Guatemalans Bring Class Action Against United States for Syphilis Medical Experiments

by Roger Alford

A class action complaint filed this week by Guatemalans has all the ingredients for a blockbuster case not unlike the syphilis experiments of Tuskegee, Alabama. Regardless of the outcome of the case, it is a public relations nightmare for the United States. As the complaint alleges, “It has been revealed that despite … global attention to medical ethics following the Nuremberg Trials that had concluded eight months prior, the [United States Public Health Service] … sanctioned a VD [venereal disease] medical study in Guatemala…. This decision to move to Guatemala was part of a deliberate plan to continue the Tuskegee testing offshore, where it would not be subject to the same level of oversight as in the United States.” (p. 2-3).

The complaint raises ATS, constitutional, and state law claims. The ATS claims allege that the United States engaged in unlawful medical experimentation on non-consenting adults in violation of international law and violated international law prohibitions against cruel, inhuman and degrading treatment. The constitutional arguments raise Fifth Amendment substantive due process claims and Eighth Amendment cruel and unusual punishment claims.

In October of last year, Secretary of State Hillary Clinton and HHS Secretary Kathleen Sebelius apologized to the victims:

“The sexually transmitted disease inoculation study conducted from 1946-1948 in Guatemala was clearly unethical ,… Although these events occurred more than 64 years ago, we are outraged that such reprehensible research could have occurred under the guise of public health. We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices.”

However, according to recent reports, efforts to reach a settlement have failed.

As a legal matter the claim is weak. The statute of limitations has long since run on the claims, the United States enjoys sovereign immunity, and the Guatemalan victims are not within the class of individuals that enjoy constitutional protections. The U.S. Constitution simply does not travel abroad to protect foreigners against the foreign misdeeds of the United States. The Eighth Amendment is not applicable because the experiments were not part of a “punishment” in a constitutional sense. Nor is it even clear that the substantive due process claims that the plaintiffs rely upon were recognized at the time these medical experiments were conducted. The state law claims are not alleged with sufficient specificity to judge their merits. (Claims under the FTCA are not raised and would be unsuccessful anyway as that statute bars claims arising in foreign countries).

However, as a moral and ethical matter the United States should reach an appropriate settlement and compensate the victims. It is simply scandalous to conduct medical experiments on unsuspecting Guatemalans to test the effects of untreated sexual diseases. If the facts alleged in the complaint are true, the United States intentionally injected syphilis in Guatemalan prison inmates and mental patients. At precisely the same time Telford Taylor was prosecuting twenty-three German medical doctors at Nuremberg, the United States was conducting clandestine syphilis experiments of its own.

http://opiniojuris.org/2011/03/15/guatemalans-bring-class-action-against-united-states-for-syphilis-medical-experimenets/

3 Responses

  1. This surely demonstrates the power of the determined researcher and international humanitarian law advocate… 

  2. For the ATS/international law claims, how do you tell that the statute of limitations has run? Do you use the tort statute in the state in which the federal court sits? Is there any discovery rule? What is the plaintiffs’ theory for when the cause of action accrued?

  3. I would love to see how this is handled.  What happens when the unlawful behavioral and biomedical experimentation happens right here and right now on US soil?  The problem is that what’s going on here isn’t necessarily tied to an institution so finding our records is that much harder. 

    I think that researchers who do voluntary or involuntary research that is intended to harm should get more than the nothing they’ve gotten before.  This has to end now.  If it makes the US look bad then those who even care about the US should flush out the unethical researchers.  If there is one thing they have it’s liability and I would love to see that liability exploited to the maximum.

    The problems of communications interferences, the unwillingness of the state system here to investigate the associated felonies committed as part of the experimentation, and the intentional liars on the internet twisting what is identifiable research aspects of the experimentation in terms of current unrelated protocols into delusional story lines are preventing me from getting the justice my family and I deserve.

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