A Hong Kong couple has been told they cannot take back the remains of a foetus for proper burial or cremation, after the wife suffered a miscarriage at 16 weeks of pregnancy. The city’s hospitals treat foetuses under 24 weeks as “clinical waste.”
The husband and wife – using pseudonyms Kevin and Angela – are both devout Catholics and wish to take back the remains of the baby in accordance with their faith. But the Hospital Authority has been unwilling to issue them a certificate of stillbirth, or Form 13, which is necessary for burial or cremation, despite there being no law specifically prohibiting the retrieval of foetuses under 24 weeks.
Kevin and his lawyer Michael Vidler believe that similar cases of early miscarriage occur frequently in Hong Kong, and that a change in policy is necessary so that other families can avoid suffering.
Kevin told HKFP that Angela suffered a miscarriage at home one day in April without warning, leaving her life in danger. The couple initially arrived at Princess Margaret Hospital, but decided to proceed to a private clinic for an emergency operation.
However, as they left Princess Margaret Hospital, they were told they could not take the remains of the foetus with them. According to Kevin, its bodily features were well-formed, but the 16-week-old foetus was considered “clinical waste” and thus hospital property.
Hospital administrators told the couple they would only be allowed to take the remains if they found an undertaker who would bury or cremate him. But undertakers whom they contacted were unable to do so, as cemeteries and crematoriums were unwilling to conduct such tasks without the hospital’s Form 13 – issued for miscarriages after 24 weeks of pregnancy.
According to the Waste Disposal (Clinical Waste) (General) Regulations, the unlawful disposal of clinical waste is punishable with a HK$200,000 fine.
The foetus remains are still being held at Princess Margaret Hospital. Although Kevin says that nurses at the hospital have been kind and compassionate, he describes the process of trying to retrieve the remains as “torture.”
The only concession made by the Hospital Authority since was that the remains could be released if the couple could prove they have arrangements for his cremation at a pet crematoria – a proposal that was dismissed as offensive.
“No family should have to go through this,” added solicitor Vidler.
Policy, not law?
A Hospital Authority spokesperson told HKFP that the medical profession in Hong Kong has a consensus that stillbirths are defined as foetuses “born without sign of life at or after 24 weeks of gestation.”
“For foetus born without sign of life before 24 weeks of gestation, the abortus will be handled according to the legal requirements of [the] Environmental Protection Department.”
However, Vidler believes that the lower limit was set arbitrarily, with reference to indirectly-related laws such as the ban on abortions after 24 weeks of pregnancy. There is no provision in the Births and Deaths Registration Ordinance stating that Form 13 can only be granted for stillborns older than 24 weeks.
Vidler claimed that hospitals have traditionally released stillborn babies from early miscarriages to Muslim families – possibly because Muslim groups have asked for this concession, on the grounds that burial is a legitimate means of disposing of “clinical waste.”
He said this concession should be available to families of all faiths – or no faith at all – adding that the government would risk a judicial review if the practice continued.
NGOs in the United Kingdom say that funerals can be arranged in the country for stillborn babies younger than 24 weeks. “Hong Kong has to move with the times,” Vidler told HKFP.
The Hospital Authority spokesperson told HKFP that parents could apply for the remains of stillborns younger than 24 weeks to be released. All applications are reviewed on a case-by-case basis, taking into account the legal requirements of the Environmental Protection Department, as well as public health and safety.
She added that between April 2016 and May 2017, the authority received 18 such applications, of which 14 have been approved.
A common tragedy?
Kevin speculated that the problems he and his wife faced were very common in Hong Kong, where there were 2.5 stillbirths for every 1,000 live births as of 2015, according to the Department of Health.
He said that nurses at Princess Margaret Hospital offered to preserve his child’s handprints and footprints together with a letter of condolence – a service he believed has been provided to many parents in the same situation.
“They did whatever they could in the strait-jacket government policy,” added Vidler. “It seems the government is presenting the junior staff with an unsolvable problem.”
Vidler said he has sought assistance from lawmakers Charles Mok and Dennis Kwok, and has notified Undersecretary for Food and Health Sophia Chan Siu-chi of the case of Kevin and Angela. However, he seeks a broader change in policy.
He suggested that the problem can be easily solved if the chief executive or a senior official decides to either remove the restriction on issuing Form 13 for stillborn babies younger than 24 weeks, or introduce a new form altogether.
Lawmaker Kwok Ka-ki, a doctor by profession, likewise believed that hospital staff were not to blame for the couple’s ongoing problems.
“It’s not a medical issue, but a legal issue and ultimately an ethics issue, which is very complicated,” he told HKFP.
“It is not the doctor’s role to determine the handling of the foetus. I don’t think the hospital has the ability to handle this issue.”
Vidler said he could not see why any group would oppose the release of foetuses, and believed the only obstacle was political will. “It’s a classic case of bureaucrats who don’t want to issue a new form,” he added.
Kevin hopes that in the future, the Hong Kong government will recognise the remains of miscarriages younger than 24 weeks as stillborn babies, rather than as “clinical waste.”
At present, Kevin feels that the Hospital Authority will eventually agree to releasing his child, but he is waiting for the Catholic Diocese of Hong Kong to agree to burying him.
He maintains that the church authorities will not expose themselves to any legal risks or clinical waste penalties by burying his child, as the examples of Islamic burials have proved.
He adds that the church has a responsibility to follow through on its teachings: “Life begins at conception.”
In 2014, local media reported a case of a family that could not cremate a miscarried foetus who was only a day short of being 24 weeks old. At the time, the Prince of Wales Hospital also refused to issue Form 13.
The hospital eventually allowed the family to take back the body, but no funeral home was willing to cremate the body without the document.
The family said they considered other plans, including cremating the foetus at a pet crematoria, or transporting the body overseas for cremation, but they ultimately did not choose these options out of respect.