HOSPITAL AUTHORITY AND OTHERS v. SECRETARY FOR JUSTICE

HCMP 2605/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2605 OF 2010

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J U D G M E N T

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1.  This is an application for a declaration to allow the carrying out of a selective termination of an unborn abnormal twin of the 2nd applicant. The 3rd applicant is the husband of the 2nd applicant and the father of the twins.

2.  The 2nd applicant received in vitro fertilisation in March 2010 in PWH.  Two embryos were transferred to her uterus leading to a dizygotic twin pregnancy or that the twins are not of identical genetic make-up.

3.  At around 23 weeks of gestation, antenatal ultrasound scanning showed that one of the twins was suffering from cardiomegaly or enlargement of the heart and thick placenta symptoms.  These features suggest foetal anaemia.  At more than 24 weeks of gestation, the 2nd and 3rd applicants are confirmed to be alpha thalassaemia carriers. 

4.  Professor Leung Tak Yeung of the Department of Obstetrics and Gynaecology of the Chinese University of Hong Kong, who is currently leading a team of doctors to manage the 2nd applicant’s case, opines that it is almost certain that the abnormal twin has inherited the alpha thalassaemia gene from the parents and has become anaemic in utero and is decompensated with cardiomegaly.  It is therefore almost certain that the abnormal twin is suffering from alpha thalassaemia disease, also known as Haemoglobin Bart’s disease.  The other twin is normal.

5.  The Haemoglobin Bart’s disease is a fatal disease as the foetus is unable to produce haemoglobin from the beginning of gestation and this disease is not treatable after birth.  If the abnormal twin is born with this disease, it will suffer from serious physical and mental abnormalities and will die during the neonatal period. 

6.  This disease will also cause danger to the mother, the 2nd applicant, as there is a 70 per cent chance that she will develop pre-eclampsia, which is associated with high maternal mortality and morbidity.  Pre-eclampsia is an unpredictable disease specific to pregnancy and cannot be cured until delivery or death of the abnormal twin.  It can also lead to sudden maternal death.  The 2nd applicant would also develop hypertension, stroke, brain damage, respiratory distress, renal failure and liver failure which could eventually lead to death.

7.  Professor Leung estimates that the risk of the 2nd applicant developing pre-eclampsia would increase by 5 per cent to 10 per cent per week if the pregnancy should continue as it is.   

8.  If pre-eclampsia occurs, the only treatment is delivery.  It may also result in iatrogenic pre-term delivery which would jeopardise the health of the normal twin.  For delivery taking place at 26 weeks, 10 per cent of the foetus will die and 35 per cent will suffer from irreversible damage like cerebral palsy. 

9.  It would take a few days to conduct a diagnosis to confirm the Haemoglobin Bart’s disease in the abnormal twin.  The test will be undertaken in two days and the result will be known in three days thereafter.  This test has one per cent to two per cent risk of pre-term delivery or foetal death for both twins. 

10.  In the light of the risks to the 2nd applicant and the normal twin, both the 2nd and 3rd applicants wish to have a selective termination of the abnormal twin upon confirmation that it has Haemoglobin Bart’s disease.

11.  The doctors of PWH, who are responsible for the antenatal care of the 2nd applicant, are of the view that once the abnormal twin is confirmed to have the Haemoglobin Bart’s disease, selective termination of the abnormal twin will be necessary to save and protect the life of the 2nd applicant and the normal twin though there is no immediate risk to the life of the 2nd applicant.  They opine that this would be in the best interests of the 2nd and 3rd applicants and the normal twin.

12.  This application is made under section 47A of the Offences Against the Person Ordinance, Cap. 212.  Section 47A sub-sections (1), (2C) and (8) provide:

“(1) Subject to this section, a person shall not be guilty of an offence under section 46 or 47 when a pregnancy is terminated by a registered medical practitioner if 2 registered medical practitioners are of the opinion, formed in good faith that-

(a) the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the pregnant woman, greater than if the pregnancy were terminated; or

(b) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormality as to be seriously handicapped.

…

(2C) For the purposes of sections 46 and 47, nothing in subsection (1), (2A) or (2B) shall be taken to authorize the termination of a pregnancy which is of more than 24 weeks duration, unless such termination is in the opinion of 2 registered medical practitioners formed in good faith, necessary to save the life of the pregnant woman.

…

(8) For the purposes of sections 46 and 47, anything done with intent to procure a woman's miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorized by virtue of the provisions of this section and, in the case of a woman carrying more than one foetus, anything done with intent to procure the miscarriage of any foetus is authorized by those provisions if-

(a) the ground for termination of the pregnancy specified in subsection (1)(b) applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus; or

(b)   any of the other grounds for termination of the pregnancy specified in those provisions applies.”

13.  Subsection (8) was added in August 2007.  Though subsection (1)(a) has not been expressly referred to in subsection (8), I do not think subsection (2C) would be made inapplicable to a multi-foetus situation.  I take the view that subsection (8) merely adds the multi-foetus situation to the original scheme laid down by subsections (1) and (2C). 

14.  The Secretary of Justice has been named the respondent, but it does not want to play any role in this matter as there is nothing that it needs to express a view.

15.  In the premises, I make the declaration that the proposed selective termination of the unborn abnormal twin of the 2nd applicant, being in the circumstances necessary to protect or save the life of the 2nd applicant, protect the life of the unborn normal twin, and save the unborn normal twin from serious physical or mental abnormalities and in the best interests of the 2nd applicant, the 3rd applicant and the unborn normal twin, can lawfully be performed once the diagnosis of alpha thalassaemia disease or Haemoglobin Bart’s disease in the unborn abnormal twin is confirmed.

16.  I also make no order as to costs of this application.