LC Paper No. LS27/98-99
Paper for the House Committee Meeting of the Legislative Council
Objects of the Bill
on 11 September 1998
Legal Service Division Report on
Human Reproductive Technology Bill
To bring under statutory regulation the following:-
- the provision of reproductive technology procedures;
- the conducting of embryo research;
- the handling, storing or disposing of a gamete (i.e. a sexual reproductive cell) or embryo used in connection with a reproductive technology procedure or embryo research;
- surrogacy arrangements, in particular to prohibit surrogacy arrangements on a commercial basis.
LegCo Brief Reference
2. HWB/M/39/1 Pt.9 96 dated 4 September 1998 issued by Health and Welfare Branch.
Date of First Reading
3. 9 September 1998.
4. Since at least the late 1980's steps have been taken in Hong Kong to address the social, moral, ethical and legal implications of reproductive technology (formerly known as scientifically assisted human reproduction�. Reproductive technology means, essentially, the applied science and medical treatment aimed at assisting human conception by artificial means.
5. In 1987 a Committee was appointed to consider the subject. It issued an interim report in 1989 and a final report in 1993. There were public consultation exercises associated with both reports. In 1994 the then Executive Council endorsed a package of proposals put together by the Administration, which took into account the recommendations in the 1993 report and public reaction. The proposals included the setting up of a non-statutory board to advise on the drafting of legislation and a Code of Practice to regulate reproductive technology.
6. The board was duly appointed in December 1995 as the Provisional Council on Reproductive Technology (the Provisional Council�. The Provisional Council identified two further developments in the field of reproductive technology which had not been addressed in the 1994 proposals. These were (a) sex selection achieved through reproductive technology and (b) the use of fetal ovarian or testicular tissue. In mid-1996 the Provisional Council conducted public consultation on these two issues. In due course it completed its legislative proposals, which form the basis of a bill under the same name as the present one ( the former bill ).
7. The former bill had its first and second reading in the former Legislative Council on 15 January 1997. A Bills Committee was formed in respect of the former bill but due to priorities the former bill had not been considered by the former Legislative Council before its dissolution. The Administration has confirmed that there are certain slight differences between these two bills and has supplied a comparison list of the differences. The policy aspects of the two bills are broadly the same. One noteworthy difference is that the former bill proposed that this Ordinance binds the Government�but the same provision is not in the present Bill.
Main features of the Bill
I. Establishment of Council on Human Reproductive Technology
The membership of the Council on Human Reproductive Technology ( the Council) is spelt out in clause 3. The Chairman and Deputy Chairman shall not be registered medical practitioners but provision is then made for a blend of medical and other relevant experts, together with lay membership. Members may wish to study the proposed composition. There is no statutory provision apportioning membership equally between males and females, but an undertaking is given in paragraph 15 of the LegCo Brief that this will be done through administrative means as far as is practicable� All members are appointed by the Chief Executive.
Clause 4 deals with the functions and powers of the Council. The clause does not expressly mention that the Council has the power to grant and revoke licences, the licensing aspects are contained in clauses 19 to 29.
Clause 7 requires the Council to publish a code of practice giving guidance about the proper conduct of activities covered by the Bill. Clause 8 provides that failure to observe the code is not in itself an offence but may be taken into account by the Council in deciding whether to revoke a licence. The Bill makes no provision for Legislative Council intervention in the details of the code of practice.
Clauses 11 to 18 contain prohibitions relating to provision of reproductive technology procedures and commercial dealings on gametes, embryos etc. These are summarized in paragraph 16 of the LegCo Brief. Contravention of the prohibitions is an offence punishable with a fine at level 4 (i.e. $25,000) and imprisonment for 6 months on first conviction, and a fine at level 6 (i.e. $100,000) and imprisonment for 2 years on a subsequent conviction.
Clauses 19 to 29 deal with the granting, revocation and suspension of licences by the Council. Paragraph 17 of the LegCo Brief contains a summery of the licensing proposals. In respect of refusal, variation, suspension or revocation of a licence there is provision for appeal to the Administrative Appeals Board (clause 38).
IV. Access to Information
Clause 30 requires the Council to keep information in a register about donors and persons for whom a reproductive technology procedure have been provided. In general, a person would be given the relevant information only when he/she was born in consequence of a reproductive technology procedure involving donated gametes or donated embryos. Access to this information will be regulated by subsidiary legislation to be made by the Council but clause 30(4)(b) specifically provides for the giving of information to an adult to enable him/her to ascertain whether a person he/she proposes to marry might be related. In this context adult�means a person who has reached 16 years of age.
V. Enforcement and offences
Clause 36 deals comprehensively with penalties for offences under the Bill. Members may wish to study the detailed provisions.
Clause 43 empowers the Council to make regulations on certain matters. The clause also empowers the Secretary for Health and Welfare to make regulations for certain other matters. Clause 41 empowers the Financial Secretary to make regulations on fees. All such regulations will be subsidiary legislation.
Consultation with LegCo Panel
8. The Panel on Health Services of the former Legislative Council was briefed in general terms in September 1996.
9. According to the LegCo Brief, the proposals in this Bill have been the subject of three public consultation exercises.
10. The Bill raises important social, moral, ethical and legal issues which merit detailed consideration by a Bills Committee.
Senior Assistant Legal Adviser
Legislative Council Secretariat
9 September 1998