Legislative Council

LC Paper No. CB(2) 1639/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill

Minutes of the fifth meeting
held on Tuesday, 8 December 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
Hon YEUNG Yiu-chung
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP
Hon LAW Chi-kwong, JP

Member Absent :

Hon MA Fung-kwok

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 Constance CHAN

Assistant Director of Health (Health Administration and Planning)

Dr Thomas CHUNG Wai-hung

Principal Medical and Health Officer (3)

Mr G A FOX

Senior Assistant Law Draftsman

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. Matters arising

Checklist of outstanding issues
(LC Paper No. CB(2)801/98-99(01))

Members briefly discussed the checklist.

II. Meeting with the Administration

2. Referring to some of the outstanding items in the checklist, DSHW advised that he would need to seek views from the Provisional Council on Reproductive Technology (PCRT) before finalising the stance of the Administration.

Code of Practice (COP)

3. Dr LEONG Che-hung advised that the draft COP was almost finalised. He personally was of the view that the draft should be released to LegCo. The Chairman requested the Administration to obtain a copy of the COP for members' information.

Adm

(Post-meeting note : A copy of Draft COP was issued vide CB(2)1126/98-99 on 20 January 1999.)

Artificial Insemination by Husband (AIH)

4. Dr LEONG Che-hung pointed out that the Human Reproductive Technology Bill (HRTB) did not regulate AIH which might involve selection of sex. He asked whether sex selection was allowed under AIH and if not, he suggested the drafting be improved to avoid any confusion. DSHW replied that although AIH would be allowed without specific statutory control, the selection process itself involving the screening of the sperms, selecting the chromosome and implanting it to the wife's body was related to reproductive technology (RT) procedures and would be covered by the HRTB. He undertook to clarify the issue at a future meeting.

Adm

Access to information
(LC Paper No. CB(2)801/98-99(02))

5. Principal Medical and Health Officer (PMHO) introduced the paper which set out the practice in UK in regard to access to information. The paper also provided a table comparing the practice of access to information in Hong Kong, UK and Australia.

6. Dr LEONG Che-hung commented that the practice in Victoria of Australia was going too far. In essence, Victoria allowed the child born as a result of RT treatment to apply to the Central Register of the Infertility Treatment Authority for identifying and non-identifying information of the donor and vice versa. He also had reservation about the release of identifying information of the donor under special circumstances. He reiterated that the law should safeguard the interests of the donor. Miss CHAN Yuen-han said that she personally supported Dr LEONG's view. Dr LEONG further asked whether the parents were legally obligated to disclose to the child that he was born as a result of RT procedures.

7. DSHW and the Senior Assistant Law Draftsman (SALD) replied that the disclosure was not obligatory on anybody. It was a matter entirely for the parents to determine whether to tell the child or not. As to whether the Council on RT (the Council) would tell or not was a matter of law.

8. Mr Michael HO said that he agreed that disclosure by parents should be carried out on a voluntary basis. He held the view that the practice in Western Australia, which allowed disclosure of identifying information of the donor with the consent of all parties concerned should not be disregarded. He said that he needed some time to consider the issue.

9. Mr LAW Chi-kwong said that the HRTB should be in line with the practice of other laws of similar nature. For instance, if the legislation on adoption did not require the adopted parents to disclose the child's origin, then the same should apply to HRTB. He said that while a child should have the right to ask about his origin if he was in doubt, the responsibility to disclose information should not be imposed on the parents. He opined that the practice in Western Australia, if acceptable to all members, did not need to be laid down in law because the child would be informed of his origin if all parties had given their consent. He said that it would be impractical to impose the responsibility on the Council either because it would need to use a lot of resources to locate the child in order to release the information to him when he became of age.

10. SALD said that if the law specified that the donor's identity would not be revealed and the law was subsequently changed, then the semen donor ought to be protected because at the time of donation, there was no such requirement.

Surrogacy
(LC Paper No. CB(2)801/98-99(02))

11. PMHO briefed members on the surrogacy legislation in UK as set out in the paper. He informed members that in the USA, there was minimal regulation on surrogacy at federal level, and not many states provided detailed provisions on surrogacy arrangements. As the replies from the USA had just been received, the Administration would consolidate the information and discuss with members at the next meeting.

Adm

12. In response to Mr LAW Chi-kwong, PMHO clarified that surrogacy contracts were not enforceable in the UK and would not be enforceable in Hong Kong. Dr LEONG Che-hung said that one of the differences between the UK and Hong Kong legislation was that in Hong Kong using donated gametes for purposes of surrogacy arrangement would be prohibited.

Surrogate mother

13. In response to a question from Mr Michael HO, Assistant Director of Health (ADH) said that the COP would specify that a woman who was at a higher risk of suffering from complications of pregnancy should not be a surrogate mother. The Chairman questioned why the requirements were not specified in law. Mr LAW Chi-kwong said that he inclined to support the Administration for two reasons. Firstly, he considered that it would be more appropriate for matters which had legal, social and ethical implications to be laid down in law. As the subject matter was more like a medical issue, a guideline in the COP would suffice. Secondly, putting the requirements in law would be too rigid. Members supported his view.

Commercial surrogacy

14. Dr LEONG Che-hung referred to the Human Organ Transplant (HOT) Ordinance and said that the HOT Board was also faced with the difficulties of establishing facts about commercial dealings. He asked the Administration whether there were any yardsticks for assessing commercial arrangements.

15. ADH said that payment was defined in clause (2). The definition of "payment" under surrogacy arrangement was more stringent than other RT procedures. In other RT procedures, "payment" meant payment in money or money's worth but did not include any payment for defraying or reimbursing the cost of removing, transporting or storing an embryo or gamete to be supplied; and any expenses or loss of earnings incurred by a person and attributable to the person supplying an embryo or gamete from the person's body. In the case of a surrogacy arrangement, the definition of "payment" excluded any payment for defraying or reimbursing any expenses incurred by the surrogate mother for any RT procedure; or pregnancy and delivery of a child born pursuant to the arrangement only. In this regard, any loss of earnings as a result surrogacy would not be reimbursed to the surrogate mother. The reason was to discourage surrogacy.

16. Mr LAW Chi-kwong said that special arrangement could be made to pay the surrogate mother for loss of income without violating the law. For instance, the commissioning couple donated money to a company which in turn gave the surrogate mother paid leave to compensate for loss of income. The Chairman said that alternatively, the commissioning couple could hire a surrogate mother as an employee and to give her paid leave.

17. SALD said that according to law, only expenses involved in pregnancy and delivery of the child were not regarded as payment. Loss of earnings of a surrogate mother due to leaving a job was not covered in law. If a woman was entitled to being paid while she was on maternity leave, that was her legal right when she was pregnant. The circumstances where that would be a payment would be that the surrogate mother was not entitled to the payment but the employer paid her because someone had donated the money for that specific purpose.

18. Mr LAW Chi-kwong considered that the issue of entitlement was a matter of discretion of an employer. As a company might receive donations from time to time, it was very difficult to associate the person who donated the money with the surrogate mother. One could easily bypass the law through special arrangement.

19. Dr LEONG Che-hung asked whether reimbursing unpaid leave to the surrogate mother would be regarded as payment. DSHW reiterated that according to the HRTB, only expenses incurred by the surrogate mother for RT procedures, pregnancy and delivery of a child born pursuant to the arrangement were reimbursable. ADH added that reimbursing expenses on medical check-up before delivery was not regarded as payment. SALA said that the yardstick had been clearly prescribed in law, but there could still be exceptions. For instance, in the restaurant trade it was a common arrangement for an employee who had to take leave to find a substitute and pay that substitute. Under the circumstances, the payment could be interpreted as expenses incurred for the absence of the surrogate mother and reimbursement might not be considered as commercial dealings.

20. On members' question as to who should adjudicate whether a certain arrangement was commercial surrogacy, SALD said that although the Council might express its view, it would be for the court to decide because clause 15 made it a statutory offence of a person who engaged in commercial surrogacy arrangement.

21. Mr Michael HO expressed concern that other than the case quoted by SALA, there were many other cases which might result in legal proceedings. DSHW responded that given the various types of economic activities in Hong Kong, it was very difficult to make an exhaustive list of such operations and to have it covered by law. The law could only provide a basic framework governing prohibition against commercial surrogacy and any other grey areas would have to be adjudicated in court. He said that the example cited by Mr LAW Chi-kwong regarding a commissioning couple donating money to a company also fell in the grey area. He noted that this might lead to litigations but if the criteria were to be rigidly written in law, there might be even more disputes because the list was not exhaustive. Dr LEONG Che-hung agreed with DSHW.

22. In response to a question from Dr TANG Siu-tong, SALD said that when these cases were brought to the court, the Secretary for Justice would be the prosecutor. If the Council believed that there was information indicating that someone was engaging in commercial surrogacy arrangement, the first thing the Council should do would be to inform the police of whatever evidence it might have. The police would carry out the investigation and any evidence they gathered would be passed to the Department of Justice. The Department of Justice would study the evidence and see whether there was contravention of section 15 and would take legal action if necessary. SALA added that basically for all criminal cases, the decision whether to prosecute was vested in the hands of the Department of Justice. The Bill had specified that offences under the proposed Ordinance could only be prosecuted with the consent of the Secretary for Justice.

23. Mr LAW Chi-kwong expressed concern about cases where there were no commercial arrangements between the surrogate mother and the commissioning couple but were construed as one and the parties concerned were prosecuted. For example, a relative living with an infertile couple who later made a surrogacy arrangement with her. The couple continued to take care of her by providing meal and board but there were no commercial payments as such. Mr LAW said that the Council should provide clear guidelines with a view to striking a balance between the prohibition against commercial surrogacy and having innocent parties prosecuted. SALD replied that the Council could provide guidelines in the COP to cover this area and it was not necessary to amend the HRTB. If any prosecution was brought, the court and the Secretary of Justice would take into consideration the background of the arrangement before making a decision.

24. In response to another example quoted by Dr LEONG Che-hung about the commissioning couple paying a mortgage for the surrogate mother because she could no longer work after pregnancy, SALD said that that would be a breach of law because it would be an offer in money or money's worth to induce the surrogate mother into an surrogacy arrangement. DSHW supplemented that the way that the HRTB was drafted was strict because the policy was to discourage surrogacy arrangement. The arrangement was extremely inconvenient for the commissioning couple and the surrogate mother if they were unrelated, but the arrangement was not so much a problem if the surrogate mother was a close relative like a sister or mother.

Protection for surrogate mother

25. Miss CHAN Yuen-han expressed concern over the protection for the surrogate mother, who was an employee of the commissioning couple, but was not given her entitlements because disputes arose during the course of pregnancy. SALD explained that surrogacy was unenforceable on both the commissioning couple and the surrogate mother, including in relation to expenses. A woman who entered into a surrogacy arrangement on the basis that she would be reimbursed on pregnancy and delivery expenses could do nothing if the commissioning couple no longer wanted the child and would not pay for the bills. Or alternatively, if the surrogate mother wanted an abortion, the commissioning couple could not get an injunction to stop her.

26. Miss CHAN Yuen-han expressed concern about the maternity entitlements of a surrogate mother. DSHW responded that there were no provisions for surrogacy arrangements in labour and employment legislation. He would examine existing ordinances to see whether there were loopholes which would facilitate employers to treat a surrogate mother differently from other pregnant employees. Dr LEONG Che-hung said that labour legislation would only set out the entitlements of an employee during pregnancy and would not have regard to the cause of pregnancy. He did not see how the law could be written in such a way to deprive a surrogate mother from maternity entitlements.

Adm

Surrogacy arrangement outside Hong Kong

27. The Chairman said that poverty could be a factor leading to commercial surrogacy arrangement between a commissioning couple in Hong Kong and a surrogate mother in China. Miss CHAN Yuen-han asked whether the law required the surrogate mother to be a Hong Kong resident. She also asked that if an arrangement was made outside Hong Kong, whether the parties concerned would be bound by the law in Hong Kong.

28. DSHW clarified that the law did not make reference to the resident status of a surrogate mother. SALD said that if everything relating to surrogacy was done in China, the law would have no binding effect on China. If however the negotiation for the arrangement was done in Hong Kong, and if it was on commercial basis, then it would breach clause 15. SALA said that each case should be considered on its own facts. The basic principle was that if the arrangement was made outside Hong Kong but the result of the offence was to take place in Hong Kong, for example arrangements were made outside Hong Kong but the child was born in Hong Kong and delivered to the commissioning couple, then Hong Kong courts might have jurisdiction.

29. Miss CHAN Yuen-han expressed concern over enforcement in a situation where a woman came to Hong Kong, received RT procedures and left the place carrying the child in somewhere else and where payments were made or received outside Hong Kong. SALD responded that this was a grey area. One way of solving the problem was to apply the provision to Hong Kong residents wherever they should be, similar to the application of international conventions. SALA said that the answer to the problem was a broader legal issue not confined to the HRTB. If part of the offence and result of the offence were committed in Hong Kong, the court of Hong Kong might have jurisdiction. Addressing the concern of the Chairman, SALA said that the child could legally enter Hong Kong through adoption procedure.

30. DSHW said that surrogacy itself was not illegal, but if there were payments involved, then the arrangement would be illegal. In this regard, payment made outside Hong Kong, subject to individual circumstances, might not constitute an offence. SALD responded that even if the money was received outside Hong Kong, that could still be an offence. In response to Miss CHAN Yuen-han, the Administration undertook to consider means to tighten legislation to prevent commercial surrogacy arrangement from being made outside or partly in Hong Kong.

Adm

Liabilities of the Council and the person carrying out RT

31. Dr LEONG Che-hung expressed concern about the difficulty of the Council to ascertain whether there were commercial dealings involved in a surrogacy arrangement in the absence of any yardstick. ADH clarified that the Council would be responsible for issuing licences but the law did not require the Council to handle surrogacy applications.

32. In response to a further question from Dr LEONG, PMHO said that if a person was aware of commercial surrogacy and took part in RT procedures, he would be accountable. SALD said that if the person wanted to protect himself, he could ask the commissioning couple and the surrogate mother to provide a statutory declaration that they had not entered into any payment arrangement except for the expenses relating to pregnancy and delivery of the baby. Dr LEONG suggested that this procedure should be included in the COP.

Adm

Selection of sex

33. PMHO introduced Annex A to the paper which covered the background on sex selection by means of RT and the recommendations of the PCRT. Members in principle supported that sex selection should be allowed on medical grounds only.

34. Mr LAW Chi-kwong said that he did not quite understand why the relevant medical bodies which the PCRT consulted considered it impractical to draw up a list of severe sex-linked genetic diseases for inclusion as a schedule to the HRTB. He considered that the provision of such a list in the COP was not strict enough. He suggested to put in the form of subsidiary legislation a procedure for determining which sex-linked diseases were severe and whether such diseases should be regarded as valid reasons for allowing sex selection, so as to provide a clear guideline for the medical profession.

35. Mr Michael HO held the view that while a list of severe sex-linked genetic disease should be made available, one's decision on sex-selection did not need to follow the list. If commissioning parents were prepared to accept the fact that their child might inherit a sex-linked genetic disease, then they might not proceed with sex selection.

36. DR LEONG Che-hung said that the PCRT had deliberated on the appropriate regulatory mechanism and initially it considered that a list of severe sex-linked genetic diseases would help to prevent the possibility of abuse if sex selection was allowed on medical grounds. After consulting the relevant medical bodies, it was found that it would be difficult to define the severity of diseases. To provide better control, it was then decided that sex selection would only be allowed with the consent of two registered medical practitioners who would certify that sex selection was needed for medical reasons. Mr Michael HO quoted the similar arrangements for abortions and considered that certification by two medical practitioners was still too lax. Miss CHAN Yuen-han shared the view.

37. ADH said that the concerns of members had been deliberated by the PCRT. The PCRT considered that it would be difficult to draw up an exhaustive list of severe sex-linked genetic diseases because the risks and severity level of a sex-linked hereditary disease varied from person to person and from case to case. The PCRT therefore recommended that a non-exhaustive list of sex-linked genetic disease without defining the severity of diseases be provided in the COP for reference purpose. In addition, a commissioning couple who wished to exercise sex selection through RT was required to meet the two criteria in clause 13(3) which set out that sex selection through RT would only be allowed where "the purpose of such selection is to avoid a severe sex-linked genetic disease which may prejudice the health of the embryo (including any foetus, child or adult which may arise from the embryo); and not less than 2 registered medical practitioners each state in writing that such selection is for that purpose".

38. Some members commented that the control on sex selection was too loose. DSHW said that members might wish to consider whether the list of sex-linked diseases should be included in the COP or in the form of subsidiary legislation. In response to Dr LEONG Che-hung, ADH undertook to provide more information on PCRT's discussion on sex selection.

Adm

III. Dates of next meetings

39. The next two meetings would be held on 5 and 20 January 1999 at 8:30 am.

40. The meeting ended at 10:35 am.

Legislative Council Secretariat
14 April 1999