However, if a declaration of voluntariness is made for reasons of inexperience, thoughtlessness, or distress, then it is unethical. Into this category fall cases where persons are induced to undergo experiments through promise of money or other advantages, while they do not foresee the meaning of the experiments. These are the weak, who, unprotected, are made to serve the interests of humanity. Compare with this the case of the use of immigrants for experiments. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.) The category here of particular interest is that of prisoners who offer themselves voluntarily.
First of all, one cannot assume that the ethical level in a penitentiary is so high above that of free men that here a great number of prisoners would offer themselves for participation in an experiment voluntarily only for purely ethical reasons. On the contrary, one can say that all prisoners are living under a certain compulsion. They expect from their participation in the experiment an improvement of their position or fear a worsening in case of refusal. Even though the regulations about the treatment of prisoners may be fixed, in practice there remains in this particular world a very wide scope for the punishment of prisoners with measures which, as experience shows, may hit the prisoner much more severely and more grievously than the sentence of the judge itself.
If the motive of the prisoner for his “voluntary offer” is merely a general and vague hope, in any direction, then there is no genuine declaration of voluntariness, but the consent is merely the off-shoot of his condition of constraint.
Two things have to be considered with regard to the prisoner’s declaration of voluntary consent; the risk which he undergoes and the advantage that is offered him. One can only give one’s consent to something of which one knows the full meaning and importance. The prisoner must therefore have been fully informed of the possible consequences. Here only lies the real problem of “voluntariness.” It is not enough that the person to be experimented upon knows that, for instance, a malaria experiment is to be made; he must also know just how the particular person is to be used. The first easy series of experiments cannot be compared with the daring final experiments. Who is going to offer himself for the ultimate experiment necessary if the other persons to be experimented on get off more lightly? What was the nature of the consent?
Professor Ivy as expert witness has said nothing about this problem.
As a matter of fact a person to be experimented on can hardly estimate the risk, and the recruiting officer will not be inclined to give a frightful description of what may happen. Professor Ivy, who has recruited volunteers himself, does not consider experiments to be an evil. If you add that the “volunteer prisoner” has to forego all claims in case of injury to his health, then the consent of the prisoner cannot be considered as valid.
On the other hand the prisoner must know the advantage promised him as his compensation must be in suitable relation to the severity of the experiment and the reward must be assured to the prisoner. If the advantage is strikingly disproportionate to the risk and given as an act of grace without claim after the conclusion of the experiment, then there is no voluntary experiment; it remains a forced experiment.
Only if both basic conditions are fully met will it be possible for the prisoner to make a free decision. He may then allow his possible death to be included in the bargain in order to gain the chance of shortening the time of his imprisonment by years.
Such a case is depicted in the well known pellagra experiments, where with the collaboration of attorneys as defense counsellors, the conditions were agreed upon by the prison administration. (Karl Brandt 47, Karl Brandt Ex. 54; Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)