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Intersection of Law and Ethics : Immigration Law, Right of abode in HKSAR Introduction This paper is to investigate the case of recent action taken by the Hong Kong Government to suspend new bookings of obstetric service from non-local pregnant women in public hospital, especially to those mainland women, in order to protect right of Hong Kong women. The sudden cut affects a group of mainland women with spouse as Hong Kong permanent residents and they complain the injustice phenomenon, that arise ethical dilemma to discuss which is the aim of this paper.
Background The Hospital Authority in Hong Kong announced on 8 April, 2011 that public hospitals have immediately stopped accepting new bookings of obstetric service from outsiders (non-HK citizens) until the year’s end, in order to ensure local women receive adequate obstetric care. This is a big shock to most mainland pregnant women who were planning to deliver their babies here in Hong Kong aimed at ensuring their children benefit from Hong Kong’s enviable freedoms and social welfare system, and also can escape from the one-child policy in mainland China.
This Hong Kong birth certificate are regarded by many as document that can change one’s destiny. This act of the Government is apprehensible from the data of local and non-local pregnant women giving birth in public hospitals in the past five years. Together with the data from private hospitals, it soared from a few hundreds in 2004 to around 40,000 last year, contributing nearly 40% of total new born rate (88,000) in Hong Kong. The Government is encountering many problems.
This is straining HK’s overall health-care system, not only on obstetric services (affecting those for the local mothers), but also infants intensive care units, and future health-care services (there were even outstanding obstetric fees when some mainland mums who left the hospitals). Brain-drained problem of medical professionals due to the tremendous workload in the obstetric department, which is a vicious cycle. Hong Kong Government also invests huge resources in education, so how will this investment expand to this portion of new immigrants? Obviously their arents are not taxpayers of the city. However, another question of birth arose. Those mainland mothers whose spouses are Hong Kong residents called upon the Government to differentiate them from the couples both from the mainland. Last year, 20% of the non-local mothers belong to the group with spouse who is Hong Kong permanent resident. This makes the case more complicated and the Government is facing dilemma again. The Legal Side Law is a set of rules describing the ways in which people are required to act in their relationships with others in a society.
Law provides instructions to the Government the ways to govern a society in a justice manner, so that can preserve human imprescriptible rights including property and security. Law can prohibit actions that are hurtful to society. Under these principles, it is undeniable that Hong Kong Government has to react against the phenomenon of mainland maternity which straining Hong Kong obstetric and neonatal care facilities, jeopardizing local mums and babies. On the other hand, the sudden stop to non-local pregnant women’s bookings affects families with father as Hong Kong permanent resident but only mother from mainland.
The regulations are being challenged by a local father to the Court of Appeal, as discrimination towards his mainland wife, he believes his baby should have the abode right as he is a permanent resident. According to the Secretary of Food and Health Bureau, public hospitals grant subsidies to those with Hong Kong ID cards but cannot deal with other identity documents, that means those expectants with husbands as permanent residents are not identifiable. The Government claims they have considered the best interest of society. Under this circumstance, rights of those families are deprived.
The Ethical Dilemma The Hong Kong Government has enacted corresponding rules towards the massive surge in mainlanders who use obstetric services. Despite various ethical problems arise, the Government has put its society interest, the value of society economy, to the highest priority. According to the Census and Statistics department, the cross-border marriage between HK men and mainland women was several times of increase since 2001 to 2006 . Although no direct relationship, but it is likely that the cross-border birth is in a trend of increase, too.
Sadly that the Government has ignored these families. First of all, as in the mainland maternity case in the Court mentioned above, the HK father has to pay non-local fee for his wife’s obstetric services in a HK public hospital, and then the right of abode of his babies will be deprived under the recent rule enforced. The justice issue is not only a comparison among these families and those “purely HK parents”, but also appear on those HK mothers and non-local fathers, who are not under the exclusion blanket of obstetric services, too.
So both are “mixed families” but why the latter families enjoy the right while the former are deprived? If Ethics defines what is good for individual and society, and being justice is the concept of moral rightness of an individual , then it is unethical to be injustice and depriving one’s rights. In this case, the HK Government is applying tighter rules on mainland mothers , at the same time restricting those cross-border families and also ignoring the justice in the issue mentioned above. The Health Authority claimed they are not going to differentiate the families from those who are both mainland parents.
The injustice situation is solely due to Government’s sake of easier administration process. This unethical action can be compared with doing non-eco friendly things. Imagine in an office everybody do not classify waste materials into paper, metals and plastics recycle bins but just throw into one big rubbish bin, that is nothing illegal but hurting the earth is indeed hurting everybody’s health and future especially those in the 3rd world resources ??? which is unethical although few people notice this causal relationship.
Upon decision made, the Government must have considered numerous factors. Benefits of local mothers and all taxpayers, political issue between HKSAR and the mainland Government, views from public and private hospitals, harmony of society and also future population structure. Any decision made will affect all stakeholders of the case. To the Government’s action, the affirmative side includes most local mothers and HK taxpayers while their rights are protected.
This must be agreed with most doctors and nurses in the public hospitals who have been complaining the workload for long. Mainland expectants and those planning to have babies, those frustrated cross-border families are directly prohibited under those intensive rules. Private hospitals which are running obstetric business for mainland mothers which contribute about 1 billion HKD annually to their income and those agents who are making big money by arranging mainland mothers to give birth in HK are deeply affected.
Some private hospitals are yet to compromise with the Hospital Authority, they are still constructing the “best” plan that would not affect much of their obstetric revenue from mainlanders. Obviously that these hospitals are utilitarian, putting the value of profit to the top priority while this is treated as unethical by others, especially those local mothers. Possible Solution Clearly, the Government prioritizes some values in making this decision ??? Economy and interests of HK citizens.
However, without thorough consideration, injustice happened that lead to ethical problems. This diagram show the relationship between law and ethics and the cross marked how the HK Government has put her decision this time. The perfect law should embody ethical concern and interests and rights of her citizens should be at the first priority on a Government’s act. If the cross sign above were to be moved to the grey part in the diagram, the Government should do more to consider those cross-border families.
If mainland mothers with HK spouse want babies to have right of abode in Hong Kong, one have to provide evidences that its father is HK permanent resident, for example, to examine DNA of the infant and his father. At least justice is concerned under this system. Conclusion Certainly, it is difficult for the Government to act to satisfy everyone, but what the Government is doing can compare to running a business, and the management on the relationship between law and ethics is more important than a real business.
Obviously in this event, what the Government can identify is the problem of heavy strain from the mainland mothers, that is why she suddenly stopped the admission bookings from them, that seems to solve the problem and help the main party. Better management can be achieved if they take into account of those cross-border families, that would lead to a more harmony society. Other References http://www. thestandard. com. hk/news_detail. asp? pp_cat=36=110208=32037222=3=20110415=2011 http://www. thestandard. com. hk/news_detail. sp? pp_cat=11=36746=11860581=1 http://www. thestandard. com. hk/news_detail. asp? pp_cat=30=111213=32426212=1=20110519=2011 http://www. thestandard. com. hk/news_detail. asp? pp_cat=21=111563=32557716=1=20110531=2011 http://www. thestandard. com. hk/news_detail. asp? pp_cat=11=110944=32338785=1=20110512=2011 http://www. info. gov. hk/gia/general/200911/11/P200911110152. htm http://www. immd. gov. hk/ehtml/faq_roaihksar. htm