¹ See Annas, George J. & Grodin, Michael A., Introduction to THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATION 5 (Annas, George J. & Grodin, Michael A. eds., 1992)Google Scholar [hereinafter THE NAZI DOCTORS].

² See id. at 3-6.

³ See The Nuremberg Code, reprinted in THE NAZI DOCTORS, supra note 1, at 2, 2. Pertinent parts of the Nuremberg Code read as follows:

1. 1.

   1. The voluntary consent of the human subject is absolutely essential. This means that the person involved should have the 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. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means of by which it is conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

   The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.

2. 2.

   2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.

3. 3.

   3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance in the experiment.

4. 4.

   4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

5. 5.

   5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.

6. 6.

   6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.

7. 7.

   7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.

8. 8.

   8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.

9. 9.

   9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.

10. 10.

    10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of good faith, superior skill, and careful judgment required of him, that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

Id.

⁴ See id.

⁵ See id.

⁶ See generally Michael A. Grodin, Historical Origins of the Nuremberg Code, in THE NAZI DOCTORS, supra note 1, at 121, 121-22 (noting that the Code was meant to serve as a code of research ethics).

⁷ See generally Robert F. Drinan, Nuremberg Principles in International Law, in THE NAZI DOCTORS, supra note 1, at 174, 178 (describing the influence of the Code as the “first impetus to the worldwide movement for international human rights“).

⁸ See generally Grodin, supra note 6, at 121-22 (noting that the Code was written in response to acts by a medical community that was “out of control” and that scientists had “placed the lives of small children on the same level as those of rats“).

⁹ See, e.g., ROBERT J. LEVINE, ETHICS AND REGULATION OF CLINICAL RESEARCH 68-71 (2d ed. 1986) (describing the Tuskegee Syphilis Study, the Willowbrook Studies, the Jewish Chronic Disease Hospital Study and the San Antonio Contraceptive Study as four studies that have been subjected to ethical scrutiny).

¹⁰ See generally JAMES H. JONES, BAD BLOOD: THE TUSKEGEE SYPHILIS EXPERIMENT (1993) (recounting the Tuskegee syphilis experiments).

¹¹ See LEVINE, supra note 9, at 70.

¹² See ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTS, FINAL REPORT 227-668 (1995).

¹³ See Lederer, Susan E. & Grodin, Michael, Historical Overview: Pediatric Experimentation, in CHILDREN AS RESEARCH SUBJECTS: SCIENCE, ETHICS, AND LAW 3,19 (Grodin, Michael A. & Glantz, Leonard H. eds., 1994)Google Scholar [hereinafter CHILDREN AS RESEARCH SUBJECTS] (“The vulnerable and disadvantaged were repeatedly exploited to further the ‘medical advances’ of physicians and scientists.“)-

¹⁴ For instance, development of xenotransplantation, polio vaccines and genetic engineering techniques have all involved children. See Michael A. Grodin & Leonard H. Glantz, Preface to CHILDREN AS RESEARCH SUBJECTS, supra note 13, at vii, vii.

¹⁵ See Lederer & Grodin, supra note 13, at 7-11.

¹⁶ NATIONAL ACADEMY OF SCIENCES, EXPERIMENTS WITH HUMANS: VALUES IN CONFLICT (1975).

¹⁷ See generally Glantz, Leonard H., Conducting Research with Children: Legal and Ethical Issues, 35 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1283, 1283-84 (1996)CrossRefGoogle Scholar (discussing the mixed emotions involved with research on human subjects in general and the increased vulnerability of children).

¹⁸ See Lederer & Grodin, supra note 13, at 4-18 (tracing the history of using children as research subjects, which often amounted to child abuse).

¹⁹ Glantz, supra note 17, at 1284.

²⁰ See Lederer & Grodin, supra note 13, at 4-18.

²¹ See id. at 4.

²² See id. at 4-5.

²³ See id. at 5.

²⁴ See id.

²⁵ See id.

²⁶ See id. at 5-6.

²⁷ See id. at 6.

²⁸ Id. (quoting Hess, Alfred F., The Use of a Series of Vaccines in the Prophylaxis and Treatment of an Epidemic of Pertussis, 63 JAMA 1007, 1007 (1914)CrossRefGoogle Scholar).

²⁹ See id. at 7.

³⁰ See id.

³¹ See id.

³² See id. at 9.

³³ See id.

³⁴ See id. at 11.

³⁵ See id.

³⁶ Id. at 12.

³⁷ Id. at 14.

³⁸ Letter from Francis Payton Rous, to William C. Black (July 21, 1941), quoted in Lederer & Grodin, supra note 13, at 3, 14.

³⁹ See Bickel, Horst et al., Preliminary Communication: Influence of Phenylaline Intake on Phenylketonuria, 2 LANCET 812, 812 (1953)CrossRefGoogle Scholar.

⁴⁰ See id.

⁴¹ See id.

⁴² See id.

⁴³ See id.

⁴⁴ See JAY KATZ, EXPERIMENTATION WITH HUMAN BEINGS 1007-10 (1972).

⁴⁵ See id. at 1008.

⁴⁶ See id.

⁴⁷ See PRESIDENT's ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTS 102 (1996).

⁴⁸ See KATZ, supra note 44, at 1007-10 (providing excerpts of letters from scholars debating the ethics of using mentally retarded children in medical experimentation at the Willowbrook State School).

⁴⁹ See id.

⁵⁰ It is important to note that adults have widely mistreated children throughout history in a variety of contexts. See P. Thomas, Mason, Child Abuse and Neglect, Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C. L. REV. 293, 294-313 (1972)Google Scholar. The cruel exploitation of child labor is well documented. See, e.g., 2 CHILDREN AND YOUTH IN AMERICA: A DOCUMENTARY HISTORY 601 (Robert Bremner ed., 1971). The misuse of children as research subjects is likely one more example of the historical disregard for children's rights and welfare rather than an aberration in the treatment of children.

⁵¹ See Additional Protections for Children Involved as Subjects in Research, 45 C.F.R. § 46.401-.409 (1997).

⁵² T.D. v. New York State Office of Mental Health, 626 N.Y.S.2d 1015, 1016 (Sup. Ct. 1995), affd and modified 650 N.Y.S.2d 173 (App. Div. 1996), affd and modified 690 N.E.2d 1259 (N.Y. 1997).

⁵³ See Regulations Requiring Manufacturers to Assess the Safety and Effectiveness of New Drugs and Biological Products in Pediatric Patients, 62 Fed. Reg. 43,900, 43,900 (1997) (proposed Aug. 15, 1997).

⁵⁴ See id.

⁵⁵ Id. The Food and Drug Administration (FDA) listed 10 drugs widely used for children that contained no or inadequate labeling for use with children. See id. For example, in 1994 Albuterol, an inhalation solution, was prescribed 1,626,000 times for children with asthma under the age of 12; Zoloft, an antidepressant, was prescribed 248,000 times for children under the age of 16; Ritalin, a treatment for attention deficit disorders and narcolepsy, was prescribed 226,000 times for children under the age of six; and Prozac, a treatment for obsessive compulsive disorder and depression, was prescribed 349,000 times for children under the age of 16 including 3000 times for children under one. See id.

⁵⁶ See id.

⁵⁷ See National Institutes of Health, NIH Policy and Guidelines on the Inclusion of Children as Participants in Research Involving Human Subjects (Mar. 6, 1998) http://www.nih.gov/grants/guide/-notice-files/not98-024.html. These guidelines are in response to the concern that medical treatments applied to children are often based on research done only in adults. See id.

⁵⁸ See Glantz, supra note 17, at 1283.

⁵⁹ See id. at 1284.

⁶⁰ See generally Capron, Alexander M., Legal Considerations Affecting Clinical Pharmacological Studies in Children, 21 CLINICAL RES. 141, 146 (1972)Google Scholar (advocating prohibiting the use of economic rewards or incentives to parents).

⁶¹ See generally Lederer & Grodin, supra note 13, at 11-18 (citing examples of the exploitation of children in medical research in the twentieth century).

⁶² See Glantz, supra note 17, at 1284.

⁶³ See Leonard H. Glantz, The Law of Human Experimentation with Children, in CHILDREN AS RESEARCH SUBJECTS, supra note 13, at 103,103-04.

⁶⁴ See generally Robert E. Cooke, Vulnerable Children, in CHILDREN AS HUMAN SUBJECTS, supra note 13, at 193, 193-95, 200-07 (discussing intrinsic factors, such as a child having a terminal illness or AIDS, that lead to greater vulnerability to any child in research).

⁶⁵ See. e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390,402(1923).

⁶⁶ See, e.g., West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 636 (1943).

⁶⁷ See Wisconsin v. Yoder, 406 U.S. 205, 234 (1972).

⁶⁸ See In re Seiferth, N.E.2d 820, 823 (N.Y. 1955). But see In re Sampson, 278 N.E.2d 918, 919 (N.Y. 1972) (ordering surgery to ameliorate nonlife-threatening condition).

⁶⁹ See In re Hofbauer, 393 N.E.2d 1009, 1014 (N.Y. 1979).

⁷⁰ Where death would result from the absence of standard medical treatment, such as necessary blood transfusions, courts uniformly override parental refusals to authorize treatment. See. e.g., Jehovah's Witness of Wash. v. King County Hosp., 278 F. Supp. 488 (W.D. Wash. 1967), aff'd 390 U.S. 598 (1968); In re Green, 292 A.2d 387 (Pa. 1972); In re Hudson, 126 P.2d 765 (Wash. 1942).

⁷¹ See generally In re Phillip B., 156 Cal. Rptr. 48 (Ct. App. 1979) (respecting the parents’ decision not to operate on their child).

⁷² See, e.g., id.

⁷³ See GEORGE J. ANNAS ET AL., INFORMED CONSENT TO HUMAN EXPERIMENTATION: THE SUBJECT's DILEMMA 80-82 (1977).

⁷⁴ See Curran, William J., A Problem of Consent: Kidney Transplantation in Minors, 34 N.Y.U. L. REV. 891,892(1959)Google Scholar.

⁷⁵ See ANNAS ET AL., supra note 73, at 80-81 (discussing Masden v. Harrison, No. 68651 Eq. (Mass. June 12, 1957)); see also Curran, supra note 74, at 891 (addressing the Masden case and the issue of consent in transplants involving minors).

⁷⁶ See Curran, supra note 74, at 893.

⁷⁷ See id.

⁷⁸ See ANNAS ET AL., supra note 73, at 81.

⁷⁹ Id.; Curran, supra note 74, at 894-95.

⁸⁰ See Curran, supra note 74, at 893 (discussing Foster v. Harrison, No. 68674 Eq. (Mass. Nov. 20, 1957); Huskey v. Harrison, No. 68666 Eq. (Mass. Aug. 30, 1957)).

⁸¹ See ANNAS ET AL., supra note 73, at 81.

⁸² See id.

⁸³ See, e.g., Curran, supra note 74, at 894 (noting that in deciding whether to authorize a medical procedure, courts questioned each donor twin to determine whether the twin understood the nature and consequences of the operation and fully and freely consented to it).

⁸⁴ 445 S.W.2d 145 (Ky. 1969).

⁸⁵ See id. at 149.

⁸⁶ See id. at 146.

⁸⁷ See id. at 147-48.

⁸⁸ See id. at 147.

⁸⁹ See id. at 149-50.

⁹⁰ Id. at 151.

⁹¹ 289 A.2d 386 (Conn. Super. Ct. 1972).

⁹² See id. at 387-91.

⁹³ See id. at 389.

⁹⁴ Id. at 390.

⁹⁵ See id. at 391.

⁹⁶ See id. at 390.

⁹⁷ See id. 389-90. In this case, the court ascertained the parents’ motivation in consenting to the medical procedure based on views solicited from the family's clergyman, the defendant physicians and the guardians ad litem for both the donor and donee. See id.

⁹⁸ See id. at 390.

⁹⁹ 284 So. 2d 185 (La. Ct. App. 1973).

¹⁰⁰ See id. at 186-87.

¹⁰¹ See id. at 187.

¹⁰² See id.

¹⁰³ See id.

¹⁰⁴ Id. at 187.

¹⁰⁵ 226 N.W.2d 180 (Wis. 1975).

¹⁰⁶ See id. at 181.

¹⁰⁷ See id.

¹⁰⁸ See id.

¹⁰⁹ See id. at 182.

¹¹⁰ Id. at 181.

¹¹¹ See, e.g., id. at 182; In re Richardson, 284 So. 2d 185, 187 (La. Ct. App. 1993).

¹¹² The consent of the parent or guardian is required in these cases even though such consent alone does not appear sufficient to authorize the nonbeneficial invasion of the child's or ward's body.

¹¹³ See, e.g., Hart v. Brown, 289 A.2d 386, 390 (Conn. Super. Ct. 1972); Strunk v. Strunk, 144 S.W.2d 145, 149 (Ky. 1969).

¹¹⁴ See, e.g., Hart, 289 A.2d at 390; Strunk, 144 S.W.2d at 146.

¹¹⁵ See In re Richardson, 284 So. 2d at 187; In re Guardianship of Pescinski, 226 N.W.2d 180, 181 (Wis. 1975).

¹¹⁶ See, e.g.. Hart, 289 A.2d at 387.

¹¹⁷ It is not unusual for families to make choices that seem to put one child more at risk than another or that benefits one child more than another. For example, parents might have enough resources to send both of their children to the local community college or one to an Ivy League university. The family is certainly empowered to choose to send one of the children to the university although the other child would suffer detriment. Similarly, the family in the transplant situation could decide not to have the healthy child act as a donor out of concern that both children could end up impaired or even dead. This means the parents could refuse a relatively safe procedure on the healthy child even though that would lead to the death of the sick, but curable, child. Undoubtedly, courts would uphold such a parental decision. See, e.g., Curran v. Bosze, 566 N.E.2d 1319, 1332-39, 1345 (111. 1990) (describing risks and benefits of bone marrow transplant for the possible donors—three-and-a-half-year-old healthy twins—and the possible recipient, their halfbrother who had a 99% chance of death without a transplant and a 30% to 40% chance of fatal graftversus- host disease with the transplant; ultimately sustaining the twins’ custodial parent's refusal to consent); see also Korins, Janet B., Bosze, Curran v.; Toward a Clear Standard for Authorizing Kidney and Bone Marrow Transplants Between Minor Siblings, 16 VT. L. REV. 499, 500, 522-27 (1992)Google Scholar (identifying deficiencies in the Curran court's analysis and advocating a hybrid standard that synthesizes the principles of deference to parental consent and donor consent).

¹¹⁸ Compare In re Pescinski, 226 N.W.2d at 180 (finding that an incompetent not living at home was not permitted to donate a kidney), with Strunk, 144 S.W.2d at 146 (finding that an incompetent not living at home was permitted to donate a kidney by a 4 to 3 split court).

¹¹⁹ See, e.g., Strunk, 144 S.W.2d at 151.

¹²⁰ See supra notes 84-98 and accompanying text.

¹²¹ 576 S.W.2d 493 (Tex. App. 1979).

¹²² See id. at 500.

¹²³ Id.

¹²⁴ See ANGELA RODDEY HOLDER, LEGAL ISSUES IN PEDIATRICS AND ADOLESCENT MEDICINE

¹²⁵ (2d ed. rev. 1985).

¹²⁵ See id.

¹²⁶ See id.

¹²⁷ See id. at 127.

¹²⁸ See id. at 125.

¹²⁹ See id.

¹³⁰ See id. at 133.

¹³¹ See id.

¹³² See English, Abigail, Guidelines for Adolescent Health Research: Legal Perspectives, 17 J. ADOLESCENT HEALTH 227, 282-83 (1995)CrossRefGoogle Scholar.

¹³³ See, e.g., MASS. GEN. LAWS ch. 112, § 12F (1996).

¹³⁴ See Carter v. Cangello, 164 Cal. Rptr. 361, 362 (Ct. App. 1980).

¹³⁵ The mature minor rule has been incorporated into both the First and Second Restatement of Torts. See RESTATEMENT (SECOND) OF TORTS § 892A (1979); RESTATEMENT (FIRST) OF TORTS § 59(1) (1934). “To be effective, the consent must be given by one who has the capacity to give i t … . If the person consenting is a child … [the] consent may still be effective if he is capable of appreciating the nature, extent and probable consequences of the conduct consented to ….” RESTATEMENT (SECOND) OF TORTS § 892A cmt. b.

¹³⁶ See Bakker v. Welsh, 108 N.W. 94, 96 (Mich. 1906).

¹³⁷ See Cardwell v. Bechtol, 724 S.W.2d 739, 745-48 (Tenn. 1987).

¹³⁸ See id. at 744.

¹³⁹ See id. at 749.

¹⁴⁰ See id.

¹⁴¹ See id.

¹⁴² 443 U.S. 622(1979).

¹⁴³ See id. at 642-44.

¹⁴⁴ See id. at 650. The Court also ruled that a state may establish a procedure, such as a judicial proceeding in which the minor's maturity may be established. See id. at 643-44. But once a judge determines that the minor is able to understand the nature and consequences of the abortion decision, that decision is hers alone to make. See id. at 650. At that point, she has all the rights of an adult woman in regard to abortion. See id. at 642-43.

¹⁴⁵ See Lois A. Weithorn & David G. Scherer, Children's Involvement in Research Participation Decisions: Psychological Considerations, in CHILDREN AS RESEARCH SUBJECTS, supra note 13, at 133, 154.

¹⁴⁶ Id. at 152. Fourteen is also the age that the Tennessee Supreme Court adopted under the “Rule of Sevens” as the point at which minors are presumed to be able to give their consent to medical care. See Cardwell, 724 S.W.2d at 745.

¹⁴⁷ See HOLDER, supra note 124, at 134; Wadlington, Walter, Minors and Health Care: The Age of Consent, 11 OSGOODE HALL L.J. 115, 119(1973)Google Scholar.

¹⁴⁸ See Wadlington, supra note 147, at 124.

¹⁴⁹ See generally id. (stating that jurisdictions, which have dropped all age restrictions for consent to medical care related to drug use or early sexual activity, are motivated by fear that minors will forgo care if forced to consult with parents in these situations).

¹⁵⁰ See, e.g., Younts v. St. Francis Hosp., 469 P.2d 330, 332 (Kan. 1970); Bakker v. Welsh, 108 N.W. 94, 95 (Mich. 1906); Cardwell, 724 S.W.2d at 741-42.

¹⁵¹ 443 U.S 622, 642 (1979).

¹⁵² The doctor-patient relationship is quite different from the researcher-subject relationship. In the doctor-patient relationship, the doctor's only goal is improving the welfare of her patient. See Katz, Jay, Human Experimentation and Human Rights, 38 ST. LOUIS U. L.J. 7, 7 (1993)Google Scholar. In the researcher-subject relationship, the researcher's goal may be primarily, or solely, the creation of new knowledge. See id. In the researcher-patient relationship, the subject is a means to an end. See id.

¹⁵³ 126 F.2d 121 (D.C. Cir. 1941).

¹⁵⁴ See id. at 123.

¹⁵⁵ See id. at 121.

¹⁵⁶ See id.

¹⁵⁷ See id. at 122, 123.

¹⁵⁸ See id. at 121.

¹⁵⁹ See id. at 122. In fact, this finding is an example of one of the earlier applications of the mature minor doctrine.

¹⁶⁰ See id. at 122.

¹⁶¹ See id. at 123.

¹⁶² See id. at 122-23.

¹⁶³ Id. at 122 (emphasis added).

¹⁶⁴ Id.

¹⁶⁵ See id.

¹⁶⁶ See id. at 123.

¹⁶⁷ See id.

¹⁶⁸ See id.

¹⁶⁹ See id.

¹⁷⁰ 549 N.E.2d 322 (111. App. Ct. 1989).

¹⁷¹ See id. at 323.

¹⁷² See id.

¹⁷³ See id. at 325.

¹⁷⁴ See id. at 324.

¹⁷⁵ See id. at 328.

¹⁷⁶ See id. at 325-27.

¹⁷⁷ See id. at 328.

¹⁷⁸ Id.

¹⁷⁹ See generally In re Sampson, 317 N.Y.S.2d 641, 651 (Fam. Ct. 1970) (noting that “courts have unequivocally upheld the power of the state to authorize the administration of a blood transfusion over the religious objections of the parent where the blood transfusion was shown to be necessary for the preservation of the minor's life or the success of needed surgery“), aff'd, 278 N.E.2d 918 (N.Y. 1972).

¹⁸⁰ See In re E.G., 549 N.E.2d at 328. 181 It should also be noted that the court's ruling gives decisional authority to the family member who desires the life-saving treatment to be administered. In a sense, the court gives consent authority to the party agreeing to “beneficial” treatment. See id.

¹⁸² See supra notes 73-98 and accompanying text.

¹⁸³ See ANNAS ET AL., supra note 73, at 80-81.

¹⁸⁴ See Hart v. Brown, 289 A.2d 386, 389 (Conn. Super. Ct. 1972).

¹⁸⁵ See, e.g., ANNAS ET AL., supra note 73, at 87.

¹⁸⁶ See, e.g., id. at 86-87.

¹⁸⁷ See, e.g., id.

¹⁸⁸ 45 C.F.R. §§ 46.101-.124 (1997).

¹⁸⁹ See id. § 46.101(a)(2).

¹⁹⁰ See id. §46.107.

¹⁹¹ See id. §46.111.

¹⁹² See id. §46.116.

¹⁹³ See id. §§ 46.117-.120.

¹⁹⁴ See id. §§ 46.401-.409. It should be noted that the final children's regulations that were adopted in 1981 are considerably less stringent than the regulations as they were originally proposed. For example, the original proposed regulations required review by a “Protection Committee,” in addition to review by an institutional review board (IRB), which was to monitor the subject's continued willingness to participate in the research, the selection of subjects, the reasonableness of the parents consent and some other matters. See Protection of Human Subjects; Policies and Procedures, 38 Fed. Reg. 31,738 (1973). There were several other safeguards that do not appear in the current regulations. See id.

¹⁹⁵ See, e.g., 45 C.F.R. § 46.408.

¹⁹⁶ Id. § 46.402(a). This is unlike the National Institutes of Health (NIH) policy described above that defines children as people under 21 years of age. See National Institutes of Health, supra note 57.

¹⁹⁷ See, e.g., MASS. GEN. LAWS ch. 112, § 12F (1996).

¹⁹⁸ See 45 C.F.R. § 46.402(a).

¹⁹⁹ For example, he would have to give informed consent pursuant to 45 C.F.R. § 46.116. If he were incapable of doing so, he could not be included in the research without the consent of a “legally authorized representative,” a parent in a child's case. See id. § 46.116.

²⁰⁰ See id. § 46.402.

²⁰¹ See, e.g., MASS. GEN. LAWS ch. 112, § 12F (1996).

²⁰² See supra notes 133-52 and accompanying text.

²⁰³ See 45 C.F.R. § 46.404.

²⁰⁴ “Assent” is defined as the “child's affirmative agreement to participate in research. Mere failure to object should not, absent affirmative agreement, be construed as assent.” Id. § 46.402(b). It should be noted that under the children's regulations, no one gives consent. Rather the child assents and the parent gives permission. See id. § 46.402(c).

²⁰⁵ See id. § 46.404.

²⁰⁶ See id. § 46.405.

²⁰⁷ See id.

²⁰⁸ See id. For example, testing a new drug for which there is evidence of safety and effectiveness for the treatment of a currently incurable childhood illness would fall under this section.

²⁰⁹ The assent of the child is not required for some research conducted under this section. If the child is incapable of giving assent because of her young age, for example, research in this category can still be done. See id. § 46.408(a). Even if the child is capable of giving assent, if the research holds out a “prospect of direct benefit that is important to the health or well-being of the [child] and is only available in the context of the research,” the assent of the child is not required. Id.

²¹⁰ See id. § 46.405(a).

²¹¹ See id. § 46.406.

²¹² See id. § 46.406(a).

²¹³ See id. § 46.406(b).

²¹⁴ See id. § 46.406(c).

²¹⁵ See id.

²¹⁶ See id.

²¹⁷ See infra notes 224-306 and accompanying text.

²¹⁸ See 45 C.F.R. § 46.407.

²¹⁹ See id.

²²⁰ See Glantz, supra note 17, at 1287.

²²¹ See Katz, supra note 152, at 13-14.

²²² See Glantz, supra note 17, at 1288.

²²³ See 45 C.F.R. § 46.406(a).

²²⁴ Id. § 46.102(i).

²²⁵ See id. § 46.101(a).

²²⁶ As one group of commentators notes, the risks to children living in Belfast and Edinburgh are quite different. See Benjamin Freedman et al., In Loco Parentis: Minimal Risks as an Ethical Threshold for Research upon Children, HASTINGS CENTER REP., Mar-Apr. 1993, at 13, 17-18. As such, the commentators opine that the “minimal risk” definition may permit a Western researcher who is frustrated by restrictions on his research to “shop” for “a community whose children are sufficiently destitute or underprotected that even exposure to heinous risks fall with in the daily expected routine” and justify such a selection as “accommodating cultural differences.” See id. at 18.

²²⁷ See, e.g., Ash, Peter et al., Gun Acquisition and Use by Juvenile Offenders, 275 JAMA 1754, 1754 (1996)CrossRefGoogle Scholar. Moreover, the victims of firearm-related homicides are much more likely to be African American adolescent males than any other group. See id.

²²⁸ See Glantz, supra note 17, at 1287.

²²⁹ See id. at 1287-88.

²³⁰ See id.

²³¹ See Freedman et al., supra note 226, at 13.

²³² See id. at 15.

²³³ See id. at 18.

²³⁴ See id. at 15.

²³⁵ 45 C.F.R. § 46.406 (1997).

²³⁶ See Freedman et al., supra note 226, at 15.

²³⁷ See id. at 15-16.

²³⁸ See id. at 17-18.

²³⁹ See id.

²⁴⁰ See id.

²⁴¹ See 45 C.F.R. § 46.406(c) (1997).

²⁴² Id. § 46.406(d).

²⁴³ See id. § 46.408(b).

²⁴⁴ Id. § 46.408(a).

²⁴⁵ For discussion on the role of dual consent, see Part V.

²⁴⁶ See 45 C.F.R. § 46.406(b). Although the regulations themselves seem to provide no barrier to parents permitting their young children to be subjected to nonbeneficial research, the regulations explicitly note that they do “not affect any state or local laws or regulations which may otherwise be applicable and which provide additional protection for human subjects.” Id. § 46.101(f). IRBs are required to be composed in such a manner that they are able to ascertain the “acceptability” of proposed research in terms of “applicable law.” See id. § 46.107(a). Thus, if state law or regulation imposes legal restrictions on parental authority to consent to nonbeneficial research, these restrictions would be applicable to even federally funded research and the IRB is obligated to determine and enforce these state restrictions. See id. §§ 41.101(f), 46.107(a).

²⁴⁷ See RAMSEY, PAUL, THE PATIENT AS PERSON: EXPLORATIONS IN MEDICAL ETHICS 13 (1970)Google Scholar.

²⁴⁸ See id.

²⁴⁹ See The Nuremberg Code, supra note 3, at 2.

²⁵⁰ See Leonard H. Glantz, The Influence of the Nuremberg Code on U.S. Statutes and Regulations, in THE NAZI DOCTORS, supra note 1, at 183, 185. The subsequently promulgated “Declaration of Helsinki” of the World Medical Association explicitly permits surrogate consent for research that could benefit individual subjects. See World Med. Ass'n, Declaration of Helsinki IV, reprinted in THE NAZI DOCTORS, supra note 1, at 339, 341-42 (as amended by the 41st World Medical Assembly, Hong Kong, Sept. 1989). But in the category of “non-therapeutic” research, the Declaration merely says, “The subjects should be volunteers.” See id. at 339 (Helsinki Declaration § III.2). This would appear to preclude surrogate consent.

²⁵¹ RAMSEY, supra note 247, at 11-12.

²⁵² See id. at 13.

²⁵³ See id.

²⁵⁴ As Paul Ramsey puts it: To attempt to consent for a child to be made an experimental subject is to treat the child not as a child. It is to treat him as if he were an adult person who has consented to become a joint adventurer in the common cause of medical research. If the grounds for this are alleged to be the presumptive or implied consent of the child, this must simply be characterized as a violent and false presumption. Non-therapeutic, non-diagnostic experimentation involving human subjects must be based on true consent if it is to proceed as a human enterprise. No child or adult incompetent can choose to become a participant of medical undertakings, and no one else on earth should decide to subject these people to investigations having no relation to their own treatment. That is a canon of loyalty to them. This they claim of us simply by being a human child or incompetent. When he is grown, the child may put away childish things and become a true volunteer. This is the meaning of being a volunteer: that a man enter and establish a consensual relation in some joint venture for medical progress—where before he could not, nor could anyone else “volunteer” him for submission to unknown possible hazards for the sake of good to come. Id. at 14. 255 See supra note 99 and accompanying text.

²⁵⁶ See McCormick, Richard A., Proxy Consent in the Experimentation Situation, 18 PERSP. BIOLOGY & MED. 2, 11-14 (1974)CrossRefGoogle Scholar, reprinted in ROBERT H. MNOOK1N & D. KELLY WEISBERG, CHILD, FAMILY AND STATE 667,668 (3d ed. 1995).

²⁵⁷ Id. at 669. Ramsey responded to Richard McCormick, arguing that children are not moral agents and therefore saying what they “ought” to do is a fiction. See Paul Ramsey, A Reply to Richard McCormick: The Enforcement of Morals: Nontherapeutic Research on Children. HASTINGS CENTER REP., Aug. 1976, at 21, 24-25, reprinted in MNOOKIN & WEISBERG, supra note 256, at 670, 670. Further, Ramsey notes that adults often do not act in ways they ought to act, and that we do not require adults to act in ways we deem are desirable. See id.

²⁵⁸ See McCormick, supra note 256, at 669.

²⁵⁹ Id.

²⁶⁰ Id.

²⁶¹ See id.

²⁶² See id.

²⁶³ 650 N.Y.S.2d 173 (App. Div. 1995).

²⁶⁴ See id. at 177.

²⁶⁵ Id. at 192. This view is almost identical to that adopted by the Medical Research Council in Britain. In regard to nontherapeutic research, the Council concluded:

MEDICAL RESEARCH COUNCIL, THE ETHICAL CONDUCT OF RESEARCH ON CHILDREN 17 (1991). Examples of such minimal risk procedures are “observation of behavior, noninvasive physiological monitoring. Developmental assessments and physical examinations, changes in diet and obtaining blood and urine specimens.” See id. at 15.

²⁶⁶ See T.D., 650 N.Y.S.2d at 192.

²⁶⁷ It would appear that the appellate court's opinion has little if any precedential value in New York. The plaintiffs in the case brought this action to challenge regulations promulgated by the New York State Department of Mental Health, which pertained to research on its patients who were incapable of consenting. See id. at 175. The plaintiffs challenged those regulations on a number of grounds, including the argument that the office did not have statutory authority to promulgate the regulations. See id. at 178. The plaintiffs prevailed on this narrow ground in the trial court and in the appellate division. See id. The New York Court of Appeals affirmed this narrow ruling, and found that once the appellate division invalidated the regulation, it was unnecessary for it to rule on the other issues. See T.D. v. New York State Office of Mental Health, 690 N.E.2d 1259, 1259 (N.Y. 1997). Thus, the court said, the appellate division “issued an inappropriate advisory opinion” on these other matters. See id.

²⁶⁸ Stephan Haimowitz et al., Uninformed Decisionmaking: The Case of Surrogate Research Consent, HASTINGS CENTER REP., Nov .-Dec. 1997, at 9.

²⁶⁹ Id. at 11.

²⁷⁰ See Katz, supra note 152, at 7.

²⁷¹ Haimowitz et al., supra note 268, at 11.

²⁷² See id.

²⁷³ See id.

²⁷⁴ See discussion in supra note 152.

²⁷⁵ The authors noted that, although the decision to perform a lumbar puncture solely for research purposes is not made “casually,” the “procedure is performed daily in hospitals across the country and results in headaches lasting twenty-four hours in about 10 percent of cases.” See Haimowitz et al., supra note 268, at 11.

²⁷⁶ See Pine, Daniel S. et al., Neuroendocrine Response to Fenfluramine Challenge in Boys: Association with Aggressive Behavior and Adverse Rearing, 54 ARCHIVES GEN. PSYCHIATRY 839, 840(1997)CrossRefGoogle Scholar.

²⁷⁷ See id.

²⁷⁸ See id.

²⁷⁹ See id. at 839.

²⁸⁰ See id. at 840.

²⁸¹ See id.

²⁸² See id.

²⁸³ See id.

²⁸⁴ Id. at 841. The authors concluded that the study found “a positive correlation between aggression ratings and the prolactin response to the fenfluramine challenge.” See id. at 843. It also found a “correlation between the prolactin response to fenfluramine and maladaptive parent-child interaction patterns that are implicated in aggression” as calculated on the HOME subscales. Id. at 843. The study, however, did not compare these boys with a demographically similar group of boys without a family history of delinquency, did not perform a placebo challenge and measured the two “dynamic constructs“—the home environment and serotonergic activity—at a single time point. See id. at 844.

²⁸⁵ See id. at 839, 841.

²⁸⁶ See id. at 841.

²⁸⁷ See id. at 840.

²⁸⁸ See Freedman et al., supra note 226, at 18.

²⁸⁹ The most common adverse reactions from fenfluramine are drowsiness, diarrhea and dry mouth. See PHYSICIAN's DESK REFERENCE 2421 (52d ed. 1998). Less common reactions are dizziness, confusion, headache, mood changes, anxiety and some other symptoms. See id. Fenfluramine is related to amphetamines, though it differs somewhat chemically, and abuse of the drug has been associated with reports of euphoria and perceptual changes. See id. at 2420. Although these effects occurred in doses considerably higher than those administered to the children in this study, the drug has not been evaluated for use in children and knowledge of its effects on children are therefore unknown. See id. at 2421. Furthermore, when fenfluramine was administered in adults, needles were not inserted into the research subjects’ veins and left in for hours.

²⁹⁰ See supra note 251 and accompanying text.

²⁹¹ See supra note 257 and accompanying text. In light of the adverse reactions to fenfluramine and the medical procedures used in the Pine study, “discernible” risks and discomforts exist. See Pine et al., supra note 276.

²⁹² The authors noted that 36 of 54 eligible subjects agreed to participate, which would indicate that the assent of the children was obtained. See Pine et al., supra note 276, at 840. The study, however, fails to report any of the boys withdrawing their assent during the study. See id. This seems surprising given the conditions from which the boys were diagnosed to have suffered.

²⁹³ See 45 C.F.R. § 46.406(c) (1997).

²⁹⁴ Compare Pine et al., supra note 276, at 840 (discussing the research subjects’ conditions), with 45 C.F.R. § 46.406(c) (defining the requirements for research on children).

²⁹⁵ See Pine et al., supra note 276, at 840.

²⁹⁶ This is not to say that the study could not add to the body of knowledge in the area of the relationship of serotonin to aggression, although even the authors discuss the study's significant limitations. See id. at 844. But it would be a huge stretch to relate this study's goals with the requirements of the federal regulations.

²⁹⁷ It is not clear why parents agreed to participate in this protocol because it would cause them substantial inconvenience and subject their children to some risk. There is no mention of payment to the parents in the report of the study. See id. at 840.

²⁹⁸ Freedman et al., supra note 226, at 18.

²⁹⁹ See id.

³⁰⁰ See id.

³⁰¹ Halperin, Jeffery M. et al., Serotonin: Aggression and Parental Psychopathology in Children with Attention-Deficit Hyperactivity Disorder, 36 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1391, 1393 (1997)CrossRefGoogle Scholar.

³⁰² See id.

³⁰³ See id.

³⁰⁴ Cf. Katz, supra note 152, at 43-45 (discussing the ramifications of a study removing adults from medication to record the effects of withdrawal).

³⁰⁵ See Halperin et al., supra note 301, at 1393.

³⁰⁶ Cf. Katz, supra note 152, at 43-45 (discussing the difference between drug withdrawals in adult subjects in the research context as compared with the medical context).

³⁰⁷ Additional Protections for Children Involved as Subjects in Research, 48 Fed. Reg. 9814 (1983) (codified at 45 C.F.R. pt. 46).

³⁰⁸ See 45 C.F.R. §§ 46.201-.2U (1997).

³⁰⁹ See id. §§ 46.301-.306.

³¹⁰ Regulations protecting fetuses as research subjects were adopted in 1975. See id. § 46.201. Those protecting prisoners as research subjects were adopted in 1978. See id. § 46.301.

³¹¹ See id. § 46.206(a)(1).

³¹² See id. §§ 46.401-.409.

³¹³ See id. § 43.306.

³¹⁴ See id. § 46.304(b).

³¹⁵ See id. §§ 46.401-.409.

³¹⁶ See Regulations Requiring Manufacturers to Assess the Safety and Effectiveness of New Drugs and Biological Products in Pediatric Patients, 62 Fed. Reg. 43,900, 43,900 (1997) (proposed Aug. 15, 1997) [hereinafter New Drugs and Pediatric Patients].

³¹⁷ See National Institutes of Health, supra note 57.

³¹⁸ See New Drugs and Pediatric Patients, 62 Fed. Reg. at 43,900-02, 43,910.

³¹⁹ See id. at 43,903.

³²⁰ National Institutes of Health, supra note 57.

³²¹ Compare45 C.F.R. §§ 46.116, 46.305-306, 46.206-211 (requiring consent to be given before people may become participants in a research study), with National Institutes of Health, supra note 57 (requiring children to be included as research subjects in projects supported by the NIH).

³²² See National Institutes of Health, supra note 57.

³²³ See id.

³²⁴ Id.

³²⁵ See id. (summarizing the children's regulations in a table); Regulations Requiring Manufacturers to Assess the Safety and Effectiveness of New Drugs and Biological Products in Pediatric Patients, 62 Fed. Reg. 43,900, 43,906 (1997). Unlike the NIH, the FDA dedicates only one paragraph in its proposed regulations to the “Ethical Issues.” See id. at 43,906. It simply notes that there are special regulations for the protection of children and that the American Academy of Pediatrics (AAP) adopted guidelines for the ethical conduct of clinical studies in pediatric patients. See id. However, the FDA expressly sought comments on the ethical issues that may be raised by its proposal. See id. at 43,907.

³²⁶ See supra notes 58, 112, 187-93 and accompanying text.

³²⁷ See Committee on Drugs, American Academy of Pediatrics, Guidelines for the Ethical Conduct of Studies to Evaluate Drugs in Pediatric Populations, 95 PEDIATRICS 286, 294 (1995)Google Scholar. Generally, placebos may be ethically employed in drug research involving children when four conditions are met: first, there is no commonly accepted therapy; second, if there is a commonly accepted therapy, it is of questionable efficacy, carries a high frequency of undesirable side-effects, or generates greater risks than benefits; third, the placebo is used to identify incidence and severity of undesirable side-effects by adding a new treatment to establish regimen; and fourth, the disease process is characterized by frequent, spontaneous exacerbations and remissions. See id. The Guidelines assumed that placebos could be used in pediatric studies if their use “does not place children at increased risk,” and these guidelines are designed to set forth such circumstances. See id. The Guidelines, however, do not permit the removal of children from commonly accepted therapies for the purpose of research. See id. If this is the case, how can the use of “washout” periods be acceptable in research not designed to directly benefit the child-subjects?

³²⁸ This is different from reimbursing parents for expenses associated with their child's participation in research, such as transportation, time off from work and meals. Furthermore, the reimbursement should be based on actual expenses incurred by the parent. The AAP recommends that payments to parents should only be made for direct or indirect costs incurred as a result of the study, and must not become an inducement for participation. See id. at 293.

³²⁹ See 45 C.F.R. § 46.408 (1997).

³³⁰ See Robert E. Cooke, Vulnerable Children, in CHILDREN AS RESEARCH SUBJECTS, supra note 13, at 193, 194-95.

³³¹ See id. at 200-01. The institutionalized mentally infirm child represents the most studied class of subjects. See id. at 200.

³³² See id. at 195.