LC Paper No. CB(2) 507/98-99
(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 Wednesday, 23 September 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
Dr Hon LEONG Che-hung, JP
Hon YEUNG Yiu-chung
Hon Ambrose LAU Hon-chuen, JP
Hon LAW Chi-kwong, JP
Members Absent :
Hon MA Fung-kwok
Hon CHAN Yuen-han
Public Officers Attending :
Clerk in Attendance :
- 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
- Mr Clement LAU Chung-kin
- Assistant Secretary for Health and Welfare (Medical) 6
- Mrs Vicki KWOK
- Assistant Secretary for Health and Welfare (Medical) 7
- Dr Cindy LAI Kit-lim
- 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
Staff in Attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2) 4
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mrs Eleanor CHOW
- Senior Assistant Secretary (2) 4
I.Election of Chairman
Nominated by Dr LEONG Che-hung and seconded by Mr Michael HO, Miss Cyd HO Sau-lan was elected Chairman of the Bills Committee.
2.The Chairman asked members to give their views on how the Bill should be studied by the Bills Committee.
3. Dr LEONG Che-hung declared interest as he was the Chairperson of the Committee on Scientifically Assisted Human Reproduction which was established in 1987 to advise the Government on how to address the social, moral, ethical and legal issues arising from the developments of reproductive technology (RT). He briefed members on the background of RT.
4. Dr LEONG said that RT was presently being practised in Hong Kong without legislative control. Those who practised RT were regulated by their code of profession only. It was therefore necessary to regulate the practice of RT to avoid abuse of the technology. The broad principle was to neither advocate nor completely prohibit the practice of RT. Rather, stringent statutory measures should be imposed to ensure its safe and informed practice. He further said that as technology advanced, more and more RT procedures would be devised. The Bill should therefore be couched in broad terms to cater for future developments. He said that apart from the principal ordinance, regulations and a code of practice (COP) would also be put in place to regulate the practice of RT. Senior Assistant Legal Adviser supplemented that clause 4(3) also mentioned about guidelines. He said that members might wish to consider the legal status of the guidelines.
5. Mr Michael HO said that the Administration should be asked to explain the circumstances for certain issues to be regulated under the principal ordinance, a COP, guidelines or regulations respectively. The Bills Committee should also consider whether it agreed with the proposed arrangements.
6. Senior Assistant Legal Adviser alerted members that under the proposal, there was no mechanism for the LegCo or the public to put forward views on RT. He said that members might wish to consider whether a mechanism should be provided in the principal ordinance or regulations.
7. In response to the Chairman, Dr LEONG said that a COP was still under study by the Provisional Council on RT. He would provide background information for members' consideration as far as possible.
8. In response to a further question from the Chairman, Dr LEONG said that one of the objectives of the Bill was to provide sufficient protection to the children and couple who had undergone a RT procedure. While the Administration had conducted wide consultation on RT and solicited views from professionals and organizations interested in protecting children, it was impossible to gather first hand information from those who had actually commissioned RT. Although experience and concerns expressed by parents with adopted children had been used as a reference, they had no direct relevance to some RT cases such as surrogacy.
9. Mr Michael HO pointed out that while the LegCo Brief had set out a general direction for the practice of RT, it had not provided sufficient background information on how the direction was derived. He opined that the Administration should be asked to brief members in more detail on the package of proposals set out in paragraph 4 of the LegCo Brief.
10. Mr HO further pointed out that the LegCo Brief had not covered minority or opposing views. Members agreed that the Administration should be asked to provide a set of consultation documents mentioned in paragraph 21 of the LegCo Brief.
11. In view of the implications of the Bill, Mr HO suggested and members agreed that advertisements should be placed in two local newspapers (in both English and Chinese) to invite submissions on the Bill.
(Post-meeting note: Advertisements were placed in Ming Pao Daily and South China Morning Post on 28 September 1998)
III.Meeting with the Administration
14. The Chairman welcomed representatives of the Administration.
15. Deputy Secretary for Health and Welfare (DSHW) explained that the Bill sought to regulate the practice of the following types of RT-
- Artificial insemination
This refers to the placing of sperms inside a woman's vagina or uterus by means other than sexual intercourse;
- In-vitro fertilization
Eggs are taken out from the woman's ovaries and then mixed with sperms in a laboratory or in an artificial environment (in-vitro) so that fertilization can occur. Once the fertilized egg has started to develop, it is transferred back to the woman's womb;
- Surrogacy; and
- Embryo research.
|16. DSHW then briefed members on the main features of the Bill as set out in paragraphs 13-20 of the LegCo Brief. At the request of members, DSHW undertook to provide a glossary of terms in relation to RT for members' easy reference.
(Post-meeting note: a glossary of terms was issued vide LC Paper No. CB(2) 376/98-99)
Binding on the Government
17. DR LEONG Che-hung pointed out that clause 3 of the former bill proposed that "This Ordinance binds the Government". He asked why the clause was not included in the present Bill.
18. DSHW explained that the former bill was likely to have been drafted on the basis that the Hospital Authority (HA) was then considered part of the Government. Since this was not the case, and it was outside the terms of reference of the Department of Health to deal with RT, the clause to bind the Government on the ordinance was no longer necessary. Senior Assistant Law Draftsman (SALD) supplemented that since the HA and private hospitals would be the only institutions providing RT services, the clause was deleted as being redundant.
19. Dr LEONG did not agree with the explanations. He pointed out that given the rapid development of RT, no one could say for sure that the Department of Health would not be involved in RT in the future. In addition, removal of the clause would give the public an impression that the Government was free from legislative control over the provision of RT service.
20. SALD responded that whether or not the Government should be bound by the ordinance was a policy matter. He clarified that deleting the clause did not necessarily imply that the Government was out of bound. Whether or not the Government was bound by necessary implication was a separate question which required further study.He further explained that if the clause was deleted as being redundant, then it was not necessary to ascertain whether or not the Government was bound by necessary implication, given that the Government was not going to provide any RT services.
|21. Dr LEONG said that he did not accept the explanation because the Bill should also prepare for future development. Having regard to RT covering a wide scope of services and its technology rapidly improving, it could in the future become so simplified that even the Department of Health could be engaged in RT services. He asked the Administration to provide an explanation on why on a policy basis the Government should not be bound by the Bill. DSHW undertook to look into the matter again with the Department of Justice and brief members at the next meeting.
Code of Practice(COP)
22. Mr Michael HO said that he noted that the Provisional Council on RT was presently drafting a COP giving guidance on the proper conduct for those providing RT procedure. He asked whether the COP would be effected in the form of subsidiary legislation. The Chairman supplemented that there were four avenues to regulate RT procedure, namely the principal ordinance, a COP, subsidiary legislation and guidelines. She asked the Administration to give an account of the areas to be covered by each of the avenue.
23. DSHW explained that apart from the principal ordinance, there would be subsidiary legislation and a COP governing the use of RT. Clauses 41, 42(1) and 42(2) stipulated that the Financial Secretary, the Secretary of Health and Welfare and the Council on Human Reproductive Technology (the Council) might make regulations in the form of subsidiary legislation. As regards the COP, this was being drafted and might become available for voluntary compliance before the Bill was enacted and implemented. The COP would give guidance on the proper conduct of any relevant activity authorized under a licence. There would be sample forms and appendices attached to the COP. In response to a member, DSHW said that prohibitions against carrying on relevant RT activities were set out in Part III of the Bill.
24. SALD supplemented that there was no COP in any ordinance in Hong Kong. A COP might have legal effect but it was not legally binding. If it was felt that certain rules should be binding, it should be regulations in the form of subsidiary legislation instead of being included in the COP. He further explained that once a rule became mandatory, there would not be any choice. With COP, there was a discretion, for example, good practice could be accepted and conditions for licence could be altered as and when necessary.
25. Dr LEONG said that while a COP appeared more flexible in terms of setting rules and guidelines, punishment arising from failure in compliance could be even more severe than breaking the law. For instance, a person might lose his licence to practise in the profession.
|26. In response to members, the Administration undertook to seek consent from the Provisional Council on RT for releasing a draft COP for members' perusal.
27. In response to Dr LEONG Che-hung, SALD explained that a company or a person might make an application to the Council to be granted a licence to carry on a relevant activity in premises specified in the application. When a person or a company put up an application for licence, it has to specify a living person as being the person responsible, i.e., the individual under whose supervision the activities authorized by the licence should be conducted. He further said that in accordance with the Bill, the licensee and the person responsible would always be different persons, irrespective whether the applicant was a company or an individual. In the case of a licence being applied by a company, the licensee would be the company. In the event that the person responsible had passed away, it would be the duty of a company to make another application to the Council specifying another person responsible.
28. In response to members, SALD said that in granting licence to a company or an individual, the Council had to be satisfied that the licensee was a fit and proper person to carry out his duties. The duties of a licensee and a person responsible were stipulated in clause 22. It was the duty of a licensee to ensure a person responsible carried out his duties in accordance with clause 22(1).
29. On the question of who should be held liable if a person responsible had been carrying out activities that were prohibited, SALD said that if a criminal offence was committed, action would be taken against him. If the licensee also knew about the offence and was involved in it, he would also be prosecuted. The licence would be revoked if it was proved that activities contrary to the ordinance were conducted. However, if the licensee knew about the offence and subsequently fired the person responsible and reported the case to the Council, a new person responsible might be appointed if the Council accepted the explanation.
30. As to whether the shareholders of a company should be liable for criminal offences committed by a person responsible, SALD advised that since the shareholders did not manage the company, they were not liable. On the other hand, the senior management such as the chief executive, the managing director and the board of directors of a company would be held liable, unless they could put up a defence of due diligence.
31. Dr LEONG Che-hung opined that it was unreasonable to prohibit a person responsible, who had the know-how of practising RT, from being the licensee. The policy virtually deprived a RT professional from practising if he could not find a licensee or unwilling to involve a third person in the business. He cautioned that the prohibition against a licensee and a person responsible to be the same person might result in professional autonomy being eroded by business decisions, given that a person responsible might be manipulated and controlled by a licensee who was more concerned about making money and might instruct a person responsible to carry out illegal activities.
32. SALD replied that the concern raised by Dr LEONG was a policy matter. It would require a change to the Bill to enable the licensee and the person responsible to be one and the same person.
33. DSHW said that if a licensee had instructed a person responsible to perform unlawful activities, he would not be a fit and proper person and his licence would be revoked by the Council. He further explained that the reason for prohibition against a licensee and a 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.
34. Dr LEONG Che-hung and Mr Michael HO said that they were not convinced by the explanation. Dr LEONG pointed out that the activities carried out by a person responsible were already governed by law and a COP and he questioned the need to have a licensee to further monitor the performance of a person responsible.
|35. DSHW responded that since the practice of RT touched on moral, legal, social and ethical issues, it was necessary to put in place stringent legislative measures. In response to members' request, he undertook to reconsider the policy.
Limitation on RT services
36. Mr YEUNG Yiu-chung asked whether there was any restriction over the number of times a married couple could make use of RT. Assistant Director of Health (ADH) replied that no ceiling had been set in this respect. However, as far as donors were concerned, the draft COP recommended that a semen donor should not be involved in more than three successful inseminations in order to reduce the chances of accidental incest.
37. Mr YEUNG further asked about the possibility and the procedure of discontinuing a RT process upon the request of donors or a commissioning couple. ADH replied that before the commencement of a RT procedure, semen donors and married couples were fully informed of the details and had to sign letters of consent in accordance with the COP. Whether a RT procedure could be discontinued would depend on the stage of the process. If a fertilized egg or embryo had been put back into the woman's body resulting pregnancy, discontinuing of the procedure would be treated as termination of pregnancy and the legal provisions of such procedure had to be taken into consideration.
38. ADH further said that semen donor's identity would be kept confidential from the commissioning couple and vice-versa. Dr¡@LEONG said that the above held true except for the case of designated donation. ADH supplemented that designated donation applied to very special circumstances, for instance it might apply to ethnic minorities.
Membership of the Council on Human Reproductive Technology (the Council)
39. Referring to clause 3(2)(a) and (b) of the Bill, Dr LEONG Che-hung questioned the rationale for preventing registered medical practitioners from being the chairperson and deputy chairperson of the Council.
40. Principal Assistant Secretary for Health and Welfare (Medical) 3 (PASHW) explained that since RT had implications which went beyond the medical sphere, other factors such as social, religious, moral and ethical consideration should be taken into account. Disallowing medical practitioners to be the chairperson and deputy chairperson was to ensure that the medical aspect should not be perceived by the public to dominate.
41. Dr LEONG raised objection to the argument. He said that a medical practitioner would also be aware of other considerations and would look at the social, legal and moral issues. It was wrong to assume that there was conflict of interests, given the majority of medical practitioners were not involved in RT. He wondered why the Bill had not specifically prohibited a priest, who obviously had conflict of interest over the issue, from being the chairperson but had only singled out the medical profession. He commented that the way the clause was written would have constituted professional discrimination. He said that he would accept that for administrative convenience, it might not be appropriate for a medical practitioner to be the chairperson, but he see no reason why a medical practitioner should also be barred from being the deputy chairperson. He also commented that since the Bill only prohibited registered medial practitioners from being the chairperson or deputy chairman, it seemed to imply that non-registered medical practitioners could be appointed.
42. DSHW discounted any element of professional discrimination in the legislative proposal. He said that under clause 3(3)(a)(i) public officers were also prohibited from being members of the Council. While he noted that a medical practitioner would also look at issues other than medical point of view, it was important to instil confidence in the public that the system was fair and working in a balanced manner.
43. Mr Michael HO said that he agreed with the Administration that this was more than just a medical issue and the proposed arrangement would enhance the credibility of the Council. However, he also shared the view that prohibition against medical practitioners from being chairpersons should not be expressly written in the law.
|44. At the request of Dr LEONG Che-hung, the Administration undertook to reconsider the policy.
45. In response to a further question from Dr LEONG, DSHW said that the proposal for membership of the Council to be apportioned equally between males and females was not statutory. The purpose was to facilitate diverse and balanced views in the Council. The arrangement would be made as far as practicable by administrative means.
Limiting RT services to married couples
46. Referring to clause 13(5) which stated that no person should provide a RT procedure to any persons who were not parties to a marriage, Mr Michael HO asked whether the Administration had received views to the contrary during the consultation period, and whether the Administration would consider allowing cohabiting couple to go through the procedure.
47. Dr LEONG Che-hung recalled that there were views expressed in newspapers contrary to the proposal but the mainstream opinion during consultation was that children born in consequence of a RT procedure should have both parents and be brought up in a proper family.
48. DSHW said that cohabiting couples had no legal status and it was difficult to define the number of cohabiting years for couples to be eligible for RT services. He pointed out that in average people's minds the definition of a family should involve a man and a woman and they should be married. He discounted any intention of discrimination against unmarried couples and stressed that the Government had the responsibility to ensure that children born through RT were given sufficient protection. For the well-being of children, a proper family with married status was desirable.
IV.Dates of next meetings
49. Members agreed that the next two meetings would be held on 14 and 29 October 1998 at 8:30 am. The meetings would go through the policy issues set out in paragraph 4 of the LegCo Brief.
50. The meeting ended at 10:35 am.
Legislative Council Secretariat
23 October 1998