that the Administration should seek advice from local and overseas specialists and medical institutions. He pointed out that the term defined by the medical profession might or might not be accepted by the general public.

Adm

7. Principal Medical and Health Officer (PMHO) said that while it was possible for the medical profession to define infertility, it was imperative that the definition must be operationally feasible and accepted by the general public. Mr Michael HO agreed and said that members would study the medical definition and would make amendments, if necessary. Miss CHAN Yuen-han said that she had reservation about amending the medical definition . She said that any other definition which departed from the authoritative definition provided by the medical profession would be subject to challenge because different people had different perceptions. She expressed concern about making the definition too wide which might lead to abuse.

8. The Chairman asked whether cryopreservation should be limited to persons who would become infertile after undergoing treatment for diseases such as cancer. DSHW referred to the cases discussed at previous meetings and said that he disagreed to using cryopreservation for personal convenience. However, cryopreservation might be provided for cancer patients or other patients who might be rendered infertile as a result of chemotherapy, radiotherapy or surgery. After some discussion, members noted that the crux of the issue was whether cryopreservation should be regarded as a RT procedure. PMHO explained that the purpose of the HRTB was to regulate RT procedures and "relevant activity". The handling, storage or disposal of a gamete or embryo used or intended to be used in connection with a RT procedure or embryo research was regarded as "relevant activity" under the HRTB. If it was considered that the service of cryopreservation should only be allowed on medical grounds, it was necessary to make regulations or provide guidelines in the COP.

9. In relation to remarks made by Professor Haines of the Chinese University of Hong Kong about Australian cases which held that providing RT services only to married couples would be discriminatory, the Chairman referred to section of 56B of the Sex Discrimination Ordinance (Cap. 480) and said that the Senior Legal Adviser (SALA) had advised that according to that section limiting RT services to married couples would not constitute unlawful discrimination. SALA supplemented that technical amendment should be made to the definition of RT procedure in section 56B(2) to make the definition consistent with the definition in the HRTB. The Administration noted the comments.

Adm

10. Dr LEONG Che-hung asked about the definition of infertile "couple" and whether cohabiting couples were allowed to receive RT procedures. Miss CHAN Yuen-han said that she personally was of the view that for the well being of the child born through RT and better social order, RT procedures for infertile couples should be based on marriage relationship. The Chairman responded that people had different viewpoints and being a legislator, one should be cautious of not imposing one's value judgment on law, without regard to other people's right to choose their way of living. She said that it was important to strike a right balance. Miss CHAN responded that her view represented the views of many women in the society. She respected views of other persons which might be different from hers.

11. Dr LEONG Che hung said that members of the Committee on SAHR including social workers and the present Chairman of the Equal Opportunities Commission were of the view that for the welfare of the child, RT services should be limited to married infertile couple. In response to Dr LEONG, members unanimously supported the principle. Members also agreed that the principle should be laid down in the HRTB and considered it inappropriate to add an enabling clause to allow the Secretary for Health and Welfare to set out restrictive criteria on the provision of RT services in the form of subsidiary legislation as proposed in paragraph 4 of the paper. DSHW said that subject to the definition of "infertility", he would consider the procedures required to ascertain infertility of a couple and amendments to be made to the HRTB. In response to members, DSHW clarified that married couples should refer to marriage recognised by the laws of Hong Kong, and not restricted to registered married couples.

Adm

List of sex-linked genetic diseases
(LC Paper No. CB(2)1390/98-99(01))

12. PMHO briefed members on the views of various professional authorities on the preparation of a list of sex linked genetic diseases and the difficulties envisaged in including the list in the HRTB as covered in the paper. DSHW supplemented that if the list was included in subsidiary legislation, it would take longer time than that of COP for any updating to be done. He expressed concern over the autonomy of doctors being undermined because the decision of whether or not sex-selection of a particular disease should be allowed would be governed by the law and not their professional judgement.

13. Dr LEONG Che-hung agreed with DSHW and said that he did not favour including the list in law because it was difficult to define severity of sex-linked genetic diseases and the list was non-exhaustive. If the list was put in subsidiary legislation, some sex-linked genetic diseases which were not serious, such as colour blindness, would become convenient excuses for sex selection. Dr LEONG held the view that the arrangement would be subject to abuse. Dr TANG Siu-tong supported his view.

14. Mr Michael HO favoured including the list in a schedule in the form of subsidiary legislation. Addressing DSHW's concern about doctors' autonomy being affected, Mr HO said that while the list would ensure that a doctor should not act outside the schedule, the severity of diseases would have to depend on clinical investigation. If a doctor was of the view that a disease was not severe, he would have the total autonomy to say so. He accepted the fact that the list was non-exhaustive but considered that it could be updated without much difficulty, as in the case of poisonous and dangerous drugs being updated in the Poison List Regulations. Mr LAW Chi-kwong supported Mr HO's view. He said that the procedure to include the list in a schedule was open and proper. As regards doctors finding it difficulty to refuse requests for sex-selection where the diseases were on the list, he believed that the situation would occur equally if it was in the COP. In this regard, there was not much difference between putting the list in the COP or in subsidiary legislation. He said that whether the severity of a disease could or could not be defined was not important, the important thing was to establish an effective monitoring mechanism to ascertain whether a sex-linked genetic disease was severe.

15. DSHW said that sex selection should be regulated because human beings should not upset the natural balance of males and females in population. If the list was in a schedule, a couple might have the impression that they had the legal right to select sex if the disease in question was on the list. There would be psychological pressure on the doctor because he had to comply with the law. If, as suggested by Mr Michael HO, the list only served to limit the range of such diseases and doctors' certification on severity of disease was still required for sex selection, then the law should be written clearly to prevent any misunderstanding on the part of the couple that a doctor only had to certify on a sex-linked genetic disease.

16. Dr LEONG Che-hung said that if the list was in subsidiary legislation, the couple and the doctor could still collude and abuse the law. He said that he did not agree with DSHW that a doctor would be forced to perform sex selection because a disease was on the list, given that a doctor had the discretion not to perform certain task if he did not agree with the patient. If the list was in the COP which set out that severity of a disease should be certified by two doctors, a doctor who acted against the condition would be penalised by the medical profession. If the list was in a schedule, a doctor who performed sex selection in accordance with the list would argue that he had acted in compliance with the law, although the disease in question might not be regarded as severe by the medical profession.

17. Mr Michael HO said that if someone was bent on abusing the law, neither the COP nor subsidiary legislation could stop him. It was for the doctor to practice professional ethics. Mr LAW Chi-kwong pointed out that irrespective of whether the list was in the COP or subsidiary legislation, a doctor would have to make professional judgement on the severity of a disease and seek the Council's approval for sex selection. At the same time, a couple should have the right to know under what circumstances they could apply for sex selection. Dr LEONG Che-hung pointed out that the Council was responsible for issuing licence to RT centres and not approving application for sex selection. In response to members, DSHW clarified that the word "application" in paragraph 9 of the paper referred to "applying the technique of RT" and not "submitting application for approval". He confirmed that it was not necessary to seek approval from the Council for sex selection cases.

18. The Chairman said that since members were unlikely to reach consensus, members might wish to discuss the proposal of Messrs Michael HO and LAW Che-kwong with a view to closing any loopholes that might have arisen as a result. Members agreed. Dr LEONG Che-hung asked SALA whether the word "severe" could be used in law. He said that the word could be used in the COP because it would mean peer assessment of a disease by the medical profession. Mr LAW Chi-kwong said that the word "severe" would not be put before a particular disease. The way to present it in law would be to include a provision which set out a procedure to enable doctors to assess the severity of diseases that were listed in the schedule. Subject to the result of the assessment, sex selection might be allowed. He asked SALA whether such a provision could be made in the law. Mr Michael HO suggested that alternatively, the law should provide a list of sex-linked genetic diseases which might be considered for sex selection and set out that sex selection would be allowed if, in accordance with the guidelines in the COP laid down by the Council, the disease was assessed by the medical profession to be severe.

19. SALA advised that "severe" was a matter of degree and it would be difficult to prescribe precisely what is servere. If the word was used in legislation, the court might try to give effect to it by evidence of the prevailing standard of doctors reasonably competent in this specialty. However, given the loose nature of the word, there might be difficulties in interpretation and room for argument when it appeared in drafting.

20. In response to Mr LAW Chi-kwong, DSHW clarified that the list proposed in the COP was for reference purpose and had not defined the severity of diseases. Diseases which were not covered in the list could still be considered for sex-selection, provided that two registered medical practitioners had certified that sex selection was needed for avoidance of serious sex-linked genetic diseases. He considered including the list in the COP provided more autonomy and accountability for doctors. If the list was to be included in subsidiary legislation, provisions would have to be added to the HRTB to set out the accountability of doctors and explain clearly that the severity of sex-linked genetic diseases in the list was to be decided by two doctors.

21. Mr LAW Chi-kwong commented that the requirement for certification of two medical practitioners was too loose and might be subject to abuse. Members noted that doctors who breached the law would commit a criminal offence and could be fined and eventually be deregistered. For doctors who acted not in compliance with the COP, he might not be penalised but could be deregistered. In response to Mr LAW, Dr LEONG Che-hung said that he was aware of abuse in certain medical practice where the certification of two doctors was required. However, with the COP, peers could monitor the conduct of the doctors concerned. If it was in the law, peer judgement could not be possible if there was loophole in law. Mr Michael HO disagreed with Dr LEONG over the last comment.

22. The Chairman concluded the discussion as follows-

1. members agreed that a list of sex-linked genetic diseases was not exhaustive. If the list was in subsidiary legislation, the procedure to add or delete sex-linked genetic diseases would require slightly more time than compared with amendment to the COP;

2. severity of sex-linked genetic diseases could not be defined and put in law. It could only be assessed by doctors based on their professional judgement; and

3. to include the list in the COP or subsidiary legislation was a question of whether the control on sex selection should be implemented flexibly or stringently.

23. The Chairman requested the Administration to draft CSAs to incorporate the proposals of Messrs Michael Ho and Law Chi-kwong for members' consideration. Dr LEONG Che-hung said that his main concern was the inclusion of the list in subsidiary legislation would open up loopholes. If the drafting could effectively plug the loopholes, he would not object to putting the list in subsidiary legislation.

Adm

III. Date of next meeting

24. The next meeting would be held on 19 March 1999 at 4:00 pm.

25. The meeting ended at 10:24 am.

Legislative Council Secretariat
21 April 1999