Legislative Council

LC Paper No. CB(2) 1512/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/98

Bills Committee on Human Reproductive Technology Bill

Minutes of fourth meeting held on Wednesday, 18 November 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 Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP

Members Absent:

Hon MA Fung-kwok
Hon YEUNG Yiu-chung
Hon LAW Chi-kwong, JP

Public Officers Attending:

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

Dr Constance CHAN
Assistant Director of Health (Health Administration and Planning)

Dr Thomas CHUNG Wai-hung
Principal Medical and Health Officer (3)

Senior Assistant Law Draftsman

Miss Frances HUI
Government Counsel
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
The Chairman welcomed Dr TANG Siu-tong who had joined the Bills Committee.

I. Meeting with the Administration

The Administration's reply to the eight submissions
(LC Paper No. CB(2)660/98-99(01))

2. Members briefly discussed the paper. The Chairman then invited representatives of the Administration to join the meeting. Members agreed to go through the paper with the Administration item by item.

Item 1 - fines for offences

3. Members accepted the Administration's reply that the deterrent effects did not only rely on the levels of fines but also imprisonment and revocation of the licence.

Items 2 and 3 - membership of the Council of Human Reproductive Technology (the Council)

4. Dr LEONG Che-hung said that the medical profession considered that the licensee and person responsible might be appointed as members of the Council, as they could provide professional advice. As regards the Administration's concern about conflict of interest, Dr LEONG said that the licensee and person responsible were unlikely to have undue influence on the Council, given its large size. Mr Michael HO did not agree with Dr LEONG. He said that professional advice could reach the Council through other channels. Members accepted the reply given by the Administration but considered that the Administration should elaborate more on the reasons for the prohibition. Adm

5. On the suggestion to include a lay person who had undergone reproductive technology (RT) treatment as a member of the Council, the Chairman expressed concern that this might reveal the identity of the person concerned. Mr Michael HO responded that this was not necessarily the case as neither the Government nor the Council should disclose any information in this regard. Deputy Secretary for Health and Welfare (DSHW) concurred and said that there was no restriction to the appointment of layman to the Council. However, it might be difficult to identify persons who had received RT treatment.

6. In response to Dr TANG Siu-tong, DSHW explained that the proposal for membership of the Council to be apportioned equally between males and females was to facilitate diverse and balanced views in the Council, as males and females might look at moral, legal, social and ethnic issues from different perspectives.

Item 4 - record of RT activities

7. Members supported the views of the Chinese University of Hong Kong (CUHK) that data of RT activities should not be released by individual units, in order to prevent disclosure of identity of individuals who had gone through RT treatment and to prevent individual units from advertising their services. As regards the Administration's reply that the details of the information to be released had yet to be decided by the future Council, Mr Michael HO said that he had reservation as he considered that the decision should be made now. He also suggested to adopt a phased approach for the release of RT statistics. In this regard, information should be made available initially through the release of pooled data or in a manner in which units could not be identified individually. After a few years, when there was increasing practice of RT procedures, consideration might be given to providing the data in more detail.

8. Dr LEONG Che-hung said that while the number of reports to be submitted by individual units could be stated in law, the law should not specify the detailed information to be included the report. He suggested that the Council be given the flexibility to provide guidelines as to what should be included in the report. DSHW replied that the requirement to provide RT statistics was broadly written in clause 4(1)(b)(ii) which stipulated that the Council should publish or make available statistics and summaries concerning "relevant activities" which had been carried out. However, it would be difficult to prevent individual units from publishing their results in the form of an annual report. Dr LEONG added that there was no way to prevent these units from disclosing RT information through medical articles either.

Item 5 - confined RT procedures to married couples only

9. The Chairman expressed concern about the prohibition of provision of RT procedures to unmarried couples which might be subject to legal challenge. Senior Assistant Legal Adviser (SALA) said that the Human Fertilisation and Embryology Act 1990 had been in force in the UK for about eight years. He was not aware of any legal proceedings arising from the UK provision. He advised that the provision did not contravene the relevant ordinances in Hong Kong on anti-discrimination. As the CUHK had advised that similar legislation had been legally challenged with success overseas, the Chairman instructed the Clerk to request the CUHK to provide details of overseas case law, with a view to tightening the provision if necessary.Clerk

10. Dr LEONG Che-hung said that for the well-being of the child, he supported that RT procedures should be confined to married couples.

Item 6 - imported sperms

11. Members noted that the CUHK had expressed concern about commercialisation for imported sperms. Dr LEONG Che-hung said that while a surrogacy arrangement might involve commercial dealings, he did not see how this could happen to the donor and recipient of imported sperms because (a) it was impossible to specify the characteristics of the donated sperms; (b) all imported sperms were numbered rather than named; and (c) technology for storage of imported sperms could only be provided by organisations specialised in the trade.

12. Mr Michael HO said that he was more concerned about the monitoring mechanism for imported sperms in Hong Kong, the monitoring mechanism for exported sperms of the overseas country, quality control and preservation techniques of the imported sperms, availability of information on donors, and whether the exporting party should be a statutory organisation in an overseas country. DSHW said that the Administration had considered banning imported sperms. Having regard to the possible demand from ethnic minorities in Hong Kong, it was decided that the service should be allowed.

13. Assistant Director of Health (ADH) said that although the importation of gametes or embryos was not governed by the Human Reproductive Technology Bill (HRTB), the Code of Practice (COP) would specify the requirement regarding imported gametes or embryos.

14. Addressing Mr Michael HO's concern about the possibility of imported sperms carrying genetic diseases, Dr LEONG Che-hung said that in order to be able to identify the donor, reduce the chances of hereditary diseases, ensure quality control of the sperms and control the number of successful inseminations, it had been the world trend to use sperms from sperm banks of credible institutions. The Chairman pointed out that the country where the ethnic minorities came from might not have a sperm bank to address the demand DSHW mentioned earlier. Mr Michael HO requested the Administration to consider setting up a proper monitoring mechanism and to seek information on overseas practices.Adm

Items 7 to 9 - counselling, retrospective effect of HRTB and embryo research

15. Members accepted the Administration's replies to the questions on the three items.

Item 10 - Chairperson and Deputy Chairperson of the Council

16. The Chairman said that the Human Organ Transplant Ordinance also prohibited medical practitioners to be the Chairman of the Human Organ Transplant Board. In response, Dr LEONG Che-hung pointed out that while organ transplant must be operated by medical practitioners, and therefore a medical doctor might have conflict of interest if he was to become Chairman of the Board, he could see no reason for prohibiting medical practitioners from other specialties, such as an orthopaedic surgeon, who was not involved in RT procedures, to become the chairperson or deputy chairperson of the Council. Dr TANG Siu-tong and Mr Ambrose LAU supported the view.

17. Members noted that the subject had been discussed at previous meetings and the Administration was still considering the issue.

Items 11 and 12 - licensee and person responsible

18. Members noted that the issue had been discussed at previous meetings.

19. On the qualification of the person responsible, Dr LEONG Che-hung said that the decision of whether to allow the licensee and person responsible to be the same person would affect the qualification requirement. Mr Michael HO said that this was not necessarily the case because the policy might allow the same or different persons to be the licensee and person responsible. Members agreed that the qualification should not be stated in law taking into account the rapid development in RT. Having considered that the person responsible had to be involved in RT practice, members also agreed that his qualification, experience and background should be determined by the Council and must be specified in the COP or in the form of subsidiary legislation.

Checklist of outstanding issues
(LC Paper No. CB(2)660/98-99(02))

The Chairman asked the Administration to follow up on items 1,2,3,7,9, and 10 of the checklist which were still outstanding.

Access to information
(Paper provided by the Administration tabled at the meeting and issued vide LC Paper No. CB(2)672/98-99 on 19 November 1999)

20. At the request of the Chairman, Principal Medical and Health Officer (PMHO) briefed members on the practice of access to information in Australia as set out in the paper. In gist, children in Victoria and Western Australia born as a result of RT procedures had a right of access to non-identifying information about the donor of reproductive material. In Victoria, identifying information of the donor might also be accessed by the parents and offspring and vice versa.

21. Dr LEONG Che-hung reiterated that the disclosure of the donor's identity would give rise to a number of problems, for instance, blackmail, disputes on estates, deterrent effect to semen donation, etc. He said that the practices in Australia should be used as a reference only, as one should consider the cultural background of a place before deciding on the policy. Mr Michael HO considered the existing information inadequate and requested the Administration to collect more information from the UK and USA for members' consideration. Adm

22. In response to a question from Dr TANG Siu-tong on the right of a child on estate, SALA explained that sections 9-12 of the Parent and Child Ordinance (Cap 429) provided for the meanings of "mother" and "father" where birth or pregnancy resulted from medical treatment. Basically, the woman who carried a child as a result of RT procedures was to be regarded as the mother of the child. The husband of the above-mentioned woman, or her male partner who together with her obtained RT treatment services, was to be regarded as the father of the child. The sperm donor himself was not regarded as the father of the child.

(Paper provided by the Administration tabled at the meeting and issued vide LC Paper No. CB(2)672/98-99 on 19 November 1999)

23. PMHO introduced the paper which set out the viewpoints considered by the Administration before finalising the policy on surrogacy and the statutory control of surrogacy in overseas countries. DSHW added that the Administration was still awaiting response from the USA. Mr Michael HO said that since surrogacy was a complex issue involving social, moral, ethical and legal issues, he would like to have more information on surrogacy practices in the UK and the USA as reference. The Administration undertook to gather the relevant information.Adm

24. In response to members' queries, Senior Assistant Law Draftsman (SALD) explained that non-RT related surrogacy referred to a contractual relationship between a married couple and a woman whereby the man of the married couple would fertilize the woman without using RT procedure and the child resulted from that would be handed over to the married couple. Dr LEONG Che-hung pointed out that since the HRTB prohibited against using donated gametes other than the gametes of the parties to a marriage for the purpose of surrogacy arrangement, non-RT related surrogacy would be illegal in Hong Kong.

25. In response to queries from members, Dr LEONG Che-hung explained the difference between the terms "legally unenforceable", "legally viable" and "illegal" in respect of surrogacy. He said that legally unenforceable referred to the contractual arrangement between a married couple and a surrogate mother, the agreement of which was not enforceable by or against any of the persons making it. For a surrogacy arrangement to be unenforceable, surrogacy must be "legally viable" in that country. Surrogacy was "illegal" when a country prohibited such practice or, in the case of Hong Kong when the HRTB was enacted, where the arrangement violated the law such as involvement of commercial dealings or of donated gametes.

Embryo research

26. Members noted that the creation of embryos for the purpose of research, embryo research after 14 days of fertilisation, cross-species fertilisation and cloning of embryos were prohibited under clause 13(1). In response to Mr Michael HO, ADH said that embryos used in research would come from excess embryos from commissioning couples who had given consent to donate the embryos for research. Under clause 13(1)(b), keeping and using an embryo after the appearance of the primitive streak was prohibited, in line with international practice. ADH explained that primitive streak referred to the rudimentary nervous tissue which had developed in the embryo about 14 days after fertilisation. She said that the prohibitions set out in clause 13(1)(a) to (f) were rather technical, some of which involved fertilisation between human and non-human gametes and were prohibited on moral grounds. Members raised no more queries and agreed that embryo research should be subject to control.

27. The Chairman thanked the representatives of the Administration for attending the meeting. She requested the Administration to prepare papers on selection of sex, limitation on cryopreservation and their overseas practices for discussion at the next meeting.Adm

II. Internal discussion

28. Dr LEONG Che-hung and Miss CHAN Yuen-han suggested that organisations should be invited to give views at a future meeting. Mr Michael HO said that unless organisations had supplementary views to add, otherwise it might not be necessary to invite them to a meeting. Dr LEONG and Miss CHAN considered that deputations would be able to express their views more fully during oral representation. After some discussion, members agreed that the following organisations, which were engaged in RT related activities, should be invited to attend a meeting after the Bills Committee had deliberated the policy issues and before the Bills Committee proceeded to clause-by-clause examination -

  1. The University of Hong Kong;

  2. The Chinese University of Hong Kong;

  3. The Family Planning Association of Hong Kong; and

  4. Hong Kong Sanatorium and Hospital.
III. Dates of next meetings

29. The next two meetings would be held on 8 December 1998 and 5 January 1999 at 8:30 am.

30. The meeting ended at 10:27 am.

Legislative Council Secretariat
17 March 1999