Bills Committee on Human Reproductive Technology Bill (Agenda) 5 Jan 99

Legislative Council

LC Paper No. CB(2) 1642/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill

Minutes of the sixth meeting held on Tuesday, 5 January 1999 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
Dr Hon LEONG Che-hung, JP
Hon CHAN Yuen-han
Hon YEUNG Yiu-chung
Hon LAW Chi-kwong, JP

Members Absent:

Hon MA Fung-kwok
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP

Public Officers Attending:

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. Confirmation of minutes of meetings
(LC Papers Nos. CB(2)903/98-99 and CB(2)904/98-99)

The minutes of the meetings held on 14 and 29 October 1998 were confirmed.

II. Meeting with the Administration
(LC Papers Nos. CB(2)801/98-99(02), CB(2)904/98-99(01) and (02))

Limitations of cryopreservation

2. Principal Medical and Health Officer (PMHO) referred members to Annex B of LC Paper No. CB(2)801/98-99(02) and briefed members on the limitations of the cryopreservation and the recommendations of the Provisional Council on Reproductive Technology (PCRT).

3. Dr LEONG Che-hung asked whether cryopreservation was allowed for non-medical reasons. For instances, a man had his sperms stored for future use and then underwent sterilisation because he did not want to have children now, or a woman had her embryo stored for future use because she was too engaged with her work at the moment. In other words, whether cryopreservation was allowed for personal convenience under the law and if so, whether it would become a privilege of the rich who could afford to pay a reproductive technology (RT) centre the cost for cryopreservation as long as he wished. He pointed out that this involved ethical and moral issues. He reminded members that the broad principle of the Human Reproductive Technology Bill (HRTB) was to ensure safe and informed RT practices and not to commercialise the practices.

4. PMHO replied that the PCRT had considered the technical and operational aspects of cryopreservation but had not discussed individual scenarios in details. The PCRT had recommended that the storage of gametes and embryo might be provided for cancer patients or other patients who might be rendered infertile as a result of chemotherapy, radiotherapy or surgery. The Code of Practice (COP) would specify that the maximum storage period of both gametes and embryos would be 10 years, which meant that even an individual could afford the cost of cryopreservation, he could not store his gametes for an unlimited period of time. A RT centre violating this rule would face the risk of losing its licence.

5. Dr LEONG Che-hung said that to his understanding the time limit did not mean that a RT centre had to discard the gametes or embryo after 10 years of storage. It only meant that after 10 years a RT centre could discard the gametes and embryos without any legal liability. The reason for the provision was to prevent a client from making claims against the RT centre after the statutory time limit. In other words, storage of gametes and embryos for 10 years or more was not prohibited by the law.

6. Mr Michael HO pointed out that people might need cryopreservation for different reasons. He asked the Administration whether it had considered to confine the provision of service to medical grounds. Dr LEONG Che-hung said that he had reservation about restricting the service to medical reasons only, given donated semens also required the techniques of cryopreservation. The Chairman said that alternatively, RT procedures might be allowed for medical grounds only. Mr Michael HO pointed out that the storage of gametes and embryo might not be regarded as RT procedures. He asked the Administration to consider regulating the use of cryopreservation to those in genuine need. Dr LEONG said that since the delineation of semen donation, cryopreservation and RT procedure was not clear, he was concerned about people taking advantage of the loophole in law and commercialising the procedure.

7. PMHO responded that the PCRT had focused its discussion on the technique and time limit of cryopreservation and had not touched on the policy aspect. He explained that since the HRTB provided for the supervision of RT and related activities, the storage, treatment and disposal of the gametes and embryos were actually covered by the HRTB. The Administration undertook to reconsider members' concerns.

Adm

8. In response to the Chairman, PMHO said that only licensed RT centres would be allowed to carry out cryopreservation as specified under the HRTB.

9. In response to a question from Mr YEUNG Yiu-chung, Dr LEONG Che-hung explained that for cancer patients or other types of patients, the maximum storage period of gametes would be until the patient reached the age of 55, having regard to the well-being of the child. Principal Assistant Secretary for Health and Welfare (PASHW) added that the age limit had taken into consideration overseas practices. As embryos involved the fertilisation of eggs and sperms, PMHO said that the maximum storage period for embryos for these patients would be 10 years or 55 years old, whichever was less.

10. Mr Michael HO asked whether the age limit of 55 would contravene discrimination legislation. Senior Assistant Legal Adviser (SALA) said that under the existing anti-discrimination legislation, it would not be discriminatory to set the limit at a specific age. PMHO said that he would seek legal advice and revert at a future meeting.

Adm

11. Referring to paragraphs 9 and 10 of the paper, the Chairman asked when the written consent for stored gametes or embryos to be donated for research had to be signed. PMHO explained that when donors subscribed their gametes or embryos for storage, they needed to sign a consent to specify the purpose(s) which might be (i) for treatment for themselves or spouse, (ii) for treatment of other infertile patients, (iii) for research. The consent should also specify the maximum period of storage and to state what should be done with the gametes or embryos in case they died. In view of the paramount consideration of the welfare of the child, no posthumous use of gametes or embryos by the surviving spouse would be allowed.

Legislation on RT and surrogacy in United States

12. PMHO introduced LC Paper No. CB(2)940/98-99(01) which set out the legislation on RT and surrogacy in USA. In response to Miss CHAN Yuen-han, PMHO explained that the eight states in USA mentioned in paragraph 3 of the paper had little legislation on RT and surrogacy. They had not provided the background for the legislation. In California, recipients were required to give written consent for use or implantation of donated gametes while written consent was not required of men who donated sperm to a licensed bank. Dr LEONG Che-hung opined that the practices of other countries could be used as reference only, as they might not be suitable for Hong Kong.

Surrogacy

13. PASHW said that in response to members' concerns at the last meeting, the Administration had proposed in LC Paper No. CB(2)940/98-99(02) to confine a surrogate mother to a woman who was a Hong Kong resident within the meaning under the Immigration Ordinance (Cap. 115) in order to further enhance the enforcement of prohibiting surrogacy on commercial basis.

14. Members generally did not support the proposal because there were practical difficulties. They made the following comments -

From medical point of view, surrogacy was a medical treatment and those who were infertile should not be denied of the service because the surrogate mother was not a permanent resident of Hong Kong;
Given the close relation between the mainland and Hong Kong, it was possible that the surrogate mother, who was usually a close relative of the commissioning couple, resided in the mainland; and
The proposal would deprive foreign visitors from undergoing RT procedures in respect of surrogacy in Hong Kong.

15. Members unanimously considered that the proposal could not solve the problem of commercial surrogacy. Members stressed that surrogacy should be allowed for medical reasons only and should be discouraged. Representatives of the Administration agreed.

16. Addressing Miss CHAN Yuen-han's concern over commercial surrogacy, SALA said that any person who breached clause 15 would have committed criminal offence. However, if the commercial surrogacy was arranged outside Hong Kong, the burden of proof could be quite cumbersome and there would be difficulties to decide which court should have the authority to rule on these cases. This legal issue was too broad and was beyond this Bills Committee to handle. PASHW confirmed that if any part of commercial arrangement was made in Hong Kong, it would be caught by the HRTB.

17. Mr Michael HO said that one of the ways to reduce commercial surrogacy was to confine the arrangement to persons who were genetically related. If this was to be done, it was necessary to confer the power to the future Council on RT (the Council) to ascertain whether the parties concerned were genetically related and whether there were commercial dealings.

18. Dr LEONG Che-hung said that the proposal would make the function of the Council similar to that of the Human Organ Transplant Board (the Board) which was responsible for vetting applications involving organ donation from non-genetically related persons. However, unlike organ transplant which required approval from the Board, surrogacy could be carried out by a licensed RT centre without the need to seeking permission from the Council.

19. SALA said that although it was not necessary to seek permission from the Council, the HRTB imposed a criminal liability under clause 15(1)(d) for persons who "carry out or participate in any act in furtherance of any surrogacy arrangement where he knows, or ought reasonably to know, that the surrogacy arrangement is the subject of any act which contravenes paragraph (a)" regarding payment. PMHO said that the COP also provided a monitoring mechanism whereby RT centres were required to report to the Council on cases of surrogacy within three months after completion of the procedure for each treatment cycle. Non-compliance might result in revocation of the licence.

20. PASHW said that Mr Michael HO's proposal provided a preventive mechanism for commercial surrogacy while the HRTB would subject a person to criminal liability only upon discovery of commercial surrogacy. SALA said that since the Council was empowered under clause 42(2) to make regulations, it could make regulations enabling the attachment of conditions against assisting commercial surrogacy to every licence as a preventive measure.

21. Dr LEONG Che-hung said that if the Council was to ascertain commercial surrogacy before RT procedures were being carried out, then commercial dealings in respect of sex selection, cryopreservation, semen donations should also be vetted by the Council. He expressed concern about the difficulty of establishing facts about commercial dealings which had already been experienced by the Board, and the burden of proof on the Council if all RT and related procedures were to be vetted by the Council. He supported the present proposal whereby licensed RT centres would be permitted to carry out surrogacy and the Council would be empowered to revoke the licence if a RT centre had breached the conditions.

22. Miss CHAN Yuen-han said that she had reservation about prosecuting an offender only after violation of law. Mr LAW Chi-kwong said that he agreed with Dr LEONG that there would be operational difficulties if permission had to be sought in every RT procedure. He supported the present proposal which would adopt a two-tier approach for enforcement of prohibition against commercial dealings. He said that the licensing system was already a preventive monitoring mechanism given that a licence would only be issued when a RT centre had satisfied all the conditions set out in COP and the law. Any offence discovered thereafter would be governed by the law which could be regarded as a remedial monitoring mechanism. Mr Michael HO said that having considered members' comments, he did not object to the present system whereby a person or a RT centre would only be penalised upon discovery of an offence.

23. The Chairman said that the Bills Committee would need to see the COP in order to understand whether the monitoring mechanism for commercial surrogacy was effective. Members agreed. The Administration undertook to ask the PCRT to provide a draft copy.

(Post-meeting note : a copy of the draft COP was issued vide LC Paper No. CB(2)1126/98-99 on 20 January 1999.)

24. On members' comments about the definition of payment being too loose, PASHW said that the Administration had suggested that either to authorize the Council to expand on the term "payment" when making the regulation, or leave any problematic cases involving payments to the court. Dr LEONG Che-hung commented that the Council would be shouldering too much responsibilities if the first suggestion was to be applied. Members agreed with the Administration that the first suggestion could not resolve all the problems as the Council would have similar difficulties in trying to define "payment".

III. Dates of next meetings

25. The next meeting would be held on 20 January 1999 at 8:30 am. Members agreed to schedule two more meetings for 9 and 23 February 1999 at 8:30 am.

26. The meeting ended at 10:20 am.

Legislative Council Secretariat
29 March 1999