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Auschwitz from a Nuremberg perspective: ethical implications for medicine
Etienne Lepicar
From a medical perspective today and in the context of the Symposium, Etienne Lepicard used the term “Auschwitz” to cover all that took place in German medicine under the Nazis. Auschwitz is the conclusion of medical practices begun in 1933 prior to which it had been impossible to kill millions of people in the name of learning medical technique. What was perpetrated at Auschwitz had been preceded in 1933 by the Nuremberg Law on forced sterilization in cases of hereditary illnesses, (1) by the November 1933 law against compulsive criminality authorizing preventive detention and castration of supposed criminals, (2) and by a massive program of euthanasia of the mentally ill between 1939 and 1941. (3)
Lepicard prefers to begin the discussion and elaboration of ethical proposals with the Nuremberg Medical Trials in 1946-49, since it is there that the historical events were brought back into the public sphere through the court of deliberations. He sees this court’s symbolic act of publishing as part of their legal sentence a code of medical ethics now known as the “Nuremberg Code”, a key reference for future reflections.
May what grew out from the Nuremberg Medical Trial be of some help to our understanding of what happened to medicine during the Nazi years and how it is related to today’s medicine. What I wish to stress here about this Trial is that on August 20, 1947 when the court delivered its judgment, it decided to include in it ten points of medical ethics, which are now better known as the Nuremberg Code of Medical Ethics. There was no necessity to do so. These ten points were based on a sort of misunderstanding of medical deontology. Nevertheless, by their decision the judges had included them within the International Law....The main element of the Code - the consent principle - is formulated in the first principle:
The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent, should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision...
This was enhanced by the ninth principle:
During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
These two principles may appear today so obvious and basic that we do not understand the revolutionary perspective they contend. They are based on a misunderstanding of Hippocrates and medical deontology. What does this mean? For the judges it was obvious that such a consensus existed among the medical and scientific research community and that this consensus stemmed from the Hippocratic Oath. But we must be clear that never before and never since has such a consensus existed. Never before: The idea that the subject of medical experimentation has the right to say something appeared to the judges as common sense. In the history of human experimentation this had never appeared before. Claude Bernard, for example, who has considered ethical implications and human experimentation in his extensive writings about medicine and experimentation, finally refers to the physician and to his professional consciousness but not to the opinion of the experimental subject. Common good, the advancement of science, and the professional consciousness of the experimenter seemed sufficient.
The two experts of the prosecution, Dr. Leo Alexander and Dr. Andrew Ivy, experimenters themselves, referred to the Hippocratic deontology and suggested, in fact, part of the wording of this new concept of informed consent. The Hippocratic Oath referred to the physician-patient relationship and explicitly expressed the duty of the physician to benefit the patient. This was later expressed in the Latin formula Primum non nocere (Firstly, not to harm)...
At a time when such a consensus had never previously existed the judges accepted for granted this original Hippocratic consensus for informed consent among the medical research community. The Nuremberg Code, however, grounded in an international judgment, may well have founded a tradition. The history of medical ethics since the Nuremberg Trial in general, and the history of human experimentation in particular, show exactly the opposite. Until now there is no real legacy of the Nuremberg Code in medicine. At least not where one may expect it: in medical deontology and ethics of experimentation.
The production of medical ethics following the Second World War was rather a confirmation of the traditional Hippocratic deontology. In this spirit the Medical Oath promulgated by the world Medical Association at Geneva (1948) was written. Other examples are the conclusions of the two Congrès International de Morale Médicale which took place in Paris in 1955 and 1966. (4) On the other hand, history of human experimentation ethics may be followed through the Declarations of Helsinki in their succession, the latest revised version of which dates back to 1989. As Jay Katz has shown, even in this latest one, “Clearly the integrity of the scientific enterprise comes first, though it must be balanced against unspecified ‘interests of the subject’.” Let us recall that in the first version of 1964, the notion of subject’s consent did not appear at all. Katz notes that it is as if “the spirit of the Nuremberg Code was not, and perhaps could not be, taken seriously...Its language was too uncompromising and too inhospitable to the advancement of science that subsequent codes gave physician-scientists considerable discretion to pursuing their objectives.” (5)
So what may be the significance of this perhaps inapplicable code? The word Auschwitz is perhaps summing up a new scale of values, born after Auschwitz. A certain scale of values where life and death have the first place and where good and evil are related to them. This is perhaps too general a way of saying it. Through the analysis of the Nuremberg Code and the particular case of medicine under the Third Reich, however, we have seen a disappearance and then a reintroduction of the patient as subject. But that is not all. Auschwitz has also revealed in an unprecedented way the capacity for aggression inherent in medicine. We now know it is a matter of life and death. And, indeed, we touch here the essence of today’s medicine which has become more and more powerful over life itself. The Code may seem inapplicable, but it stands in such a way that it may signify for us the change which appeared in our understanding of what medicine is and what role we may or may not attribute to it.
Etienne Lepicard, a Medical Doctor, is assistant in the Medical History Division at the Hebrew University and Hadassah Medical School, Jerusalem, Israel.
1 - On past attempts to pass sterilization law in Weimer Germany, see Paul Weindling, Health, Race and German Politics between National Unification and Nazism, 1870-1945, Cambridge University Press (1989) pp. 388-393 and 450-457. The main difference between the law which was prepared and the final law which was implemented by the Nazis may be seen in the passage from a law based on voluntary sterilization to a compulsory one. In May 1933 sterilization became legalized by a clause in the revised criminal code: this clause declared that sterilization did not constitute assault any more. See Weindling (1989), p. 523. On June 2, 1933, Reich Interior Minister Wilhelm Frick announced the formation of an Expert Committee on Questions of Population and Racial Policy (Sachverständigen-Beirat für Bevölkerungsfragen und Rassenpolitik). See Robert Proctor, Racial Hygiene: Medicine under the Nazis, Cambridge, Mass: Harvard University Press (1988) p. 95. See also J. Noakes, “Nazism and Eugenics: The Background to the Nazi Sterilization Law of 14 July 1933” in Ideas into Politics: Aspects of European History, 1880-1950, R. J. Bullen, H. Pogge von Strandmann and A. B. Polonsky, eds., N.J. and London: Totowa (1984), pp. 75-94.
2 - Weindling, op. cit., pp. 530-532; Proctor (1992), p. 23.
3 - See Proctor (1988), pp. 177-194; Weindling, op. cit., pp. 393-398, 541-551.
4 - For the traditional aspect of post-war medical ethics see, for example, George Weisz “The Origins of Medical Ethics in France: The International Congress of Morale Medicale of 1995” in Social Science Perspectives on Medical Ethics, George Weisz, ed., Philadelphia: University of Pennsylvania Press, 1991.
5 - Katz in The Nazi Doctors and the Nuremberg Code: Human Rights in Human Exprimentation, George J. Annas and Michael A. Grodin, eds., New York and Oxford: Oxford University Press (1992) pp. 231, 235.
