DNA strands intertwined with legal scales symbolizing bioethics and justice.

Human Tissue Ownership: Unraveling the Legal Debate

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Avery Sinclair in Law & Justice August 2025 • 4 min read.

"Is current legislation clear or is reform needed?"


The question of who owns human biological material used in research sparks intense debate. A recent paper critiquing Mahomed, Nöthling-Slabbert, and Pepper's original work highlights disagreements about the certainty of existing laws and the suitability of altruism versus profit-sharing models.

This article examines the core arguments in this legal discussion, focusing on whether current laws governing human tissue ownership are clear and sufficient or if legislative reform is necessary. We'll break down the complexities to help you understand the nuances of this evolving area.

We'll explore the central themes of this debate: the ownership of human biological material, the potential for profit-sharing with research participants, and the critical importance of precise legal terminology. Understand the legal battle between altruism and profit-sharing and more.

Decoding Human Biological Material Ownership

DNA strands intertwined with legal scales symbolizing bioethics and justice.

Current legal consensus generally dictates that human biological material cannot be owned, with specific exceptions for gametes and in vitro embryos. However, some legal scholars argue that the absence of definitive rules necessitates a case-by-case evaluation, leading to significant uncertainty.

Those who are skeptical of the status quo emphasize the reliance on foreign case law, arguing that precedents in other jurisdictions cannot dictate South African law. This reliance, they contend, underscores the ambiguity and the need for legislative amendments to clarify ownership rights.

  • Proprietary Rights vs. Interests: The interchangeable use of 'proprietary right' and 'proprietary interest' is incorrect. A 'right' isn't the same as an 'interest' in law.
  • Proposed Definition Critique: The definition of 'proprietary rights' as merely 'property rights of an owner of proprietary information' is too limited. It overlooks contract-based rights and tangible property rights.
  • Researcher Confusion: Claims of widespread confusion among researchers are supported by articles co-authored by Pepper and Nöthling-Slabbert, highlighting concerns about applying 'genomic sovereignty' to biological material.
The debate is nuanced, hinging on precise definitions and interpretations of legal concepts. Understanding these nuances is essential for informed discussions about the ethical and legal framework governing the use of human biological material in research.

The Future of Bioethics: Balancing Altruism and Incentives

The existing legal framework promotes altruism in research participation, forbidding payment beyond reimbursement for expenses. However, the paper by Mahomed et al. challenges this model, advocating for profit-sharing to ensure participants benefit from therapies developed from their contributions.

Despite initial advocacy, they later disavow intending to challenge current healthcare policy. The proposal to grant participants a 'proprietary interest' to distribute therapy proceeds clearly departs from altruism, creating a contradiction that hinders constructive dialogue.

Replacing altruism with benefit-sharing has many ethical and legal ramifications. Is the 'legal conundrum' regarding human biological material ownership sensationalist, or is there a need for new paradigms of benefit and compensation?

About this Article -

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Everything You Need To Know

1

What is the current legal consensus on the ownership of human biological material, and what exceptions exist?

The prevailing legal view generally prohibits the ownership of human biological material, with exceptions carved out for gametes and in vitro embryos. However, some legal experts believe the absence of explicit rules mandates individual case assessments, creating potential uncertainty. These differing views highlight the ongoing debate and the need for clarity in the legal framework.

2

Why is it legally inaccurate to use the terms 'proprietary right' and 'proprietary interest' interchangeably?

The terms 'proprietary right' and 'proprietary interest' are often used interchangeably, but this is legally incorrect. A 'right' and an 'interest' are distinct concepts in law, each carrying different implications and protections. Understanding this difference is crucial for precise legal analysis.

3

What are the limitations of defining 'proprietary rights' solely as 'property rights of an owner of proprietary information' in the context of human tissue?

The definition of 'proprietary rights' is considered too narrow if it is limited to merely 'property rights of an owner of proprietary information'. This limited view overlooks rights based on contracts and tangible property rights, failing to encompass the full spectrum of potential rights associated with human biological material.

4

What concerns have researchers raised regarding the application of 'genomic sovereignty' to human biological material, according to Pepper and Nöthling-Slabbert?

The concept of 'genomic sovereignty' when applied to human biological material has generated concern among researchers. Articles co-authored by Pepper and Nöthling-Slabbert support claims of widespread confusion, pointing to the complexities and uncertainties in applying this concept within the existing legal framework.

5

How does the paper by Mahomed, Nöthling-Slabbert, and Pepper challenge the current altruistic model in research participation, and what alternative do they propose?

The existing legal framework encourages altruism in research participation by prohibiting payments beyond expense reimbursements. Mahomed, Nöthling-Slabbert, and Pepper challenge this altruistic model, proposing profit-sharing to ensure participants benefit from therapies developed using their contributions. This call for profit-sharing represents a fundamental shift in the bioethics landscape and the financial incentives associated with medical research.

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