The multidimensional legal nature of personal genomic sequence data: A South African perspective

The open ontology and information society

Information, as the most elusive subject, is central to all forms of thought, governance, economic structure, science, and society. Regulation of information, especially within the healthcare field, is proving to be a difficult task globally, given the lack of a qualitative framework and understanding of the concept and properties of information (or data) itself. The presentation of the overall qualitative framework, comprising a qualitative analysis of information, data, and knowledge, will be valuable and of great assistance in delineating regulatory, ethical, and strategic trajectories. In addition, this framework provides insights (and answers) regarding (1) data privacy and protection; (2) delineations between information, data, and knowledge based on the important notion of trust; (3) a structured approach to establishing the necessary conditions for an open society and system, and the maintenance of said openness, based on the work of Karl Popper and Georg Wilhelm Friedrich Hegel; (4) an active agent approach that promotes autonomy and freedom and protects the open society; and (5) a data governance mechanism based on the work of Friedrich Hayek, which structures the current legal-ethical-financial and social society. This is insightful for questions relating to the extent of rights and duties, the extent of biological bodies and freedom, and the structure of relations in distributed networked systems. There is great value offered in this framework; furthermore, it provides critical insights and thoughts about (and uncovers the interplay between) academic culture, politics, science, society, and societal decay. Note that, in line with the ideas expressed in this manuscript, such as incorporation of personal experience (thereby mending the Kantian and Cartesian gap), a first-person perspective will be used, where relevant.

Forcing a square into a circle: why South Africa's draft revised material transfer agreement is not fit for purpose

The South African National Health Research Ethics Council (NHREC) recently released a final draft revision of the standard material transfer agreement (MTA) that was promulgated into law in 2018. This new draft MTA raises pertinent questions about the NHREC's mandate, the way in which the draft MTA deals with data and with human biological material, and its avoidance of the concept of ownership. After South Africa's data protection legislation, the Protection of Personal Information Act (POPIA), became operational in mid 2021, the legal landscape changed and it is doubtful that the NHREC has a residual mandate to govern personal information in health research. Furthermore, data is dealt with in a superficial, throw-away fashion in the draft MTA. The position with human biological material is not substantially better, as the draft MTA fails to recognise that human biological material can contain pathogens, which has important legal and ethical ramifications that are not sufficiently addressed. A central problem with the draft MTA is its use of the term 'steward', and avoidance of the legal concept of 'ownership'. This is not only misaligned with the South African legal framework, but also fails to consider the ethical case for recognising ownership. Finally, a call to embrace decolonial thinking in health research underscores the importance of recognising ownership in order to foster the growth of the local bio-economy. Key recommendations to reshape the draft MTA include: Making use of the eventual revised MTA optional, and allowing it to evolve with input from scientific and legal communities; regulating the transfer of associated data in a separate data transfer agreement that can be incorporated by reference in the MTA; enhancing guidance on liability and risk management in respect of human biological material that contains pathogens; and, finally, adopting a decolonial approach in health research governance, which requires recognising the ownership rights of South African research institutions.

A pathway to strengthening open science: comments on the draft South African Ethics in Health Research Guidelines

The recently released draft South African Ethics in Health Research Guidelines: Principles, Processes and Structures (Draft Guidelines) by the National Health Research Ethics Council recognize open data and provide guiding principles for this in the context of health research in South Africa. While its inclusion is a positive development, there is room for improvement. Although the Draft Guidelines leverage the Draft National Policy on Data and Cloud, it lacks incorporation of other relevant government policies, notably the Draft National Open Science Policy, and fails to sufficiently detail the principles of open science and open access. This limited scope and lack of comprehensive definition and detailed guidance present challenges for researchers in conducting ethical and responsible health research in South Africa. It constrains the Draft Guidelines from fully aligning with national imperatives and from fostering African-centric approaches. To address these issues, it is recommended that the Draft Guidelines integrate broader policies and principles, enhance clarity through comprehensive definitions, provide detailed guidance on open access, and promote African-centric approaches. Implementing these solutions will strengthen the Draft Guidelines, aligning them with national visions of open science, and thereby harnessing the full potential of South Africa's diverse scientific community in advancing health research.

The wisdom of claiming ownership of human genomic data: A cautionary tale for research institutions

This article considers the practical question of how research institutions should best structure their legal relationship with the human genomic data that they generate. The analysis, based on South African law, is framed by the legal position that although a research institution that generates human genomic data is not automatically the owner thereof, it is well positioned to claim ownership of newly generated data instances. Given that the research institution exerts effort to generate the data, it can be argued that it has a moral right to claim ownership of such data. Combined with the fact that it has an interest in having comprehensive rights in such data, it appears that the prudent policy for research institutions is to claim ownership of the human genomic data instances that they generate. This policy is tested against two opposing policy positions. The first opposing policy position is that research participants should own the data that relate to them. However, in light of data protection legislation that already provides extensive protections to research participants, bestowing data ownership on research participants would offer little benefit to such individuals, while leading to significant practical problems for research institutions. The second opposing policy position is that the concept of ownership should be abandoned in favour of data custodianship. This opposing position is problematic, as avoiding reference to ownership is a denial of legal reality and hence not a useful policy. Also, avoiding reference to ownership will leave research institutions with limited legal remedies in the event of appropriation of data by third parties. Accordingly, it is concluded that the wisest policy for research institutions is indeed to explicitly claim ownership of the human genomic data instances that they generate.

A data management plan for the NESHIE observational study

With regard to the use and transfer of research participants' personal information, samples and other data nationally and internationally, it is necessary to construct a data management plan. One of the key objectives of a data management plan is to explain the governance of clinical, biochemical, laboratory, molecular and other sources of data according to the regulations and policies of all relevant stakeholders. It also seeks to describe the processes involved in protecting the personal information of research participants, especially those from vulnerable populations. In most data management plans, the framework therefore consists of describing the collection, organization, use, storage, contextualization, preservation, sharing and access of/to research data and/or samples. It may also include a description of data management resources, including those associated with analyzed samples, and identifies responsible parties for the establishment, implementation and overall management of the data management strategy. Importantly, the data management plan serves to highlight potential problems with the collection, sharing, and preservation of research data. However, there are different forms of data management plans and requirements may vary due to funder guidelines and the nature of the study under consideration. This paper leverages the detailed data management plans constructed for the 'NESHIE study' and is a first attempt at providing a comprehensive template applicable to research focused on vulnerable populations, particularly those within LMICs, that includes a multi-omics approach to achieve the study aims. More particularly, this template, available for download as a supplementary document, provides a modifiable outline for future projects that involve similar sensitivities, whether in clinical research or clinical trials. It includes a description of the management not only of the data generated through standard clinical practice, but also that which is generated through the analysis of a variety of samples being collected from research participants and analyzed using multi-omics approaches.

The human genome as the common heritage of humanity

While debate on the international regulation of human genomic research remains unsettled, the Universal Declaration on the Human Genome and Human Rights, 1997 qualifies the human genome as "heritage of humankind" in a symbolic sense. Using document analysis this article assesses whether, how and to what extent the common heritage framework is relevant in regulation of human genomic research. The article traces the history of the Human Genome Project to reveal the international community's race against privatization of the human genome and its resulting qualification as the common heritage of humanity. Further, it reviews the archival records of UNESCO's International Bioethics Committee to discover the rationale for qualifying the human genome as common heritage of humankind. The article finds that the common heritage of mankind framework remains relevant to the application of the human genome at the collective level. However, the framework is at odds with the individual dimension of the human genome based on individual personality rights. The article thus argues that the right to benefit from scientific progress and its applications offers an alternative international regulatory framework for human genomic research.

Open science and human genetic data: recommendations on South Africa's Draft National Open Science Policy

The Draft National Open Science Policy, which was shared by the South African government with stakeholders in 2022, is an encouraging step forward as it aims to promote the practice of open science in South Africa through a system of incentives. Since South Africa is constitutionally committed to be an open and democratic society, this approach is preferable to the approach of state control that characterizes the Draft National Policy on Data and Cloud-another data-related policy initiative by the South African government. However, there is room for improvement in the Draft National Open Science Policy. In particular, it should: (a) rely on the right to freedom of scientific research to strengthen the policy; (b) rectify the omission of ownership from its policy analysis; and (c) retain a clear differentiation between human and non-human genetic data. This will ensure that the final policy is clearly anchored in the South African Constitution, and that the principle of "as open as possible, as closed as necessary" can be applied to human genetic data in a legally well informed and accountable way.

Regulating human genomic research in Africa: why a human rights approach is a more promising conceptual framework than genomic sovereignty

This article revisits the debate on the regulation of human genomic research, with a focus on Africa. The article comprehensively examines the concept of genomic sovereignty, which was invoked mainly in the global South as a conceptual framework for state regulation of human genomic research. It demonstrates that genomic sovereignty has no utility value in human genomic research as it violates the rights of individuals and researchers. By analysing Mexico's regulatory approach based on genomic sovereignty and a divergent regulatory approach, viz Finland's human genomic research framework, we show that a human rights approach is more promising as it aligns with the state obligations under the right of everyone to participate in and benefit from scientific progress and its applications in international human rights law. We conclude by recommending that African states should anchor regulation of human genomic research on a human rights framework based on the right to science.

Toward an open access genomics database of South Africans: ethical considerations

Genomics research holds the potential to improve healthcare. Yet, a very low percentage of the genomic data used in genomics research internationally relates to persons of African origin. Establishing a large-scale, open access genomics database of South Africans may contribute to solving this problem. However, this raises various ethics concerns, including privacy expectations and informed consent. The concept of open consent offers a potential solution to these concerns by (a) being explicit about the research participant's data being in the public domain and the associated privacy risks, and (b) setting a higher-than-usual benchmark for informed consent by making use of the objective assessment of prospective research participants' understanding. Furthermore, in the South African context-where local culture is infused with Ubuntu and its relational view of personhood-community engagement is vital for establishing and maintaining an open access genomics database of South Africans. The South African National Health Research Ethics Council is called upon to provide guidelines for genomics researchers-based on open consent and community engagement-on how to plan and implement open access genomics projects.

Towards a data transfer agreement for the South African research community: The empowerment approach

The idea of a data transfer agreement (DTA) template for the South African (SA) research community is receiving increasing attention. While developing such a DTA template is certainly a worthwhile project, questions regarding the project's practical execution should be addressed, including how to best operationalise the envisioned DTA template, and the content of the envisioned DTA template. It is proposed that an empowerment approach be followed in operationalising the envisioned DTA template, which is contrasted with the regulatory approach followed with the material transfer agreement that the Minister of Health promulgated in 2018. While the regulatory approach would entail government making the use of the envisioned DTA template compulsory regardless of the quality of such a template, the empowerment approach, by contrast, entails a focus on developing a high-quality, professionally drafted DTA template for the SA research community and making the use thereof a matter of own choice. Regarding the content of the envisioned DTA template, four hot-button content provisions are analysed, and it is argued that SA research institutions and researchers should be empowered to: (i) have clarity and legal certainty regarding their ownership of data, where relevant; (ii) be able to commercialise their research findings without unnecessary contractual constraints; (iii) avoid falling into the trap of unlawful benefit sharing with research participants; and (iv) be aware that their legal role as responsible parties, where relevant, cannot be contracted out via a DTA.