South African Journal of Bioethics and Law
SAJBL is an online, tri-annual, peer reviewed journal that covers matters related to ethics, law, human rights and related matters for the health professions.
The SAJBL is published under an Attribution-Non Commercial International Creative Commons Attribution (CC-BY-NC 4.0) License. Under this license, authors agree to make articles available to users, without permission or fees, for any lawful, non-commercial purpose. Users may read, copy, or re-use published content as long as the author and original place of publication are properly cited. Exceptions to this license model is allowed for UKRI and research funded by organisations requiring that research be published open-access without embargo, under a CC-BY licence. As per the journals archiving policy, authors are permitted to self-archive the author-accepted manuscript (AAM) in a repository.
Copyright (c) 2025 S Soni https://creativecommons.org/licenses/by-nc/4.0
Copyright (c) 2025 https://creativecommons.org/licenses/by-nc/4.0
Failing to protect the climate could violate international law
Copyright (c) 2025 M A Kwinda https://creativecommons.org/licenses/by-nc/4.0
Caster Semenya succeeds in an important case for athletes around the world at the European Court of Human Rights regarding the right of athletes to a fair hearing during fundamental rights disputes between themselves and their sport governing bodies
In the case of Semenya v Switzerland, the European Court of Human Rights held that when athletes complain to their sport’s governing bodies regarding regulations that undermine their human rights, which such bodies claim are compatible with substantive public policy, the arbitration or reviewing bodies must rigorously – and not restrictively – examine the breaches of the athletes’ fundamental rights before deciding a case. This decision should result in important changes to the governance of international sport.
Copyright (c) 2025 D J McQuoid-Mason https://creativecommons.org/licenses/by-nc/4.0
The National Health Research Ethics Council 2024 Guidelines – suspended in part, legally precarious in whole
Copyright (c) 2025 D Thaldar https://creativecommons.org/licenses/by-nc/4.0
The matter between the State and Professor Peter Beale
Copyright (c) 2025 A Dhai https://creativecommons.org/licenses/by-nc/4.0
Denying the right to healthcare: South Africa’s unemployed doctors at the centre of this crisis
The public sector provides healthcare access to 84% of patients in South Africa (SA). However, it is severely understaffed, with only 0.3 doctors per 1 000 people – far below the World Health Organization’s recommended ratio of 2.5 per 1 000. While the public sector struggles with numerous challenges, including a critical shortage of healthcare personnel, SA has a high number of medical doctors who have completed their mandatory community service yet remain unemployed. The shrinking health budget, rising salaries and high number of medicolegal claims are some of the reasons why the National Department of Health (NDoH) cannot afford to employ these professionals. In addition, corruption has severely impacted available resources, creating dangerous conditions in public hospitals. During the State of the Nation Address, the SA President announced the development of new healthcare facilities, but buildings alone do not deliver healthcare – people do. If the NDoH is already struggling to fill posts in the public sector, how can communities trust that adequate human resources have been budgeted for new facilities? Without proper staffing, these new facilities could exacerbate existing workforce shortages. The fundamental right to access healthcare is affirmed in the Constitution; however, its implementation is riddled with impediments. Although the issue of unemployed doctors is part of a bigger crisis within the SA healthcare sector, it is imperative that it is tackled first in order to avoid the further collapse of the healthcare system. This article highlights the government’s constitutional imperatives to the people of SA with regard to the right to access healthcare. It also brings to light certain factors that have accounted for the current state of healthcare in SA, and offers some recommendations toward urgent intervention. The article concludes by highlighting the need for strategic interventions that result in the integration of unemployed qualified doctors into the public healthcare system.
right to access healthcare, unemployed doctors, South Africa, fundamental rights.
right to access healthcare, unemployed doctors, South Africa, fundamental rights
Copyright (c) 2025 S Mahomed, A V Adeleke https://creativecommons.org/licenses/by-nc/4.0
The cautionary tale of USAID cuts: Resources for HIV treatment and prevention programmes
The recent United States Agency for International Development (USAID) cuts have affected South Africa (SA)’s HIV prevention and treatment programmes. The consequences of these cuts affect the lives of millions of people, given the reliance on this foreign aid to supplement government resources for the provision of HIV treatment. The cuts are the result of a changing geopolitical landscape, in which diplomatic relations can be considered unstable. This article contends that the constitutional obligation to realise socioeconomic rights within ‘available resources’ should therefore not necessarily be interpreted as including foreign aid. Given current global politics and the fragility of diplomatic relations, such an interpretation is arguably unreasonable. SA should seek to ensure that its HIV treatment and prevention programmes are self-sufficient, so that provision of treatment for HIV can be consistent and reliable, and lives are not lost due to disruptions in treatment resulting from diplomatic relations.
Copyright (c) 2025 M Brotherton https://creativecommons.org/licenses/by-nc/4.0
Ensuring public safety and professional integrity: The vital role of healthcare regulators in South Africa
Healthcare regulation is often misunderstood as burdensome, yet it serves a critical function in safeguarding public health and maintaining professional integrity. The first objective of the present article is to explore the essential role of healthcare regulators in South Africa, with a focus on the Health Professions Council of South Africa (HPCSA). Established under the Health Professions Act 56 of 1974, the HPCSA oversees a broad mandate encompassing the registration, licensing and regulation of healthcare practitioners to ensure ethical and competent service delivery. The Council also establishes practice standards, evaluates educational programmes, promotes continuous professional development, and investigates complaints to ensure upholding public trust and safety. The second objective of the article is to clarify common misconceptions about healthcare regulation, including concerns about fee structures and registration suspension policies. It also aims to highlight the benefits that regulation offers healthcare professionals, such as enhanced credibility, legal compliance, and improved employment opportunities. The HPCSA’s dual mandate to protect the public and guide professions is examined through its legislative framework and relevant case law such as HPCSA v Grieve. As healthcare evolves, regulators such as the HPCSA must adapt to emerging challenges, ensuring the sector remains safe, ethical and effective. The third objective is to underscore the indispensable value of regulation in preserving both public safety and the integrity of the healthcare profession.
Copyright (c) 2025 S Sobuwa, N Sipeka https://creativecommons.org/licenses/by-nc/4.0
Copyright (c) 2024 https://creativecommons.org/licenses/by-nc/4.0
Using artificial intelligence in healthcare – some ethical and legal considerations
healthcare, Gaza, medical apartheid, protection heathcare workers and patients
Copyright (c) 2024 S Soni https://creativecommons.org/licenses/by-nc/4.0
In machina: A cursory consideration of artificial wombs and the South African ethico-legal landscape
Preterm birth, defined by the World Health Organization as any birth occurring before 37 weeks of gestation, remains a significant global health challenge, contributing to high rates of neonatal mortality and long‐term complications. In this context, artificial womb technology – or ectogenesis – offers a transformative intervention capable of sustaining extra‐uterine gestation and improving outcomes for extremely preterm infants. This article explores the legal, ethical and societal implications of introducing artificial wombs in South Africa, where existing laws regulating pregnancy, birth and personhood are ill‐equipped to address this technological shift. In particular, the definitional limits of the Choice on Termination of Pregnancy Act, the conditional nature of the nasciturus fiction, and the ambiguity surrounding parental authority and legal guardianship over gestatelings, is analysed. I argue for the development of a bespoke legal framework to regulate ectogenesis, rather than amending existing pregnancy or birth legislation, and propose a set of principles to guide future regulation. Additionally, I highlight how access to artificial wombs may reinforce healthcare inequality if limited to private medical settings. By proactively addressing the legal and policy challenges posed by ectogenesis, South Africa can advance a rights‐based approach to reproductive healthcare while preparing for the ethical and legal complexities of this emerging technology. This article utilised a qualitative, doctrinal research methodology based on desktop analysis. The research involved the critical examination of primary legal sources such as constitutional provisions, statutes and relevant South African case law. Secondary sources included scholarly articles in medical law, bioethics and reproductive justice, particularly those addressing emerging technologies, e.g. ectogenesis. Comparative perspectives from jurisdictions such as the United Kingdom, the Netherlands, and the United States were also consulted to contextualise the legal challenges within broader international debates. Sources were selected using targeted searches of legal databases and peer‐reviewed journals, with priority given to academic work that engages directly with the ethical, legal and regulatory dimensions of artificial womb technology.
Practical guidance in understanding the nuance of benefit sharing and what this means for South African health research ethics committees: Part 2
This article examines benefit sharing within health research, a subject of growing importance in South African regulatory and ethical frameworks. With reference to the National Health Act (NHA), this article builds on previous discussions about defining key terms in benefit sharing and offers health research ethics committees (RECs) in South Africa guidance in evaluating benefit-sharing provisions. It navigates three critical legislative frameworks – the Intellectual Property Rights from Publicly Financed Research and Development Act (IPRA), the Indigenous Knowledge Act (IKA) and the National Environmental Management: Biodiversity Act (NEMBA) – interpreting each for REC evaluation of research protocols involving publicly funded research, indigenous knowledge and non-human biological materials. The article also addresses the implications of section 60(4) of the NHA on benefit sharing for human participant research, dissecting questions around permissible forms of benefits to participants and research institutions. Through a decision-making diagram and two hypothetical scenarios, this article provides practical tools to help RECs assess and regulate benefit sharing in line with ethical and legal standards, ultimately promoting fair research practices.
Copyright (c) 2025 L Prinsen https://creativecommons.org/licenses/by-nc/4.0
Practical guidance in understanding the nuance of benefit sharing and what this means for South African health research ethics committees: Part 1
Benefit sharing in health research is a complex and contentious topic, raising practical challenges. This article examines preferred terminologies and the roles of various stakeholders at multiple levels, providing critical insights for South African Research Ethics Committees (RECs). It explores the terminological clarity needed in defining ‘benefit’ and ‘benefit sharing’, particularly through the framework suggested by the DS-I Africa Law group. The article highlights significant deficiencies within the National Department of Health Guidelines, which lack specificity in addressing benefit sharing, creating regulatory confusion. Additionally, it analyses the relevance of four South African Acts – the Intellectual Property Rights from Publicly Financed Research and Development Act (IPRA), the Indigenous Knowledge Act (IKA), the National Environmental Management: Biodiversity Act (NEMBA) and the National Health Act (NHA) – each addressing benefit sharing in varying contexts. These legislative frameworks are discussed to assist RECs in ensuring ethical benefit sharing practices and to clarify the legality and applicability of benefit sharing. In conclusion, this article recommends the implementation of the terminology and differentiation offered here. By offering a foundational understanding, this article aims to support RECs in their critical role of navigating benefit sharing complexities within the South African research landscape.
Facilitating a framework for managing rare diseases in South Africa: Comparative insights from the UK and Italy
Managing and treating rare diseases is a global concern, largely because of their rarity and the complexities associated with their care. Robust ethico-legal frameworks governing rare diseases are essential as they establish coordinated guidelines that ensure patients receive the care and support which they require. This article examines and compares the existing frameworks for rare diseases in the United Kingdom and Italy, with those in South Africa (SA), highlighting the differences and similarities in how they operate, towards facilitating a national framework that suits our context. The recommendations offer proposed solutions to add to the ongoing dialogue regarding the current lack of governance for rare diseases in SA. The article further calls for a coherent national framework to better address and represent the needs and rights of individuals affected by rare diseases. SA requires a systematic approach, with clear guidelines for diagnosing, treating and funding rare diseases. This approach would establish a basis for efficient resource allocation and equitable access to essential treatments.
Rare diseases, prescribed minimum benefits, orphan drugs, medical law, healthcare, medicine, national health insurance, human rights, access to healthcare.
Copyright (c) 2025 S Pazaropoulos-Koot, S Mahomed, L Pienaar https://creativecommons.org/licenses/by-nc/4.0
Advancing gender equity in HPV vaccination: A rule utilitarian case for including boys in South Africa’s national programme
We examine whether South Africa’s human papillomavirus (HPV) vaccination programme aligns with rule utilitarianism principles, considering ethical and societal dimensions. From a rule utilitarian perspective, we argue that the current policy should be revised to include boys because this change would generate greater overall benefit than the current exclusionary model. Specifically, we advocate for universal access to free HPV vaccinations for all eligible adolescents in South Africa. By using a framework grounded in rule utilitarianism, we aim to highlight the perceived unfairness and ethical concerns associated with excluding boys from the current school-based, free HPV vaccination programme. We assert that this exclusion undermines the programme’s broader public health benefits and moral justifiability.
Copyright (c) 2025 V C Scheepers, J Gardner https://creativecommons.org/licenses/by-nc/4.0
The Universal Declaration of Bioethics and Human Rights – a provisional perspective on surrogacy introduction
Backgound. Surrogacy is a contentious reproductive technology that has garnered significant global attention, particularly following Pope Francis’ 2024 condemnation of it and his advocacy for a universal ban, amid its rising prevalence in high-income regions driven by factors such as advancing parental age and the reproductive aspirations of single men, same-sex couples, and transgender individuals. This article evaluates surrogacy through the framework of the Universal Declaration of Bioethics and Human Rights, a 2005 UNESCO-adopted document establishing 15 universal bioethical principles to guide discussions on medicine, life sciences, and associated technologies, emphasising its role in fostering global ethical discourse grounded in human rights. Objective. To assess the ethical dimensions of surrogacy by applying the principles of the UDBHR, determining whether the declaration adopts a neutral stance, merely offers procedural guidelines, or provides a substantive ethical judgment on the practice. This provisional analysis posits a central theoretical argument that the UDBHR creates an ethical paradox by simultaneously legitimising surrogacy through procedural mechanisms while posing significant moral challenges to its acceptability, with the study confined to evaluative purposes without extending to policy recommendations. Method. The methodology employed is evaluative, critically examining surrogacy against the UDBHR’s standards to gauge its ethical soundness, incorporating an interpretive analysis of how the declaration’s principles intersect with surrogacy’s ethical, legal and social facets. The approach begins with an explication of surrogacy’s types, processes, reasons, costs and controversies, followed by a principle- by-principle discussion under the UDBHR, drawing on limited existing literature such as the 2019 International Bioethics Committee (IBC ) Report, while maintaining a focus solely on ethical assessment. Results. The evaluation identifies a dual nature within the UDBHR: certain articles offer procedural support that implicitly endorses surrogacy when conducted ethically, aligning it with benefits like parenthood fulfillment and social responsibility. Conversely, other articles highlight substantive concerns, including maternal health risks, embryo commodification, child rights violations, exploitation of vulnerable women, and long-term impacts on offspring, thereby questioning surrogacy’s moral foundation. Conclusion. The UDBHR manifests an inherent ethical paradox regarding surrogacy, providing procedural legitimacy through guidelines that facilitate its practice while simultaneously challenging its ethical viability via principles that underscore risks to dignity, vulnerability, equality and future well-being. Consequently, the analysis concludes that surrogacy, in its current form, encounters fundamental ethical obstacles under the UDBHR, necessitating further research and stringent international regulations to potentially align it with the declaration’s comprehensive ethical imperatives, particularly in safeguarding women, embryos and children.
Universal Declaration of Bioethics and Human Rights
Copyright (c) 2025 R Rheeder https://creativecommons.org/licenses/by-nc/4.0
Irregular appointment of the NHREC: Implications for legitimacy and the path forward for South Africa’s health research ethics guidelines
Background. Transparency is a fundamental value in South Africa’s constitutional and ethical framework, particularly in the appointment of statutory bodies such as the National Health Research Ethics Council (NHREC). The integrity of such appointments is crucial for maintaining public trust and ensuring that decisions are legally and ethically sound. An additional fundamental value is that those appointed be suitably qualified to perform their designated tasks. A transparent process alone is insufficient – the purpose of the process itself must also be respected. Transparency is directly linked to this second objective. The appointment of the NHREC has contravened the transparency of the process by not publishing the process and it has also circumvented the purpose of the process by appointing persons who have not been subjected to scrutiny. Objectives. This article demonstrates that the NHREC was constituted in an irregular manner, with key procedural requirements, designed to promote transparency and the appropriateness of the appointees, being overlooked. The article also explores the possible impact of this irregular appointment on the authority and validity of the NHREC’s decisions. Methods. The article conducts a detailed analysis of the statutory requirements governing the appointment of the NHREC, followed by an examination of the irregularities in the appointment process. The prejudice to stakeholders and the broader implications for governance are also considered. Results. The investigation found that the NHREC’s appointment process did not follow statutory requirements, leading to a significant irregularity. This undermines the legitimacy of both the council and its decisions, as it denies stakeholders the right to participate in the nomination process, violating principles of participatory democracy. Additionally, the credentials and suitability of appointees were not properly evaluated. As a result, the third edition of the Ethics Guidelines (2024) is legally vulnerable and could face challenges. Conclusion. Given these serious concerns about legitimacy, we recommend that the Minister of Health withdraws the third edition of the Ethics Guidelines and recommences the revision process once a properly constituted NHREC has been appointed. This approach restores the legitimacy of the NHREC and reaffirms the government’s commitment to transparency, accountability and participatory democracy in the governance of health research ethics in South Africa.
Copyright (c) 2025 D Bellengere, A Bellengere https://creativecommons.org/licenses/by-nc/4.0
Open science for health research and innovation in Africa: A call for an ‘inclusive’ intellectual property rights regime
Open science offers numerous benefits for health research and innovation that can advance public healthcare in Africa. In addition to facilitating universal access to research results, open science engenders scientific collaboration, accelerating research and innovation. However, the shared entitlement to using and developing intellectual resources in the open science context is challenged by the traditional approach to intellectual property rights, at the core of which is the right to exclude. This article examines the emerging notion of inclusive property rights, an alternative regime that emphasises the right to include and collective entitlements, as opposed to the right to exclude and individual ownership. Under this sui generis inclusive property regime, everyone enjoys the rights to use, share, adapt, modify or improve protected creations or inventions stemming from open science. It is suggested that African countries should review their intellectual property legislation to explicitly take into account the notion of inclusive property rights, ensuring that the adoption of open science in health research and innovation is beneficial to the African people.
Copyright (c) 2025 A E Adaji https://creativecommons.org/licenses/by-nc/4.0
Enforcing child-protection rights and finding healthcare providers unsuitable to work with children
Background. A range of constitutional rights aimed at protecting children fall under the umbrella term ‘children’s protection rights.’ Healthcare providers have a legal and ethical duty of care towards their patients. Those who work with children have constitutional obligations to act in the best interests of child patients and are expected to uphold children’s protection rights. However, there are instances in which healthcare providers contravene professional ethics and legal obligations by harming children. Objective. This article explores when and how a finding of unsuitability to work with children can be used to enforce child protection rights against healthcare providers. Method. The contents of s120 of the Children’s Act, related case law and pertinent health legislation were analysed to determine when, how and by whom, healthcare providers may be found unsuitable to work with children. Results. A healthcare provider may be found unsuitable to work with children when the conditions of s 120 of the Children’s Act are met. Such a finding can be made by, among others, disciplinary bodies such as Professional Conduct Committees (PCCs). Conclusion. If forums such as PCCs effectively apply s120 of the Children’s Act against unsuitable healthcare providers, this would further demonstrate the commitment of the health profession to advance the protection rights of all children.
Copyright (c) 2025 P Mahery https://creativecommons.org/licenses/by-nc/4.0
When a device that later disintegrates is fitted to a patient during surgery, who is responsible for the consequences? What health professionals and hospitals need to know
Consider the following hypothetical scenario: A patient suffering constant abdominal pain is referred to State Hospital A from her local clinic after not responding to simple analgesics for chronic pelvic pain associated with irregular menstruation. The doctors at State Hospital A discover that she has a suspicion of adenomyosis. She gives written informed consent for a hysterectomy. During routine postoperative check-ups she reports no alleviation of the pelvic pain, urinary frequency along with burning on micturition and a persistent vaginal discharge. Preoperatively, she was not told that the surgeons had inserted a surgical mesh to prevent vault prolapse. She is given antibiotics and further simple analgesia. As her symptoms do not improve she self-refers to State Hospital B. She is informed that she needs a CAT scan. However, the hospital’s scanner has been out of order for three years. She is advised to go to State Hospital C, where the scanner works, but is not given a referral note. She is told by Hospital C that the doctors are too busy to see her, and as she does not have an appointment, and is not an emergency case she should go back to Hospital A. She does not want to go back to Hospital A, as during her last visit there, nursing staff accused her of being a nuisance and escorted her off the premises. She approaches Private Hospital D, where her abdomen and pelvis are scanned. The scan shows the surgical mesh inside her pelvis which had disintegrated. She is told that it is too risky to remove all the fragments, but that some could be removed at a cost - which she could not afford. The surgeon refers her back to State Hospital A with a referral note and copy of the CAT scan report.
surgical mesh; disintegrating mesh; relevant law; ethical considerations; liability of surgeons; liability of hospitals
Copyright (c) 2024 D McQuoid-Mason, T L Khumalo https://creativecommons.org/licenses/by-nc/4.0
Governance of Health Research updated in South Africa
Surrogate motherhood regulation in South Africa: Medical and ethico-legal issues in need of reform
Chapter 19 of the Children’s Act No. 32 of 2005 regulates the practice of surrogate motherhood in South Africa and provides legal certainty regarding the rights of the children born as a result of surrogacy, including the rights of the different parties involved. Despite the clarity regarding the legal consequences of human reproduction by artificial fertilisation of women acting as surrogate mothers, some legal gaps and inconsistencies regarding certain medical and ethico-legal issues remain. The purpose of this article is to critically examine selected provisions whose implementation is hampered by a lack of detail or clarity, compromising compliance by the different parties to the surrogate motherhood agreement. The article concludes with recommendations on how some of these issues may be addressed to provide for legal certainty and transparency.
surrogate motherhood; ethico-legal and medical considerations; domicile requirement; confirmation of surrogate motherhood agreement; genetic link requirement; medical threshold requirement; artificial fertilisation of surrogate; role of epigenetics.
Copyright (c) 2024 M Labuschaigne, E Auret, N Mabeka https://creativecommons.org/licenses/by-nc/4.0
A response to 'The Stellenbosch University Senate ought to remain neutral on the Israel-Palestine war in Gaza - A response to Mahomed and Hendricks'
Clicks, carelessness and consequences: Navigating pharmacist negligence
The legal framework governing claims of medical negligence is extensively documented within South African (SA) jurisprudence, with a predominant focus on the liability of medical practitioners. In contrast, the liability of pharmacists has received comparatively scant attention. This issue was recently highlighted by a case in which a woman from the Western Cape initiated legal action against Clicks, a leading health, beauty and wellness retailer and SA’s largest retail pharmacy chain, alleging that the provision of incorrect medication nearly cost her life. At the time of writing, the case has yet to advance to trial. This article explores the legal and ethical dimensions of medical negligence attributed to pharmacists within the context of their professional duties. Additionally, it investigates how similar cases are adjudicated in foreign jurisdictions, with a specific focus on the US.
Medical Negligence, Patient Safety, Pharmacy Ethics
Copyright (c) 2024 M S Khan, J B Gardner https://creativecommons.org/licenses/by-nc/4.0
Data protection law: Lessons from Tanzania for South Africa?
Copyright (c) 2024 D Thaldar, M Malekela https://creativecommons.org/licenses/by-nc/4.0