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Experimentation with Children: The “Pawns” of Medical Technology

Published online by Cambridge University Press:  01 January 2021

Edward T. Porcaro
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Extract

Without the use of human subjects in pediatric research, medical science would not have made many of its advances in the diagnosis and treatment of children's diseases. However, scientifically valid experimental trials require healthy subjects as controls and the use of healthy children raises many complex moral and legal questions.

The need to experiment on normal, healthy children has blocked full recognition of their legal rights. Currently, as in the past, parents are allowed to volunteer their children as research subjects by means of “proxy consent.” This doctrine is, however, the only legal justification offered for submitting children to the often potentially damaging procedures they may be subject to as unknowing and perhaps unwilling subjects. While such third party consent appears to satisfy everyone's conscience, its use in non-therapeutic experimentation is inconsistent with established legal principles.

Type
Article
Information
Medicolegal News , Volume 7 , Issue 2 , Summer 1979 , pp. 6 - 16
Copyright
Copyright © American Society of Law, Medicine and Ethics 1979

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References

Katz, J., Experimentation with Human Beings (Russell Sage Foundation, New York) (1972) at p. 305 (hereinafter referred to as Experimentation with Human Beings).Google Scholar
Mnookin, R. and Coons, J., Toward a Theory of Children's Rights, Harvard Law School Bulletin 28:18 (Spring 1977).Google Scholar
See Annas, G.J., Glantz, L.H. and Katz, B. Informed Consent to Human Experimentation: The Subject's Dilemma (Ballinger, Cambridge, Mass.) (1977) at p. 65 (hereinafter referred to as Annas, G.J., Informed Consent).Google Scholar
Lacey v. Laird, 139 N.E.2d 25, 30 (Ohio 1956) (dicta).Google Scholar
Garinger, G., Protecting Children: Innovations in Policy and Procedures, Harvard Law School Bulletin 28:28 (Spring 1977).Google Scholar
Mitchell, A., Experimentation on Minors: Whatever Happened to Prince v. Massachusetts? Duquesne Law Review 13:919 (Summer 1975) (hereinafter referred to as Mitchell, A., Experimentation on Minors).Google ScholarPubMed
See Guttentag, O., The Problem of Experimentation on Human Beings: The Physician's Point of View, Science 117:207 (February 27, 1953); Mitchell, A., Experimentation on Minors, supra note 6, at 926, n. 29 (medical experimentation situation not equitable with the usual medical treatment situation due to differences in relationship, including vastly different goals, motivations, and influences).Google ScholarPubMed
See Annas, G. J., Informed Consent, supra note 3, at p. 86; Freund, P., Ethical Problems in Human Experimentation, New England Journal of Medicine 273:687, 689 (1965).Google Scholar
43 Federal Register 31787 (July 21, 1978).Google Scholar
Neilsen v. Board of Regents, Civil No. 665–049 (Super. Ct., San Francisco, Calif., filed August 1973). Discussed in Mitchell, A., Experimentation on Minors, supra note 6, at 929.Google Scholar
Prosser, Law of Torts (4th ed., 1971) at 34–36; Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914); Lacey v. Laird, 139 N.E.2d 25, 30 (Ohio 1956).Google Scholar
Id.Google Scholar
Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar
See Annas, G.J., Informed Consent. supra note 3, at 87.Google Scholar
Katz, J., Experimentation with Human Beings, supra note 1, at 305.Google Scholar
Mitchell, A., Experimentation on Minors, supra note 6, at 935.Google Scholar
See Annas, G.J., Informed Consent. supra note 3, at 83–85.Google Scholar
Id.Google Scholar
Bonner v. Moran, 126 F.2d 121 (D.C. Cir., 1941).Google Scholar
Annas, G.J., Informed Consent, supra note 3, at 78.Google Scholar
See Custody of a Minor, 379 N.E.2d 1053, 1062 (Mass. 1978).Google Scholar
Custody of a Minor, 379 N.E.2d 1053, 1063 (Mass. 1978); Donnelly v. Donnelly, 344 N.E.2d 195, 197 (Mass. App. 1976).Google Scholar
Chalkley, D., Developing Guidelines, Clinical Research 21:777, 779 (1973). This position was modified by subsequent recommendations from the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research.Google ScholarPubMed
Prince v. Massachusetts, 321 U.S. 158, 170 (1944).Google Scholar
Hoffman, N. Van, Sociological Snoopers, Washington Post. January 30, 1970.Google Scholar
Custody of a Minor, 379 N.E.2d 1053, 1063; Donnelly v. Donnelly, 344 N.E.2d 195, 197 (Mass. App. 1976) (parental obligations to the child are in the nature of a trust to care and protect the child).Google Scholar
Mitchell, A., Experimentation on Minors, supra note 6, at 930.Google Scholar
See, e.g., In re Clark, 185 N.E.2d 128, 132 (Ohio 1962) (child has right to live and grow up without disfigurement, and while he “belongs” to his parents, he also “belongs” to the state, which must protect the child's interests from interference).Google Scholar
Lowe, C., Alexander, D. and Mishkin, B., Nontherapeutic Research on Children: An Ethical Dilemma, Journal of Pediatrics 84: 468, 469 (1974).Google Scholar
Burger, W.E., Reflections on Law and Experimental Medicine, UCLA Law Review 15:436, 441–442 (1968).Google Scholar
Mitchell, A., Experimentation on Minors, supra note 6, at 935.Google Scholar
See Annas, G.J., Informed Consent, supra note 3, at 70–73.Google Scholar
Id.Google Scholar
Bakker v. Welsh. 108 N.W. 94 (Sup. Ct. Mich. 1906).CrossRefGoogle Scholar
See Annas, G.J., Informed Consent, supra note 3, at 79.Google Scholar
Lewis, C., et al., Informed Consent by Children and Participation in an Influenza Vaccine Trial, American Journal of Public Health 68: 1079, 1082 (November 1978).CrossRefGoogle Scholar
Id.Google Scholar
See Annas, G.J., Informed Consent, supra note 3, at 79.Google Scholar
Merriken v. Cressman, 364 F. Supp. 913 (E.D. Pa. 1973); Custody of a Minor, 379 N.E.2d 1053 (Mass. 1978).Google Scholar
Merriken v. Cressman, 364 F. Supp. 913 (E.D. Pa. 1973).Google Scholar
43 Federal Register 31786 (July 21, 1978).Google Scholar
Curran, W.J., Research on Children, New England Journal of Medicine 299: 1001, 1002 (November 2, 1978).Google Scholar
See Mitchell, A., Experimentation on Minors, supra note 6, at 920, n.7.Google Scholar
Donnelly v. Donnelly, 344 N.E.2d 195, (Mass. App. 1976). See Annas, G.J., Informed Consent, supra note 3, at 68–69.Google Scholar
See Annas, G.J., Informed Consent, supra note 3, at 80–81; In re Sampson, 317 N.Y.S. 2d 641 (1970); and Matter of Carson, 382 N.E.2d 1116 (Mass. App. 1978).Google Scholar
Young, J., New York Times, December 6, 1978.Google Scholar
Ritts, , A Physician's View of Informed Consent in Human Experimentation, Fordham Law Review 36:631, 638 (1968).Google Scholar