South African fertility clinics often include a provision in their consent forms that deals with the disposition of reproductive material (gametes and embryos) after a fertility patient’s death. This practice is problematic as such a provision is not legally valid. If the clinic acts in pursuance of such a provision upon a fertility patient’s death, the fertility clinic may be committing a civil wrong and a crime. But what is the solution? Read more in my article in the South African Medical Journal.
The legal status of human biological material used for research
Whether human biological material (‘HBM’) in the research context is susceptible of ownership in South African law is contested, yet under-investigated. Previous literature on the subject barely touches the surface, and fails to provide in-depth, comprehensive legal analyses. This situation leads to legal uncertainty for local scientists, their international collaborators, and research ethics committees. In our latest article, published in South Africa’s most prestigious peer-reviewed law journal, Dr Bonginkosi Shozi and I dive deep into this topic — analysing both common law and statutory law — and conclude that HBM in the research context is indeed susceptible of ownership. We also consider the question of who owns HBM in various practical research-related scenarios. Importantly, we conclude that in all legally compliant scenarios HBM is owned by a research institution. There is no legally compliant scenario in which research participants can retain ownership of the HBM that they provide for research. We trust that our thorough analysis in this article will provide much-needed legal certainty to all involved in using HBM for research in South Africa.
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