June 24, 2012
Federal Court Rejects Claim by Guatemalan Victims of U.S. Medical Experiments
A federal district court has rejected a legal claim by individuals in Guatamala who asserted their right to compensation for the unethical medical experimentation that was carried out by U.S. researchers in the 1940’s (Garcia v. Sebelius, Dist. D.C., 2012). The researchers from the U.S. Public Health Service exposed the plaintiffs to sexually transmitted diseases (syphilis, gonorrhea) to create research subjects. No informed consent or bioethical standards were used to conduct these studies; the participants were institutionalized (prisons, hospitals, etc.) and had little control over the conditions of their confinement. The legal claim was filed under the Alien Tort Statute, which provides a mechanism for aliens to file legal claims for violations of international law or treaties in U.S. courts. The statute has been used extensively to assert human rights claims in a variety of international settings; nonetheless, the scope of the statute is still hotly contested (see upcoming Kiobel v. Royal Dutch Petroleum, to be heard in the Fall 2012 term). The specific legal issue in the Guatamala case was whether the government, would face liability under the Federal Tort Claims Act (FTCA), which does expose government employees to liability when their acts are which ordinarily concedes a waiver of sovereign immunity by virtue of the existence of the statute for caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, nonetheless would escape lliability due to an exception for activities conducted in a foreign country. Although the plaintiffs asked the court to carve out an exception to that clause in this case, the court rejected that argument: “Here, the plaintiffs' Alien Tort Statute claims all arise out of injuries suffered in Guatemala, and the claims are thus barred by the FTCA's foreign country exception.” The court further noted, that despite its inability to grant relief, the U.S. government has conceded the severe injustices of this case and has declared its intention to provide redress. Indeed, the State Department issued an official apology in 2010: “We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices.” The Presidential Commission on Bioethical Issues also issued a report (discussed here). No official compensation scheme has been announced by the U.S. government.