Legislative Council

LC Paper No. CB(2) 1751/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill

Minutes of the eighth meeting held on Tuesday, 9 February 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
Dr Hon TANG Siu-tong, JP

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 1

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)
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. Meeting with the Administration

Checklist of outstanding issues
(LC Paper No. CB(2)1268/98-99(01))

Item 1 - binding on the Government

Members agreed that the Government should also be bound by the Human Reproductive Technology Bill (HRTB). Deputy Secretary for Health and Welfare (DSHW) said that the Administration would move a Committee Stage amendment (CSA) to that effect.

Item 2(a) - licensee and person responsible

2. Members indicated their stances as follows: The Chairman and Mr Michael HO held the view that the licensee and person responsible should be two separate persons; Dr LEONG Che-hung said that under certain circumstances, they could be the same person; and Miss CHAN Yuen-han said that she needed more time to consult her party.

Item 3(a) - chairperson and deputy chairperson of the Council on Human Reproductive Technology (the Council)

3. Mr Michael Ho said that to avoid conflict of interest, the chairperson and deputy chairperson of the Council should not be medical practitioners. However the prohibition could be arranged by administrative means and did not need to be written in law. Dr LEONG Che-hung said that he saw no reason why medical practitioners who were not involved in reproductive technology (RT) activities could not be appointed chairperson or deputy chairperson of the Council. For instance, Dr Edgar CHENG, Head of the Central Policy Unit who no longer practised medicine, would not have conflict of interest if he was to become the chairperson or deputy chairperson of the Council. He held the view that the prohibition against certain persons from being chairperson or deputy chairperson could be arranged by administrative means instead of expressly stated in law.

Item 7(b) - selection of sex under artificial insemination by husband (AIH)

4. Since AIH was allowed without specific statutory control, Dr LEONG Che-hung asked the Administration whether sex selection under AIH was allowed. DSHW replied that a gender selection achieved or intended to be achieved by means of a RT procedure is also included as a RT procedure under the definition in section 2(1) and therefore would be subject to statutory control. Dr LEONG commented that the drafting was not clear as under AIH some procedures were allowed and some not. The Chairman suggested that the prohibition against sex selection of AIH should be expressly stated in law to avoid confusion. In response to members, Senior Assistant Legal Adviser (SALA) said that section 2(2) empowered the Secretary for Health and Welfare, by notice in the Gazette, to specify a procedure to be or not to be a RT procedure. Accordingly, AIH might be excluded as a RT procedure. Under section 2(3), a notice under section 2(2) was subsidiary legislation which would be subject to vetting by LegCo. DSHW responded that he would take into consideration members' comments and work out with the law draftsman to improve clarity of the relevant provision.Adm

Item 8(b) - disclosure of donor's identity

5. Dr LEONG Che-hung held the view that a child should only have the right to access information on whether he was born as a result of RT procedures when he reached the age of 16. He opposed the release of identifying information of the donor under any circumstances. Miss CHAN Yuen-han said that members of her party might cast different votes on the issue. Mr Michael HO said that the Democratic Party was of the view that the identifying information of the donor might be released if the donor had given consent.

6. In response to members' and the Administration's questions on the Democratic Party's stance and the proposed arrangements, Mr HO explained that donors should be asked to indicate at the time of donation whether they agreed to have their identity revealed in future. There would be two semen banks, one allowing the disclosure of donors' identity and the other not. A commissioning couple might decide on which category of semen they would use before RT procedures were carried out.

7. Principal Medical and Health Officer (PMHO) said that the PCRT had deliberated on the issue of access to information but the suggestion proposed by Mr HO had not been discussed. He said that section 31(10) provided for the circumstances where the Council, with the consent of the semen donors, 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. Dr LEONG Che-hung pointed out that Chapter V of the COP regarding information to clients and donors might need to be amended if there was any change in policy in law.

8. Dr LEONG Che-hung expected that the need for disclosing a donor's identity would be mainly based on medical grounds, for instance, the child needed bone marrow transplant from the donor. He said that should disclosure be allowed, it would put undue pressure on the commissioning couple who might have difficulty in locating the donor; on the donor who might not wish to donate bone marrow for transplant; and on the child. Having regard to the unforeseeable incidents that might happen after the donation, he opposed the disclosure of donors' identity.

9. Mr Michael HO said that having regard to the unforeseeable future and children born as a result of RT procedures might argue for their right when they became of age, he saw no reason why they should not be allowed to have access to information if the donor had given consent. He said that despite the possibility that not many semen donors would be willing to disclose their identity, the law should have the flexibility to provide the commissioning couple and the donor a choice and the child the right to have access to information.

10. DSHW questioned how to deal with the situation if a donor changed his mind in respect of disclosing his identity, since a donor was entitled to change his mind as his value of life, experience and marital status changed over time. He pointed out that for the recipient, the situation was irreversible as he/she had already chosen a semen from a specific bank. As this would give rise to disputes, DSHW counter proposed to relax the conditions in clauses 31 and 32 which allowed disclosure of identifying information only under special circumstances. For instance, the clauses would be amended to allow the court to obtain consent from the donor when situation warranted. Dr LEONG Che-hung opposed the idea. He said that semen donors ought to be protected because at the time of donation, the law specified that the donor's identity would not be revealed. The donor should not be burdened with the notion that in the years to come he might be approached by the court for reasons like organ donation. Dr LEONG said that he did not support the practice proposed in the HRTB and would move a CSA to prohibit disclosure of a donor's identity in any circumstances.

11. Miss CHAN Yuen-han said that she inclined to support Dr LEONG. She said that if Mr HO's proposal was to be carried out, a donor who had exercised his option would not be allowed to revoke his option if successful inseminations had already been made before he changed his mind. Mr Michael HO agreed and said that the semen of the donor should be discarded once he changed his mind. He said that explanation should be given to the donor on his right and possible consequences prior to donation.

12. Dr LEONG Che-hung said that very often a RT centre would not know whether a woman was pregnant as a result of successful insemination because she might not return to the centre for consultation. Under the circumstances, a commissioning couple would have no idea that a donor had changed his mind. They would be able to know only years later when they wished to locate the donor. The procedure would be cumbersome because the centre would have to verify the date of insemination against the date that the donor changed his mind. He pointed out that providing options to the donor and the commissioning couple would pose operational problems to commissioning couples and RT centres. DSHW asked whether it should be written in law that an option could not be revoked once successful insemination had been made. Mr HO said that the problems raised by Dr LEONG was operational and not policy issues. He said that he needed more time to consider the questions brought up by DSHW.

Item 9(a) - commercial surrogacy

13. As there was no consensus view, the Chairman suggested members to indicate their stance at a future meeting. Members agreed.

Item 9(b) - protection for a surrogate mother

14. Miss CHAN Yuen-han said that she had no more queries on the subject.

Item 11 - record on RT activities

15. Mr Michael HO said that since the types of information to be released by RT centres was an important issue, record of RT activities should be specified in law and not the COP.

Item 12 - sex selection

16. Mr Michael HO considered that a schedule listing sex-linked genetic diseases should be included in the HRTB in the form of subsidiary legislation rather than in the COP. Since certain sex-linked genetic diseases were more serious than the others, he suggested that a guideline for implementation should be set out in the COP for service providers to follow.

17. The Chairman said that the Administration had explained at the last meeting the difficulty of drawing up an exhaustive list of severe sex-linked genetic diseases. Dr LEONG Che-hung supplemented that the PCRT initially also considered that a list of severe sex-linked genetic diseases would help to prevent the possibility of abuse if sex-selection was allowed for medical grounds. However, local and overseas experts of hereditary diseases had expressed that they were not able to come up with such a list.

18. Mr Michael HO said that the purpose of the list was for service providers to know which sex-linked genetic disease might be allowed for sex selection. In this regard, anything that went beyond the list should not be allowed for sex selection. Dr LEONG Che-hung said that he had reservation about the practice, given the difficulty to draw up a list of exhaustive list of severe sex-linked diseases. Mr HO said that it might be necessary to invite specialists to explain why such a list could not be produced. He said that if the list was included in the law in the form of a schedule, amendment to the list could be updated easily. He cited as an example that the Poison List Regulations were amended several times a year whenever new poisonous and dangerous drugs were introduced and the list was updated without much difficulty. The Chairman instructed the Clerk to work out with the Administration about inviting specialists to give views at a future meeting.

19. PMHO said that at the last meeting, the Administration provided a paper (LC Paper No. CB(2)979/98-99(01)) setting out the deliberations of the PCRT on sex selection. While it might be possible to draw up a non-exhaustive list of sex-linked genetic diseases, it would be difficult to define "severity of diseases". The PCRT therefore recommended that a non-exhaustive list of sex-linked genetic diseases without defining the severity of diseases would be provided in the COP for reference purpose. He also expressed concern about the time lag in adding and deleting diseases from the list if it was to be included as a schedule to the ordinance.

Item 13(a) - policy on cryopreservation

20. Members noted that at the last meeting, the Administration expressed that it might be necessary to make regulations or guidelines in future to monitor and control cryopreservation.

Item 13(b) - storage limit of gametes at age 55

21. DSHW and SALA clarified that the statutory storage limit for gametes and embryos for cancer patients or other types of patients at the age of 55 would not constitute discrimination against age.

Draft COP on Reproductive Technology and Embryo Research
(LC Paper No. CB(2)1268/98-99(02))

22. PMHO highlighted the major areas covered in the draft COP as set out in the paper.

23. Dr LEONG Che-hung drew members' attention to the forms in appendices and annexes to the COP. He pointed out that members of the PCRT had deliberated in detail over the information to be included. He said that members might wish to study the forms in detail. The Chairman noted that the COP had mentioned about the possible impact of RT on the family and the children which were not discussed at previous meetings. She said that members might wish to give the subject further thoughts.

24. As the majority of members had not studied the draft COP in great detail, the Chairman led the discussion based on the problem areas that she had identified.

Paragraph 1.3

25. The Chairman referred to paragraph 1.3 and asked Dr LEONG Che-hung about the relationship between the COP and the HRTB. Dr LEONG replied that having considered that professionals had their own code of practice, which had been in force for years to provide checks and balance, paragraph 1.3 therefore provided that "professionals concerned should still follow the codes of practice and professionals ethics of their individual disciplines", in addition to act in compliance with the law. The reason was to support the best clinical and scientific practice, to safeguard the health and interests of service users and to protect the welfare of children.

Paragraph 2.12

26. The Chairman doubted whether doctors, nurses, social workers and clinical psychologists were given sufficient training to provide counselling to service users as paragraph 2.12 stated that counselling "may be" provided "as appropriate". Dr LEONG Che-hung explained that the phrase was used because counselling would be provided not by one party but rather by the whole team. Mr Michael HO supplemented that there would be division of labour among team members and the counselling provided might overlap in certain areas. He added that the trend was for doctors, nurses, social workers and clinical psychologists to conduct counselling not only along their traditional line of business, but also explained the social, ethical and psychological consequences of the RT procedures to service users. Dr LEONG said that "must be" was not used because some RT procedures such as semen donation might not warrant the provision of counselling services by the whole team. The Chairman said that she still had reservation but would consider the issue under Chapter VII which set out details on counselling services.

Paragraph 4.3(g)

27. The Chairman said that the Bills Committee had not discussed about the effect of new baby or babies upon any existing child of the family. Dr LEONG Che-hung said that assessment of clients, donors and the welfare of children was important because the child born through RT procedures did not have a choice. However, he was not sure how this could be put down in law to ensure that the child would be well taken care of and would not be rejected by the existing child of the family. The Chairman said that the Bills Committee had discussed the disclosure of information when the child reached the age of 16 by the commissioning couple on voluntary basis. In the case of a child who was born through a surrogacy arrangement, the information might be released to him by the existing child of the family at any time. She expressed concern over the effect on the child born through RT and raised that it might be necessary to confine RT procedures to families with no existing children.

28. Miss CHAN Yuen-han said that families with existing children might want another child for various reasons, she considered it undesirable to deprive them from RT procedures. She suggested that counselling should be provided to the families and the existing children under these circumstances. Dr LEONG Che-hung echoed the view and said that a woman who had her womb removed after giving birth might want another child. He said that paragraph 4.3 had set out eight consideration factors for assessing clients' suitability for RT treatment, including the one mentioned by the Chairman.

29. Addressing the Chairman's concern about the psychological effect on the child born through RT and the existing child, Mr Michael HO said that a RT centre if in doubt of the ability of the family to meet the needs of any child should decline providing the service. He said that the COP had provided a set of guidelines for those involved in the activities to carry out the procedures in the best manner. He considered it appropriate to include factors in the assessment process in the COP rather than in the HRTB because the assessment was to a large extent subjective judgement. DSHW expressed difficulty of putting down paragraph 4.3(g) in law because a RT centre would have to bear legal liability if it had made a wrong assessment.

Paragraphs 4.8 and 4. 9

30. In response to the Chairman, PMHO explained that the age limits set out in the two paragraphs were based on medical reasons. Notes 1 and 2 on page 9 had explained the rationale behind the age limits.

Paragraph 4.13

31. In response to the Chairman, Dr LEONG Che-hung clarified that paragraph 4.13 of the COP was consistent with the relevant provision in the HRTB. The Chairman questioned why the definition of "payment" for surrogacy and RT procedures was different. DSHW explained that "payment" under surrogacy was more stringent because it was the policy to discourage surrogacy. Under the circumstances, paragraph 4.13 stipulated that any loss of earnings as a result of surrogacy would not be reimbursable. Dr LEONG added that unlike surrogacy, semen donation had less likelihood of commercial dealings because it was not possible to know who would receive the semen. The Chairman said that she had reservation about applying different definition of "payment" for surrogacy and RT procedures.

Surrogate mother

32. DSHW said that in accordance with section 13(5), a surrogate mother must be a party to a marriage. In this regard, single female or woman whose husband had passed away could not become a surrogate mother. He pointed out that this was a strict requirement in law while the COP had more relaxed requirements. If members agreed to the policy, the requirement in the COP had to be tightened up. Dr LEONG Che-hung considered that the surrogate mother was most likely to be the mother of the commissioning couple. Having regard to the possibility that she might be a widow or divorced, he held the view that the requirement on surrogate mother should be relaxed in law. Mr Michael HO supported the view. Members agreed to discuss the issue at the next meeting.

II. Dates of next meetings

33. The next two meetings would be held on 23 February and 3 March 1999. Members noted that invitation letters had been sent out to the University of Hong Kong, the Chinese University of Hong Kong, the Family Planning Association of Hong Kong, the Hong Kong Sanatorium and Hospital and the City University of Hong Kong to give oral representation at the meeting on 23 February 1999.

34. The meeting ended at 10:27 am.

Legislative Council Secretariat
1 April 1999