On Thalidomide and the Right to Compensation

In the late 1980s, victims of the drug thalidomide pressed the Canadian government for monetary compensation.  Throughout the campaign, John Peters Humphrey corresponded with the War Amputations of Canada, lawyer Brian Forbes, and contacts at the United Nations.  Humphrey also attended meetings of the United Nations Human Rights Committee as it considered a claim against the Canadian government.  He hoped to codify in international law a right to compensation.  Ultimately, these efforts procured a limited response from the Canadian government.  The right to compensation has never truly been established and the thalidomide victims have still never been fully compensated.

 

The Original Injustice

When the Canadian government licensed thalidomide for prescription use in April 1961, it unknowingly opened the door to a pharmaceutical disaster.  The drug – created by the German company Gruenenthal – was widely believed to be an entirely safe “miracle drug.”[1]  Although the American Food and Drug Administration had kept thalidomide off the shelves, it was commonly used in many countries.[2]

The American concern was vindicated later in the year as reports began to come from abroad of terrible side effects.  Working simultaneously, the Australian physician William McBride and the German Widukind Lenz each came to the conclusion that thalidomide was responsible for causing birth defects.[3]  Thalidomide was commonly prescribed to pregnant mothers as a remedy for morning sickness.  As it turned out, the drug was doing significant damage to these mothers’ children.  The thalidomide children suffered from a range of disabilities, most distinctively the malformation of limbs.

As the evidence became impossible to ignore in late 1961, governments around the world responded by banning the drug.  In both the United Kingdom and West Germany, it was pulled from the shelves in December.[4]  However, the Canadian government was unusually slow to react.  Only three months later, in March 1962, was thalidomide finally banned in Canada.  Even then, the drug lingered in some pharmacies until May.[5]

 

Attempts at Redress

The question of compensation for the thalidomide victims was raised quite early.  In 1963, the Minister for National Health and Welfare, the Honourable J. Waldo Monteith, declared that “It is our job to ensure that these victims are cared for in the best possible manner [and] that their needs are met to the fullest extent we can devise.”[6]  This promise was not kept.[7]  Over the next thirty years, many families filed lawsuits, all of which were settled outside of court.[8]   Even by the late 1980s, as thalidomide victims were demanding in increasing numbers to become independent of their parents, there had been little done to ease their suffering.

In 1987, the War Amputations of Canada began to take an interest in the situation.  They formed a Thalidomide Task Force (TTF), headed by War Amps CEO Cliff Chadderton.[9]  This task force campaigned the government to give thalidomide victims the compensation that they deserved.  They produced a report and a CBC documentary on the situation.[10]  In 1987, several of the survivors set up the Thalidomide Victims Association of Canada (TVAC).[11]

These calls for redress were answered on February 13, 1990.  The Honourable Perrin Beatty, Minister of National Health and Welfare, announced a package for government compensation of the surviving thalidomide victims.[12]  He estimated that there were around seventy-five or a hundred such victims, and pledged $7.5 million overall.[13]  TVAC and the TTF were pleased that the government had taken action, but dismayed at the details of the programme.  An actuarial study estimated that Beatty’s proposal worked out to less than $400/month for each victim.[14]  Worse, it made no distinction between the most disabled individuals and the least.[15]  Chadderton wrote to Beatty three days after the announcement in the House of Commons, expressing his concerns and promising to set up a study group.[16]

 

Enter John P. Humphrey

Chadderton was working closely with Ottawa lawyer Brian Forbes and McGill law professor John Peters Humphrey.[17]  Forbes and Humphrey had been leading a case against the Canadian government at the United Nations Human Rights Committee.[18]  Together, they had been travelling to Geneva and maintaining contact with UN official Alfred de Zayas.[19]  Forbes drafted a Statement on the Right to Compensation, which called for a right to compensation and specifically referenced the thalidomide case.[20]  He sent a copy of his draft to Humphrey,[21] who no doubt took an interest in the potential such a right might have for international law.  Humphrey believed strongly in the right to compensation and hoped that a declaration of its importance might be made in the United Nations General Assembly.[22]  Forbes’ statement was jointly presented to the Human Rights Committee by the War Amputations of Canada and the International Commission of Health Professionals.[23]  Forbes hoped it would put pressure on the Canadian government to accept a new proposal for thalidomide compensation.[24]

TVAC had produced such a proposal as early as January.[25]  The proposal suggested differentiating among ten different “groups,” representing gradations of disability.  They proposed that Group 1, which was the most disabled, deserved a payment of $1000/month, that Group 2 be compensated $900/month, and so on.  It also laid out additional payments under a similar scheme for an “attendance allowance” and an “incapacity allowance.”[26]  Lastly, they believed the government should dedicate $2 million to TVAC itself.  All in all, this compensation scheme would cost $20.8 million.[27]

Forbes wrote to Humphrey in late February saying he had learned that Beatty believed unequal compensation to violate the Charter of Rights and Freedoms.  Suspecting that such an objection was nonsense, Forbes asked whether Humphrey might provide a legal opinion clarifying the constitutionality of TVAC’s proposal.[28]  There is no record of Humphrey’s response.  However, a week and a half later, Forbes sent a similar request to Humphrey’s colleague Stephen A. Scott.[29]  Presumably, Humphrey must have declined.  Scott responded on April 17 with a robust argument that the government’s position was “utter nonsense.”[30]  If anything, Scott argued, it was Beatty’s scheme that violated the Charter.[31]  That summer, Forbes and Humphrey travelled to the United Nations once again to represent the War Amps.[32]  Humphrey would later recall spending much of his time discussing the thalidomide claim with delegates from NGOs.[33]  In October, Forbes wrote to Humphrey to announce that the government had reopened negotiations with the thalidomide victims.[34]

Impacts

However, this apparent victory amounted to little in the end.  Canada never offered any further compensation, and the case at the United Nations was dropped in 1994.[35]  In spite of the efforts of Humphrey and his colleagues, redress proved elusive.  However, the thalidomide story is important as one of the many attempts at compensation that arose out of that time.  Humphrey’s idea of a right to compensation in international law is a truly exciting one that may yet shape the human rights movement in Canada and elsewhere.

 

Endnotes

[1]     Andrea Hull, “Pain, Precedents and Promise: The Story of Thalidomide,” Proceedings of the 12th Anuual History of Medicine Days, University of Calgary (2003), 237.

[2]     Ibid., 238.

[3]     Jean F. Webb, “Canadian Thalidomide Experience,” Canadian Medical Association Journal 89 (1963), 987.

[4]     “Thalidomide: The Canadian Tragedy,” Thalidomide Victims Association of Canada, accessed March 31, 2014, http://www.thalidomide.ca/the-canadian-tragedy/.

[5]     Ibid.

[6]     Ibid.

[7]     “The Canadian Tragedy.”

[8]     Hull, “The Story of Thalidomide,” 242.

[9]     Ibid.

[10]   Ibid.

[11]      “TVAC’s mission,” Thalidomide Victims Association of Canada, accessed March 31, 2014, http://www.thalidomide.ca/tvac-mission/.

[12]   “House of Commons Debates,” February 13, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[13]   Ibid.

[14]   “Submission to: the Honourable Perrin Beatty, PC, MP, Minister of National Health and Welfare,” January 18, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[15]   Ibid.

[16]   Letter from Cliff Chadderton to Perrin Beatty, February 16, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[17]   Letter from Brian Forbes to Cliff Chadderton, May 21, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives, letter from Brian Forbes to John P. Humphrey, April 4, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives, and letter from Brian Forbes to John P. Humphrey, October 2, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[18]   A.J. Hobbins and Ann H. Steward, “Bringing Individual Human Rights Issues to the United Nations: John Humphrey and the Quest for Compensation,” The Canadian Yearbook of International Law 180 2003, accessed March 29, 2014 , http://heinonline.org.

[19]   Letter from Brian Forbes to Alfred de Zayas, July 26, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[20]   “Joint Statement on the Right to Compensation,” February 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[21]   Ibid.

[22]   Hobbins and Steward, “John Humphrey and the Quest for Compensation,” 223.

[23]   Letter from Brian Forbes to Charles Graves, April 4, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[24]   Ibid.

[25]   “Proposed Profiles: Thalidomide Victims,” January 15, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[26]   Ibid.

[27]   “Submission to: the Honourable Perrin Beatty.”

[28]   Letter from Brian Forbes to John P. Humphrey, February 28, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[29]   Letter from Brian Forbes to Stephen Scott, March 19, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[30]   Letter from Stephen Scott to Brian Forbes, April 17, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[31]   Ibid.

[32]   Letter from Brian Forbes to Alfred de Zayas, July 26, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[33]   Hobbins and Steward, “John Humphrey and the Quest for Compensation,” 212.

[34]   Letter from Brian Forbes to John Peters Humphrey, October 2, 1990, 323, 16, John Peters Humphrey Fonds, McGill University Archives.

[35]   Hull, “The Story of Thalidomide,” 220.

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