Legislative Council

LC Paper No. CB(2)72/99-00
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill

Minutes of the 12th meeting held on Wednesday, 14 April 1999 at 8:30 am in Conference Room A of the Legislative Council Building

Members :

Hon Cyd HO Sau-lan (Chairman)
Present Hon Michael HO Mun-ka
Hon CHAN Yuen-han
Dr Hon LEONG Che-hung, JP
Dr Hon TANG Siu-tong, JP
Hon YEUNG Yiu-chung

Members Absent:

Hon MA Fung-kwok
Hon Ambrose LAU Hon-chuen, JP
Hon LAW Chi-kwong, JP

Public Officers Attending:

Mr Gregory LEUNG Wing-lup, JP

Deputy Secretary for Health and Welfare

Mr Clement LAU Chung-kin

Assistant Secretary for Health and Welfare (Medical) 6

Dr Thomas CHUNG Wai-hung

Principal Medical and Health Officer (3)

Mr Geoffrey 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

Ms Joanne MAK

Senior Assistant Secretary (2) 4

I. Confirmation of minutes of meetings held on 8 December 1998, 5 and 20 January 1999
(LC Papers Nos. CB(2) 1639, 1642 and 1643/98-99)

The minutes were confirmed, subject to the amendment that Mr Ambrose LAU be indicated as present at the meeting held on 8 December 1998.

II. Meeting with the Administration

Checklist of outstanding issues
(LC Paper No. CB(2) 1683/98-99(01))

2. Members went through the checklist item by item.

Item 1 - binding on the Government

3. Members noted that the Administration would move a Committee Stage amendment (CSA) to include a provision "This Ordinance binds the Government" in the Human Reproductive Technology Bill ("the Bill").

Item 2 - licensee and person responsible

a) Prohibiting the licensee and the person responsible for carrying out reproductive technology (RT) to be the same person

4. Dr LEONG Che-hung said that he would move a CSA to provide flexibility in the legislation to allow for the licensee and the person responsible to be the same person.

5. Mr Michael HO said that the Democratic Party would not support Dr LEONG's CSA, whereas Mr YEUNG Yiu-chung said that the Democratic Alliance for the Betterment of Hong Kong had not yet formed a stance on this provision.

6. Deputy Secretary for Health and Welfare (DSHW) said that for the purpose of ensuring consistency in the drafting of the Bill, the Administration would be happy to assist members in preparing their CSAs to the Bill. Dr LEONG accepted the Administration's offer.

b) Definition of "suitable practices" carried out by the person responsible and to be supervised by the licensee

7. DSHW said that the Administration would clarify the term "suitable practices" contained in clause 21(2) of the Bill to avoid any ambiguity. The draft CSA in this regard would be submitted for members' consideration once available.

Adm

c) Qualification of the person responsible

8. Members accepted that the qualification of the person responsible set out in the Bill and in the Code of Practice on Reproductive Technology and Embryo Research (COP) was adequate.

Item 3 - Membership of the Council on Human Reproductive Technology ("the Council")

a) Prohibiting registered medical practitioners to be the chairperson and deputy chairperson

9. As members agreed such prohibition should be removed, DSHW said that the Administration would move a CSA to repeal clause 3(2)(a) and (b) of the Bill.

Item 4 - Code of Practice (COP)

10. Mr Michael HO said that as the COP was not part of the Bill and that no suggestion had been made for it to be incorporated in the Bill, he suggested not to scrutinize the COP further. Mr HO further said that if members had any views/suggestions on the COP, they could always convey them to the Council for consideration. Members agreed.

Item 5 - Limiting RT procedures to married couples

11. DSHW said that the Administration had prepared a draft CSA in respect of clause 13 of the Bill to limit RT procedures to married couples who were certified by not less than two registered medical practitioners that one or both of them were infertile. The relevant draft CSA was tabled at the meeting for members' perusal.

Item 6 - Limitation on eggs and sperms donation

12. The Chairman said that in order to minimize the risk of inadvertent incest between offspring of ethnic minorities, the number of pregnancies allowed to be brought about by an ethnic minority donor's gametes should be lower than that applied to a donor of Chinese origin which currently stood at three.

13. Dr LEONG Che-hung remarked that it was very difficult to keep track of the number of pregnancies brought about by a donor, as the recipient couples might not always report their successful pregnancies and births resulting from donor gametes to the RT centres or the Council. In the absence of any effective measures to overcome this problem, he suggested no change be made to the existing arrangement. Mr Michael HO concurred with Dr LEONG, and further said that proper counselling provided to the commissioning couples and concerned parties on the implications of the RT procedures should help to minimize the risk of inadvertent incest between offspring.

Item 7 - Artificial Insemination by Husband (AIH)

14. Senior Assistant Law Draftsman (SALD) said that the Administration would specify under clause 2(2)(a) and (b) of the Bill to the effect that AIH would not be considered as a RT procedure except when it was coupled with gender selection.

Item 8 - Access to information

15. Dr LEONG Che-hung said that the identity of the donor should not be disclosed under any circumstances, as this would deter people from donating gametes. Dr LEONG further said that although clause 31(10)(a) of the Bill stipulated that in the case where it was necessary to save or significantly extend the life of an individual, the donor's consent would be sought before his/her identity would be disclosed, the donor would nevertheless be pressurized to disclose his/her identity on humane and moral grounds. Dr LEONG also expressed concern about clause 31(10)(b) of the Bill which stipulated that where it was not practicable to obtain the donor's consent, the donor's identify would be disclosed regardless in order to save or significantly extend the life of an individual.

16. Mr Michael HO held the view that there should be flexibility in the legislation to allow for the disclosure of the donor's identity if the donor gave his/her consent for it.

17. DSHW clarified that although the Bill proposed that a child had the right to access to information about whether he/she was born in consequence of RT on reaching the age of 16 and that the identity of the donors of gametes or embryos could be disclosed under certain circumstances, it was the policy intent of the Bill to protect the anonymity of the donor, the commissioning couple and the child born in consequence of RT. SALD supplemented that he would re-draft Clauses 30 to 33 of Bill to improve their clarity.

Adm

18. Mr HO questioned the need for the legislation to protect the confidentiality of cases of a child born in consequence of RT, but his/her parents were nevertheless his/her genetic parents.

19. The Chairman shared Mr HO's views, and enquired whether distinction had been made in the Bill to address the right to access to information by offspring produced by RT through genetic and non-genetic parentage. In reply, SALD said that clause 30 of the Bill required the Council to keep information in a register about donors and persons for whom a RT had been provided, and regulate circumstances under which information might be disclosed. He further pointed out that the Bill did not limit the confidentiality and secrecy of RT procedure to where the genetic materials were outside the marriage. He referred members to clause 31(2)(b) which stipulated that information required to be kept confidential by the parties concerned, such as a father might not object to his son knowing that he was born in consequence of AIH but might object to his son knowing that he was impotent, should not be disclosed.

20. Dr LEONG agreed that there was no need to require the information concerning a person born in consequence of RT and was genetically related to his/her own parents to be kept confidential, having regard to the fact that some parents did not hide this fact from their children. He cited as an example an open group comprising children born as a result of artificial insemination or in vitro fertilization formed by the Queen Mary Hospital. Dr LEONG however was of the view that such exemption should not be applied to cases where a child was born out of a surrogate arrangement and was genetically related to his/her parents.

21. As members generally agreed that there was no need to legislate the disclosure of information relating to persons born in consequence RT and were genetically related to their own parents, save that from the surrogate arrangement, SALD undertook to re-draft Part V, i.e. clauses 30 to 32, of the Bill to this effect.

Adm

Item 9 - Surrogacy

(b) marital status of a surrogate mother

22. Members, with the exception of Miss CHAN Yuen-han, expressed support for surrogacy as a means for infertile couple to have a baby. They were further of the view that it was not necessary for a surrogate mother to a party of a marriage, but that she would have to have the experience of successful pregnancy.

23. Principal Medical and Health Officer (PMHO) responded that the Bill did not specify that a surrogate mother had to be a party to a marriage. He further said that the suitability of a woman to be a surrogate mother would be spelt out in the COP, which would take into account considerations such as marital status, history of pregnancy and physical and mental fitness to carry a baby.

24. The Chairman pointed out that clause 13(5) of the Bill stipulated that no person should provide a RT procedure to persons who were not parties to a marriage, and enquired whether this would imply that a surrogate mother would need to be a party to a marriage. In reply, PMHO agreed to move a CSA to remove such ambiguity. Senior Assistant Legal Adviser (SALA) advised members that the Secretary for Health and Welfare (SHW) could specify in the regulation made under clause 42(2)(e) of the Bill that a surrogate mother need not be a party to a marriage.

25. SALA questioned whether it was necessary to include in the proposed definition of surrogate mother in clause 2(b)(i) that a surrogate mother could conceive a baby by means other than a RT procedure. Dr LEONG Che-hung shared SALA's views, and said that the only way that a surrogate mother could carry a baby was through a RT procedure with the genetic materials coming from the commissioning couple. As such, Dr LEONG was of the view that clause 2(b)(i) and (ii) of the Bill should be deleted. Members concurred with Dr LEONG.

26. SALD said that the interpretation of surrogacy arrangement and surrogate mother was intended to be as broad as possible so that the law could capture all unlawful surrogacy arrangements and that clause 31 of the Bill regarding the secrecy provision could also be applied to a child born in consequence of an unlawful surrogacy arrangement.

27. DSHW supplemented that if the interpretation of surrogate mother only referred to a woman who conceived a child by a RT procedure, the law would not be able to regulate surrogacy involving commercial dealings. He pointed out that if the interpretation of surrogate mother was drafted as members had suggested, the act, say, of a married couple placing an advertisement in the newspaper offering money to a woman to have sexual intercourse with her husband for the purposes of having a baby handed over to them after the baby's birth would not be caught by the law.

28. Dr LEONG said that given the object of the Bill was to regulate RT procedures, he disagreed with the Administration's explanation of including human reproduction activities not involving a RT procedure in the Bill. Miss CHAN Yuen-han echoed Dr LEONG's views.

29. DSHW agreed to give members' views on the interpretation of surrogate mother further thoughts.

Adm

III. Dates of Next Meetings

30. Members agreed that the next two meetings of the Bills Committee would be held at 8:30 am on 26 April 1999 and 7 May 1999.

31. The meeting ended at 10:45 am.

Legislative Council Secretariat
11 October 1999