Editorial

We are delighted to introduce an exciting collection of articles and one commentary for our March 2026 issue of Medical Law International. We are, as always, immensely grateful to our contributors. We are particularly pleased in this issue to present the work of four talented women (Daisy Cheung, Helen Smith, Pia Dittke, and Emily Ottley) sharing their important work during the month of International Women’s Day. Importantly, two of this issue’s contributions explore questions that are especially relevant to women’s reproductive rights, with respect to surrogacy and abortion law. International Women’s Day also invites us to reflect on the great legacy of Professor Margot Brazier, a truly pioneering woman, whose work shaped the field of medical law. The first article on surrogacy law provides a further reminder of Margot’s contribution to surrogacy law in England and Wales. ¹ As we mark the first anniversary Margot’s death on March 4th, we would like to dedicate this issue to her memory.

Surrogacy law in Hong Kong is explored in Daisy Cheung and Trevor Wan’s article, ‘Hong Kong’s failed attempt at criminalising commercial surrogacy: Tale of a flawed legislative transplant’. They discuss how the birth of triplets in 2010, born by surrogacy in the United States, to a prominent Hong Kong family, generated a storm of public debate over the ethics of commercial surrogacy, the welfare of children born to be raised with no mother, and the ramifications of the law under Hong Kong’s Human Reproduction Technology Ordinance (HRTO), particularly section 17. The authors suggest that a flawed appreciation of the legislative context led drafters of the law to utilise the English model under the Surrogacy Arrangements Act 1985. Section 17 HRTO was intended to ban the practice of commercial surrogacy by imposing a ban on all parties – intending parents, surrogates, and surrogacy agencies – but this failed in practice to capture the legislative intent. Through a series of vignettes, Cheung and Wan lead the reader through various scenarios in which different parties may or may not be captured by the ban. This demonstrates that the so-called ban seems capable only of prohibiting parties form engaging in paid negotiations, but if there are no paid negotiations, the arrangement will be lawful. This analysis illuminates the dangers of legislative transplantation and the importance of being attuned to the motivation for the law, domestic policy, and the socio-legal context of the foreign jurisdiction being considered.

In ‘Beyond Bawa-Garba: The approach of disciplinary bodies to medical error’, Helen Smith examines how disciplinary bodies, primarily the General Medical Council (GMC) and the Medical Practitioners Tribunal Service (MPTS), have responded to serious medical error. Smith focuses on MPTS decisions between 2019 and 2024, in the wake of the conviction of Dr Bawa-Garba for gross negligence manslaughter following the death of 6-year-old Jack Adcock. The author’s statistical analysis reveals that while the GMC are investigating fewer cases, there has been a rise in the proportion of cases leading to sanctions, with a consistently high use of the most serious sanctions (erasure, suspension). Helen Smith examines relevant cases involving medical error that caused significant harm, including death in some cases (rather than other grounds for disciplinary action), to assess the evolving approach to sanctioning. She suggests that there is an emerging shift towards more context-specific sanctioning. While this is welcome, and more reflective than the harsh approach in Bawa-Garba, Smith argues that the MPTS’ unpredictable response to what constitutes ‘serious and persistent’ allows too much discretion. To address this, Smith suggests that concepts of justice developed by Cribb, O’Hara and Waring, and Merry and Brookbanks should be used to inform a more principled and consistent approach. She proposes that a ‘qualified blame’ model, informed by Merry and Brookbanks’ work on medical error, should be considered.

The next article, Pia Dittke’s ‘Self-determined dying in Germany and what the German Constitutional Court has taught us about assisted suicide with mental disorders’, examines assisted dying in Germany. The uncertain German law on assisted suicide took a turn in 2020, when the German Constitutional Court (Bundesverfassungsgericht) issued an autonomy-centred ruling that established a broad right to a self-determined death. The article examines the history of assistance in suicide in Germany through key cases, before exploring how other jurisdictions have responded to the issue of allowing assisted dying for individuals suffering from mental illness. Dittke concludes that lessons can be learnt from the German story; that regulating assisted suicide ex post through manslaughter law fails to protect individuals who may be vulnerable. But while German law has failed to protect life, it has also fallen short in respecting autonomy, and Dittke suggests that law should look beyond questions of physical pain to respect the free will of individuals seeking to die. On this point, Dittke argues that individuals suffering from mental illness should not be excluded, and so legal clarification is needed to ensure that assisted suicide is de facto accessible to those with a severe mental disorder. This article provides a fascinating account of German developments during a period in which efforts to legalise assisted dying in other European jurisdictions – including British territories and France – are reshaping international norms at the end of life.

In the same month that MPs voted to legalise assisted dying for terminally ill adults in England and Wales (June 2025), a second ‘socially liberal shift’ was approved with the first step towards the decriminalisation of women seeking abortion outside the parameters of the Abortion Act 1967. Our final feature explores this abortion decriminalisation development with a commentary by Emily Ottley on ‘New clause 1 and the politics of abortion reform’. She examines the clause (NC1) within the government’s Crime and Policing Bill that was passed in the House of Commons and is currently being considered by the House of Lords. If passed by the Lords in its current form, NC1 will prevent the investigation, prosecution, and conviction of women who terminate their own pregnancies in England and Wales. This will effectively disapply section 58 Offences Against the Person Act 1861. Tabled by Tonia Antoniazzi MP, NC1 was designed to respond to the alarming increase in investigations, prosecutions, and convictions of women, rather than to truly decriminalise abortion. Ottley explores the challenges and other possible routes to reform and argues that although NC1 is a welcome step, it must be followed by more substantive reform of the Abortion Act 1967. Such reform, Ottley contends, should remove hurdles to accessing abortion, including the two-doctor gate keeping and the 24-week gestational limit.