In today’s world, science plays a role that is undeniable and essential. It serves as a cornerstone for advancements in society, ensuring that we grow, innovate, educate, develop, and thrive. As asserted by the International Science Council (2020), science remains ‘an indispensable contribution to the human endeavour’. 

However, for science to genuinely succeed and impart its benefits to society, its knowledge must be as accessible as possible. Yet, a pressing concern that echoes within the scientific community is the seclusion of scientific findings, which can limit its potential benefits to the wider public. Recognising this, the concept of open science has gained traction, championing the notion of democratising scientific knowledge. Philosophers like Holbrook (2019) emphasise that open science aims to bridge the rift between science and society, providing an inclusive platform where everyone can partake in the wonders of scientific discoveries.  

The digital era, especially the power of the Internet, magnifies this potential. The Internet can be an enabler, widely dispersing knowledge without barriers. Steger and Hantho (2019) keenly describe open science as a ‘no-barrier approach to scientific research’, advocating for the elimination of hurdles, such as article paywalls, that can significantly stifle scientific growth.  

Recognising this shift, South Africa’s Department of Science and Innovation unveiled its Draft National Open Science Policy last year. This draft policy aims to promote the ethos of open science. It stands in stark contrast with another draft policy that also deals with data, namely the Draft National Policy on Data and Cloud developed by the Department of Communications and Digital Technologies. In a recent article that I authored with Amy Gooden and Michaela Steytler, we highlight the various ways in which these two policies differ, and suggest that the approach adopted by the Draft National Open Science Policy is better aligned with South Africa’s commitment to being an open and democratic society.  

However, we also pinpoint three aspects of the Draft National Open Science Policy that warrant further attention:  

1. Constitutional alignment: The draft policy must be firmly anchored within the South African Constitution, emphasising the connection between open science and the freedom of scientific research. 

2. Clarity on data ownership: The draft policy currently omits the critical issue of data ownership, a gap that needs addressing. Here we are not referring to intellectual property rights, but to ‘normal’ ownership of data by the data generator. 

3. Human vs. non-human genetic data: A clear demarcation between these types of data is essential and should remain intact. Trying to apply the legal rules related to benefit-sharing of non-human genetic data to human data would infringe dignity—moreover, it would be unlawful.

To ensure the success of open science in South Africa, a holistic engagement with constitutional law, property law, and international law is paramount. We invite you to read our full article! 

As is the case around the globe, South African fertility clinics face an ever-expanding problem: what to do with the growing number of surplus cryopreserved embryos. Fertility clinics remain hesitant to destroy these abandoned embryos, partly because of concerns about the legal ramifications. This article clarifies the legal position in South Africa. In sum, fertility clinics cannot deem embryos as abandoned and discard them if fertility patients fail to respond to a notice that the embryo storage agreement is about to expire. However, if there is non-payment for embryo storage by fertility patients and the fertility clinic has informed the fertility patients of other options available to them with respect to their embryos, and there is still no response, the fertility clinic is legally entitled — and legally obliged — to discard the embryos.

In our article, Aliki Edgcumbe and I suggest practical steps that fertility clinics can take to ensure that they act lawfully when entering into embryo storage agreements, and later when faced with a situation where fertility patients fail to pay for the storage of the embryos.

From telemedicine to advanced diagnostics, artificial intelligence (AI) is reshaping the healthcare landscape across the globe. In African nations, there is a burgeoning interest in the use of AI for health research and patient care. Yet, this technological leap is met with regulatory dilemmas. A recent study by my research group, involving twelve African countries, reveals that while all are in the early stages of their AI regulatory journey, there is significant variation in their progress.

A patchwork of regulations

One major finding is the diversity in AI regulatory frameworks across these nations. While many have made strides in areas like data protection, crucial for AI development, there’s still a fragmented landscape. This poses challenges for companies and institutions aiming to collaborate across borders.

Drawing inspiration from global players

While AI-specific regulations may still be in their infancy in Africa, other global players offer valuable insights. The EU, for instance, has been proactive with its proposed ‘Regulation laying down harmonisation rules on Artificial Intelligence’ and the US with its ‘Algorithmic Accountability Act’. African nations can draw inspiration from other countries, while adapting to their unique challenges.

Who owns AI-generated innovations?

The rise of AI in healthcare promises innovations, from drug discoveries to diagnostic tools. But an age-old question gets a futuristic twist: When AI creates, who owns the rights? The current intellectual property (IP) laws in many countries, including those in Africa, base rights on human creation. AI-generated outputs muddy these waters, leading to debates about ownership and rights. The fact that South Africa is the first country in the world to have awarded a patent to an invention where the inventor is an AI system — and not a human! — is noteworthy. However, policies need to be developed to clarify this issue and promote innovation in Africa.

African Voices Matter

As AI evolves, it is crucial to avoid perpetuating biases. The AI we deploy in healthcare should be free from prejudices that might inadvertently deepen societal divides. The need to address algorithmic bias is paramount. The data that feeds AI can either uplift or marginalise communities. It is a challenge that’s both technical and moral.

Moreover, it’s essential to recognise that while AI can be transformative, its design and application should be respectful of Africa’s diverse cultures and histories. Embracing multiculturalism in AI governance ensures that the technology serves all communities equitably.

Conclusion

The road to integrating AI in African health research and healthcare is filled with both promise and pitfalls. With a balanced regulatory approach, a commitment to inclusivity, and an eye on global standards, Africa stands poised to harness the power of AI in healthcare, charting a course for the rest of the world to follow. The future beckons, and it is one where technology and humanity walk hand in hand.

This blog post is based on an in-depth research study by my research group that delves into the nuances of AI regulations in twelve selected African countries.

A decade ago, the promulgation of the Regulations relating to the Artificial Fertilisation of Persons marked a significant moment in South African reproductive law history. Regulation 18, in particular, introduces a scheme of ownership in reproductive material, such as sperm, eggs, and embryos. But can this ownership, once acquired, be transferred? I explore the complexities surrounding this question in this article in our country’s premiere law journal — the South African Law Journal. Here is a summary:

Ownership, in legal terms, is a bundle of rights encompassing the power to use, enjoy, consume, possess, dispose, reclaim, and resist any unlawful invasion of the object. But how is ownership acquired? South African law divides the acquisition of ownership into original and derivative forms. Derivative acquisition, where ownership is transferred from one party to another, is common in daily transactions. Original acquisition, however, occurs when a new legal object comes into existence. Consider the birth of a puppy. The puppy, before its birth, exists physically but not legally. Only upon its birth does it become a legal object, and ownership is vested in the mother dog’s owner. This illuminates a fundamental legal notion where objects must have independent existence to be owned legally. Similarly, in the context of reproductive material, ownership begins when gametes are separated or an embryo is created.

Regulation 18 provides who acquires ownership in the gametes and embryos. But, does this regulation allow for the transfer of ownership by one person to another? There are two interpretations of regulation 18: the supple interpretation, allowing the default allocation of ownership to be changed, and the rigid interpretation, allowing no change to the default position. If we consider the rigid interpretation, we encounter complications that pose serious legal challenges. Scenarios such as abandonment or unexpected death present conundrums that demand legal flexibility. These practical problems push us toward the supple interpretation. Furthermore, the supple interpretation enables freedom of contract and promotes values of freedom and dignity, aligning with South Africa’s human rights regime. The rigid interpretation, in contrast, seems anathema to these values, suppressing freedom and promoting no discernible constitutional value.

In conclusion, the issue of transferring ownership in reproductive material is a legal labyrinth. The supple interpretation appears to be the path forward, allowing for flexibility and alignment with constitutional values. Reproductive law, full of potential and ethical intrigue, beckons further exploration and invites us to reflect on the intricate relationship between law, ethics, and humanity.

The burgeoning landscape of research, particularly in genomics, calls for the careful balancing of the rights of data subjects with scientific imperatives. South Africa is rising to the challenge, with the development of a Code of Conduct for Research in terms of the Protection of Personal Information Act 4 of 2013 (POPIA) — currently in draft form.

The draft Code of Conduct for Research is a welcome development, but there is room for improvement. My research group identified three broad areas where improvement is needed, considered potential solutions, and authored an article on each of these areas: First, the way that the draft Code describes core concepts in POPIA requires refinement. Second, in line with the global trend towards open science, there are significant benefits to an open access genomics database of South Africans. The draft Code should provide a clear roadmap for open access genomics projects. By doing so, it will not only foster innovation but also align the South African research environment with global best practices. Third, the need to strengthen the Code of Conduct also emerges from the pivotal role that research should play in the South African economy. Research is not (merely) a purpose in itself, but a fundamental contributor to the South African economy. Because research data — which may consist of personal information — often has commercial value, it is important that we consider legal pathways for repurposing research data for commercial use. The draft Code should provide guidance in this regard.

In conclusion, the draft Code marks an important milestone but needs further refinement to reach its potential as a practical tool for researchers. The revised Code could set a robust framework that safeguards privacy, promotes innovation, and contributes to the economic vitality of South Africa.