consultation paper on the Final Report of the Committee on Scientifically
Assisted Human Reproduction.
2. Members agreed that items (c-e) above should be dealt with at a later meeting. On item (b) above, Dr LEONG Che-hung advised that the Provisional Council on RT was presently fine-tuning the COP and it was up to the Provisional Council to decide whether to release a copy to the Bills Committee.
3. The Chairman advised that only one submission had been received from the Law Society of Hong Kong. Dr LEONG Che-hung said that he had received a submission from the Estate Doctors Association Limited. He would pass the letter to the Clerk for circulation. Members agreed that issues raised in submissions should be discussed at a later meeting.
(Post-meeting note : The submission from the Estate Doctors Association Limited was issued vide LC Paper No. CB(2)418/98-99 on 17 October 1998.)
4. Members agreed that the meeting should first discuss the outstanding items listed in the checklist of items discussed before proceeding to discuss on the policy issues set out in paragraph 4 of the LegCo Brief.
II. Meeting with the Administration
Licensee and person responsible
5. Deputy Secretary for Health and Welfare (DSHW) reiterated that the reason for prohibiting the licensee and the person responsible to be the same person was to facilitate a check and balance system whereby the two parties concerned could monitor each other's performance. He pointed out that clients of RT procedures, unlike other patients, would not lodge complaints against a person responsible for unlawful activities as they have to benefit from such procedures, such as selection of sex. Having regard to the inherent weakness in the complaints mechanism, the Provisional Council on RT considered it necessary to strengthen the monitoring mechanism to safeguard the interests of all parties concerned.
6. Dr LEONG Che-hung questioned the need to further strengthen the surveillance mechanism given that the person responsible was already monitored by the Council on Human Reproductive Technology (the Council) and the COP of their profession. His greatest concern was that a RT professional could not practise RT procedures if he could not find a licensee to hire him.
7. Mr Michael HO said that he did not agree totally with Dr LEONG because the licensee and the person responsible could be partners instead of an employer and employee relationship. Under the circumstances, the RT professional could practise RT procedure. Dr LEONG responded that if the relationship between the two parties was so close, it was even harder for the monitoring mechanism to be effective.
8. Mr Michael HO said that the merit of the proposal was for the two separate persons to monitor each other to ensure unlawful activities would not be committed. If the two persons conspired with each other, they both would be held liable for the offence they committed. If the licensee failed to discharge his duty of supervising the licensee, the Council would revoke his licence.
|9. The Chairman asked that in the case of a legal proceeding in which the licensee and person responsible were a married couple, whether the husband or wife was able to give evidence for or against his or her spouse. Senior Assistant Legal Adviser said that he would look into the matter and provided a paper for members' information.||SALA |
10. Senior Assistant Law Draftsman (SALD) said that irrespective of the relationship between the licensee and the person responsible, the Council should not grant the licence unless it was satisfied that the licensee was capable of discharging the duties of supervising the person responsible.
11. Dr LEONG Che-hung pointed out that the problem was supervision in relation to knowledge. If the person responsible was a world renown RT professional, it would be beyond the capabilities of the licensee to supervise him.
|12. Mr Michael HO commented that supervision should not be interpreted as clinical supervision. Rather, its purpose was to ensure compliance with the law. DSHW said that he agreed with Mr HO's interpretation. Mr LAW Chi-kwong said that the scope of the supervision would depend on the definition of "suitable practices" in clause 22(1)(d). He opined that the provision should be more specific to avoid ambiguity. DSHW undertook to consider the drafting aspect.
13. In response to members' question on the qualifications of a licensee and a person responsible, DSHW said that the law had not expressly specified that they should be a professional or engaged in certain professions. Having regard to the rapid development in RT, the provision was written broadly to cater for future application. He added that stringent measures would be imposed on the licensee to ensure that he would discharge his duties properly. For instance, he had to prove his innocence when charges were brought against him, whereas in a legal proceeding a person would remain innocent unless he was proved guilty. In response to Miss CHAN Yuen-han, DSHW said that a licence would be granted to an applicant if the Council was satisfied that he had met the criteria set out in clause 21(2). Basically it would consider the applicant's background, experience and qualification.
|14. DSHW further said that a licensee might appoint more than one individual to be the person responsible. Given that the person responsible could be involved in infertility treatment or in research, he could be a nurse, a scientist and not necessarily a medical practitioner. In response to members' request, he undertook to provide more information on the types of health care professionals qualified to carry out various RT procedures in other countries.||Adm
15. Dr LEONG Che-hung advised that a medical practitioner would be involved in RT procedures one way or the other. For instance in the case of an in vitro fertilization, a medical practitioner would extract an egg from a woman's ovary and implant it back when it was fertilized, while a scientist would assist in mixing the egg with sperms so that fertilization could occur. Since both persons carrying out RT procedures were professionals, they were already monitored by the COP of their profession.
16. Mr Michael HO said that given the rapid development in RT, delineation of responsibilities in RT procedures might not be so well-defined. For instance, certain procedure could be carried out by a medical practitioner or a clinician, and there might be a procedure which could be carried out by a non-professional in the sense that a professional body for that particular speciality had not yet come into being. He opined that if RT procedures could be carried out by a person who was not governed by any COP, then he would be inclined to support the Administration's proposal for checks and balances.
17. Dr LEONG Che-hung felt strongly against the provision which prohibited a person responsible, who had the know-how of practicing RT, from being the licensee. He asked the Administration to provide information on other professions or professional activities in which a separate person was required to be the supervisor in order to run an operation.
|18. Mr LAW Chi-kwong commented that if the provision had been written in such a way that a professional was deterred from practising, then it was necessary to look into the matter. He opined that the law should cater for two different scenario, i.e. apart from the provision set out in the Bill, a new provision should be added to enable a person responsible and a licensee to be the same person on the condition that the person responsible was a registered professional. Dr LEONG Che-hung and Mr Michael Ho said that they would accept such an arrangement. DSHW responded that he needed more time to consider the issue and to consult the Provisional Council on RT.||Adm |
Binding on the Government
|19. DSHW reiterated that since the Government would not carry out RT procedures, it was considered not necessary to bind the Government on the Bill. Mr Michael HO asked the Administration to consider to include a provision whereby the Government would also be bound by the Bill in the event that it carried out RT procedures.||Adm|
Membership of the Council
20. DSHW reiterated that the Administration was of the view that the prohibition against medical practitioners from being the chairperson and deputy chairperson of the Council would enhance credibility of the Council, given that the medical aspect would not be seen to dominate.
21. Mr Michael HO commented that the provision to prohibit persons from being chairperson or deputy chairperson of the Council should either include all persons who had vested interests in RT or be deleted, rather than singling out medical practitioners. He opined that the prohibition against persons from being chairperson or deputy chairperson could be arranged by administrative means instead of expressly written in law. Dr LEONG Che-hung supported Mr HO's views.
22. In response to Miss CHAN Yuen-han, DSHW said that prohibition against medical practitioners was not a political decision. He said that during consultation, there were divided views as to whether RT procedures should be allowed in Hong Kong. Since the medical profession was seen to be supporting RT procedures, it was considered necessary to prohibit medical practitioners from being the chairperson and deputy chairpersons of the Council in order to instil confidence in the public that the system was fair and balanced.
23. Dr LEONG Che-hung clarified that the medical profession did not advocate the practice of RT. Having regard to the fact that RT procedures were already being carried out in Hong Kong, the medical profession was of the view that stringent statutory measures should be put in place to ensure safe and informed practice. He said that it would be illogical to prohibit those advocating a proper monitoring mechanism from being the chairperson and deputy chairperson of the Council while those who held opposing view were not prohibited.
A statutory body to monitor RT practice
24. Members raised no query on paragraph 4(a) of the LegCo Brief concerning the proposal to set up a statutory body to license institutions to carry out RT procedures.
Artificial Insemination by Husband (AIH)
25. In response to Mr Michael HO, Principal Medical and Health Officer (PMHO) clarified that AIH would be put under statutory control but it was not necessary to impose specific control on it. He confirmed that AIH would have to be carried out in a premises specified in the licence, otherwise, it would be illegal.
Access to information
26. Mr Michael HO asked that given that a child had the right to know, who would be responsible for disclosing the information that he was born following a RT procedure when he reached the age of 18.
27. DSHW clarified that the age for a child to have the right to access information on whether he was born through RT procedures was revised to 16, the minimum legal age for marriage. He pointed out that a child could claim the right provided that he was suspicious or already knew that he was born through a RT procedure. Although the COP would advise parents to release the information to the child at an appropriate time, it would be up to the parents to do so. He said that it would be practically impossible for other parties to reveal the information because other than the parents, hardly anyone would follow through the entire process from the commencement of RT procedures to giving birth and could say for sure that a child was the consequence of a RT procedure.
|28. In response to Miss CHAN Yuen-han, DSHW said that as far as he was aware, overseas countries had not made it a statutory requirement for parents to disclose the information to the child, having regard to the practical difficulty to implement the measure. PMHO advised that the practice in UK was to let parents decide on the matter. In response to Mr Michael HO, DSHW undertook to provide more information in regard to overseas practices on the confidentiality of semen donor's identity, the right for people to ascertain whether they were born following a RT procedure and to have access to certain non-identifying information about the donor.||Adm|
29. Mr Michael HO said that it was indeed a dilemma as to whether a child's right to know should rest with the parents or should be expressly written in law. He said that he had reservation about the voluntary nature of the disclosure by the parents.
30. Dr LEONG Che-hung stressed that when the Provisional Council on RT discussed the issue, the focus was not on the responsibility of the parents to tell the child, but on the right to access information by people aged 18 or above to ascertain whether they were born following a RT procedure.
31. DSHW advised that there were two main considerations behind the policy. Firstly the disclosure of information was aimed to reduce the danger of accidental incest, and secondly the obligation to tell should not be mandatory having regard to the traumatic effect it might have on the child. He said that the child was not completely deprived of the right to know; if he was suspicious of his origin, he could seek information from the Council. He pointed out that revealing the information might not be beneficial to the child, as it might create unnecessary family problems.
32. In response to Mr Michael HO, DSHW said that the COP would recommend that a semen donor should not be involved in more than three successful inseminations in Hong Kong, as compared to 10 in other countries. As regards ethnic minorities which had a small community in Hong Kong, the Council had the flexibility to further lower the limit in order to reduce the chances of accidental incest. Dr LEONG Che-hung supplemented that the probability for accidental incest was estimated to be one to a million in Hong Kong. He advised that if a couple was blood related, their children would have a high chance of inheriting genetic diseases.
33. On record of semen donors, PMHO advised that the Provisional Council on RT recommended that registered medical institutions should be required to keep the record. As to what and how long the record should be kept, the Provisional Council on RT was of the view that the institutions might simply follow their usual record keeping practice. As regards Register A, it would contain personal details such as name, identity card number, height, etc. but would not contain medical record of the semen donor. He said that a form would be included in the COP and the institutions were required to pass the completed forms to the Council for central keeping.
34. Mr Michael HO asked whether it was possible to track down the semen donor, in the event that the child required bone marrow transplant. DSHW replied that clause 32 provided for the court to make an order for disclosure in interests of justice. For the case quoted by Mr HO, the party concerned had to bring the case to court for a decision. In response to the Chairman, DSHW said that the Provisional Council on RT had considered various situations under which disclosure of the donor's identity might be needed but it was impossible to cover all the scenario, particularly in civil cases.
35. SALD pointed out that the case brought out by Mr HO worked both ways in the sense that a child might wish to trace the donor for bone marrow donation, or alternatively a donor might wish to trace any sperm that he donated had resulted in a child in order to warn the child of a genetic disease which he had since discovered.
36. Dr LEONG Che-hung informed members that the merit of clause 32 was to give ultimate protection to the child and not to reveal the complete identity of the donor. If there was any incident leading to the disclosure of the donor's identity, it would annul the confidentiality rule enshrined in the spirit of the Bill. He stressed that the privacy of the donor must be kept in the strictest confidence, otherwise it would deter people from donating semen.
|37. Mr Michael HO opined that the legislation should have regard to the semen donor's interests on one hand and the minor's interests on the other hand. He said that he had reservation about keeping absolute confidentiality of the identity of the semen donor given that there were circumstances warranting disclosure of such information. He requested the Senior Assistant Legal Adviser to provide legal opinion on the implication of clause 32.
|38. In response to Mr Michael HO, SALD explained that sections 9-11 of the Parent and Child Ordinance (Cap. 429) (referred to in clause 32) basically set out that a child who was not necessarily the genetic child of the parents should be treated for all purposes as though he was the genetic child of the parents. That was to ensure that there was no legal distinction made anywhere between an adopted child or genetic child. Dr LEONG Che-hung said that he recalled that the reference to the provisions was for the protection of the child in relation to the right of the child in estate and welfare. In response to members, SALD undertook to provide details regarding the legal distinction, if any, between a child born through RT and a genetic child in the Parent and Child Ordinance at the next meeting.||Adm |
III. Internal discussion
39. In response to the Chairman, Dr LEONG Che-hung suggested that the selection of sex and limitation on cryopreservation should also be discussed after the Bills Committee had gone through the policy issues outlined in paragraph 4 of the LegCo Brief.
|40. Noting that there was only one submission, members agreed that the Department of Obstetrics and Gynaecology of the University of Hong Kong and the Chinese University of Hong Kong, the Hong Kong Sanatorium and Hospital and the Family Planning Association of Hong Kong should be invited to give their views.||Clerk |
IV. Date(s) of next meeting(s)
41. Members noted the next meeting would be held on 29 October 1998 at 8:30 am and agreed that a further meeting should be held on 11 November 1998 at 8:30 am.
(Post-meeting note: The meeting on 11 November 1998 has been rescheduled to 18 November 1998)
42. The meeting ended at 10:30 am.
Legislative Council Secretariat
16 December 1998