In the dock at the Doctors TrialSixty years ago, 23 German doctors and medical staff sat in the dock in the city of Nuremberg, charged with crimes against humanity. In his eloquent opening address, the American prosecutor, Telford Taylor, said that the world must not forget their atrocities:

"These defendants did not kill in hot blood, nor for personal enrichment… Most of them are trained physicians and some of them are distinguished scientists. Yet these defendants, all of whom were fully able to comprehend the nature of their acts, and most of whom were exceptionally qualified to form a moral and professional judgment in this respect, are responsible for wholesale murder and unspeakably cruel tortures. It is our deep obligation to all peoples of the world to show why and how these things happened… The perverse thoughts and distorted concepts which brought about these savageries are not dead. They cannot be killed by force of arms. They must not become a spreading cancer in the breast of humanity."

The anniversary is a good opportunity to ask  whether medical ethicists and scientists have really learned the lessons of this dark chapter of 20th century history. As Taylor argued, the temptation to pervert legitimate scientific and medical research will always be with us — today no less than in the time of the Nazis. Six decades have seen much progress in science and technology — but can we really say that progress in ethics has been commensurate?

According to the indictments in the trial proceedings, these physicians, acting in concert with one another and under the direction of the Nazi regime, carried out experiments without the consent of the subjects. These included high-altitude and freezing experiments, malaria experiments, mustard gas and sulphanilamide experiments, bone, muscle and nerve regeneration and bone transplantation experiments, epidemic jaundice and spotted fever experiments, and sterilisation experiments. Additionally, 112 Jews were selected, measured for anthropological and scientific purposes, and then killed for the purpose of completing a skeleton collection for the Reich University of Strasbourg.

In the “euthanasia” program of the German Reich, the indictments state, these physicians secretly and systematically murdered hundreds of thousands of the aged, mentally ill, terminally ill, handicapped children, and other persons, “by gas, lethal injections, and diverse other means in nursing homes, hospitals, and asylums”. According to the indictments, these euthanased persons were considered “useless eaters” and a burden to the German war machine.

After a 140-day trial involving 85 witnesses and almost 1,500 documents, 16 of the physicians were found guilty. Seven of these were executed, and the rest served substantial prison sentences.

Telford TaylorThe outcome of the Doctors Trials was  the Nuremberg Code, a set of internationally-adopted directives for human experimentation. The terrors of the Holocaust made it clear that the fundamental dignity and bodily integrity of each human person, norms of a higher law, could no longer be taken for granted. As a human community, we reaffirmed these natural rights and obligations in the Nuremberg Code.

The Code states: “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, over-reaching, 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.” It also requires that human experimentation be aimed at yielding fruitful results for the good of society, unprocurable by other methods or means of study. Further, it states that experiments should be conducted as to avoid all unnecessary physical and mental suffering and injury. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur.

Revisiting Nuremberg
Today’s destructive research on embryonic human persons explicitly violates the Nuremberg Code. Embryos may not look like adult human beings, but they are what all human beings look like at an embryonic stage of development. They are not, as the Nazis termed the the mentally ill, the feeble-minded, and retarded and deformed children, lebensunwertes Leben, “life unworthy of life”. Today, in the name of scientific and medical progress, embryos are killed to extract stem cells for research. As during the Holocaust, this experimentation is conducted on human beings by physicians in search of cures for human diseases and technological enhancements. During the Holocaust the diseases to be cured were malaria, jaundice and spotted fever; today they are Alzheimer’s and Parkinson’s. Enhancements sought in the Holocaust were bone transplantation and nerve regeneration, similar to the improvements in human quality of life promised by stem cell researchers today.

The comparison between current embryo researchers and Nazi doctors may seem unfair or overstated to the modern reader, since we tend to view Nazi doctors as sadistic monsters. However, as several commentators state, the men were “unassuming”, “good fathers”, and “kind to animals”. And regardless of any differences in the motivations of the Nazis and today’s researchers, their object—and the effect—of killing for purposes of scientific experimentation is the same.

Embryos destroyed do not have the legal capacity to consent, so they are not a class of permissible research subjects under the Nuremberg Code. And in violation of the precise letter of the Nuremberg Code, today’s scientists know that their research is always lethal yet continue to conduct the experiments.

Embryonic stem cells never have been successful in a clinical setting and give less and less assurance that they ever will be, and embryo destruction is not the only means of conducting this type of research, so they should not be used in scientific experiments according to the Code. Adult stem cell research, which requires no killing or injury but only extraction from child or adult brains, bone marrow, skin and fat, already has been surprisingly successful in a clinical setting.

In light of all these facts, it comes as no surprise that Germany’s current embryo research laws are arguably the most restrictive in any secular Western nation.

Prof Rosamund RhodesMeanwhile, in the United States, where embryo research is funded by federal, state and private sources, at least one doctor at a leading medical university advocates the end of informed consent in medical experimentation. Professor Rosamund Rhodes, of Mount Sinai School of Medicine,  argues that sharing one’s body with science is a moral obligation for the good of society, and she falls just short of prescribing conscription as a means to increase the number of subjects for human experimentation. Her system involves moral pressure, where authorities and members of the community continually remind one another of the fundamental obligation to participate in research. Taking away a person’s ability to freely choose—without duress—whether or not to share his or her body with science is a violation of his or her fundamental bodily dignity, as recognised by the Nuremberg Code.

Involuntary euthanasia, considered a war crime during the Holocaust, has regained popularity in Western nations. Forms of voluntary euthanasia currently are legal in Belgium, the Netherlands, and the American state of Oregon.  And when the law allows people to choose euthanasia for themselves, assisted by medical professionals, the medical profession must back away from its commitment to “do no harm” and its aim to cure and to heal. When killing the handicapped is acceptable, some doctors come to view the unconsented taking of burdensome life as a professional or moral duty for the well-being of the handicapped individual and for the good of society. This was illustrated in the recent United States controversy over the removal of a feeding tube for the purpose of starving to death brain-damaged Terri Schiavo. Neither the state nor the doctors entrusted with Ms Schiavo’s life guarded her from death by starvation, despite legally deficient evidence of her desire to die.

Along the same lines, involuntary euthanasia by abortion of handicapped children is common today, as was the euthanasia of handicapped children under program of the German Reich. Statistics indicate that around eighty percent of unborn babies diagnosed with Down’s syndrome in the United States are killed in the womb by doctors, and thousands more unborn children are killed when they are diagnosed with other disabilities before birth.

During the Nuremberg Trials, doctors were convicted and executed for these crimes. Today, they retain their medical licenses and continue their “medical” practice.

Sixty years ago, with the horror and sorrow of the Holocaust still fresh, we determined as a human family never again to dishonour our fellow humans through euthanasia and unconsented, destructive research in the name of scientific progress. We even codified as experimental directives these fundamental truths at the intersection of human dignity and medical science. But two generations seem to have distanced us enough from that memory that we can destroy the most vulnerable among us for research purposes, we can ponder the end of informed consent as a novel intellectual idea, and we can view euthanasia an act of mercy and a moral duty to rid society of its burdens.

Cason Cheely is a student at Notre Dame Law School and executive article editor for the Notre Dame Law School Journal of Law, Ethics and Public Policy.