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

In the current era, obtaining informed consent is seen as a touchstone of ethical experimentation. However, the divergent ways in which informed consent is applied in practice have made courts the site of a confrontation between the sometimes contradictory moral, medical, and political dimensions of human experimentation. Arguably, the most notorious example of these competing interests clashing in the legal sphere was The Doctors Trial—the first of the twelve trials that were known collectively as the Nuremberg Trials. During the military tribunal proceeding, twenty-three German physicians and administrators were tried for their participation in war crimes and crimes against humanity—including the employment of a euthanasia program and coordinated experimentation involving non-consenting concentration camp prisoners. On August 19, 1947, the verdict included ten points defining legitimate research, the first of which was: “The voluntary consent of the human subject is absolutely essential.” These ten points comprise The Nuremberg Code, which modern scholars deem to be the first major document to outline the principle of consent. However, just sixteen years prior to the verdict, in 1931, Germany enacted a set of provisions that contained no less adequate provisions guiding human experimentation. This Comment utilizes a legal-historical analysis in order to assess whether the international custom of informed consent in medical experimentation predates the Nuremberg Trials. The assertion that informed consent merely appeared in the twentieth century will be refuted by analysis that reveals concepts of consent have long been essential to the medical tradition. Utilizing relevant records, treaties, cases, and political responses to experimentation, and concluding that the practice of consent was both widespread and legally obligatory, this Comment will provide countervailing evidence of international custom of informed consent as having been established prior to 1945