A South African perspective on the (non) patentability of human genetic material

Abstract

South Africa has yet substantively and comprehensively to engage with whether human genetic material would be (or rather should be) considered a patentable subject matter. This thesis seeks to address the patentability of human genetic material from both a legal and an ethical perspective, with particular reference to genetic patents utilised in genetic diagnostics and testing. The aim of the study is to present a South African perspective on the validity of gene patents through an evaluation of applicable legislation, constitutional interpretation and constitutional conflict, international agreements, moral and philosophical considerations, as well as ethical concerns that flow from the consequences associated with the recognition of human genetic material as intellectual property. It is argued that a South African approach to genetic patents should not readily accept the patentability of genes in an attempt to stay relevant and competitive in the biotechnology industry, as doing so will disregard the unique nature of human genetic material, as well as undermine uniquely South African values and contemplations.