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.