Expanding Notions of Self-Determination: International Customs of Informed Consent in Medical Experimentation Pre-1945

By Hattix, Laurel | Chicago Journal of International Law, Summer 2018 | Go to article overview

Expanding Notions of Self-Determination: International Customs of Informed Consent in Medical Experimentation Pre-1945


Hattix, Laurel, Chicago Journal of International Law


Table of Contents

I. Introduction..............147

II. Consent as Established Customary International Law............153

A. Customary International Law.............153

B. Understandings of Consent...........155

C. The Current State of Informed Consent..................158

III. Legal-Historical Analysis of Consent...............162

A. Early Conceptions of Consent.............163

B. Eighteenth Century.............164

C. Nineteenth Century...........166

D. Twentieth Century............171

IV. Assessing Consent in Light of Nuremberg............181

A. Background Information.................181

B. The Testimony of Werner Leibbrandt..............181

C. The Testimony of Dr. Andrew C. Ivy.............182

D. The Impact of the Testimony.............183

V. Establishing Customary International Law Based on The Preceding Historical Analysis.......................185

VI. Conclusion.......................................187

I. Introduction

In 2010, former United States President Barack Obama issued an apology for unethical experiments conducted by the U.S. government in Guatemala.1 During the course of an experiment funded by the National Institutes of Health, officials conducted research on over five thousand vulnerable Guatemalan people-without their consent.2 At least 1,308 individuals were deliberately infected with sexually transmitted infections (STIs).3 The public had no knowledge of the experiments, which began in 1946, until a historian uncovered the archived papers of the medical officer who conducted them, Charles Cutler, more than half a century later.4 On August 20, 1947, the Nuremberg Doctors' Trial found seventeen physicians guilty of crimes based on the non-consensual nature of experiments conducted on individuals imprisoned in concentration camps. Despite the highly-publicized outcome of the trial, the non-consensual experimentation conducted by Charles Cutler did not end until December 1948, and the follow-up work continued through 1953.5

While the atrocities exposed at the Nuremberg Trials led to a collective declaration of "never again,"6 there had been, and would continue to be, numerous instances of non-consensual human experimentation despite what I will argue is an already-existing requirement of consent.7 During the same period, American physicians exploited black farmers in Tuskegee,8 Japanese researchers violated the autonomy of prisoners of war,9 and Canadian pediatricians starved aboriginal children as part of nutritional studies."' Experiments, both preceding and succeeding the Nuremberg Trials, have illuminated tensions between various competing values-mainly, scientific inquiry, medical advancement, and respect for subjects." At the intersection of these values, the law has grappled with its role in human experimentation.

Over time, one of the primary legal doctrines that developed around human experimentation was the principle of informed consent.12 Despite its prominence in both legal and bioethical studies, the specific contours of informed consent remain contested and the subject of spirited debate.13 Notwithstanding this uncertainty, in the case of the 1946 Guatemala STI experiment, a U.S. district court found that "there [was] no doubt" that the government "engaged in nonconsensual human experimentation."14 The district court found that nonconsensual medical experimentation violates customary international law.15 In its order, the district court cited Abdullahi v. Pfizer, Inc.,™ where the Second Circuit determined that the authority for the international custom of informed consent was found in The Nuremberg Code, the World Medical Association's Declaration of Helsinki, the guidelines of the Council for International Organizations of Medical Sciences, and Article 7 of the International Covenant on Civil and Political Rights.1 Regardless of this relative clarity, the history of nonconsensual experimentation that predates these devices raises a significant question: was the custom of consent established prior to the Nuremberg Trials? …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Expanding Notions of Self-Determination: International Customs of Informed Consent in Medical Experimentation Pre-1945
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.