Legislative Council

LC Paper No. CB(2) 904/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill
Minutes of meeting held on Thursday, 29 October 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 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 Derek B GOULD

Principal Assistant Secretary for Health and Welfare (Medical) 3

Mrs Vicki KWOK

Assistant Secretary for Health and Welfare (Medical) 7

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. Confirmation of the minutes of meeting and matters arising
(LC Papers Nos. CB(2) 507/98-99 and 508/98-99(01))

The minutes of the meeting held on 23 September 1998 were confirmed without amendment.

2. The Chairman reported that in response to the press advertisement and the letter sent by the Clerk to invite views on the Bill, six submissions had been received from the following organizations -

(a) The Law Society of Hong Kong;
(b) Estate Doctors Association Ltd;
(c) Hong Kong Members Federation of Chinese Medical Association;
(d) The Chinese University of Hong Kong;
(e) The Family Planning Association of Hong Kong; and
(f) The Hospital Authority.

3. The Chairman informed members that the Administration would provide a composite paper at a later meeting setting out the Administration's comments on the various points raised in the submissions.

Adm

4. The Chairman asked members to give their views as to whether a deadline should be set for the scrutiny of the Bill. Dr LEONG Che-hung pointed out that the Provisional Council on Reproductive Technology, which comprised medical and reproductive technology (RT) professionals, had taken more than a year to advise on the drafting of legislation and a Code of Practice (COP). He therefore opined that members of the Bills Committee would probably need more time to understand and deliberate the policy implications of the various issues. Members agreed that a deadline was not necessary.

5. Members went through the checklist of items discussed. Referring to item (10) relating to Artificial Insemination by Husband, Mr Michael HO said that he had reservation about the drafting of the relevant provisions. Members noted that other than items (6) and (9), all other items on the checklist remained outstanding.

II. Meeting with the Administration
(LC Paper Nos. LS 57/98-99 and CB(2) 503/98-99(01) and (02))

Access to information

6. Senior Assistant Legal Adviser (SALA) briefed members on the implications of clause 32 governing disclosure on interests of justice as set out in paragraphs 5-10 of LC Paper No. LS 57/98-99.

7. Dr LEONG Che-hung said that he was concerned about the extent to which information could be disclosed to a child born following a RT procedure. He said that if the identity of the semen donor was not kept in the strictest confidence, it would give rise to many problems such as claims for estate especially in the case of surrogacy where three or more persons were involved.

8. Senior Assistant Law Draftsman (SALD) explained that sections 9, 10 and 11 of the Parent and Child Ordinance (PCO) referred to in clause 32(1) of the Bill provided for the meanings of "mother" and "father" where birth or pregnancy was resulted from medical treatment. Although the drafting was not clear, the Administration was reviewing the reference to "section 30(2)(i) or (ii)" therein and would make necessary amendment. SALD said that for the purposes of clause 32(1), all the court needed to know was whether or not a child was born as a result of RT procedures. It could not go to the final step of ordering the Council to release the name of the person who gave the genetic material because the donor was donating gametes on the basis that his name would not be disclosed by the Council.

Adm

9. SALA supplemented that making an order of disclosure was subject to the conditions set down in clause 32(2). When the conditions were satisfied, the court might make an order requiring the Council to disclose whether or not any information relevant to the question of whether a person was or was not the parent of a child born through a RT procedure was contained in Register A and, if it was, to disclose so much of the information as was specified in the order.

10. Dr LEONG Che-hung said that under certain circumstances even a court could not say for sure that a child was born as a result of RT procedures. Take the example of a surrogacy case where an embryo produced by a commissioning couple was implanted to a surrogate mother but at the end the embryo originating from the surrogate mother actually grew. A court could not give a correct answer unless it had checked the DNA profile of the parties concerned before releasing the information.

11. In response to the Chairman, SALA explained that for the purposes of the law of succession, the definitions of "mother" and "father" as set out in the PCO would apply.

12. Dr LEONG Che-hung reiterated that there should be limit on the disclosure of information. He had reservation about disclosing the semen donor's identity for the purpose of bone marrow transplant which members raised at the last meeting.

13. In response to the Chairman and Dr LEONG, SALD said that section 31(10) provided for the circumstances where the Council, with the consent of the semen donor, might release certain information if it was satisfied that it was necessary to make the disclosure to save or significantly extend the life of an individual. In other words, the Council had the discretion to approach the donor to inform him that the sperm that he donated had resulted in a child who was now suffering from a disease, and to ask for his consent to disclose his name and particulars to the child. If the donor did not agree or the Council could not locate the donor, that would be the end of the case.

14. At the request of the Chairman, Assistant Director of Health (ADH) briefed members on the practices of access to confidential information in relation to RT procedures in the UK, Australia and the USA as set out in LC Paper No. CB(2) 503/98-99(01). She said that none of the countries that the Administration approached had provided detailed procedures in regard to access of information. The UK Human Fertilization and Embryology Authority had advised that given that any requests for disclosure of information would only be made some 10 years from now, the procedure for applying disclosure of information had not been drawn up.

15. Mr Michael HO said that he did not agree with Dr LEONG about keeping the identity of the semen donor in absolute confidentiality. He requested the Administration to seek further information on the practices in Australia and the US where donor's identity might be disclosed, and to make a comparison of the relevant provisions in the Bill and in the laws of these two countries for members' consideration. The Administration undertook to follow up the matter.

Adm

16. The Chairman said that members might also wish to consider whether the right of people to know their origin should be implemented on a voluntary or mandatory basis. Deputy Secretary for Health and Welfare (DSHW) commented that there would be practical difficulties in implementing the measure if it was made mandatory. Dr LEONG Che-hung pointed out that if the measure was made mandatory, the right could be expanded to cover a child born by natural birth. In this regard, a mother who conceived after adultery would have to tell her child, when he reached the age of 16, that someone outside the marriage was the genetic father. The measure would give rise to many other problems.

Evidence of spouses

17. At the last meeting, members requested SALA to provide information as to whether a husband or wife was able to give evidence for or against his or her spouse in the case of a legal proceeding in which the licensee and the person responsible were a married couple. SALA referred to LC Paper No. LS57/98-99 and briefly explained the provisions of sections 5 and 6 of the Evidence Ordinance (Cap. 8) on evidence of spouse in civil and criminal proceedings. Whereas section 5 of the Ordinance provided that in all civil proceedings a husband or wife was competent and compellable to give evidence for or against his or her spouse, section 6 of the Ordinance provided that in criminal proceedings a husband or wife was not competent or compellable to give evidence for or against his or her spouse. There were various exceptions to the rule in section 6, the details of which were set out in paragraphs 2-4 of LC Paper No. LS57/98-99.

Submission from the Family Planning Association of Hong Kong (FPAHK)

18. The Chairman drew members' attention to the above submission (LC Paper No. CB(2) 503/98-99(02)) in which the FPAHK expressed difficulty in appointing two separate persons to be the licensee and the person responsible, given that the Executive Director in the FPAHK was a expert in RT and would be the most suitable person to be appointed as the person responsible. She enquired whether or not the FPAHK would be qualified to continue the practice of RT if the Bill was to be passed in the present form.

19. SALD explained that it was for the Council to decide whether the FPAHK was qualified to practice RT. He said that it appeared from the submission that the FPAHK believed that only the Executive Director was qualified to be the person responsible and at the same time, it wanted her to be the licensee. As the Bill prohibited the person responsible and the licensee to be the same person, the FPAHK would have to find an individual in the organization whom they could put forward as the potential licensee, although it might be awkward to appoint someone more junior in rank to be the licensee to supervise the Executive Director. Alternatively the FPAHK could set up a company and then appoint someone to be the licensee.

20. Dr LEONG Che-hung declared interest as a board member of the FPAHK. He said that he could see no reason why in the future the FPAHK could not appoint a Chief Executive who was not a medically qualified person to be the licensee and appoint under him a programme director, who would be the person responsible. Nevertheless, he shared the concerns of the FPAHK over the prohibition of the licensee and the person responsible being the same person. He pointed out that the arrangement for a person more junior in rank to supervise an executive director could not achieve the objective of checks and balance. He further pointed out that as the Board of Directors in the FPAHK were all voluntary people who were serving on the Board on a yearly basis, any director could only be the licensee for one year, if it was so decided that a board member should be appointed as the licensee.

21. Mr Michael HO said that the FPAHK could still operate RT procedures if the Bill was passed, given that the Bill had not specified the qualifications required for a person supervising the activity. He opined that the problem facing the FPAHK was not insurmountable. For instance, the Board of Directors could appoint someone who was one or two ranks lower than the Executive Director to be the licensee. The person would be answerable to the Board. He considered it not necessary to amend the Bill to address the problem faced by the FPAHK or to grant it exemption. His views were supported by Mr LAW Chi-kwong. In response to Dr LEONG Che-hung, Mr HO said that if the Board had casually appointed someone to be the licensee, the Council would have the discretion to revoke the licence. He said that while he remained doubtful about the legislative intention, he was inclined to support the Administration on the basis that two persons were better than one insofar as checks and balance was concerned.

22. Having regard to the contribution of FPAHK in the area of artificial insemination, Miss CHAN Yuen-han said that it might be worth considering granting it exemption in order to facilitate continuation of its practice of RT. In response to a question from Miss CHAN Yuen-han, DSHW said that statistics on the number of artificial inseminations handled by the FPAHK were not available. Dr LEONG Chi-hung supplemented that as far as RT services were concerned, the FPAHK was mainly involved in sperm donation and not complicated RT procedures. He held the view that the principles of legislation must be abided by if it was agreed that they were reasonable and fair. He agreed with Mr Michael HO that the law should apply equally to everybody and that only under very exceptional circumstances would exemption be granted.

Licensee and person responsible

23. At the request of the Chairman, Principal Medical and Health Officer (PMHO) briefed members on the overseas practices on the system of checks and balance featured by the licensee and the person responsible, and the types of health care professionals qualified to carry out various RT procedures in other countries covered in LC Paper No. CB(2) 503/98-99(01).

24. Mr Michael HO said that given that a person responsible could be a hospital manager, a nurse and not necessarily a registered professional, he would support the Administration that the licensee and the person responsible should be separate persons.

25. Dr LEONG Che-hung pointed out that the Human Fertilization and Embryology Act 1990 in UK did not require the licensee and the person to be separate persons. He suggested that Hong Kong should adopt similar practice i.e. prohibition against the licensee and the person responsible to be the same person should not be expressly written in law. He pointed out that the requirement would prohibit a RT professional from practising if he could not find a licensee.

26. In response to Dr LEONG Che-hung and Mr Michael HO, SALD explained that each applicant would only be granted one licence. Based on the RT procedures that an applicant applied for, qualification of the applicant and the facilities available on the premises, the Council would specify in the licence the types of RT procedures a licensee was qualified to practise. DSHW supplemented that while there would be only one licensee, there could be more than one person responsible under a licence. ADH added that the draft COP prepared by the Working Group of the Provisional Council on RT did not specify the qualification of the person responsible, although it would provide guideline for certain circumstances under which a specialist was required to carry out a particular RT procedure.

27. Miss CHAN Yuen-han enquired about the channel through which the public could acquire information concerning the availability of RT services. ADH explained that the usual practice was for a married couple to approach a medical practitioner if they were in doubt of their ability to bear children. If after a thorough check up it was proved that either or both of them was infertile, the medical practitioner would refer them to a specialist who would check whether they were fit to undergo RT procedures. Should the couple decide that they would proceed with a RT procedure, they could ask the specialist to carry out the procedure, or consult another medical practitioner. In future subject to the arrangement to be determined by the Council, a list of RT licensees might be made available for reference. SALD supplemented that the Council's responsibility to provide information for access by public was set out in clause 4(1)(b)-(d).

28. Dr LEONG Che-hung stressed that the Council was not an agent for RT licensees, and in this regard it would not recommend any RT institutions to any couple. He raised the following questions for consideration by the Administration: whether there would be public funded RT institutions, if so, what would be the scope of service and to what extent would public funds be used to help infertile married couples.

Adm

Limiting RT services to married couples

29. Referring to clause 13(5) which prohibited the provision of RT services to unmarried couples, the Chairman said that two organizations had expressed the view that the provision was discriminatory. She asked whether the provision had violated the Bill of Rights.

30. SALD replied that he could not advise on the Bill of Rights but he was certain that the provision did not contravene the Sex Discrimination Ordinance and the Family Discrimination Ordinance. Although the provision might be considered discriminatory, it was not discrimination that could be legally challenged under the two ordinances. SALA advised that limiting the availability of RT procedures to married couple only would not contravene the relevant ordinances on anti-discrimination. Miss CHAN Yuen-han recalled the deliberation of the anti-discrimination bills and confirmed this view.

31. Dr LEONG Che-hung said that for the well being of a child born through RT, he supported that RT services should be confined to married couples. In response to a question raised by Dr LEONG, SALD confirmed that contravention of clause 13(5) would constitute a criminal offence.

Surrogacy

32. DSHW explained that surrogacy involved at least three persons, namely a married couple and a surrogate mother. Having regard to the complexity and the controversial nature of the issue, surrogacy arrangements on commercial basis or involving donated gametes were strictly prohibited.

33. In response to Miss CHAN Yuen-han, DSHW said that it was a matter for a married couple to decide whether they needed a surrogacy arrangement. ADH explained that from the medical point of view, a need might arise when a medical assessment proved that a woman was unable to bear children. A notable example was a woman who did not have a womb although the sperms of her spouse and her ovary were both healthy.

34. Dr LEONG Che-hung said that the definition of commercial dealing needed careful consideration. For instance, whether it would constitute a commercial dealing if a surrogate mother could not work during pregnancy and was given monthly subsistence by the commissioning couple.

35. In response to members, SALD said that in the event that a surrogate mother decided to terminate the arrangement by ways of keeping the baby or aborting pregnancy, there was nothing the commissioning couple could do. Clause 16 stipulated that no surrogacy arrangement was enforceable by or against any of the persons making it. Given the inherent weakness in enforcement, most of the surrogacy was arranged with close relatives of the commissioning couple.

36. Mr Michael Ho and Miss CHAN Yuen-han said that they needed more time to deliberate on the complicated issue. Mr Michael HO said that it would be useful if overseas practices on statutory control of surrogacy arrangements could be made available for members' consideration. He also requested the Administration to provide viewpoints that it had considered before finalizing the policies on surrogacy. He suggested that the issue be accorded priority when the Bills Committee proceeded to clause to clause examination. Members agreed.

Adm

III. Dates of next meetings

37. Members noted that the next meeting would be held on 18 November 1998 at 8:30 am. and agreed that a further meeting should be held on 8 December 1998 at 8:30 am.

38. The meeting ended at 10:30 am.

Legislative Council Secretariat
16 December 1998