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Perspectives in Biology and Medicine 43.3 (2000) 347-361
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Nuremberg's Legacy: Some Ethical Reflections
James F. Childress *
Symposium: Medical Research Ethics at the Millennium: What Have We Learned?
The Nuremberg Code: Its Context and Content
The Nuremberg Code was promulgated by four American judges at the Doctors' Trial at Nuremberg, in the case of the United States of America v. Karl Brandt et al. in 1946 to 1947. Twenty-three defendants, all but three of them medical doctors, were tried for truly horrendous "crimes alleged to have been committed in the name of medical or scientific research" (both war crimes and crimes against humanity), including the horrific high altitude, freezing, malaria, and mustard gas experiments, among others, which resulted in countless severe injuries and deaths . Fifteen were found guilty; seven received the death sentence. The court's judgment included the "Nuremberg Code," consisting of 10 "basic principles" to govern permissible medical experiments.
This code, which received substantial input from two American physicians--Leo Alexander and Andrew Ivy--was an attempt to close the gap created by the relative absence of formal statements of ethics in human experimentation by a more or less authoritative body. Several times in this essay I will use the metaphor of gaps to indicate how various efforts to formulate ethical principles, rules, and procedures seek to fill or close or cover holes in the protections of research subjects' rights and welfare. This metaphor certainly fits the promulgation of the Nuremberg Code. The judges probably adopted this Nuremberg Code, as Leonard Glantz suggests, because of "their shock in finding that there were essentially no written standards for human experimentation that had been adopted by an authoritative institution" . Hence the 10 rules, a modern-day decalogue for human experimentation, so that no one could plead ignorance of ethical obligations.
The 10 Nuremberg principles were not created ex nihilo. There were few earlier codes, but, ironically, two German regulations earlier in this century (a 1900 Prussian directive and a 1932 Reich Circular) offered [End Page 347] strong statements of ethical obligations and rights in research (see [3, pp. 127-32]). Unfortunately, codes do not guarantee ethical conduct. And several physicians had already articulated ethical standards to guide human experimentation [3, pp. 121-26]. There is debate, however, about whether they represented only "occasional voices" (Jay Katz) or actually constituted "a powerful tradition in ethical thought" (David Rothman) [4, 5]. At any rate, the two physicians who served as expert medical witnesses for the prosecution drew on earlier formulations including, somewhat inappropriately, the Hippocratic tradition, which doesn't really address the issues raised by research with human subjects [3, pp. 132-37].
Why the Nuremberg Code?
Glantz is probably right about the judges' shock at not finding a written, authoritative code and about their felt need to close that gap. They clearly did not need the Nuremberg Code in order to state principles by which they could condemn the doctors' actions: they had sufficient grounds to do so in existing laws, even German laws, that prohibited murder, mayhem, and maiming, which the physicians (and others) had not extended to Jews and to others they viewed as less than human (and then subjected to actions that were even prohibited by a 1933 German law for protecting animals) [3, p. 132]. The guilty verdicts were, in short, overdetermined, and they did not presuppose a code for human experimentation--the verdicts were adequately justified by other rules against war crimes and crimes against humanity.
The court and others, such as Telford Taylor, the chief counsel for the prosecution, viewed the Nuremberg Code as a summary of common medical morality, at least as affirmed even if not always practiced. It expressed putatively universal standards with "many antecedents" [6, p. 150]. The Code's prefatory statement notes that human experimentation can "yield results for the good of society that are unprocurable by other methods or means of study." "All agree, however," the prefatory statement continues, "that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts...