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Extraordinary Circumstances

In the early years after Nuremberg, revulsion at the entire death-camp phenomenon was so great that it was difficult for many to see how the Nuremberg Code could apply to normal conditions. As the Yale psychiatrist and law professor Jay Katz put it, the medical community’s general attitude was, “It was a good ethics code for barbarians.” But not necessarily for everyone else. Confident of their sound motivations and humane instincts, mainstream medical practitioners felt they were inoculated against the evil that had infected the Nazi doctors. That their actions might fall into the same ethical category was difficult for most such practitioners to conceive.

The fact that the Nazi experiments occurred during wartime also made the code seem remote from the conduct of peacetime research. Although the Nuremberg judges utterly rejected national-security concerns as a rationale for the medical experiments, ordinary people may have viewed these crimes less as the actions of culpable individuals than as the result of specific national policies. While governments at war might order such extreme and brutal measures, surely few individuals would do such a thing on their own initiative.

In fact, the principle of informed consent was far from entrenched in American medical practice at the time. Most large-scale research on human subjects, spurred by World War II, was conducted by the military on institutionalized “volunteers”-conscientious objectors, prisoners, people confined to mental institutions, or, in rare cases, military personnel. Researchers preferred institutionalized subjects because it was easier to monitor them.

Although it is clear in retrospect that the Nuremberg judges purposely chose to enshrine the principle of voluntary consent in the broadest possible terms, the very sweep of their language made the code seem poorly crafted. According to historical research conducted by the President’s Advisory Committee on Human Radiation Experiments in 1994, what struck many medical researchers as especially unrealistic was the code’s seemingly categorical ban on research with any subjects who could not give voluntary informed consent. This appeared to pose an insurmountable obstacle to progress in key areas of medicine such as pediatrics and psychiatry.

The issue of research on children was an especially thorny one. Some of the most important medical research in history has been aimed at conquering childhood diseases, particularly by developing vaccines. Researchers had to experiment on children in order to ensure the effectiveness of the vaccine on its target population and determine the proper dosage. Some of these experiments were of enormous benefit to their subjects as well as to future generations of children. Nonetheless, it was widely recognized that children are not capable of granting consent. The question confronting researchers, then, was whether the authors of the code intended to abandon this whole field of research, even at the cost of saving children’s lives.

The by-now-familiar solution was to establish parental permission as the moral equivalent of the child’s consent, on the grounds that parents will act in the best interest of the child. Although obtaining parental consent became standard practice by the late 1950s, it was not required by federal regulations until the late 1970s. This resolution extended to the most vulnerable members of society the principal lesson of Nuremberg.

However, not all of society’s vulnerable members were equally well protected. Because there were fewer advocates for the mentally ill than for children, the federal government has never enacted regulations specifically targeting the use of psychiatric patients in research. Research on prisoners-another group whose ability to grant consent is compromised-continued through the mid-1970s, when political pressures from a variety of sources forced the federal government to declare a halt on the grounds that consent cannot be truly voluntary in an inherently coercive environment.

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