Health Law

In this podcast episode, Professor Donrich Thaldar and Dr Bonginkosi Shozi discuss whether gamete (sperm and egg) donors in South Africa must be anonymous, or whether they can choose to disclose their identities.

Summary

South African gamete banks and gamete donation agencies do not offer open-identity donors, as it is generally believed that donors must, by law, be anonymous. We analyse South African legislation, regulations and case law to show that this belief is mistaken, and that gamete donation in South Africa can be anywhere on the spectrum between anonymous and known. Accordingly, open-identity gamete donation would be lawful in SA and can be offered to the public by South Africa gamete banks and gamete donation agencies.

Further reading

Thaldar DW, Shozi B. Is open-identity gamete donation lawful in South Africa? South African Medical Journal. 2022.

See also

Thaldar DW, Shozi B. South Africa’s latest medically assisted reproduction draft regulations: close, but no cigar. Tydskrif vir die Suid-Afrikaanse Reg. 2022.

Thaldar DW. The in vitro embryo and the law: The ownership issue and a response to Robinson. Potchefstroom Electronic Law Journal.

Shozi B. Something old, something new: applying reproductive rights to new reproductive technologies in South Africa. South African Journal of Human Rights. 2020.

Thaldar DW. Egg donors’ motivations, experiences, and opinions: A survey of egg donors in South Africa. PLOS ONE. 2020.

In this podcast episode, Professor Donrich Thaldar discusses the question of whether POPIA (the South African Protection of Personal Information Act) applies to DNA.

Summary

Does DNA fall within the ambit of POPIA? Many people mistakenly think that it does because DNA contains genetic information. However, one must distinguish DNA from the genetic information that it contains. POPIA only applies to personal information that is entered in a record by or for a responsible party. Is genetic information entered in DNA by or for a responsible party? Clearly not – genetic information naturally occurs in DNA. Accordingly, POPIA does not apply to the genetic information as found naturally in DNA. POPIA will only start applying to the genetic information once it is sequenced and saved on a computer.

Further reading

Thaldar DW. Why POPIA does not apply to DNA. South African Journal of Science. 2021.

See also

Thaldar DW, The legal status of human biological material used for research. South African Law Journal. 2021.

Thaldar DW, Townsend B. Exempting Health Research from the Consent Provisions of POPIA. Potchefstroom Electronic Law Journal. 2021.

In this podcast episode, Professor Donrich Thaldar discusses the issue of artificial intelligence (AI) and personality with Meshandren Naidoo.

Summary

DABUS, a cognition-based AI, was recently listed as inventor in a South African patent. This caused controversy globally regarding the nature of inventorship status – can AI qualify as an inventor? Opponents to the position taken in South Africa have raised questions about (1) whether the matter was truly considered by the South African Patent Office; (2) whether AI inventorship is ethical, and (3) whether this patent means that AI now has legal personality. In this podcast episode, it is concluded that (1) the granting of the patent was intentional, (2) many of the ethical concerns raised are misplaced, and that (3) the granting of the patent does not mean that DABUS obtained legal personality.

Further reading

Thaldar DW, Naidoo M. AI inventorship: The right decision?. South African Journal of Science. 2021.

See also

Naidoo M, Thaldar DW. Clearing the CRISPR patent landscape: Towards a solution for South Africa. South African Law Journal. 2022.

Naidoo S, Bottomley D, Naidoo M, Donnelly D, Thaldar DW. Artificial intelligence in healthcare: Proposals for policy development in South Africa. South African Journal of Bioethics and Law. 2022.

In this podcast episode, Professor Donrich Thaldar discusses the issue of heritable human genome editing with Dr Bonginkosi Shozi and Ms Tamanda Kamwendo.

Summary

The global discourse on heritable genome editing is dominated by Western perspectives. We argue for a broadening of this discourse, pointing out the significance of differences in culture and context between countries. These differences illustrate the need for approaches to the governance of heritable genome editing that are open to a variety of perspectives, a point we make with reference to South Africa. We warn that failing to account for culture and context in developing global governance frameworks may lead to policies that amount to ethical imperialism.

Further reading

Thaldar DW, Shozi B, Kamwendo T. Culture and context: Why the global discourse on heritable genome editing should be broadened from the South African perspective. BioLaw Journal. 2021.

See also

Thaldar DW, Townsend B, Botes M, Shozi B, Pillay S. A virtual deliberative public engagement study on heritable genome editing among South Africans: Study protocol. PLOS ONE 2021.

Townsend BA, Shozi B. Altering the human genome: mapping the genome editing regulatory system in South Africa. Potchefstroom Electronic Law Journal. 2021.

Townsend BA. Human genome editing: how to prevent rogue actors. BMC Medical Ethics. 2020.

Thaldar DW, Botes M, Shozi B, Townsend B, Kinderlerer J. Human germline editing: Legal-ethical guidelines for South Africa. South African Journal of Science. 2020.

In this podcast, Professor Donrich Thaldar and Dr Bonginkosi Shozi discuss the question of whether human biological material that is donated for research can be owned.

Summary

Can human biological material that is used for research be owned in South African law? The answer to this question is contested, but under-investigated. This situation leads to legal uncertainty for local scientists and their international collaborators. We argue that human biological material in the research context can indeed be owned. Their reasons are as follows: (1) Since South Africa’s common law is dynamic, it should recognise the reality that human biological material has become useful in the research context and therefore treat human biological material in this context as capable of being owned. This would be aligned with the general trend in comparative foreign case law. (2) The relevant South African statutes consistently use the term ‘donation’ to describe a situation where human biological material is provided by a research participant to a research institution for the purposes of research. Donation is a legal-technical term that entails transfer of ownership. Accordingly, whenever a research participant provides human biological material for a research project, it is a legal requirement that ownership be transferred to the receiving research institution. This clearly implies that human biological material that is used for research can be owned. Given (1) the common law position, and (2) the statutory position, there can be no doubt that human biological material that is used for research is indeed capable of being owned in South African law.

Further reading

Thaldar DW, Shozi B. The legal status of human biological material used for research. South African Law Journal 2021.

This is the Zulu version of the podcast titled "Why the genetic link requirement for surrogate motherhood is unjust" presented by Nomfundo Mthembu and discusses the issue of infertile people’s access to surrogate motherhood.

Summary

South African surrogacy law includes a provision, known as the genetic link requirement, that commissioning parents must use their own gametes for the conception of the surrogacy child. As a result, infertile persons who cannot contribute gametes for the conception of a child are prohibited from accessing surrogacy as a way to establish families. This is a clear violation of infertile persons’ right to family life, which includes the right to establish a family. The genetic link requirement has previously been the subject of a constitutional challenge that resulted in a divided Constitutional Court bench that rejected the challenge with a seven-to-four majority. This was an injustice to infertile persons. The genetic link requirement is now again being challenged in a new lawsuit. The new lawsuit presents an opportunity for this injustice to be rectified, and the equal rights of infertile persons to be vindicated.

Further reading

Thaldar DW. Infertility: ConCourt must right its egregious wrong. Sunday Times, 24 July 2022.

See also

Thaldar DW. The Constitution as an Instrument of Prejudice: A Critique of AB v Minister of Social Development. Constitutional Court Review 2019.

Thaldar DW. Post-truth jurisprudence: the case of AB v Minister of Social Development. South African Journal of Human Rights. 2018.

Shozi B. Something old, something new: applying reproductive rights to new reproductive technologies in South Africa. South African Journal of Human Rights. 2020.

In this podcast episode, Professor Donrich Thaldar discusses the issue of infertile people’s access to surrogate motherhood.

Summary

South African surrogacy law includes a provision, known as the genetic link requirement, that commissioning parents must use their own gametes for the conception of the surrogacy child. As a result, infertile persons who cannot contribute gametes for the conception of a child are prohibited from accessing surrogacy as a way to establish families. This is a clear violation of infertile persons’ right to family life, which includes the right to establish a family. The genetic link requirement has previously been the subject of a constitutional challenge that resulted in a divided Constitutional Court bench that rejected the challenge with a seven-to-four majority. This was an injustice to infertile persons. The genetic link requirement is now again being challenged in a new lawsuit. The new lawsuit presents an opportunity for this injustice to be rectified, and the equal rights of infertile persons to be vindicated.

Further reading

Thaldar DW. Infertility: ConCourt must right its egregious wrong. Sunday Times, 24 July 2022.

See also

Thaldar DW. The Constitution as an Instrument of Prejudice: A Critique of AB v Minister of Social Development. Constitutional Court Review 2019.

Thaldar DW. Post-truth jurisprudence: the case of AB v Minister of Social Development. South African Journal of Human Rights. 2018.

Shozi B. Something old, something new: applying reproductive rights to new reproductive technologies in South Africa. South African Journal of Human Rights. 2020.

In this podcast episode, Professor Donrich Thaldar discusses the meaning of ‘public interest’ in POPIA (the South African Protection of Personal Information Act) and its relevance to the research community.

Summary

‘Public interest’ is an important concept in POPIA. The criteria for being in the public interest that emerged in our case law are:

However, the way in which public interest has been interpreted by the Information Regulator deviates from these well-established criteria. This deviation by the Information Regulator is problematic and should be rectified.

Further reading

Thaldar DW. Research and the meaning of ‘public interest’ in POPIA. South African Journal of Science. 2022.

See also

Thaldar DW, Townsend B. Exempting Health Research from the Consent Provisions of POPIA. Potchefstroom Electronic Law Journal. 2021.

Townsend BA, Thaldar DW. Navigating uncharted waters: biobanks and informational privacy in South Africa. South African Journal of Human Rights. 2019.

Thaldar DW, Townsend B. Protecting personal information in research: Is a code of conduct the solution? South African Journal of Science. 2021.

This podcast was made possible by a grant from the U.S. National Institute of Mental Health and the U.S. National Institutes of Health (award number U01MH127690) under the Harnessing Data Science for Health Discovery and Innovation in Africa (DS-I Africa) program. The content of this podcast is solely the responsibility of discussants of the podcast and does not necessarily represent the official views of the U.S. National Institute of Mental Health or the U.S. National Institutes of Health.

In this podcast episode, Professor Donrich Thaldar and Dr Dusty-Lee Donnelly discuss the meaning of ‘responsible party’ in POPIA (the South African Protection of Personal Information Act) and its impact on the research community.

Summary

In the research context, a ‘responsible party’ as contemplated in terms of POPIA is typically the research institution as well as the individual researcher involved. Given the potential civil liability that individual researchers could face, we suggest that the Code of Conduct for Research should place a duty on research institutions to indemnify their researchers from civil liability. While this measure will limit individual researchers’ personal financial risk in the extra-institutional legal sphere, it will in no way shield individual researchers from intra-institutional accountability and disciplinary action. Accordingly, we suggest that this measure strikes a fair balance.

Further reading

Swales L, Thaldar DW, Donnelly, D-L. Why research institutions should indemnify researchers against POPIA civil liability. South African Journal of Science. 2022.

See also

Thaldar DW. Research and the meaning of ‘public interest’ in POPIA. South African Journal of Science. 2022.

Thaldar DW, Townsend B. Protecting personal information in research: Is a code of conduct the solution? South African Journal of Science. 2021

This podcast was made possible by a grant from the U.S. National Institute of Mental Health and the U.S. National Institutes of Health (award number U01MH127690) under the Harnessing Data Science for Health Discovery and Innovation in Africa (DS-I Africa) program. The content of this podcast is solely the responsibility of discussants of the podcast and does not necessarily represent the official views of the U.S. National Institute of Mental Health or the U.S. National Institutes of Health.

In this podcast episode, Professor Donrich Thaldar and Shiniel Naidoo discuss policy proposals to encourage artificial intelligence (AI) innovation in the South African healthcare sector.

Summary

Despite the tremendous promise offered by artificial intelligence (AI) for healthcare in South Africa, existing policy frameworks are inadequate for encouraging innovation in this field. Practical and solution-driven policy recommendations are needed to encourage the creation and use of AI systems. Our recommendations include the establishment of an ‘AI in healthcare reconciliation commission’ and making public sector health data accessible to spur on development of AI solutions.

Further reading

Naidoo S, et al. Artificial intelligence in healthcare: Proposals for policy development in South Africa. South African Journal of Bioethics and Law 2022;15(1):11.

See also

Thaldar DW, Naidoo M. AI inventorship: The right decision? South African Journal of Science. 2021.

Townsend BA. Software as a medical device : critical rights issues regarding artificial intelligence software-based health technologies in South Africa. Tydskrif vir Suid-Afrikaanse Reg. 2020.

This podcast was made possible by a grant from the U.S. National Institute of Mental Health and the U.S. National Institutes of Health (award number U01MH127690) under the Harnessing Data Science for Health Discovery and Innovation in Africa (DS-I Africa) program. The content of this podcast is solely the responsibility of discussants of the podcast and does not necessarily represent the official views of the U.S. National Institute of Mental Health or the U.S. National Institutes of Health.