Reclaiming reproductive autonomy in surrogacy law

~ Donrich Thaldar

On Monday, 24 March 2025, I was a panellist at the Third International Surrogacy Forum, held in Cape Town. Here is my speech: 

Good morning, esteemed colleagues, scholars, and guests,

It is an honour to address you today as a litigator immersed in surrogacy—a field where law, ethics, and human rights intersect, often uneasily. Building on the insightful foundation laid by my co-presenter, I want to highlight a growing concern: the steady erosion of reproductive autonomy—disguised as protection—that has unfolded in the fifteen years since our current surrogacy framework was enacted.

My co-presenter has already outlined the statutory framework, so I’ll revisit it only briefly. As you know, the Children’s Act imposes stringent requirements: all parties must be domiciled in South Africa; the commissioning parents must be unable to carry a pregnancy; the arrangement must be altruistic—no compensation beyond expenses; and commissioning parents must use their own gametes. These conditions are unusually rigid when compared to other reproductive options. Yet, these legislative requirements are merely the starting point. What has emerged from judicial practice since then is a far more elaborate and exclusionary system.

Over the past decade, the courts have built substantially on the Act’s foundation—sometimes, I would argue, too substantially. Let me be clear: I have deep respect for our judiciary, including my colleague here from the Western Cape High Court. Judges tasked with deciding these cases strive for fairness and compassion. My concern is not with their intentions, but with the cumulative effect of these judicial expansions. They have created what I would call hyper-regulation—a regime so procedural, so demanding, that it places surrogacy far beyond the reach of many.

Consider the current practice: exhaustive psychological assessments that require parties to recount their entire life histories, layered with psychometric tests that seem barely connected to parenting capacity. Detailed financial disclosures that demand transparency beyond what most people could tolerate. And in the Western Cape, a mandatory detour through the Office of the Family Advocate. None of these steps are required by the Children’s Act. They were introduced by the courts, in the name of protection. Viewed individually, each requirement may appear reasonable—even prudent. But taken together, they form a mountain of procedural and financial hurdles. The process is not just burdensome; it is exclusionary.

Why does this matter—really matter? Because at its core, surrogacy is about reproductive autonomy, a right intimately tied to dignity, freedom, and equality under our Constitution. Yet both the legislature and the judiciary have embraced the view that it is justifiable—perhaps even necessary—to wrap this right in red tape. For individuals who must turn to surrogacy to build a family, these restrictions don’t merely complicate the process; they marginalise them. They send a message: your reproductive choices are suspect, your decisions require greater oversight than those of fertile couples conceiving naturally. In an open, democratic society, that message should trouble us all.

Of course, surrogacy is not natural reproduction. The involvement of a third party—the surrogate—introduces legitimate concerns about exploitation. A legal framework that brings structure, certainty, and protection is warranted. But South Africa’s approach does more than that. It elevates the best interests of the child—a child who does not yet exist—as the ultimate measure of legality. Unlike any other form of reproduction, surrogacy gives judges the power to override the autonomous decisions of consenting adults based on speculative assessments of a hypothetical child’s future.

And if we are comfortable applying that standard here, why stop with surrogacy? Why not apply the same test to natural conception? Why not require psychological evaluations, financial stability checks, or even court approval before anyone is allowed to have a baby the old-fashioned way? The answer is simple: we don’t—and we wouldn’t dare. So why is it acceptable to subject a small, vulnerable group of people—infertile individuals—to this level of scrutiny and control?

Let me pause to acknowledge the obvious question: am I suggesting that the best interests of the future child don’t matter? Of course not. They do. But they cannot be the decisive factor in determining access to surrogacy when no such test exists for others. This is not a minor legal inconsistency—it is a profound issue of equality. We are singling out a minority and holding them to a standard we would never apply universally. And let’s be honest: it’s easier to do that when the group in question is small, marginalised, and lacks political power.

The result? A process so complex, so costly, and so protracted that it is inaccessible to most. Who is actually able to pursue surrogacy under this regime? Spoiler alert: it’s not the average South African. To navigate this system, you need time, money, and legal sophistication. The framework has become a gatekeeping mechanism that excludes the very people it was meant to support.

Yes, we must protect all parties involved—surrogates from exploitation, commissioning parents from disappointment, and children from harm. But our current system fails to strike a balance between protection and accessibility. It sacrifices the latter at the altar of the former. And that is a constitutional failure. Because access to reproductive healthcare—including surrogacy—is not supposed to be a privilege reserved for the wealthy. It is a right.

So, where do we go from here? South Africa’s surrogacy laws have shifted from cautious over-regulation to full-blown hyper-regulation. It’s time for serious reform—not just tweaks around the edges, but a substantial overhaul. We need to simplify the process. We need to cut the procedural fat. We need to lower the financial and administrative barriers that currently lock so many people out.

Can we protect all parties while also making surrogacy genuinely accessible? I believe we can—and we must. Because if we don’t, we are not just failing infertile individuals or willing surrogates. We are failing the constitutional promise of dignity, freedom, and equality.

Let me leave you with a question: If we’re willing to recalibrate rights based on the interests of a child who doesn’t yet exist, how do we justify doing it only in the context of surrogacy? And if we can’t answer that without tying ourselves in knots, then perhaps it’s time to admit we’ve got the balance wrong—and start fixing it.

The mage’s book: res digitales and the law

~ Donrich Thaldar

Imagine stepping into a vast, dimly lit library, where an old mage stands before an ancient tome, its pages glowing with arcane energy. With a wave of his hand, an identical book materialises in a distant tower, far across the land. No messengers, no parchment, no ink—just pure knowledge, transferred in an instant.

Now, replace magic with modern technology. Every time you send an email, download an e-book, or transfer money online, you’re doing something eerily similar: creating a new digital entity, a perfect copy of information appearing elsewhere in the world, with no physical movement involved. It feels almost magical—but it raises a fundamental legal question: who owns it?

The traditional legal approach to property

Since Roman times, our law has recognised that not all property is physical. Roman law recognised res incorporales—incorporeal things—as susceptible of private ownership. In the digital age, we deal with a new kind of res incorporales: res digitales—digital things. But how is ownership of res digitales determined?

A famous Roman legal principle states: If Titius has written a poem, a history, or a speech on your parchment, you, not Titius, are the owner of the written paper. In other words, if someone records information in a physical book, the book’s owner becomes the rightful owner of that recorded information. But does this logic hold up in the digital world? I suggest not.

Why the parchment analogy fails

One might argue that a digital device—such as a phone or computer—is a modern parchment, implying that its owner should also own all stored information. But this analogy breaks down because it doesn’t reflect how humans actually interact with digital information.

Consider the following: In our law, a parchment or a book is a single unit of property, not a collection of separate pages, molecules, or atoms. We don’t think of ink molecules as separate pieces of property—we own the book as a whole. Similarly, in the digital world, we don’t interact with binary code or silicon chips; we interact with digital objects themselves—emails, photos, documents, and videos. The device is merely a medium.

Consider a digital bank transfer. When you send money to someone, neither of you conceptualises the transaction as a rearrangement of binary code on a bank’s servers. You see it as money moving between accounts. This is how we experience res digitales: as distinct, functional entities, separate from the hardware that stores them.

Something out of nothing: the way of the digital world

If res digitales are separate from the devices storing them, then how is ownership established? Unlike physical things, res digitales come into existence out of nothing—res ex nihilo. If I create a new spreadsheet or a new email, it has no antecedent res. At the moment of creation, no existing mode of acquisition applies—making it res nullius. Think of taking a photo with your phone. In that moment, a new res digitalis—a digital photo file—comes into existence. Similarly, when a laboratory technician sequences someone’s DNA, a new genomic data file is created. This is not merely an arrangement of electrons; it is a new digital property, distinct from the physical storage medium.

Since res digitales starts as res nullius, the appropriate mode of acquiring ownership is appropriation—the legal principle that applies when someone takes control of unowned property with the intent to own it. For example, if you compose an email, the email file is created on your device. At that moment, it is res nullius. But as the person who controls it and intends to own it, you acquire ownership of that res digitalis. This principle extends to other digital objects, from videos to genomic data files.

Information generators stand to benefit

This has profound implications for information ownership. In the pre-digital world, recording information (like writing in a book) did not create new property—it simply added content to an existing res. But in the digital world, recording information digitally generates a new res. Therefore, ownership of digital information is not determined by who owns the physical device storing it, but by who controls the digital file and intends to own it. For example, if I create a new computer file that is simultaneously saved on a local hard drive and cloud servers, ownership is not determined by who owns the storage devices. Rather, as the creator, if I control the file and intend to own it, it belongs to me. This shifts the conversation away from outdated notions of physical ownership to a legal framework that mirrors how we actually interact with the digital world.

The digital age: a legal paradigm shift

In the pre-digital age, the idea that new property is created from nothing—like a mage conjuring books out of thin air—may seem counterintuitive. But this is the reality of our digital world. Every day, we create new res digitales, send them across the world, and interact with them as distinct pieces of property. Recognising this shift enables legal frameworks to evolve in line with human experience. In this brave new world of res digitales, ownership is no longer about who holds the parchment, but about who wields the magic.

I analyse this and more in my recent article in the South African Law Journal.

A landmark judgment on informational privacy

~ Donrich Thaldar

The recent High Court judgment in De Jager v Netcare Ltd is a significant ruling that clarifies important aspects of informational privacy under South African law. Having participated as amicus curiae, I had the opportunity to make submissions that shaped the court’s reasoning and the outcome of the case. This case is noteworthy not only for its impact on privacy law but also for its implications for health research and data governance.

What was the case about?

The case dealt with a privacy challenge raised by the plaintiff, Mr. Nicolaas de Jager, who objected to the admission of surveillance data obtained by the defendant, Netcare Ltd. De Jager claimed that his constitutional right to privacy had been violated, arguing that the covert collection of health data was unconstitutional.

The key legal question before the court was whether health data obtained through covert surveillance could be admitted as evidence, given the constitutional right to privacy.

The court’s key findings on informational privacy

The judgment makes two key contributions to South African privacy law:

POPIA, not the Constitution, governs privacy disputes. A crucial aspect of the judgment is its reliance on the principle of subsidiarity, which dictates that where legislation exists to give effect to a constitutional right, litigants must rely on that legislation rather than invoking the Constitution directly. The court adopted my argument that since POPIA comprehensively governs informational privacy, the plaintiff’s direct appeal to the Constitution was misplaced.

Privacy rights are not absolute. The court affirmed that data subject rights under POPIA must be balanced against competing interests—in this case, the public interest in truth-seeking in litigation. This aligns with broader legal debates on data subject rights versus the freedom of scientific research and the public interest in health research.

My contributions to this landmark ruling.

As amicus curiae, I presented several key legal arguments, many of which were explicitly adopted by the court. Some of the most impactful points included:

The proper application of POPIA. I argued that POPIA is South Africa’s codification of informational privacy and that any privacy-based legal challenge must be grounded in POPIA. The court not only endorsed this position but relied on it as a decisive factor in dismissing the plaintiff’s constitutional privacy claim. This has clear implications for health research. POPIA represents a careful balancing of data subject privacy rights with other individual rights and the public interest in scientific progress. This balance established by POPIA should be respected.

The ‘legitimate interest’ justification under POPIA. One of the critical questions in this case was whether the covert collection of health data was lawful under POPIA. I argued that POPIA permits such collection if it is necessary to pursue a legitimate interest. The court accepted my argument that Netcare’s interest in defending itself in litigation qualified as a legitimate interest. This interpretation provides important guidance for cases involving health data collection in legal, medical, and research contexts, where privacy concerns must be weighed against other legitimate interests.

The judicial exclusion in POPIA. I urged the court to clarify section 6 of POPIA, which exempts judicial functions from the Act’s privacy protections. Contrary to the narrow reading suggested in the leading textbook on POPIA, the High Court endorsed my broad reading of this provision, affirming that POPIA does not apply to the judicial process—including not only judicial officers but also litigants. The practical, purposive reasoning underlying the broad reading of section 6 is highly relevant to other parts of POPIA, such as the meaning of ‘specific’ consent.

Why this judgment matters

Beyond its direct impact on privacy litigation, this ruling is significant for several reasons: First, it provides a roadmap for future cases involving privacy. The judgment sets a precedent for how courts should evaluate privacy rights, reinforcing that informational privacy is a contextual, not absolute, right. Second, it establishes the central position of POPIA in the balancing of rights and interests in respect of special personal information, including health data. Third, it strengthens legal clarity for health data governance. The discussions around legitimate interest and the broad reading of the judicial exception are both particularly relevant for health research.

This case was an exciting opportunity to contribute to the evolution of South African privacy law, and I am pleased that my submissions played a crucial role in shaping the court’s thinking on the issues.

The future of South Africa’s fertility healthcare sector

~ Donrich Thaldar

South Africa’s fertility healthcare sector is at a crossroads, filled with both promise and challenges. Advanced medical expertise, cutting-edge technology, and affordable treatments have positioned the country as a sought-after destination for fertility care. Yet, beneath this success lie complexities and obstacles that could shape the sector’s future.

To uncover these dynamics, we conducted a series of in-depth interviews with key role players, revealing insights into the sector’s strengths, weaknesses, opportunities, and threats (SWOT). Our report distills those insights into an analysis that can guide the sector towards sustainable growth and high-quality, ethical care.

Here is a brief summary of the SWOT analysis:

Strengths: Building on Expertise and Affordability

One of the standout strengths is South Africa’s wealth of experienced fertility specialists, who uphold high standards of care bolstered by international training. Combined with state-of-the-art technology and infrastructure, this expertise has helped local clinics achieve impressive success rates. What’s more, the affordability of these treatments compared to international standards draws a growing number of patients from around the world, further supported by a favourable legal environment.

Weaknesses: High Costs and Limited Accessibility

However, affordability is not universal. Many local patients struggle with high treatment costs, compounded by limited medical aid coverage. Additionally, the sector is grappling with regulatory gaps, inconsistencies in standards, and the ongoing emigration of skilled professionals—issues that undermine the long-term sustainability of high-quality care.

Opportunities: Growth Through Collaboration and Innovation

Despite these challenges, opportunities abound. Establishing a comprehensive regulatory framework, akin to the UK’s Human Fertilisation and Embryology Authority, could ensure uniform standards and better oversight. Expanding training and education programmes and investing in research and innovation can elevate South Africa as a global leader in fertility care. By strategically leveraging fertility tourism and promoting public-private partnerships, the sector could unlock further growth and innovation.

Threats: Regulatory Challenges and Market Dynamics

Yet, these opportunities come with threats. Inconsistencies in voluntary accreditation, intense competition among clinics, and high entry barriers pose risks to accessibility and service quality. Additionally, limited resources in public clinics create disparities in care, impacting lower-income patients the hardest.

The Road Ahead

South Africa’s fertility healthcare sector is poised for growth, but this potential depends on strategic action. By capitalising on its strengths and addressing key challenges, the sector can cement its position as a global leader in fertility care, benefitting both local and international patients.

For a deeper dive into the findings and strategic recommendations, I invite you to read our full report.

* The study was funded by the Competition Commission of South Africa. The content of our report is the responsibility of the authors, and does not necessarily reflect the view of the Competition Commission. 

Reconciliation as a solution to AI liability in healthcare

~ Donrich Thaldar

Introduction

As a health lawyer deeply engaged with the evolving landscape of artificial intelligence (AI) in healthcare, I recently reflected on Dario Amodei’s insightful essay, Machines of Loving Grace: How AI Could Transform the World for the Better. Amodei envisions a future where powerful AI systems revolutionise medicine, accelerating advancements in biology and neuroscience to eradicate diseases and enhance human well-being. This optimistic outlook paints a picture of unprecedented progress, where AI compresses decades of medical innovation into a few short years.

The challenge of AI liability in healthcare

However, amid this excitement lies a critical challenge: the question of legal liability when AI systems cause harm in healthcare settings. Traditional liability frameworks, designed for human actors and predictable products, struggle to accommodate the complexities introduced by autonomous and adaptive AI technologies. In my research group’s previous work (Naidoo et al., 2022; Bottomley & Thaldar, 2023), we have explored these challenges extensively, proposing reconciliation as a viable solution to address AI healthcare liability issues.

The limitations of traditional liability frameworks

AI systems, particularly those utilising deep learning, often function as ‘black boxes.’ Their decision-making processes are not easily explainable, making it difficult for healthcare practitioners to foresee errors or for patients to understand how certain conclusions were reached. This opacity complicates the attribution of fault, a cornerstone of traditional negligence-based liability regimes. When an AI system recommends an unconventional treatment or makes a decision that leads to harm, assigning responsibility becomes a daunting task.

In the context of Amodei’s vision, where AI surpasses human expertise across various domains, these questions become even more pressing. The potential for AI to operate autonomously raises concerns about accountability and the adequacy of existing legal frameworks. Relying solely on traditional fault-based liability may not suffice, as it could lead to unjust outcomes and hinder the adoption of beneficial AI technologies due to fear of litigation.

Proposing a reconciliatory approach

In my research group’s work, we have argued for a reconciliatory approach to AI liability in healthcare, emphasising the importance of fostering responsibility and accountability without stifling innovation. A reconciliatory approach shifts the focus from punitive measures to collective learning and improvement. Instead of prioritising questions like ‘Who is at fault?’ it encourages stakeholders to ask, ‘How can we prevent this harm from occurring again?’ This mindset fosters an environment where healthcare practitioners, developers, and patients work together to enhance AI systems’ safety and efficacy.

Implementing reconciliation in practice

One practical manifestation of this approach could involve establishing a specialised dispute resolution institution for AI-related harms in healthcare . Such an institution would operate with broad investigative powers, enabling it to access all relevant information about the AI system, its development, and its deployment. By adopting an inquisitorial rather than adversarial stance, the institution would facilitate open dialogue among stakeholders, focusing on uncovering the root causes of harm and developing strategies to mitigate future risks.

This model draws inspiration from alternative dispute resolution mechanisms, such as South Africa’s Commission for Conciliation, Mediation, and Arbitration (CCMA). By prioritising reconciliation and collaboration, the institution can help balance the need for accountability with the imperative to support innovation in AI technology. Victims of AI-related harm would receive appropriate compensation and redress through an insurance scheme funded by AI developers, manufacturers, and healthcare providers—without the need for protracted litigation. At the same time, developers and healthcare providers would benefit from a clearer understanding of how to improve their systems and practices.

Benefits of the reconciliatory approach

This reconciliatory framework addresses the inherent challenges of assigning liability in the context of AI’s complexity. It acknowledges that AI systems often involve multiple actors across their lifecycle—developers, data scientists, healthcare providers, and more. By focusing on collective responsibility, the approach reduces the burden on any single party and promotes a shared commitment to patient safety.

Moreover, this approach aligns with ethical imperatives in healthcare. It fosters transparency, encourages open communication, and supports continuous improvement of AI systems. By involving all stakeholders in the process, it enhances trust in AI technologies and facilitates their integration into healthcare practices.

Aligning with Amodei’s vision

Amodei’s essay underscores the transformative potential of AI but also hints at the necessity of addressing societal and ethical challenges. The reconciliatory approach I advocate complements his vision by providing a pathway to integrate AI into healthcare responsibly. It ensures that as we embrace technological advancements, we remain vigilant about safeguarding patient rights and maintaining trust in the healthcare system.

Conclusion

Reconciling the innovative promise of AI with the imperative of legal accountability is not only possible but essential. By adopting a reconciliatory approach, we can navigate the complexities of AI liability in healthcare, fostering an environment where technology enhances human well-being without compromising ethical standards. This approach ensures that all stakeholders—patients, practitioners, and developers—are part of the solution, working together to realise the full benefits of AI in healthcare.

As we stand at the cusp of a new era in healthcare, it is imperative that we thoughtfully consider the legal and ethical frameworks that will guide us. By embracing reconciliation as a solution for AI healthcare liability, we honour our commitment to patient safety, support innovation, and pave the way for a future where technology and humanity work hand in hand for the betterment of all.