HOSPITAL AUTHORITY and Others v. SECRETARY FOR JUSTICE

1997, No. MP 4493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

-----------------

-------------------

-----------------------

J U D G M E N T

-----------------------

The application

1. The Plaintiffs appear before me today by way of originating summons, seeking a declaration that it is lawful for the 1st Plaintiff by its servants or agents, the medical and nursing staff of the Prince of Wales Hospital, 30-32 Ngan Shing Street, Shatin, New Territories, Hong Kong, to perform such surgery as is necessary and particularised in the affirmation of Dr Fung Tak Yuen in order to try and ensure the safe birth of at least one of the two twin fetuses with which the 2nd Plaintiff is pregnant.

2. In view of the urgency of the application, I granted an order abridging all the procedural time requirements so as to enable the case to be dealt with today.

The parties

3. The 1st Plaintiff is the Hospital Authority, the 2nd Plaintiff is a pregnant woman, the 3rd Plaintiff is her husband. The Defendant is the Secretary for Justice and is joined by the Plaintiffs as a party on the basis that she is responsible for the upkeep of the general law in Hong Kong.

Twin-twin transfusion syndrome

4. Dr Fung Tak Yuen who gave evidence stated that complication has arisen in the pregnancy of the 2nd Plaintiff. She is now 24 weeks and 3 days pregnant. She has twin pregnancies and at the 23rd week of pregnancy, it was discovered that there was "twin-twin transfusion" syndrome. In layman's term, the twins are sharing the same placenta and blood is transfused from one to the other, and one fetus has more fluid in the embryonic membrane than the other. This is what has happened. There is one twin with polyhydramnios syndrome, i.e. too much amniotic fluid inside the membrane enveloping the fetus, and the other, which was described as a stuck twin, has severe oligohydramnios, i.e. the presence of less than the normal amount of amniotic fluid.

Methods of treatment

5. Dr Fung said that if left untreated, there was nearly 100% perinatal mortality, i.e. death occurring shortly before or after birth. There are two forms of treatment to this problem. First, repeated aggressive amnioreduction and second, selective fetocide, i.e. aborting one of the twin fetuses.

6. Amniotic fluid is important for fetal lung development and the stuck twin would die of pulmonary hypoplasia, or incomplete development of the lung organ. Two aggressive amniocentesis were performed at the 23rd week with no improvements. A further operation, namely amniotic septostomy with fetoscopy was performed at 23rd week and 6th day. After that, normal amniotic fluid was regained. However, on 24th week and 2nd day, i.e. 23rd December 1997, test showed that the umbilical cord of the stuck twin had shown absent end diastolic blood flow and no urine output. This was a very poor prognostic factor. There is a potential intra-uterine death of the stuck twin.

7. The alternative treatment is selective fetocide of the stuck twin. The recommended method is the occlusive method, i.e. removing the umbilical cord from the fetus.

Recommendation

8. Dr Fung stated that when one of the twin died, there was about 30% to 70% chance of perinatal death of the co-twin. However, when fetocide was performed successfully, no co-twin fetal death has been reported. Dr Fung recommended fetocide. If the condition of the stuck twin deteriorated, any delay in carrying out the operation may increase the perinatal death of the co-twin up to 70%. This morning, I was informed that the operation should be performed within 48 hours. The view of Dr Fung is shared by two other doctors of the Prince of Wales Hospital.

The Law

9. Sections 46 and 47 of the Offences Against The Person Ordinance impose the criminal offence of abortion. Section 47A provides the exception of medically terminated pregnancy. The present case does not fall within subsection (1)(a) of s.47A because the question of the risk to the life of the mother does not arise. In respect of subsection (1)(b), it appears that it may cover the present case because Dr Fung stated that there may be a chance of the stuck twin being born alive although with severe physical and metal handicap. On balance, Dr Fung said that the chance of the stuck twin being dead is higher than it being born alive. Even if the case falls within (1)(b), there is still the question of subsection (2C) because no termination could be made if the woman is more than 24 weeks pregnant unless the termination is in the bona fide opinion of two medical practitioners for the purpose of saving the life of the woman. Again, no question of saving life is involved. Although there is the question of reliability of the ultrasound scan in ascertaining the duration of pregnancy, the medical opinion now before me is that the pregnancy is 24 weeks and 3 days. There is a further uncertainty regarding the legal consequence of terminating one of the fetuses in a multiple pregnancy. In UK, the position is only cleared by the enactment of the Human Fertilisation and Embryology Act of 1990, seeLaw & Medical Ethics : Mason & McCall.

Declaration granted

10. Faced with these uncertainties as to whether the situation is covered by s.47A, my view is that the Plaintiffs have acted properly in bringing the present application before me. The stark fact is that the chance of death of the stuck twin is 40% and there is nothing the doctor could do to improve the situation. The likelihood is that on balance the chance of death is higher than the fetus being born alive. Unless the abortion is carried out, the chances of death of the co-twin is about 30% to 70% whereas the medical evidence is that the co-twin fetal death has not been reported if fetocide is performed successfully.

11. The alternative of having the delivery now is that there is a chance of mortality of up to 90%. The pregnant woman is now in distress and abdominal pain is experienced by her this morning. If nothing is done, she would be going into labour, and again on delivery, the chance of mortality of the fetuses is 90%.

12. The 2nd Plaintiff and the 3rd Plaintiff have agreed to the recommended operation. In my view it must be in the best interest of the parents and the co-twin that the operation is to be performed as quickly as possible. I would accordingly grant the declaratory relief.

No publication of names

13. Although the hearing is conducted in Chambers, the judgment is now being delivered in Court. I would order that the names of the 2nd and 3rd Plaintiffs should not be disclosed and their names should appear A and B in the judgment and in all publications of this case.