Legislative Council

LC Paper No. CB(2)2089/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill
Minutes of the ninth meeting held on Tuesday, 23 February 1998 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
Hon Ambrose LAU Hon-chuen, JP
Hon LAW Chi-kwong, JP

Members Absent:

Hon MA Fung-kwok
Hon YEUNG Yiu-chung
Dr Hon TANG Siu-tong, JP

Public Officers Attending:

Mr Gregory LEUNG Wing-lup, JP

Deputy Secretary for Health and Welfare 1

Mr Eddie POON

Principal Assistant Secretary for Health and Welfare (Medical) 3

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

Deputations Attending:

Professor Christopher J HAINES

The Chinese University of Hong Kong

Dr Susan FAN

The Family Planning Association of Hong Kong

Professor CHAN Ho-mun

The City University of Hong Kong

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 deputations

The Chairman welcomed representatives of the Chinese University of Hong Kong, the Family Planning Association of Hong Kong and the City University of Hong Kong to the meeting.

The Chinese University of Hong Kong (CUHK)
(LC Paper No. CB(2)1322/98-99(01))

2. Professor Christopher Haines, Reader in Obstetrics and Gynaecology of the CUHK, presented his views as outlined in the speaking note in Appendix. 3. On Professor Haines' concern that excluding the licensee from being a member of the Council on Human Reproductive Technology (the Council) would weaken the decision of the Council, Dr LEONG Che-hung said that clause 3(2)(c) of the Human Reproductive Technology Bill (HRTB) provided that "4 persons who are engaged in the teaching or practice of (i) obstetrics and gynaecology; or (ii) any relevant activity" might be appointed as members of the Council. In this regard, there would be specialists giving professional advice to the Council although he might not be a licence holders. He further said that a subcommittee of the Provisional Council on Reproductive Technology (PCRT), which was responsible for the preparation of the Code of Practice (COP), also consisted of specialists who had given expert advice on the COP although they were not members of the PCRT. He asked Professor Haines whether he considered the arrangements acceptable. He said that the arrangements would remove conflict of interest and at the same time provide for specialists giving valuable advice to the PCRT and the future Council.

4. Professor Haines replied that he did not hold a strong view against the present arrangements. However, he considered that to allow the licensees, who were experienced in reproductive technology (RT) procedures, to be members of the Council would be an advantage rather than a hindrance. Since the composition of the Council appeared to be broad, it would prevent any licensee from having undue influence on the Council.

5. As regards confining RT procedures to married couples, Dr LEONG Che-hung held the view that a family with both parents would provide better protection and welfare for the child born as a result of RT procedure. He said that the Senior Assistant Legal Adviser (SALA) had confirmed that this would not contravene anti-discrimination legislation in Hong Kong. Professor Haines said that the reason for him to raise this question was because in Australia, refusal to provide treatment to a single woman had been challenged through the Anti-discrimination Board of New South Wales. He said that he had no strong view against the existing proposal. The Chairman requested Professor Haines to provide details of the court case in New South Wales to facilitate members' deliberation on the issue.

(Post-meeting note : The relevant information was circulated to members vide LC Paper Nos. CB(2)1601/98-99(01) and (02) dated 29 March 1999.)

6. On Mr Michael HO's question about the function of the Reproductive Technology Accreditation Committee (RTAC) in Australia, Professor Haines explained that the RTAC was formed in the 1980's to self-regulate RT units according to published guidelines. Initially the RTAC was not vested with power under the law. It started off in drafting code of practice for RT units and paying visits to these units to ensure compliance with the code. Its work was later recognised by the government and the body was subsequently included under legislation. Its function was similar to that of the Council in Hong Kong, but its members also included specialist practitioners. He said that he was not sure whether the RTAC published any report regarding the service standards of these RT units, but he was aware that the licence of one RT unit had been suspended because it had transferred more than the regulated number of embryos.

The Family Planning Association of Hong Kong (FPAHK)
(LC Paper No. CB(2)503/98-99)

7. Dr Susan FAN, Executive Director of the FPAHK, explained that the FPAHK's RT activity started in the 1970's and was limited to semen bank, i.e. the FPAHK obtained semen from a donor and inseminated them to a woman whose husband did not have sufficient sperms. She said that the FPAHK's views were set out in its written submission.

Licensee and person responsible

8. Dr LEONG Che-hung declared interest as a council member of the FPAHK. He asked Dr FAN whether the FPAHK would like a provision allowing the licensee and the person responsible to be the same person and the implication for the FPAHK if the person responsible was required to be a medical practitioner with a specialist degree. Dr FAN replied that at present, the FPAHK only had medical staff who were registered medical practitioners with no specialist qualifications. Even the post of Executive Director might or might not require a medical specialist. The point that the licensee and the person responsible could not be the same person posed a problem for the FPAHK, if it was required that the person responsible had to have certain medical qualifications. The ultimate question was whether the Council would specify a higher qualification for the person responsible before a centre was allowed to conduct RT activities. If it was the case then the FPAHK might no longer be able to carry on such activities.

9. Mr Michael HO asked Dr FAN for her view on paragraph 2.8 of the COP which stated that "the overall clinical responsibility for RT procedures should be held by someone with relevant training and experience and with post-graduate qualifications recognised by the Hong Kong College of Obstetricians and Gynaecologists or the Hong Kong College of Surgeons, and recognised as an accredited specialist under the Specialist Register of the Medical Council of Hong Kong". Dr FAN replied that the requirement would mean the closing of the sperm bank in the FPAHK. She said that she herself was not an accredited specialist under the Special Register of the Medical Council of Hong Kong. Dr LEONG said that the requirement was accepted by the Chairman of the FPAHK, who was a member of the Subcommittee on COP. Mr HO considered that the level of control on RT activities should vary, depending on their complexity, instead of setting one requirement across the board. He expressed concern over the requirement which would prohibit the FPAHK, which had operated a sperm bank for more than 20 years, from practising. He suggested that the subject should be discussed at a future meeting.

Effective date of the HRTB

10. Addressing Dr FAN's concern about the retrospective effect of the HRTB, Dr LEONG Che-hung confirmed that it had no retrospective effect. SALA supplemented that under clause 1, the commencement date would be decided by the Secretary for Health and Welfare, and the requirements under the Ordinance would apply on the same day.

Disclosure of donors' identity

11. Dr LEONG Che-hung asked Dr FAN for her views on the suggestion that donors' identity might be revealed with the consent of donors, or under special circumstances, such as the need for bone marrow transplant.

12. Dr FAN explained that the FPAHK had adopted a procedure whereby donated semen was the property of the FPAHK. Once the semen was donated, the donor had no claim whatsoever and the FPAHK had the sole prerogative to decide on what to do with them. At the same time, it had guaranteed the donor that his identity would not be released. If a third party requested the release of such information, the FPAHK would, without consulting the donor, reply that the information could not be released. She considered the proposal a further deterrent to donation, as there were already difficulties in getting people to donate semen. She further said that allowing the disclosure of donors' identity would create administrative problems for the FPAHK because it would be difficult to identify the cut-off date of semen donations from a repeated donor, in particular for unsuccessful insemination that would be retried.

13. Mr Michael HO said that the Bills Committee had discussed an overseas practice whereby a donor's identity might be released with the consent of the donor. He sought Dr FAN's views on the arrangement for two separate sperm banks, one allowing disclosure of donors' information and the other not, at the point of donation. Dr FAN replied that since there was limited stock in the sperm bank, to further separate them into two banks would make matching between the donor and the recipient even more difficult.

14. In response to questions from members, Dr FAN said that the FPAHK did not keep imported sperms nor would it assist its clients to get sperms from overseas. There were 20-30 donors a year. As regards specimen in stock, Dr FAN pointed out that the number of donors and specimen was not in direct proportion as one donor might make more than one donation and some donated semen might not be suitable for insemination. The waiting time for a recipient was two to three years and there were hundreds of persons on the waiting list. Some of the specimen in stock dated back to the 1970's were sometimes used for testing.

City University of Hong Kong (CIUHK)
(LC Paper No. CB(2)1185/98-99)

15. Dr CHAN Ho-mun, Associate Professor of the Faculty of Humanities and Social Sciences of the CIUHK, made the following comments -

1. He supported democratisation of the legislative process and urged LegCo to improve communication with the public as people had high expectation of the LegCo whose Members were elected. He said that LegCo should proactively conduct public consultation on controversial issues in addition to the consultation conducted by the Administration. He stressed that he was not challenging the ability of the Administration in conducting consultation nor doubting the integrity of the Administration, but considered that the two bodies might look at matters from different angles. He noted that the views of CIUHK on the HRTB submitted to the Committee on Scientifically Assisted Human Reproduction (SAHR) in 1993 and to the PCRT in 1996 had not been passed to LegCo. He suggested that in future all submissions should be made public unless the person/organisation making the submissions had expressly refused to do so. He urged the Administration to forward all consultation documents to LegCo in future;

2. The Administration had described its position on RT as open and neutral, that the Government neither promoted nor prohibited SAHR. In fact, the Government's position was far from neutral and open. The Health and Welfare Bureau and the PCRT had on various occasions mentioned that the society had come to a consensus view that surrogacy should not be supported nor prohibited. He questioned the basis on which the Administration claimed that there was a consensus view on surrogacy;

3. The CIUHK considered that surrogacy should be banned in Hong Kong because it would break up the bond between parents and child in terms of genetic, gestation and rearing relationship. He pointed out that in accordance with the Parents and Child Ordinance (Cap. 429), "the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be regarded as the mother of the child". In this regard, surrogacy would distort the mother and child relationship. In addition, all parties would be placed in a very vulnerable position, given any surrogacy arrangement was legally unenforceable. There was no protection for the child because the commissioning couple and the surrogate mother could both fight for the child or give up the child. The Administration had explained that for the welfare of the child, RT procedures were not allowed for single persons. Based on the same principle, surrogacy should be prohibited in Hong Kong;

4. He disagreed that the composition of the Council should be apportioned equally between males and females. Given that women were more vulnerable than men in surrogacy arrangements, he suggested that more than half of the members of the Council should be women, similar to the practice in the UK;

5. In the UK, three groups of people were prohibited to become chairperson and deputy chairperson of the licensing authority, although they could be members. They were medical practitioners; persons who were involved in the use or storage of gametes and embryos; and persons who had assisted or subsidised in the use of gametes and embryos. He said that Hong Kong should consider adopting the UK practice; and

6. The legislative work of the HRTB was too slow, given that consultation had started way back in 1987. He urged the Administration and LegCo to expedite the legislative process so that RT procedures could be regulated in Hong Kong as soon as practicable.

16. Miss CHAN Yuen-han said that surrogacy might be the only way for some infertile couples to have children. She asked how their needs could be satisfied if surrogacy was prohibited. Dr CHAN replied that apart from catering for the needs of infertile couples, it was necessary to ascertain the risks involved in surrogacy. For instance, how to safeguard the relationship between the mother and the child and to deal with the situation when either party disputed over the arrangement. Given that pregnancy would establish a deep emotional and physical bond which was the basis of parental love for the child, giving away the child to the commissioning couple could be traumatic to the surrogate mother. On the other hand, a commissioning couple who was the genetic parents of the child might be deprived of parenthood if the surrogate mother breached the contract. In response to a further question from Miss CHAN, Dr CHAN explained that in the Baby M case in New Jersey, the surrogate mother had breached the contract and the court ruled that the arrangement, which involved commercial dealings, was not enforceable. The court determined the case according to the best interests of the child. The child was handed over to the commissioning couple having regard to their social and financial background, while the surrogate mother still had the visitation right. He pointed out that this was tantamount to introducing a third party in a marriage relationship. Having considered that there was no protection for all the parties concerned, he held the view that surrogacy should be banned in Hong Kong.

17. Dr LEONG Che-hung declared interest as Chairperson of the Committee on SAHR in 1988/89. He clarified that the stance of the Committee on SAHR was similar to that of the Administration, i.e. the principle was to neither advocate nor completely prohibit the practice of surrogacy, that stringent statutory measures should be imposed to ensure its safe and informed practice. The Committee on SAHR had considered various scenarios including the implications of the Baby M case. He shared the sentiment of Dr CHAN over the enforceability of a surrogacy arrangement and the lack of protection for the parties concerned, but he would like to ask Dr CHAN how the court should handle surrogacy disputes if surrogacy was prohibited in Hong Kong. For instance, a surrogacy arrangement involving RT procedures was carried out overseas but the end result, i.e. the delivery of the child, and subsequent legal proceedings arising from disputes between the commissioning couple and the surrogate mother took place in Hong Kong.

18. Dr CHAN responded that the court should look at an individual case and make its judgement taking into consideration the best interests of the child. He said that under the pretext of neutrality, the Administration had failed to produce a coherent legal and moral framework for RT procedures. If it was based on meeting the needs of infertile couples that surrogacy was allowed, then the law should be consistent to allow other couples like homosexual to receive RT procedures. The HRTB must have its moral stance and the potential risks and hazard should be assessed before formulating the policy.

19. Mr Michael HO responded that moral judgement must be made before policies were formulated on a bill. He considered that banning surrogacy in Hong Kong was simply evading the issue and could not solve the problem because surrogacy could be easily arranged outside Hong Kong. Dr CHAN replied that banning surrogacy and arranging surrogacy outside Hong Kong were two separate issues. If it was considered that surrogacy posed too much risks to all parties concerned, then the principle to prohibit surrogacy should be upheld in Hong Kong. In response to Dr LEONG, Dr CHAN said that he noted that the Parents and Child Ordinance had provided protection to the child in the sense that there was no such thing as an illegitimate child any more. However, his concern was not on the legitimacy of the child. He reiterated the stance of the CIUHK that surrogacy arrangement should be banned in Hong Kong.

II. Meeting with the Administration

20. Deputy Secretary for Health and Welfare (DSHW) and the Senior Assistant Law Draftsman (SALD) replied to the questions raised by Professor Haines (in his submission and Appendix) as follows -

1. Dr LEONG Che-hung had already addressed the issue of whether a licensee should be allowed to be appointed as a member of the Council;

2. The Administration would bring to the PCRT's and future Council's attention that the statistics and summaries concerning relevant RT activities carried out by individual units should not be identifiable and made available to the public;

3. The Bills Committee had discussed the rationale behind limiting RT procedures to married couples at previous meetings; and

4. The term "marriage" meant marriage recognised under Hong Kong law as defined in the Marriage Ordinance (Cap. 181).

21. Addressing the concerns raised by Dr FAN in her submission, DSHW made the following points -

1. The subject of whether the licensee and the person responsible should be the same or separate persons had been discussed by the Bills Committee on numerous occasions. As there were pros and cons for each of the scenarios, the Bills Committee had not reached a consensus view;

2. The Administration would consult relevant bodies on the categories of information to be maintained in Register A under clause 30;

3. The HRTB had not mentioned who should be responsible for providing counselling to the adult requesting information under clause 30(3)(b). Consideration would be given to arranging counselling by the future Council; and

4. The HRTB had no retrospective effect.

22. On the views expressed by Dr CHAN, DSHW made the following comments -

1. The Administration also supported democratisation in the legislative process. He noticed that LegCo had advertised in newspapers to invite views from the public on the HRTB. Since RT had wide-ranging social, moral, ethical and legal implications, the Administration had conducted three public consultation exercises. Views of a number of organisations on various aspects had been received. Given the controversial nature of surrogacy, he did not recall the Administration having mentioned that the society had reached a consensus view;

2. The Administration considered that while it did not advocate surrogacy, it was necessary to regulate the arrangement to prevent abuse and to keep all parties involved in the arrangement informed of the risk and consequences;

3. The composition of the future Council would be arranged by administrative means. While its members should be representative, it was necessary to ensure that there was no conflict of interest. The Administration would consider the suggestions of Dr CHAN; and

4. The legislative process of HRTB had been prolonged because RT was a complicated issue. There were incessant discussions which were sometimes quite time consuming. The HRTB was actually introduced into the former LegCo in 1996 but there was no time to scrutinise the Bill due to competing priorities in the legislative programme.

23. Regarding Dr CHAN's comments on the role of LegCo in consultation, the Chairman said that if any member of the public made a submission to another organisation without explicitly indicating that LegCo might be given a copy, it would be beyond the means of LegCo to get one. As regards the suggestion that LegCo should take the initiative to conduct public consultation, she responded that LegCo did not have the resources to do so.

24. Dr CHAN said that his submission on RT was directed to the Administration or the relevant body carrying out the consultation and that was why LegCo did not have a copy. He hoped that in future, submissions given to the Administration could be stored in a database so that LegCo could have access to such information. Bearing in mind that LegCo had the mandate of the people, it should play a more active role in collecting views. If resource was a constraint, then requests for funding should be made to the Financial Secretary. He stressed that the Administration should continue its own consultation exercise for the purpose of formulating polices on bills. The Chairman responded that under the Basic Law, LegCo was prohibited from introducing Members' Bills which had a charging effect. Miss CHAN Yuen-han supported the view of Dr CHAN that public views should be stored in a database for public's reference.

25. The Chairman thanked deputations for attending the meeting.

III. Date of next meeting

26. The next meeting would be held on 3 March 1999 at 8:30 am. Dr LEONG Che-hung pointed out that the HRTB had omitted a major principle which underlined the policies of RT, i.e. RT procedures should be available as substitutes for natural fertilisation for couples who had been medically proven to be infertile. He suggested and the Administration undertook to consider adding an explicit clause in the HRTB. Members agreed to discuss the subject at the next meeting.

Adm

27. Mr Michael HO maintained the view that a list of sex-linked genetic diseases should be included in the law in the form of subsidiary legislation. He asked the Administration to provide views of local and overseas specialists as to why a list of severe sex-linked diseases could not be compiled and the reason for including the list in the COP and not as subsidiary legislation. Members also agreed to discuss the subject at the next meeting.

Adm

28. The meeting ended at 10:37 am.

Legislative Council Secretariat
25 May 1999