Abstract
We are, as ever, enormously grateful to our contributors to this, December 2025 issue of Medical Law International.
In their article, ‘Access, Trust and Equity in Vaccination: A Historical and Sociolegal Analysis of Vaccination Laws in Australia’, Rebekah McWhirter and Irene Carlet adopt an historical and sociolegal approach to describe and evaluate vaccination laws in Australia from 1853 to the present day. At the core of McWhirter and Carlet’s analysis lies the tension which has characterised debates around the role of law in setting the parameters of vaccination as a public health measure, namely, how to balance public interests in health improvements with individual interests in autonomy in health decision-making. As they put it, ‘[d]etermining how to balance these competing rights is at the core of public health law and is the inherent problem of vaccination legislation’.
McWhirter and Carlet start by assessing prevailing normative arguments within the ethical and legal literature surrounding the state’s role in setting legal parameters for vaccination uptake. This allows them to develop a set of criteria to assess legal provisions aiming to increase vaccination levels in Australia, namely, efficacy, necessity, proportionality, equity, least-restrictive alternative, and public acceptability. These criteria are applied to a fascinating historical review of Australia’s vaccine laws over time, in order to identify ‘features of continuity and discontinuity’ and highlight a series of elements which are ‘important for improving vaccination coverage: ensuring equitable access and minimising barriers to access; enhancing public confidence through trustworthy regulatory systems that ensure safety and efficacy of vaccine technologies; and if the preceding conditions are in place, interventions to incentivise or compel vaccination may be effective, but care must be taken to ensure the effects of such interventions are experienced equitably across the population’. McWhirter and Carlet’s analysis leads them to a critical conclusion: that, due to a siloing of law and epidemiology, courts and policy makers can be left without recourse to accurate evidence to assess the effect of vaccination laws on human rights.
McWhirter and Carlet’s identification of critical features of effective vaccine laws, including equity of access, public trust, and equitable burdens and benefits, provides critical insights into how to develop legal frameworks which will contribute to the aim of improving public health through vaccination. Their inter-disciplinary approach demonstrates that, if law is to make beneficial contributions to society, it cannot do so in a vacuum but rather must garner insights from relevant expertise and experience.
In this issue’s case commentary, ‘Could the welfare of the child demand an upper age limit of intended parents in surrogacy arrangements? Considerations from Re Z (Unlawful Foreign Surrogacy: Adoption) and Mr K & Anor v Mr Z & Anor’, Lottie Park-Morton examines two surrogacy cases in which the intended parents were either approaching, or over, 70 years of age, leading the courts to consider whether, and if so how, this factor should be weighed into the question of the welfare of the child in the granting of adoption or parental orders. While Park-Morton does not call for a fixed age limit for intended parents in the surrogacy context, having undertaken insightful analysis of these and related cases, she does argue that ‘age must be more explicitly recognised as a relevant welfare consideration, both by the courts and in practice, to encourage greater awareness and discussions of how the intended parents’ age may impact on the lifelong welfare of the child’. Park-Morton also helpfully explores how her position applies to the routes to parenthood suggested in the Law Commission’s report on surrogacy.
Andrea Bidoli provides a book review of Biotechnology, Gestation, and the Law (Oxford University Press: 2024) by Elizabeth Chloe Romanis. Bidoli notes the aim of the monograph as being to ‘illustrate how the current and potential impact of biotechnologies, and more precisely of “technologies enabling gestation” (TEG), is determined by the social and legal contexts in which they are situated’. Bidoli notes that the book, which focuses on surrogacy, uterus transplantation and ectogestation, distinguishes between pregnancy as ‘a state of being’ in which the foetus is framed as part of the pregnant person and gestation. Technologies to support the latter are, Romanis argues, a genus of technology which is distinct from those which enable conception. Bidoli sees a wide audience for this book including scholars and policy makers who will benefit from her compelling insights into the ‘interconnections between social norms and legal frameworks’ and the ways in which these can work to the detriment of marginalised groups. Bidoli’s robust engagement with Romanis’ position on the implications of the availability of ectogestation and the law’s position on when and how gestation can be ended demonstrate that this is an area which will continue to generate rich debate.
Finally, in this issue, we present a book review by Lynn Kennedy on Cressida Auckland’s Values and Disorder in Mental Capacity Law, Bioethics and Law Series (Cambridge University Press: 2024). Kennedy notes Auckland’s compelling argument for legislative reform, based on the position that the value neutrality adopted by the Mental Capacity Act 2005 obviates proper consideration of the values and beliefs underlying an individual’s decision, and therefore prevents an accurate assessment of whether their thought processes are disordered. Kennedy highlights that Auckland’s characterisation of capacity as a spectrum, rather than the ‘cliff-edge’ approach suggested by the Act, helps to build a compelling case that its current approach ‘disrespects an individual’s fundamental identity and their self-respect, trust, self-esteem which are essential to building their agency’. While acknowledging the challenges inherent in capacity assessments, Kennedy notes that Auckland’s book represents a clarion call for an approach which places a person, their values and beliefs at the centre of decision-making.