LC Paper No. CB(2)73/99-00
(These minutes have been
seen by the Administration)
Ref : CB2/BC/3/98
Bills Committee on
Human Reproductive Technology Bill
Minutes of the 13th meeting
held on Monday, 26 April 1999 at 8:30 am
in Conference Room B of the Legislative Council Building
Hon Cyd HO Sau-lan (Chairman)
Hon CHAN Yuen-han
Dr Hon LEONG Che-hung, JP
Hon YEUNG Yiu-chung
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP
Hon Michael HO Mun-ka
Hon MA Fung-kwok
Hon LAW Chi-kwong, JP
Public Officers Attending:
Clerk in Attendance:
- Mr Gregory LEUNG Wing-lup, JP
- Deputy Secretary for Health and Welfare 1
- Mr Clement LAU Chung-kin
- Assistant Secretary for Health and Welfare (Medical) 6
- Dr Constance CHAN
- Assistant Director of Health (Health Admin & Planning)
- Dr Thomas CHUNG Wai-hung
- Principal Medical and Health Officer (3)
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
- Miss Frances HUI
- Government Counsel
Staff in Attendance:
- Ms Doris CHAN
- Chief Assistant Secretary (2) 4
I. Confirmation of minutes of meeting held on 9 February 1999
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Ms Joanne MAK
- Senior Assistant Secretary (2) 4
(LC Paper No. CB(2) 1751/98-99)
The minutes were confirmed.
II. Meeting with the Administration
(a) Draft bills A and B on human reproductive technology obtained from the Department of Health in Taiwan
(LC Paper No. CB(2) 1765/98-99)
2. Senior Assistant Legal Adviser (SALA) briefed the meeting on the salient features of the above two draft bills, of which bill A dealt solely with the regulation of human reproduction technology (RT) procedures while bill B dealt with surrogacy arrangements in addition to RT procedures. SALA pointed out that these two draft bills were still under discussion by the Department of Health in Taiwan and had not been presented to the Taiwan legislature for consideration.
3. The Chairman suggested to defer discussion on the two draft bills until both members and the Administration had the opportunity to study them in detail. Members agreed. The Clerk undertook to provide the Administration with copies of the two draft bills.
(b) Continuation of discussion on members' stance on various items
(LC Paper No. CB(2) 1784/98-99(01))
Item 9 - interpretation of surrogate mother
4. Deputy Secretary for Health and Welfare (DSHW) said that having considered members' views expressed at the last meeting, the Administration remained of the view that the interpretation of surrogate mother should be as broad as possible to enable the enforcement of law against commercial surrogacy.
5. Mr YEUNG Yiu-chung noted that there was provision in the draft RT bill of Taiwan prohibiting mothers of infertile couples to be the surrogate mother, and enquired whether similar provision had been made in the Human Reproductive Technology Bill ("the Bill"). DSHW replied that there was no such provision in the Bill.
Item 10 - imported sperm
6. The Chairman said that members agreed in principle the policy of importation of sperm in Hong Kong. She noted that a paper prepared by the Administration regarding the overseas practices on importation of sperms had been circulated to members.
7. Referring to the draft RT bill of Taiwan which prohibited the mixing of sperm, Mr YEUNG Yiu-chung enquired whether a similar provision would be incorporated in the Bill. Principal Medical and Health Officer (PMHO) said that the Bill only allowed sperms from donors or husbands to be used for the purposes of carrying out RT procedures. PMHO further said that he would need to find out the exact meaning of mixing of sperm in the Taiwan context before he could comment on Mr YEUNG's question.
Item 11 - record on RT activities
8. The Chairman suggested to skip the discussion on this item as Mr Michael HO, who had strong views on the matter, was not present at the meeting, and that it was understood that Mr HO would move a CSA in this regard. Members agreed.
Item 12 - selection of sex
(LC Paper No. CB(2) 1784/98-99(02))
9. Referring to the paper, DSHW explained that the draft CSA proposed to add a list of sex-linked genetic diseases in a schedule to the Bill which was subsidiary legislation and to require not less than two registered medical practitioners to certify that the severity of the sex-linked genetic disease justified the use of RT procedures for sex selection. DSHW explained that as the severity of a sex-linked genetic disease varied from person to person and from case to case, the Administration considered it more appropriate to put the decision-making power for determining the severity of a sex-linked genetic disease on the doctors.
10. Dr LEONG Che-hung said that as different people had different perception and acceptance level of the severity of a sex-linked genetic disease, it would be very difficult to define the severity of the disease. As such, he was of the view that the draft CSA could not help to prevent the possibility of abuse and eradicate arguments between patients and doctors.
Item 13 - limitation on cryopreservation
11. The Chairman said that members accepted the arrangement that the Council on Human Reproductive Technology might make regulations or guidelines in the COP to monitor and control cryopreservation.
Item 14 - principle of the Bill
(LC Paper No. CB(2) 1784/98-99(02))
12. DSHW introduced the draft CSA which proposed to limit RT procedures to infertile couples and to require not less than two registered medical practitioners to each state in writing that one or both of the persons was or were infertile, as set out in the paper. DSHW pointed out that as there was no definition of infertility, the Administration considered it best to leave the task of determining whether a couple was infertile to two doctors. He further said that in order to prevent possible disagreement between two doctors on whether a couple was infertile, the Administration, on review, considered it more practical to require the certification of infertility from one registered medical practitioner. Dr LEONG Che-hung concurred with DSHW that certification from one doctor would suffice.
13. SALA advised that if there was no definition of infertility in the legislation and the court had to decide what infertility was, then the court would have to seek expert opinions on the prevailing understanding of infertility.
14. Dr LEONG enquired whether there was a tacit understanding among the obstetricians and gynaecologists practising in Hong Kong on the criteria for determining infertility. PMHO replied that the general rule of thumb used was where no child could be conceived despite having normal sexual intercourse for one year.
15. Dr TANG Siu-tong enquired whether any investigation would be conducted to ascertain that a couple was indeed infertile if they failed to conceive a child despite having normal sexual intercourse for one year. PMHO replied that medical tests would be conducted to find out the reason(s) for their infertility. He however pointed out that in some cases, reasons for infertility were unknown. Under such circumstances, it would be unfair to deny those couples the use of RT procedures to have a child.
16. Dr LEONG considered the draft CSA was too loose and should be tightened up. He suggested that clause 13(3)(b) should be amended to the effect that in determining whether a couple was infertile, doctors must conduct a thorough investigation into the causes of their infertility and were satisfied that the couple still failed to conceive a child after receiving all available medical treatments.
17. In response, DSHW said that Dr LEONG's suggestion would impose undue burden on the doctors and give rise to disputes between doctors and patients/clients. He proposed that the infertility requirement be stated in the long title of the Bill, and the arrangement for determining infertility be put in the COP. Dr LEONG disagreed as this would render the Bill meaningless, having regard to the fact that the long title of the Bill had no legal effect.
18. The Chairman sought members' views on the following options to be adopted in respect of clause 13(3) -
- no change be made;
- draft CSA set out in the paper;
- the Administration's proposal mentioned in paragraph 17 above; or
- Dr LEONG's proposal mentioned in paragraph 16 above.
19. Members expressed support for option (iv). SALD undertook to re-draft clause 13(3)(b) of the Bill along the lines suggested by Dr LEONG.
20. Dr LEONG suggested that the infertility requirement should be spelt out at the outset of the Bill, say in the long title, in addition to stipulating such in clause 13. Members expressed support. DSHW agreed to consider re-drafting the Bill to this effect.
21. As discussion on the policy aspect of the Bill, except with regard to access to information, had been completed, the Bills Committee commenced clause-by-clause examination of the Chinese version of the Bill.
(c) Clause-by-clause examination of the Bill
Long title and clause 1
22. Members raised no queries on the above.
23. Members raised no queries on the provisions in clause 2(1), save that of the following.
(i) Surrogate mother
24. Members held the view that only a woman who conceived a child in consequence of a RT procedure with the genetic materials coming from the commissioning couple could be regarded as a surrogate mother. They expressed concern that the present definition of surrogate mother in the Bill would carry a connotation that various permutations of surrogacy would be permitted by the law.
25. The Administration responded that the opposite was true. They explained that by making the definition of surrogate mother as broad as possible, the Bill could regulate every possible form of commercial dealings in the act of paying a woman to carry a child and have the child handed over to the commissioning couple after the child was born. If the definition was narrowed down to that suggested by members, the effect of the Bill to regulate surrogacy arrangement would be greatly reduced.
26. In view of the strong views expressed by members, DSHW agreed to re-consider the definition of surrogate mother.
27. Miss CHAN Yuen-han enquired whether the Administration in drafting the Bill had made reference to the relevant UK legislation. PHMO replied that while the UK had separate legislation on RT and surrogacy arrangement, the Bill in question sought to combine these two elements under one legislation. He conceded that such combination might have confused members regarding the intention of the Bill, and added that the Bill could be re-drafted to improve its policy intent.
|28. At the request of Miss CHAN, PMHO undertook to provide copies of the relevant UK legislation and a summary of the public feedback on the consultation documents prepared by the Council on Human Reproductive Technology ("the Council") and the Committee on Scientifically Assisted Human Reproduction.||Adm
|29. Dr LEONG Che-hung said that the term "any expenses incurred by the surrogate mother for" was loose and could give rise to commercialisation of surrogacy arrangement. SALD proposed to re-draft the provision to the effect that the expenses would have to be bona fide medical expenses and such other expenses connected with the pregnancy as specified by the Council in the regulation. ||Adm
III. Dates of Next Meetings
30. Members agreed that the next two meetings of the Bills Committee would be held on 7 May 1999 at 8:30 am and 11 May 1999 at 10:45 am.
31. The meeting ended at 10:40 am.
Legislative Council Secretariat
11 October 1999