U.S. Refuses Compensation to Radiation Test Victims

by Marc Perelman

But what the 131 inmates at state penitentiaries in Oregon and Washington didn't know was that in addition to becoming sterile, they would face lifelong pain and an increased risk of cancer.

A motion by the federal government to dismiss compensation claims filed by 19 former Oregon inmates was just postponed to Nov. 21, partly in hopes that the parties will reach a settlement. The inmates have also moved to certify the suits as a class action.

But lawyers say it is unlikely the government will voluntarily compensate the victims of this controversial research, which some have compared to the Nazis' chilling human experiments during World War II.

Between 1961 and 1973, the inmates' testicles were biopsied and heavily X-rayed to determine the impact on the male reproductive system of repeated doses of radiation.

During the Cold War, the Atomic Energy Commission (AEC) -- the forerunner to the Department of Energy -- funded, sponsored and supervised numerous radiation studies on terminally ill patients, aborted foetuses, mentally retarded children, poor people and prisoners.

The research became public in November 1993, and an advisory committee appointed by President Bill Clinton recommended that compensation be paid to the subjects or their surviving relatives. While the government complied in some cases, it has refused to settle with the former inmates, arguing that it was not directly responsible for the experiments.

Or perhaps, as the plaintiffs' lawyer suggests, the real reason for the government's refusal is that it sees the Oregon and Washington victims as unworthy of compensation because they were in jail.

"It may be that the U.S. is not offering to do the right thing on this because it involves prisoners," said Eric Cramer, a lawyer for the plaintiffs. "But it may also be because they simply don't care."

The lead plaintiff, Harold Bibeau, says that for the past three decades, he has suffered from severe and recurrent testicular pain. He also had a temporary groin rash, a wart on the inside of his upper leg and lumps on his arm and back.

Bibeau never saw a doctor, assuming the symptoms were just a result of getting older. Then he read about the Department of Energy revelations in the newspaper.

He and a few other "volunteers" then had to provide regular semen, blood and urine samples. They were eventually paid to undergo vasectomies for fear they would produce abnormal children.

In 1995, Bibeau filed a federal lawsuit seeking $250 million for the long-term effects of the experiments and for the suppression of critical information which prevented the 67 Oregon inmates from seeking follow-up medical care.

Defendants in the suit included the Pacific Northwest Research Foundation (PNRF) and its employees, the late Carl Heller and his assistant Mavis Rowley, as well as Oregon state officials and two prison doctors who performed testicular biopsies and vasectomies on the prisoners.

But Bibeau also wanted compensation from the federal government, which he accused of "negligently and wrongfully initiating, approving and supervising the experiments."

On Aug. 15, a tentative settlement was reached for about $2.2 million with the state of Oregon, the two doctors and the PNRF -- but not the federal government.

In its latest motion to dismiss, the government claims immunity under the concept of "discretionary function" -- in other words, that the AEC division overseeing the experiments had broad autonomy in selecting and funding them.

But the plaintiffs say the division's authority was actually very limited and that the AEC, as early as the 1950s, had a clear policy prohibiting funding and/or support for non-therapeutic experiments involving human beings.

Although this policy was relaxed in the 1960s, it was still applicable to the prison experiments, they say, which involved impermissibly high doses of X-rays.

While the lawsuit could take years to be resolved, Bibeau says he intends to fulfil the pledge he made before the advisory committee in 1994: "Almost half of us are now dead and they're hoping if they simply ignore us long enough, we'll die and the problem will simply vanish. But I won't go away."

The radiation experiments were seen as having a noble purpose at the time: protecting U.S. citizens engaged in building the nation's high-priority nuclear and space programs. Still, plaintiffs say they clearly violated the Nuremberg Code, a set of rules governing human experiments agreed upon after World War II as a way to prevent further unethical research.

Under the code, the voluntary and informed consent of research subjects is absolutely mandatory. But long-term prisoners are, by definition, vulnerable to incentives like extended visitation rights, shorter sentences and cash payments.

Inmates in the AEC research were paid $25 per biopsy -- they all had at least five -- and an additional $100 for undergoing a vasectomy. Given that they were earning 25 cents a day for prison work, it was a windfall that would have been hard to turn down.

In addition, the risks of the experiments were minimized. The prisoners signed a consent form that only mentioned the sterility resulting from the vasectomy and the possibility of "some skin burn from the radiation." The risks of cancer, lifelong pain, orchitis (testicular inflammation) and bleeding into the scrotum were left out.

In a 1976 deposition, Dr. Heller said he had sometimes mentioned the possibility of a tumor, but avoided using the word cancer because he did not want to "frighten" the prisoners.

The experiments were eventually halted in January 1973 because of concerns over the voluntary consent of the subjects. Those who could be located complained of groin, upper thigh and back pains, as well as lumps. Lawyers say they only found one reported case of cancer and one case of sterility for an inmate's child.

But many of the subjects could not be tracked down, and cancer from radiation can take decades to develop.

When the experiments ended, Dr. Heller and AEC officials agreed that medical follow-up was necessary, but no effort was made to even locate the subjects.

Despite initial denials, it turned out that the National Aeronautics and Space Administration (NASA) was also closely monitoring the experiments because they involved the same levels of radiation astronauts were exposed to during space flights.

"I listened to a brilliant doctor explain to me how I could help NASA learn how to protect astronauts in space," Bibeau told the presidential Advisory Committee in 1994.

"I was a dumb convict. Rather than serving my time as a local jailbird, I could actually do something that would help my country and I could hold my head up and be proud," he recalled with irony.