Legislative Council

LC Paper No. CB(2) 1811/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill

Minutes of the eleventh meeting held on Friday, 19 March 1998 at 4:30 pm 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 YEUNG Yiu-chung
Hon Ambrose LAU Hon-chuen, JP

Members Absent:

Hon MA Fung-kwok
Hon LAW Chi-kwong, JP

Public Officers Attending:

Mr Gregory LEUNG Wing-lup, JP

Deputy Secretary for Health and Welfare 1

Mr Clement LAU Chung-kin

Assistant Secretary for Health and Welfare (Medical) 6

Dr Constance CHAN

Assistant Director of Health (Health Admin & Planning)

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

Ms Joanne MAK

Senior Assistant Secretary (2) 4

I. Confirmation of minutes of meeting on 18 November 1998 and matters arising
(LC Paper No. CB(2) 1512/98-99)

The minutes of the meeting held on 18 November 1998 were confirmed.

II. Meeting with the Administration

Checklist of outstanding issues
(LC Paper No. CB(2) 1516/98-99(01))

2. The Chairman suggested and members agreed to go over the checklist before the clause-by-clause examination of the Bill at the next meeting.

Provision of Reproductive Technology (RT) Services to infertile couples only
(LC Paper No. CB(2) 1516/98-99(02))

3. Deputy Secretary for Health and Welfare 1 (DS(HW)1) informed members that further to the discussion at the last meeting, the Administration had consulted medical specialists regarding a commonly-accepted definition of "infertility". Referring to paragraphs 2 and 3 of the Administration's paper, DS(HW)1 explained to members the problems relating to the definition of "infertility". In short, the Administration considered that if the definition generally adopted by the medical sector for "infertility" was used in the Human Reproductive Technology Bill (the Bill), it would be necessary for the Administration to provide exceptions in the Bill for circumstances in which a RT procedure might be provided to persons who did not fall within the definition of an "infertile" couple.

4. DS(HW)1 pointed out that in the case of Western Australia, it had set out its policy directive of limiting the provision of RT services to infertile couples in the preamble of the relevant ordinance. DS(HW)1 said that this could be an alternative to stating explicitly such a requirement in the Bill. Principal Medical and Health Officer (3) (PMHO) added that the Administration had found that apart from Australia, the United Kingdom also did not include in the law an explicit clause to restrict the application of RT activities to infertile couples only and there was no definition provided for "infertility" in its law.

5. Senior Assistant Legal Adviser (SALA) advised that in Hong Kong there were no preambles but only long titles in its ordinances, except for the Basic Law in which a preamble was included. Therefore, he considered that the approach used by Western Australia might not be applicable to Hong Kong. Furthermore, SALA pointed out that the preamble of an ordinance was not a substantive provision and had no legal effect. It could be used by the judges as a reference to assist them to interpret the legislative intent of the ordinance concerned if the provisions contained in the ordinance were not clear enough. In response, DS(HW)1 agreed that if the approach of Western Australia were to be adopted, the policy directive of limiting the provision of the RT services to infertile couples would have to be written in the long title of the Bill in the absence of a preamble. He added that enabling provisions could be added to the Bill to allow the Secretary for Health and Welfare (SHW) / the future Council on Reproductive Technology to make regulations on the restrictive use of RT service as and when necessary. However, DS(HW)1 admitted that the problems in defining "infertility" would still exist when it came to the making of the regulations.

6. In response to the Chairman's enquiries, PMHO said that the Committee on Scientifically Assisted Human Reproduction (SAHR) had considered RT as an alternative to alleviate inferility. Therefore, both the Committee on SAHR and the Provisional Council on RT had discussed issues related to the practice of RT on the basis that RT services were to be provided to couples for reasons of infertility. Assistant Director of Health (Health Administration & Planning) AD(H) added that the medical sector had been applying RT to infertile couples and for the avoidance of the birth of a child with severe genetic disease and the technology had been rarely applied to couples who could carry out reproduction normally. AD(H) also pointed out that some members of the Working Group on Code of Practice under the Provisional Council had discussed whether it was necessary to make provisions in the Code of Practice to address the needs for RT services of couples who were not infertile. However, the Working Group had eventually decided that the Code of Practice should only give guidance on the application of RT to infertile couples.

7. Miss CHAN Yuen-han enquired whether there were other problems envisaged by the Administration other than those mentioned in paragraphs 2 and 3 of the Administration's paper. In response, DS(HW)1 said that the problems elaborated in the paper were some examples and that the Administration was worried that there might be other cases in which persons who did not fall within the definition of an "infertile" couple also had a justifiable need for RT services. Miss CHAN Yuen-han considered that in any case the principle that RT services should be available for infertile couples only should be upheld. In response, DS(HW)1 said that there were no disparities in views between the Administration and members on this point. However, the Administration was concerned about the anticipated problems involved if such a requirement was explicitly stated in the Bill.

8. Dr LEONG Che-hung agreed that it was very difficult to define "infertility" and rejected that "infertility" could be merely defined, as what the medical profession generally did, as the inability (for medical reasons) to conceive after having regular intercourse for one or two years. He shared the view that RT services should be available for married couples only and pointed out that this was also the view held by the Committee on SAHR. Dr LEONG, however, did not support setting out this policy directive in the preamble, or the long title, of the future Human Reproductive Technology Ordinance for the lack of legal effect of such an arrangement.

9. The Chairman queried how the Administration would address the problems created by the definition of "infertility" in the cases that the use of RT procedures was required, not for the reason of infertility, but for the purpose of avoiding or preventing the birth of a child with a severe genetic disease. In response, DS(HW)1 said that this example showed that the drafting of the definition of "infertility" was very important and it would cause many problems if it was too restrictive. In response to the Chairman's further enquiry, DS(HW)1 said that the meaning of "infertility" taken by the Administration was "inability to conceive" and not "unsuitability for reproduction" as the latter meaning would be too broad.

10. Mr Ambrose LAU enquired whether the medical sector could provide a broad definition for "infertility" if a specific one could not be given. Dr LEONG Che-hung took the view that while a broad definition for the term could be available, such a definition might not be appropriate to be used in the Bill. Mr YEUNG Yiu-chung proposed that a condition could be added to the Bill stating that it required two registered medical practitioners to certify that the couple concerned was infertile. This could be an alternative to providing a definition for "infertility" in the Bill. However, Dr LEONG Che-hung pointed out that in many cases it would be difficult for a medical practitioner to say definitely that a couple was infertile. The Chairman also expressed doubt as to whether or not there would be potential of abuse because such medical certifications might be obtainable by making payments. Mr Michael HO counterproposed that a condition be added to the Bill stating that it required two registered medical practitioners to certify that the couple concerned had a genuine need for RT services. However, Dr LEONG Che-hung pointed out that in some cases a medical practitioner could not ascertain the need especially if the couple involved required RT services not for medical reasons but for psychological reasons.

11. Commenting on Mr YEUNG Yiu-chung's suggestion, AD(H) pointed out that no other country required two registered medical practitioners to confirm whether or not a person was infertile. She considered that certification by one registered medical practitioner would suffice and this could avoid additional cost incurred to the client as well.

12. Mr Michael HO said that he had no strong views as to whether or not an explicit clause should be included in the Bill stating that RT services were available for infertile couples only. However, Miss CHAN Yuen-han took a different view and reiterated that she was adamant that RT services should be provided to infertile couples only. She said that she was in favour of making an explicit clause stating this requirement in the Bill. She further suggested that for those uncertain cases, medical practitioners should be entrusted to assess the claims of fertile couples for RT services.

13. Mr Ambrose LAU considered that since it was quite clear that members were supportive of the principle that RT services should be provided to infertile couples only, he suggested leaving the matter to the Administration for it to work out the details. At the request of the Chairman, DS(HW)1 would further deliberate on the matter and revert back at the next meeting.

Adm

Draft Committee Stage Amendments proposed by the Administration

Clause 13(3)(a)

14. DS(HW)1 explained that the purpose of the proposed amendment to clause 13(3)(a) was to leave it to medical practitioners to assess whether or not the sex-linked genetic disease concerned in a particular case was severe enough to warrant the application of a RT procedure to cause the sex of an embryo to be selected.

Clause 13(3)(b)

15. With regard to the proposed amendment, Dr LEONG Che-hung referred to a disease like colour blindness and argued that it was difficult to say that the disease itself was a sufficiently severe disease to justify sex selection. In response, DS(HW)1 explained that the purpose of the proposed amendment was to require a medical practitioner, in assessing a client's condition, to take into account whether the disease concerned was a severe disease and also whether the disease had developed to a severe state in that client. He agreed to consider the drafting aspect of the proposed amendment.

Adm

Clause 43

16. DS(HW)1 pointed out that the purpose of the proposed amendment to this clause was to enable SHW to amend Schedule 1A by notice in the Gazette.

Code of Practice on Reproductive Technology and Embryo Research (COP)

17. Mr Michael HO recalled that at the last meeting he had raised objection to the content of paragraph 2.8 of the draft COP as it was too restrictive. The Chairman noted the concerns of Mr Michael HO and asked members to examine the draft COP to identify any more items on which they had strong views for further discussion at the next meeting. She also requested members to identify such items which they considered should be included in the Bill instead of the COP and to provide a list of such items to the Clerk before the next meeting for circulation to other members.

Members

18. The Chairman requested members to indicate their stances on the various issues at the next meeting to be held on Wednesday, 14 April 1999 at 8:30 am. The meeting would also proceed with clause-by-clause examination of the Bill.

Members

19. The meeting ended at 5:15 pm.

Legislative Council Secretariat
21 April 1999