Carbone, June; Stuhmcke, Anita; Keyzer, Patrick --- "Preface" [2005] UTSLawRw 1; (2005) 7 University of Technology Sydney Law Review 8

Preface

Given the theme of this journal—the mind, law and body—it is perhaps unsurprising that the articles in it deal with the challenging and complex issue of the law’s accommodation of change. Whether the law has responded appropriately and the twin question how should the law respond are recurring themes in each of these papers. Contributions come from Australia, the United Kingdom and the United States.

The four articles from Australia and the United Kingdom each deal with the theme of legal change. Alexandra George examines the cases for and against the sale of human body parts from a philosophical perspective. The paper by Imogen Goold ‘Sounds Suspiciously like Property Treatment: Does Human Tissue Fit within the Common Law Concept of Property?’ examines whether human tissue as an object fits within the common law concept of property. The article by Yega Muthu, Ellen Geraghty and Barbara Hocking ‘If I Only Had a Heart! The Australian Case of Annetts and the Internationally Confounding Question of Compensation in Nervous Shock Law’ provides insight into how Australian case law has dealt with psychiatric illness. It goes on to examine legislative change and international case law. Brad Johnson has provided an insightful, critical analysis of Queensland’s post-sentence preventive detention legislation, interrogating the ‘scientific’ basis of risk prediction in this context.

The papers from the United States similarly address the issue of legal change in the context of comparative and international bioethics. These papers consider the challenges globalisation presents to the regulation of emerging technology that changes reproduction, medicine, and treatments in the context of different legal and social cultures. The first paper, ‘Regulating Human Biological Enhancements: Questionable Justifications and International Complications’, by Henry T. Greely, considers whether human biological enhancement is meaningfully different from other forms of human enhancement and, if so, whether it can effectively be regulated within an international realm. ‘The Trials of Tenofovir: Mediating the Ethics of Third-World Research’, by Peter J. Hammer and Tammy Sue Lundstrom, examines the controversy that arose when Western researchers sought to test the effectiveness of a drug in preventing the transmission of HIV/AIDS among Cambodian prostitutes. They explore the difficulties of exporting ethical standards developed in the context of Western countries to the different circumstances in which the drugs may be tested and used. Kerry Macintosh, in her article ‘Human Clones and International Human Rights’, provides a provocative argument that human clones will someday be born, and that the current efforts to ban their existence serve primarily to stigmatise the resulting children in violation of the fundamental principle of nondiscrimination in international human rights law. Finally, Jacqueline Hand provides a review of Kelly Weisberg’s book, Surrogacy in Israel, a richly detailed case study of the adoption of the strongest surrogacy legislation in the world.

The importance of an international joint edition of the journal on these topics is that it reflects the increasing recognition of the global nature of the debates over the issues discussed in these papers.

The concept of this edition, two years in the making, began with a suggestion by Professor June Carbone from Santa Clara University that has after much work at Santa Clara and UTS, evolved into a truly international journal.

We would like to thank the Center for Global Law and Policy at Santa Clara University, the student editors at Santa Clara and UTS, and Matthew Richardson from Halstead Press, who have made this edition possible. We hope this joint edition of the Santa Clara Journal of International Law and the UTS Law Review will make a lasting contribution to the legal, ethical and moral debates about the mind, the body and the law.

Professor June Carbone

Associate Professor Anita Stuhmcke

Associate Professor Patrick Keyzer