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Health Law

Health Law

Prof. Donrich Thaldar

New developments in science and technology, such as genome sequencing and AI promise to improve our healthcare. But how does our law govern the use of these new technologies in healthcare? Does our law strike a good balance between promoting health innovation and protecting the rights of individuals --patients and research participants? These are the fascinating and important questions that we explore in our podcast series.
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Top 10 Health Law Episodes

Goodpods has curated a list of the 10 best Health Law episodes, ranked by the number of listens and likes each episode have garnered from our listeners. If you are listening to Health Law for the first time, there's no better place to start than with one of these standout episodes. If you are a fan of the show, vote for your favorite Health Law episode by adding your comments to the episode page.

In this episode, Professor Donrich Thaldar explains the multidimensional legal nature of personal genomic sequence data.


Summary


There are multiple legal dimensions applicable to personal genomic sequence data. These include (1) property rights, (2) personality rights, and (3) intellectual property rights. (1) Personal genomic sequence data can be owned. The entity that is in the best position to claim ownership of personal genomic sequence data is the research institution that generates such data, i.e., the research institution that does the sequencing of the DNA. However, the ownership of personal genomic sequence data can also be provided for through contract. (2) Personal genomic sequence data are the object of data subjects’ personality rights, which includes privacy rights. (3) Personal genomic sequence data are also the object of intellectual property rights. The interplay between legal dimensions (1), (2) and (3) is explained: Personality rights constrain ownership rights, while the exploitation of intellectual property rights is constrained by both personality rights and ownership rights. All of these rights applicable to personal genomic sequence data should be acknowledged and harmonized for such data to be used effectively.


Further reading


Thaldar DW, Townsend BA, Donnelly D-L, Botes M, Gooden A, Van Harmelen J, Shozi B. The multidimensional legal nature of personal genomic sequence data: A South African perspective. Frontiers in Genetics. 2022.


https://doi.org/10.3389/fgene.2022.997595

See also


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


https://doi.org/10.47348/SALJ/v138/i4a9

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


https://doi.org/10.17159/sajs.2021/11286

Funding


This episode 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.

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Health Law - The meaning of ‘public interest’ in POPIA
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08/12/22 • 13 min

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:

  1. The ‘public’ can refer to any community in South Africa,
  2. such a community must benefit as a collective
  3. the benefit to the community can be indirect, and can coincide with direct benefit to an individual or a smaller section within the community.

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.


https://doi.org/10.17159/sajs.2022/13206

See also


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


https://doi.org/10.17159/1727-3781/2021/v24i0a10420

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


https://doi.org/10.1080/02587203.2020.1717366

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


https://doi.org/10.17159/sajs.2021/9490

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.

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Health Law - Trailer - Welcome to Health Law
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08/12/22 • 0 min

We aim to engage in topical health law and ethics research and teaching from a uniquely South African perspective.

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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.


https://doi.org/10.7196/SAMJ.2022.v112i6.16368

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.


https://doi.org/10.47348/TSAR/2022/i1a1

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


https://doi.org/10.17159/1727-3781/2020/v23i0a6217

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


https://doi.org/10.1080/02587203.2020.1776632

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


https://doi.org/10.1371/journal.pone.0226603
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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.


https://www.timeslive.co.za/sunday-times/opinion-and-analysis/opinion/2022-07-24-infertility-concourt-must-right-its-egregious-wrong

See also


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


https://doi.org/10.2989/CCR.2019.0013

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


https://doi.org/10.1080/02587203.2018.1497124

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


https://doi.org/10.1080/02587203.2020.1776632
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In this podcast episode, Professor Donrich Thaldar and Dr Dusty-Lee Donnelly discuss the new data transfer agreement (DTA) template (beta version) that is now available for public comment.


The DTA template (beta version) can be accessed here: https://doi.org/10.5281/zenodo.7110269


Comments can be emailed to [email protected] by no later than 15 November 2022.


Funding


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.

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Health Law - Can AI be inventive?
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09/06/22 • 10 min

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.


https://sajs.co.za/article/view/12509

See also


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


https://doi.org/10.47348/SALJ/v139/i2a6

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.


https://doi.org/10.7196/SAJBL.2022.v15i1.797
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Health Law - Why POPIA does not apply to DNA
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09/06/22 • 5 min

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.


https://doi.org/10.17159/sajs.2021/11286

See also


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


https://doi.org/10.47348/SALJ/v138/i4a9

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


https://doi.org/10.17159/1727-3781/2021/v24i0a10420
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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.


https://www.timeslive.co.za/sunday-times/opinion-and-analysis/opinion/2022-07-24-infertility-concourt-must-right-its-egregious-wrong

See also


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


https://doi.org/10.2989/CCR.2019.0013

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


https://doi.org/10.1080/02587203.2018.1497124

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


https://doi.org/10.1080/02587203.2020.1776632
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In this podcast, Professor Thaldar interviews Mr Paul Esselaar, Ms Devarasi Bellengère, and Mr Banele Mhlongo on the topic of the NHREC’s draft revised MTA.


Summary


The South African National Health Research Ethics Council (NHREC) has issued a revised draft of the 2018 material transfer agreement (MTA), prompting discussions on its mandate, treatment of data and biological material, and avoidance of ownership terminology. With the activation of the Protection of Personal Information Act (POPIA) in 2021, doubts arise regarding NHREC's authority over personal information in health research. The draft MTA's approach to data is criticized as superficial, and its handling of human biological material overlooks legal and ethical concerns related to pathogens. The use of "steward" instead of "owner" in the MTA clashes with South African law and neglects ethical arguments for ownership recognition. Recommendations for the MTA's improvement include making its adoption optional, separating data transfer agreements, addressing liability for pathogen-containing materials, and adopting a decolonial framework that acknowledges the ownership rights of local research institutions to support bio-economy growth.


Further reading


Esselaar P, Swales L, Bellengère D, Mhlongo B, Thaldar DW. Forcing a square into a circle: why South Africa’s draft revised material transfer agreement is not fit for purpose. Frontiers in Pharmacology. 2024.


https://doi.org/10.3389/fphar.2024.1333672

See also


Swales L, Ogendi P, Botes M, Townsend B, Donnelly D-L, Abdulrauf L, Thaldar DW. A data transfer agreement template for South Africa (2023).


https://doi.org/10.5281/zenodo.7537396

Swales L, Botes M, Donnelly D-L, Thaldar DW. Towards a data transfer agreement for the South African research community: The empowerment approach. South African Journal of Bioethics and Law. 2023;16(1):13–18.


https://doi.org/10.7196/SAJBL.2023.v16i1.827

Thaldar DW, Botes M, Nienaber A. South Africa’s new standard material transfer agreement: proposals for improvement and pointers for implementation. BMC Medical Ethics 2020;21(85):1-13.


https://doi.org/10.1186/s12910-020-00526-x

Thaldar DW. One material transfer agreement to rule them all? A call for revising South Africa’s new standard material transfer agreement. Humanities and Social Sciences Communications 2020;7(105)


https://doi.org/10.1057/s41599-020-00600-0
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FAQ

How many episodes does Health Law have?

Health Law currently has 21 episodes available.

What topics does Health Law cover?

The podcast is about Podcasts and Education.

What is the most popular episode on Health Law?

The episode title 'Ownership of the HeLa cell line - a South African perspective' is the most popular.

What is the average episode length on Health Law?

The average episode length on Health Law is 10 minutes.

How often are episodes of Health Law released?

Episodes of Health Law are typically released every 19 hours.

When was the first episode of Health Law?

The first episode of Health Law was released on Aug 12, 2022.

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