Under the Cover of Law

This reading comes from the Facing History and Ourselves resource Race and Membership in American History: The Eugenics Movement.

Just six months after Adolf Hitler took office, Germany enacted its first eugenic measure—the “Law for the Prevention of Genetically Diseased Offspring.” The Eugenical News, which was published by the Eugenics Record Office, proudly printed a translation of the law. It states in part:

Paragraph 1.
       (1) Whoever is afflicted with a hereditary disease can be sterilized by a surgical operation, if - according to the experience of medical science — there is a great probability that his descendants will suffer from serious bodily or mental defects.
       (2) Hereditary diseases under this law are 1. Hereditary feeblemindedness, 2. Schizophrenia, 3. Manic-depressive insanity, 4. Hereditary epilepsy, 5. Huntington’s Chorea, 6. Hereditary blindness, 7. Hereditary deafness, 8. Serious hereditary bodily deformities.
       (3) Furthermore those suffering from Alcoholism can be sterilized.

Paragraph 2.
       (1) Petition can be made by the subject to be sterilized. If this individual is incompetent, mentally deficient or has not yet completed his eighteenth year, a legal representative has the right to make application; the consent of the court of guardianship is required. In cases of limited competency the petition has to be approved by the legal representative. If the subject is of age and in charge of a caretaker, his consent is required. 
       (2) The petition is to be accompanied by a certificate from a physician recognized in the German Reich, testifying that the person nominated for sterilization has been enlightened on the nature and consequence of sterilization. 
       (3) The petition can be withdrawn.

Paragraph 3.
       Sterilization can be requested by (1) the public health physician, (2) the superintendent, for the inmates of a hospital, custodial institution or a penitentiary.

Paragraph 4.
       Petition is to be in writing or recorded with the District Eugenical Court. The facts upon which the petition is made should be supported by a medical certificate or confirmed in some other way. The district court has to notify the public health physician.

Paragraph 5.
       Decision rests with the Eugenical Court of the district to which the person nominated for sterilization belongs.

Paragraph 6.
       (1) The Eugenical Court is to be part of a Tribunal. It consists of a judge, acting as chairman, a public health physician and another physician approved by the German Reich and particularly versed in Eugenics. An alternate is to be appointed for each member. 
       (2) As chairman must be excluded: one who has decided upon a petition from the court of guardianship according to Paragraph 2, item 1. If the public health physician has made the petition, he is excluded from the decision.

Paragraph 7.
       (1) The proceedings of the Eugenical Court are not public.      
       (2) The Eugenical Court has to make the necessary investigations. It can hear witnesses and experts and order the personal appearance as well as a medical examination of the person to be sterilized, who can be summoned in case of unexcused absence. . . . Physicians who have been questioned as witnesses or experts are obliged to testify, regardless of medical ethics. Legal authorities as well as institutions have to give information to the Eugenical Court upon request.

Paragraph 8.
       The court has to decide according to its free conviction, after considering the entire results of the procedure and testimony. The decision is based upon a majority of votes after verbal consultation. The court decision should be stated in writing and signed by the members acting as judges. The reasons for ordering or suspending sterilization must be indicated. . . .

Paragraph 9.
      Persons designated in Paragraph 8, sentence 7, can take an appeal from the decision within a peremptory term of one month from the date of serving such notice. This appeal has a postponing effect.      
      The Supreme Eugenical Court decides upon this complaint. . . .

Paragraph 10.
      (1) The Supreme Eugenical Court is part of the Supreme Court of the country and comprises its district. It consists of one member of the Supreme Court, one public health physician and one additional physician, approved by the German Reich, who is especially versed in Eugenics. . . . The judgment of the Supreme Eugenical Court is final.

Paragraph 11.
      (1) The surgical operation necessary for sterilization should be performed only at a hospital and by a physician approved by the German Reich. This surgeon can perform the operation only when the order for sterilization has been made final. . . .
      (2)The surgeon performing the operation has to submit a written report on the sterilization with a statement regarding the applied technique to the physician in charge.

Paragraph 12.
      (1) When the court has finally decided upon the sterilization, the operation has to be performed even against the will of the subject to be sterilized, insofar as he has not made the petition alone. The public health physician has to attend to the necessary measures with the police authorities. . . .
      (2)When circumstances arise requiring another trial of the case, the Eugenical Court has to resume the proceedings and temporarily suspend the sterilization. If this appeal has been rejected, resumption of proceeding is admissible only if new facts that have come to light justify the sterilization.

Paragraph 13.
      (1) The costs of the court proceeding should be covered by the State funds. 
      (2) The cost of the surgical operation should be covered by the sick fund in the case of persons insured, and by the charity organization in the case of needy persons. In other cases the costs, up to the minimum doctors’ fee and the average hospital fee of public hospitals should be paid by the State funds, beyond that by the sterilized individual.

Paragraph 14.
       A sterilization not carried out according to the rules of this law [is] only permissible if performed by a skilled physician and for the avoidance of a serious danger to the life or health of the person on whom and with whose consent the operation has been performed.

Paragraph 15.
      (1) Persons involved in the procedure or in the performance of the surgical operation are pledged to secrecy. 
      (2) Whoever acts against this ethical rule of silence shall be punished with imprisonment up to one year or fined.1

In a report on the new law funded by the Carnegie Foundations, the American Neurological Association noted: “It is fair to state that the Sterilization Act is not a product of Hitler’s regime in that its main tenets were proposed and considered several years earlier before the Nazi regime took possession of Germany. There is no doubt that the Act conforms closely with present knowledge of medical eugenics.”2 Harry Laughlin of the Eugenics Record Office agreed. He praised the law in the Eugenical News:

Doubtless the legislative and court history of the experimental sterilization laws in the 27 states of the American union provided the experience which Germany used in writing her new sterilization statute. To one versed in the history of eugenical sterilization in America, the text of the German statute reads almost like the “American model sterilization law.”3

Laughlin and others believed that the German law was an improvement on American sterilization laws. In the United States, sterilization laws varied from state to state and enforcement was often inconsistent. The German measure, on the other hand, applied to the entire nation and promised to be uniformly enforced.

Before long, American eugencists were traveling to Germany to observe “eugenics in action.” They visited “eugenic courts” and met with Nazi leaders as well as scholars and scientists. After his visit, Frederick Osborn, then secretary of the American Eugenics Society, hailed “recent developments in Germany” as “perhaps the most important experiment which has ever been tried.”

Just a few months after the new law went into effect, Hitler called for the sterilization of “dangerous habitual criminals.” Under cover of that law, the government sterilized individuals who had no physical or mental disability. These children, women, and men were targeted simply because they were “Gypsies,” Germans of African descent, or Jews. For example, in 1937, the Nazis used the law to secretly sterilize all “German colored children.” They were the offspring of German women and the African soldiers who occupied Germany after World War I.

By 1937, the Nazis had sterilized nearly 225,000 individuals—about 10 times the number sterilized in the United States over a 30-year period—partly because Nazi journals openly advised the “eugenical courts” not to be “over scrupulous” in their decisions.4 They argued that it was better to make mistakes than jeopardize the “future” of the German people. So thousands of schizophrenics were sterilized, even though the classification of schizophrenia as a “hereditary disorder” was “no more than a working hypothesis,” according to Hans Luxemberger, Germany’s leading geneticist. He supported continued sterilization on the grounds that it might be too late when “final proof was established.”5 Despite signs that the Germans were sterilizing individuals with no “hereditary defects,” American eugenicists remained convinced that Germany’s sterilization law would never become an “instrument of tyranny.”

  1. Citations

    • 1 Eugenical News, September-October, 1933.
    • 2 Quoted in By Trust Betrayed by Hugh Gregory Gallagher. Holt, 1990, p. 93.
    • 3 “Eugenical Sterilization in Germany,” Eugenical News, September-October, 1933.
    • 4 Quoted in Hitler’s Justice by Ingo Müller. Trans. by Deborah Lucas Schneider. Harvard University Press, 1991, p. 122.
    • 5 Ibid.

Connection Questions

  1. A euphemism is an inoffensive term used in place of a more explicit one. In Nazi Germany, euphemisms were used to disguise events, dehumanize “racial enemies,” and diffuse responsibility for specific actions. Thus the Nazis did not speak of throwing their enemies into jail but of taking them into “protective custody.” To what extent is the title of the new law a euphemism? What does it disguise or conceal? How does it regard the targets of the law? How does it diffuse responsibility for sterilization?
  2. What is the role of a physician in the process outlined in the statute? Whom does the physician serve—the patient or the State? Why do you think the procedures of the eugenical courts were to be kept “secret”? Whose rights does a “secret proceeding” protect? Whose rights may such a proceeding threaten?
  3. After visiting a hospital that performed sterilizations, Gregor Ziemer, an American educator, asked his SS guide who decides which women are to be sterilized. He was told, “We have courts. It is all done very legally, rest assured. We have law and order.”1 What does it mean to act “under the cover of the law”? What purposes do laws serve in a society? Are they a way of keeping order? Ensuring justice? Protecting rights?
  4. What was the purpose of the sterilization law? How did it seem to alter traditional relationships in German society?
  5. Compare Germany’s “Law for the Prevention of Genetically Diseased Offspring” with Harry Laughlin’s model sterilization law (Chapter 6). What similarities do you notice in the objectives of the two laws and the ways they are to be enforced? Which differences are most striking? Why do you think the American Neurological Association insisted that Germany’s sterilization law was not a product of Hitler’s regime?
  1. Citations

    • 1 Education for Death by Gregor Ziemer. Oxford University Press, 1941, p. 28.

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