* Emergency
Medicine Resident-Physician, University of Illinois Hospitals; B.A. University
of California, Berkeley; J.D. Northwestern University School of Law; M.D.
University of Illinois-Chicago College of Medicine.
Introduction
The
extent of animal exploitation in American society is staggering. Millions upon millions of animals are killed
each year in the name of scientific research. The overwhelming amount of this research occurs for purposes that cannot
be regarded as necessary in any meaningful way. From a legal standpoint these practices are justified by the notion that
animals are property and thus lack legally enforceable rights to protect their
interests from exploitation. This
property classification originates from our common law, which in turn derives
from ancient laws and philosophies whose foundations have long since been
discredited by scientific and moral progress. Science has shown that animal physiology and psychology is so similar to
that of humans that any difference in interest must be one of degree and not
kind. Moral tenets dictate that
competing interests should be analyzed according to the principle of equal
consideration so that for instance, my interest in avoiding pain is equal to
any other being’s interest in avoiding pain. By treating animals as property the law makes animal interests count for
less than that of a person’s interest and thereby permits actions that do not
require the equal consideration to animal interests. In this manner the property status of animals
has perpetuated the unnecessary exploitation of animals. If the law is to be regarded as capable of
resolving current disputes it must rest upon knowledge that is both accurate
and complete. This article urges the
common law to more completely incorporate our modern scientific and moral
understanding of animals into its development.
This
article will demonstrate that the Federal Animal Welfare Act, which regulates
the use of animals in research laboratories, results in the inequitable
protection of animal interests because it is premised on the property status of
animals. The property status of animals
justifies subordinating animal interests even when the complete protection of
those interests would not interfere with the successful outcome of an
experiment. Furthermore, the property
status of animals allows the deprivation of fundamental animal interests in the
name of research that does not aim to further any fundamental human interest,
such as our well-being or survival capability. Because of the widespread failure
of our legislation to prevent unnecessary animal exploitation, the judiciary
should incorporate the scientific and moral principles of our time into the
development of the common law and give animals the protection that the
principle of equal consideration of interests mandates. While this evolutionary stride may at first
appear radical, the requisite legal classification and devices currently exist
to facilitate the transition of animals as property to holders of rights. In this way the law can facilitate the
treatment of animals in a manner consistent with modern scientific and moral
understanding of animals as beings with inherent value worthy of protection.
I. The legal status of animals as property
A.
The implication of animal as property
The law has developed an artificial dichotomy
between persons and property. Property has only extrinsic value, which is
acquired by virtue of its utility to an owner. Because the law does not recognize the
intrinsic value of property, its interests, if any, are generally not protected
with legally enforceable rights. Conversely, the law recognizes the intrinsic
value of a person and protects his interest with legally enforceable rights. Rights are like fences that keep the world
out of certain areas of our lives. They protect our interests from being
unjustly overcome by competing interests in society. Legal interests are demands, desires, or
expectations which human beings, either individually or collectively seek to
satisfy. For instance, a person’s interest in not
having his personal property arbitrarily taken from him by the government is
protected by the fourteenth amendment of the United States Constitution, which
provides that “no state shall…deprive any person of life, liberty, or property,
without due process of law.” Similarly, the Nuremberg Code and the
Helsinki Declaration protect a person’s interest in avoiding pain and suffering
caused by their involuntary use in laboratory experiments.
In American law, human beings are person and
animals are property. Therefore, animals do not have legally
enforceable rights and generally cannot bring suit to contest any deprivation
of their interests. The absence of legally enforceable rights
facilitates the exploitation of animals in society. Animals may be used for experiments, economic
gain, as collateral for a loan, may be sold, taken away as part of a legal judgment,
given away, or euthanized. The legal classification of animals as
property has led to unspeakable stories surrounding inordinate numbers of
animals without legal repercussions. Despite the existence of federal animal
welfare laws, tens of millions of animals are killed each year in scientific
research to produce scientific data that aims to enrich our lifestyle but
contributes nothing to our well being or survival capability.
B.
Property status and Morality
The use of animals in research poses a
conflict between the interests of a property owners who desires to use his
property for research, and the interest of the animal in continuing to live,
express his nature, and be free from pain and suffering. The moral resolution of any conflict of
interest must satisfy the principle of equal consideration-the rule that like
cases ought to be treated alike unless there is a justified reason not to do
so. This principle is a necessary component to
any plausible moral theory. Any theory that permits dissimilar treatment
of similar interests fails to accord moral significance to a morally
significant entity and for that reason alone is an untenable moral theory.
Society does not treat animals as morally
significant because we do not give their interests the same protections that we
give to similar human interests. Animals and humans have an interest in
avoiding pain and suffering yet animals are used in scientific research while
humans are not. The reason for this is that an animal is property and her
interest counts for less than ours does. If applying the principle of equal
consideration creates a conflict between human and animal interests, then we
ought to balance the suffering to humans in not using the animal against the
suffering endured by the animal through her use. If our suffering in not using the animal
outweighs the suffering of the animal through her use, then human interests
prevail and the animal use is justified. If no justifiable human interests are at
stake, then the loss of interest to the animal outweighs our loss of interest
and her use must be regarded as unnecessary. Because animals are property, any balancing
is unfair from the outset. The balancing involves the interest of a
property owner versus the interest of his property. This system is set up to avoid any potential
conflict of interest because the interest of property will always count for less
than the interest of its owner. The balance will always tip in favor of
avoiding the loss of interest to the property owner who can not use his
property as he wants. The property status of animals makes the
principle of equal consideration virtually inapplicable to animals.
C.
Property status and the law
Because animal welfare laws are premised on
the property status of animals, they do not differentiate between animal uses
that will further a fundamental human interest and animal uses that do not. These
laws do not verify whether researchers are experimenting on animals to obtain
scientific data that will further the well being or survival of humans or
simply enhance some aspect of our lifestyle. Many experiments permitted under current and
applicable law involve great pain to animals in order to produce scientific
data that may potentially enrich our lifestyle. The Animal Welfare Act (“AWA”), for instance, does not consider whether
our interest in improving our lifestyle through animal tested cosmetics
outweighs the animal’s interest in avoiding pain and suffering. Our interest in producing better cosmetics is
assumed to outweigh the interest of the animal, who has the products dripped in
her eyes, from being free of pain and suffering because her property status
makes her interests count for less than ours. The law simply presupposes that the use of animals is justified because the
animal is property of the research facility. What the law does attempt to prevent is the
infliction of “unnecessary” pain and suffering, which is greater suffering than
is necessary to obtain reliable scientific data. For instance the AWA attempts to prevent
“unnecessary” pain and suffering during the experimental production of reliable
scientific data. The only requirement of the AWA is that the
investigator, “minimize pain and distress to animals” and “considers
alternatives to any procedures likely to produce pain.” Yet because the AWA is based on the property
status of animals, it gives the owner absolute discretion as to whether he
wants to comply with these provisions or not. These so-called requirements of the AWA are
therefore nothing more than recommendations. Such laws mean little to the animals when they can not be used to put an
end to suffering that result from trivial human interests. The property status of animals generates welfare laws that are supposed to lead
to the humane exploitation of animals. Nevertheless, the actual effects of the welfare laws do little, if
anything to relieve suffering sustained by research animals. Any good that such measures may bring are
likely offset by the public perception that animal suffering is made more
humane when in fact the institutionalized torture of research animals continues
unfettered. The property status of animals must be
abolished so that the law can adequately recognize the inherent value of
animals and protect the deprivation of their interests for unnecessary human
gain.
It has been suggested that property status is
not what needs to change to put an end to the cruel treatment of animals. Rather the agencies responsible for enforcing
the respective animal welfare laws must ramp up their efforts. The AWA together with other federal statutes
give animals “rights,” or legally enforceable claims, against cruelty and
mistreatment. For instance, under the AWA an animal has a
right to food, shelter, adequate ventilation and medical care, “and they enjoy
these rights against their owners.” The reason these rights don’t matter is that
there is little enforcement activity pursuing violations. However, the right to food, shelter and
adequate ventilation is not truly a right. For one thing, these alleged rights can be disregarded by the
investigator if he states his reason for doing so in the research protocol. For another, these are simply basic
requirements that “ensure that these resources are used
efficiently, which, in this situation, means that they produce reliable
scientific data.” Legal rights do more than ensure the mere
survival of an animal. They prevent the
unnecessary deprivation of animal interests by securing their right to express
their natural instinct and prohibit those situations that will prevent them
from doing so. As mentioned earlier,
humans enjoy such rights. Nonhuman animals do not. Monkeys, for example, have a natural desire
to swing, groom, play, forage, love and will avoid suffering to continue to
live and engage in these activities. Because animals are property, humans take
these interests from them for reasons that cannot always be regarded as
necessary. Animals may be given food and water yet live
in laboratory cages that only allow them to take at most 2 steps forward and 2
steps backward. They may live in these
small cages and be given water twice daily for an hour each time. If the investigator desires he may exempt a
nonhuman primate from the water requirement altogether. Nonhuman animals may never see grass,
sunlight, or interact socially with members of their species. The most thoroughly enforced welfare laws do
nothing to prevent this. Heightened
enforcement of welfare laws will not protect animals from having their
interests taken from them for unnecessary reasons. By eliminating the property status of
animals, laws can evolve to protect animals from the deprivation of their
interests for unnecessary human gain.
D. Property status and access to courts
The property status of nonhuman animals
prevents them from being plaintiffs in lawsuits, which is a crucial requirement
to achieving protection under the law. Since nonhuman animals are property and have
no rights, animals that are mistreated cannot have a representative assert
their interest in court. Ironically, this means that nonhuman animals that are wronged through
violations of the AWA cannot enforce the very laws created to protect them
despite the AWA’s stated purpose of insuring that animals intended for use in
research facilities be provided humane care and treatment. Even people willing to fight for the proper
treatment of nonhuman animals face insurmountable obstacles. While many people believe that the existence
of welfare laws means animals are adequately protected from inhumane treatment,
the very conditions that fueled the passing of these laws continue unimpeded,
without an adequate enforcement mechanism.
1. Standing for individual plaintiff
The legal mechanism preventing nonhuman
animals from asserting their interests in court is the element of human
injury-in-fact required by the standing doctrine. Standing is one of several doctrines used to
determine whether a case is justiciable, or whether a litigant is entitled to
have the court decide the merits of a dispute or particular issue. Federal courts may only adjudicate cases in
the context of an actual dispute between parties who have an actual stake in
the outcome of the suit. This limitation on the courts’ authority
arises from Article III Section 2 of the Federal Constitution, which states
that courts may act only when there is a case and controversy. While the Constitution does not specifically
state the requirements to achieve standing, the doctrine has evolved through
case law. To establish standing to sue, a claimant must
meet three requirements. The United States Supreme Court has said that
“at an irreducible minimum, Art III requires the party who invokes the court’s
authority to show that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the defendant, and that
the injury fairly can be traced to the challenged action and is likely to be
redressed by a favorable decision.”
In order for a human person to establish
standing within the context of animal mistreatment, the human plaintiff must
plead injury to himself as a result of mistreatment to an animal that he has
continuous interaction with. Although this approach allows persons to
bring claims concerning animal mistreatment, it is fraught with
limitations. First, the requirement of
continuous interaction fails to protect the overwhelming number of nonhuman
animals in research labs that are not accessible to humans. For example, in International Primate Protection League v. Institute for Behavioral
Research Inc., the plaintiff, a former employee of defendant-researcher
brought suit under the AWA on behalf of monkeys being experimented on in an
extremely cruel manner and being kept in inhospitable conditions. The research involved surgically abolishing
the sensation in the limbs of monkeys in an effort to mimic the lack of sensation
found in stroke victims. The researcher investigated techniques to
retrain the limbs by using restraint, electric shock and withholding of food to
coerce animals to use the limbs they could not feel. Authorities raided the lab and found each monkey
in a small cage that had not been cleaned for days. Several of the monkeys had bitten off
fingers, and some had chewed into their limbs, leaving raw, open wounds the
size of silver dollars that were covered with filthy bandages or not covered at
all. Authorities confiscated the monkeys and
plaintiff claimed that if the monkeys were returned to the lab his relationship
with them would be disrupted and he would suffer a direct injury. In denying standing the court stated that the
plaintiff would not suffer an injury if the monkeys were returned because he
would never be able to visit and see the conditions in which the monkeys live. The plaintiff did not have the personal
involvement necessary to plead injury to him self and thereby lacked standing. Private ownership thus prevents the requisite
continuous interaction between plaintiff and the monkeys to produce direct
injury and thus establish standing. Per the court logic, no private person “could
claim standing to challenge the treatment of what the court essentially
regarded as pieces of property.” The second limitation to filing a claim for
an injured animal by pleading human injury is that it focuses on the interest
of the person and not the interest of the nonhuman animal. The person bringing the suit is required to
make up an injury to address the injury of true concern, namely the injury to
the animal. Finally, this approach creates a potential
conflict of interest for those who have standing to bring suit. For example, a researcher who works in the
laboratory and is aware of cruel treatment to animals is one of the few persons
likely to have the required level of continuous interaction with the animal to
satisfy standing. However, since her primary interest is
conducting research she is unlikely to get involved in litigation. Initiating litigation could be devastating to
a researcher’s career by risking her current position and any long-term
prospects.
2.
Standing for
Nonhuman animals
Court decisions have been inconsistent with
granting nonhuman animals standing to bring suit. Some courts have allowed nonhuman animals to
be named as plaintiffs but have offered no explanation for their decision. Other courts have explicitly denied animals
standing in court without explaining their decision pursuant to the standing
doctrine. In cases where defendant challenged an animal
plaintiff’s standing, courts have unanimously denied standing to the animal
plaintiff. In Citizens
to End Animal Suffering and Exploitation v. New England Aquarium, a dolphin
named Kama challenged the decision by the aquarium to transfer her to the navy
for testing. In denying
Kama
standing the court noted that case law confirms that “animals are treated as
property of their owners, rather than entities with their own legal rights”
One commentator has argued that animals
cannot have standing simply because Congress has not explicitly given them that
privilege. Congress explicitly grants standing to
“persons” under the general provisions of the Marine Mammal Protection Act and
the Endangered Species Act. Because Congress has not expressly stated in
any federal statute that animals can sue in their own name, animals lack
standing. However, there is no reason to conclude that
the word “person” needs to be put in a statute in order for a person to sue. The text of Article III Section 2 of the
Federal Constitution does not explicitly limit the ability to bring a claim in
federal court to humans. Article III and the case law through which
the standing doctrine has evolved “requires injury-in-fact, causation, and
redressibility, not opposable thumbs.” Moreover, when the Framers created the
Constitution they did not have the scientific knowledge available today, which
demonstrates that animals are socially and psychologically intricate beings. Nonhuman animals use tools, communicate with
language, display emotions, have social relations, establish culture, and
display rational thought and even exhibit altruism. Abolishing the property status of animals
will facilitate the Constitution’s ability to broaden its scope and accommodate
for the social and scientific understanding of animals that we have today.
II.
Animal Interests
A. Animals have an interest in the continued
existence of their life
The societal practice of harming or killing
an animal for scientific research poses serious ethical issues. Any part of this practice that is deemed
unethical creates a compelling reason to eliminate it. Some commentators argue that these practices
are not unethical because animals are not aware of the future and thus have no
interest in the continued existence of their life. Under this view, the quality of the animal
life and not the end of the life is what requires heightened consideration. Animal cognitive theorists support this
latter position with the mental time travel hypothesis. This theory suggests that, unlike humans,
animals cannot mentally travel forward in time to anticipate and plan for the
future. Animals are bound to the present, or “stuck
in time,” and this is defined by their current motivational state. Because nonhuman animals have no sense of
the future and cannot anticipate the misery of not being alive, they have no
interest in continuing to live. Experimented mongrel-pigs do not care when
they die of circulatory shock from a human inflicted penetrating injury because
they are fully anesthetized and do not suffer. They only care if they survive the experiment
and endure the subsequent pain and suffering. The practical implication of this view is
that experimenting on animals is morally permissible insofar as the live animal
receives good treatment, lives pleasantly and is killed quickly and painlessly. Many animal advocates adhere to this view. However, its basis seems to defy cognitive
and evolutionary understanding. The ability to experience pain is a
physiological and neurological capacity that has evolved through time in part
to enable an animal to escape threatening situations and secure her survival. Animals escape injury in order to remain
alive because they desire to continue to exist.
Recent studies demonstrate that animals
indeed anticipate and plan for future needs and desires independent of current
ones. A compelling study showed that scrub-jays (Aphelocoma californica) with experience
stealing another bird’s cache will re-cache their stores in new caches only
when they are observed caching by other birds. Birds without the experience of stealing will
not re-cache even when observed caching. This indicates that scrub jays relate
information about their previous experience as a thief to the possibility of
future stealing by another bird, and modify their caching strategy accordingly
to protect their feed and successfully satisfy their future motivational need
of hunger. Another study showed the scrub-jays
spontaneously plan for a future state without reference to their current
motivational state by caching food in a place where they have learned they will
be hungry but where food is not otherwise available. Other studies have shown that apes will
select, transport and store certain tools not because it will satisfy a current
motivational need or desire but because they may need it to satisfy a need
sometime in the future. In one study, apes were presented with
various tools but selected a tool that they had previously learned would enable
them to open a device with food inside. The apes were presented with the tools in the absence of any visible device yet
selected and stored the tool because it would enable them to recover food at
some future time. When the apes were eventually presented with
the device they recovered the stored tool and utilized it to open the device
and recover the food. These studies provide evidence that animals
do have prospective cognition, anticipate future motivational needs not linked
to current ones and make plans to satisfy those future motivations.
The idea that animals, unlike humans, do not
have an interest in the continued existence of their life seems to defy the
theory of evolution. The writings of Charles Darwin revised our
understanding of the animals’ position within our world. Until his time the prevailing understanding
concerning the relationship between animals and humans derived from the book of
Genesis. Genesis states that God created man in his
own image and let him rule “over the fish of the
sea, the birds of the air, and the cattle, and over all the wild animals and
all the creatures that crawl on the ground.” This story led to the natural assumption that
an animal and a human are two distinct types of beings. The introduction of the theory of evolution
revolutionized this view by describing humans as merely another link in the
evolutionary chain.
Darwin
observed that every human characteristic could be found in at least one other
nonhuman species making the difference between a human and nonhuman one of
degree and not kind.
Darwin
’s
observations led him to the conclusion that animals are able to think and be
emotional like humans. He wrote that “ the senses and intuitions,
the various emotions and faculties, such as love, memory, attention, curiosity,
imitation, reason….may be found in…the lower animals.”
B. Animals have fundamental interests
Nonhuman animals like human animals have a
natural instinct toward expressing their species-defining interests. All animals have unique and fundamental
interests that are indispensable to the expression of their creaturely
character, their essence, their wolf-ness, monkey-ness, chicken-ness, or
person-ness. These are social, biological, physiological
and nutritional interests that are required for an animal’s physical and mental
well being. Such interests are reflected in the natural
environment that allows an animal to express and experience those specific
characteristics and behaviors that are species defining. Animals instinctually want to exercise,
stretch the limbs or wings, groom one self and turn around. This is true regardless of whether or not an
animal has ever lived in conditions that permitted this. To be able to reproduce, sustain life with
water and food, and use ones body in modes for which it is built is fundamental
to almost all-living creatures. Social grouping is fundamental to primates
but not snakes. Rhesus monkeys need terrain to forage and
trees to climb. Birds need perches, cheetahs need space to
run, frogs need ponds, boa constrictors need branches, hogs need space to root
and wallow, sheep need space to sit in social groups and chew their cud. Each species has developed characteristics by
which they survive and reproduce. When humans create an artificial environment
depriving animals of the ability to express their species-defining behavior
they deprive animals of a fundamental interest. If these acts are done for the sake of
advancing a human interest that is not essential to its well being or survival
it cannot be justified.
C. Individual animal interests
Interests vary not only from species to
species but also among individual members of the same species. It is conceivable, for example, that one cat
possesses greater intelligence than another and thus is more sensitive to an
experiment endured in isolation. One author has argued that it is the totality
of individual capacities, and not just sentience, which defines our moral duty
toward nonhuman animals. Sentience, autonomy, self-awareness,
conception of one self existing over time, and rationality are morally relevant
properties indicative of personhood. Failure to focus on all of the distinct
capacities of an individual nonhuman animal will potentially result in morally
impermissible harm to that animal. It is thus our moral obligation to
contemplate what human actions will result in the maximization of individual
nonhuman animal capacities. This is analogous to the approach encompassed
by the Americans with Disabilities Act of 1990 (
ADA
). This law, which seeks to rectify
unjustifiable limits on persons with disabilities, determines eligibility on a
case by case basis. Generalizations are not made across
individuals living with the same impairment because the objective impairment
and the subjective nature of living with the impairment may be different among
individuals. Within the context of animal ethics, however,
this approach poses difficulties. First,
there is no clear scientific consensus that the emotional, intellectual and
communicative capacities that we observe in nonhuman animals provide the same
experience as it does in humans. However, even if one assumes that the
existence of morally relevant properties can be empirically ascertained, we
will always lack the internal perspective of nonhuman animals required to
assess the value of living life with those properties. We therefore can not be certain that when we
observe a nonhuman animal express these morally relevant properties that it
translates into the same experience as it offers humans. The lack of objective consensus and
subjective perspective surrounding morally relevant properties possessed by
animals is thus not likely to seriously challenge judicial precedents
disallowing rights for animals any time soon.
The only criterion that ought to be necessary
to integrate a nonhuman animal into the moral community is sentience. The overwhelming majority of decisions and
actions humans make are aimed at either increasing pleasure or reducing
suffering. Many laws exist to protect a human’s ability
to pursue those experiences that will provide pleasure or prevent
suffering. Humans by and large understand
what it is like to experience pleasure and suffering not only from an internal
perspective but from a scientific one as well. We can be very certain that nonhuman animals
experience pleasure and pain analogous to human pleasure and pain because
animal pain physiology works in the same way as human pain physiology.
D. Animals have an interest in not suffering
In the seventeenth century, Rene Descartes
(1596-1650) concluded that everything composed of matter, including human
beings and animals, was governed by mechanistic principles. To reconcile his scientific conclusion with
his devout Catholic beliefs, Descartes proposed that God gave humans a soul
that operated independent of these mechanistic rules. Because animals lacked a soul they were essentially
robotic and could not experience pain, pleasure, or any other sensation or
emotion. The Cartesian view of non-sentient animals
sparked a tremendous increase in vivisection leading to unthinkable experiments
on unanesthetized animals. Research in cardiology, for example, involved
nailing conscious, unanesthetized dogs to boards by their four paws and cutting
open their chests to examine the beating heart. Because they were considered machines, their
cries of pain were regarded as analogous to the squealing of a drill press.
Other philosophers spoke out in compassion on
behalf of animals. Immanuel Kant (1724-1804) recognized that
animals are sentient and thus suffer. Kant argued, however, that humans do not have
a direct moral duty toward animals because animals cannot formulate moral
principles to direct their conduct and thus lack moral standing. Animals mattered only because of the impact
their treatment had on how humans treat each other. In the late 18th century Jeremy
Bentham (1748-1832) argued that despite any differences, humans and animals are
similar in that they both suffer. This similarity creates a direct moral duty
to not impose unnecessary suffering on them. Bentham maintained that animals had been
degraded into a class of things because their interest in not suffering had
been neglected.
There is a substantial body of scientific
evidence suggesting that animals do feel pain. The “Guide for the Care and Use of Laboratory
Animals,” endorsed by the American Association of Laboratory Animal Scientists,
states that “the ability to experience and respond to pain is widespread in the
animal kingdom…procedures that cause pain in humans also cause pain in
animals.” Physiologists have observed that animal pain
physiology works the same way as human pain physiology. Animal pain involves the same neurological
circuits as human pain and for the same evolutionary reasons. Indeed, much of animal testing is based on
this premise. Otherwise, there would be no empirical basis
for dripping cosmetic chemicals into the eyes of nonhuman animals to assess
whether and to what degree it causes pain. The entire body of state animal cruelty laws
combined with federal animal welfare laws that aim to regulate the treatment of
animals reflects our recognition that animals have an interest in being free of
pain and suffering. Most of Western civilized society now accepts
that animals can suffer and we therefore have a moral obligation not to impose
unnecessary suffering on them.
III.
The Effects of Animal
Welfare Laws
A.
Animal welfare laws do not protect animal interests
Tens of millions of animals are used in
research facilities each year. Exact figures are impossible to obtain
because accurate reporting mechanisms do not exist and over 95% of research
animals, particularly birds, rats and mice are not counted as animals under the
Animal Welfare Act (“AWA”). However, according to the Animal Welfare
Report for Fiscal Year 2001, more than 1.2 million animals other than birds, rats and mice were used in research, experiments,
testing and teaching in the
U.S.
in 2001. This includes 70,082 dogs; 22,755 cats;
49,382 primates; 256,193 guinea pigs; 167,231 hamsters; 267,351 rabbits; 22,236
sheep; 60,253 pigs; 75,160 other farm animals; and 242,251 other
animals-totaling 1,236,903 animals. Various industry sources have estimated that
roughly 20 to 25 million birds, rats and mice are used and killed in research
each year. The sheer number of animals used is alarming
given the enactment of animal welfare laws that are supposed to protect
animals. Equally alarming is the
depressing quality of life and inhumane treatment that animals receive under
the purview of these very laws. A close
look at Federal animal protection laws reveals that welfare-based laws are
nothing but illusory protections that produce greater harm to animals than good
by subordinating animal interests for even the most trivial human interests.
1. Federal Laws fail to protect animal interest
Federal laws fail to protect the inherent
value of animals in any meaningful way. History has been punctuated by moments of
intense public outcry surrounding animal exploitation. In response, the Federal government has
passed laws to regulate the industrial use of animals “that have since proved
worse than useless; their very existence gives the public the impression that
the institutionalized torture of animals in this country has ended when, in
fact, it continues unabated.” Indeed, the primary effect of these laws has
been to make the public feel that animals are being treated humanely when in
fact they have led to increased suffering by rendering exploitation more
economically efficient and socially acceptable. A close look at either of the Federal Animal Welfare Act or the Federal Humane Slaughter Act
demonstrates just how ineffective animal-welfare legislation is. This article will focus on the AWA.
a. The Animal Welfare Act
i. Codification and enforcement of the AWA
The AWA is part of the United States Code (“USC”). The United States Department of Agriculture
(“USDA”) is responsible for enforcing the AWA. The Secretary of the USDA has further developed the AWA by promulgating
regulations found in Title 9 of the Code of Federal Regulations (“CFR”). The USDA has assigned one of its
subdivisions, the Animal and Plant Health Inspection Services (“APHIS”), to
enforce the AWA. Research facilities must provide APHIS with
access to its facilities during unannounced visits. APHIS’s inspections focus on numerous aspects
of animals’ housing, care, ventilation, lighting, sanitation, food and water
supply and handling. APHIS must insure that the research facility
is treating animals in a manner consistent with AWA and 9 CFR
ii. Historical developments of the AWA
The U.S. Congress passed the AWA “to insure
that animals intended for use in research facilities or for exhibition purposes
or for use as pets are provided humane care and treatment.” The 1966 Laboratory Animal Welfare Act
(“LAWA”) served as the precursor to the AWA. The main purpose of the LAWA was to protect
pets from being stolen from their homes and being sold to scientific research
labs. For instance, prior to LAWA the court in Central Humane Society v. Hilleboe found
constitutional a statute that allowed an animal to be surrendered to scientific
research after three days retention in a pound. The court held that the statute contained
reasonable safeguards against the taking of an animal contrary to the rights of
the owner and that the statute was necessary to help advance medical science. It wasn’t until a 1966 article in Life magazine entitled Concentration Camp for Dogs that the
general public became aware of the unspeakable conditions surrounding the
trafficking of dogs and cats to be used in medical experiments. Life received more mail on behalf of this article than any other article in the
history of the magazine. The public outcry that followed sparked
congressional hearings on proposed laws to regulate animal trafficking and animal
treatment in research laboratories. This culminated in the passage of LAWA in
1966. Under LAWA the Secretary of the USDA was
authorized to promulgate minimum standards for the care, housing, sale and
transport of dogs, cats, primates, rabbits, hamsters, guinea pigs and other
animals held on the premises of animal dealers or laboratories. The Act required licensing of cat and dog
dealers and research facilities and the identification of dogs and cats to
prevent their theft. Significantly, the legislation specified that
it was not meant to deter research in any way and thus the secretary could not
alter the handling, care or treatment of animals during experimentation.
The first amendment in 1970 changed the name
to The Animal Welfare Act. This amendment expanded coverage to regulate
other warm-blooded animals that the Secretary determines are being used for
research, testing, experimentation, and exhibition purposes or as a pet. It also called for research facilities to
undergo annual inspection and use anesthetic, analgesic, or tranquilizing drugs
in prescribed circumstances. Again, the law contained the express
prohibition of any interference with research experimentation.
In 1981 a high profile case emerged in which
a scientific investigator performing research under a federal program was
charged with violating the state of
Maryland
’s
animal cruelty statute. The trial court found the scientist guilty of
failing to provide veterinary care for six of seventeen monkeys. However, the appellate court reversed,
holding that the state animal cruelty law was inapplicable to animals involved
in research conducted under federally funded programs. In response to the documented claims of
mistreatment and the public outcry that followed, Congress held hearings before
the House of Representatives Subcommittee on Science, Research and Technology. Between 1981 and 1984 several Bills were
introduced into the House and Senate regarding the care of animals in research
laboratories. This led to the 1985 amendment of the AWA
through the enactment of the Improved Standards for Laboratory Animal Act
(“ISLAA”). This amendment sought to strengthen AWA
standards for laboratory animal care, increase enforcement and mandate training
for those who handle animals. The amendment established an internal system
of supervision at each institution through Institutional Animal Care and Use
Committees (“IACUC’s”) to oversee animal care and ensure alternatives are
considered to experiments that involve pain and suffering. It also sought to incorporate environmental
enrichment by directing the Secretary to promulgate minimal regulations
providing for the exercise of dogs and a physical environment that promotes the
psychological well being of primates. APHIS began promulgating regulations to
enforce the new amendment in 1987. The initial proposal was published in 1989
and, after receiving over 10,000 comments, the Secretary published revised
regulations in 1990. After receiving over 11,000 additional comments
the Secretary published the final revised regulations in February of 1991.
iii. Lack of efficacy of the AWA
The current Act and its associated
regulations are made completely ineffective by its exceptions, vague
terminology and absolute deference given to the scientific community to
determine what constitutes appropriate animal use and treatment. To begin with, consider the Secretary’s Title
9 regulations, which aim to govern the humane care of animals by providing
minimal standards for things like food, housing, medical care, minimization of
pain and distress, and the use of tranquilizers, analgesics and anesthetics for
procedures involving pain. These regulations are virtually meaningless
because the vague terminology of the law allows the chief investigator to have
absolute decision-making authority on animal care and use. For instance, researchers can withhold
tranquilizers, anesthesia, analgesia or euthanasia when they regard it as
“scientifically necessary.” An animal may not be used in more than one
major operative experiment “except in cases of scientific necessity” or due to
“other special circumstances.” Researchers are required to insure that pain and distress are “minimized” and
that the principal investigator “considered alternatives” to those procedures. Specific guidelines to clarify what is meant
by the minimization of pain, scientific necessity, and what suffices as having
considered alternatives are not given. These important considerations are deferred to the discretion of the
investigator or laboratory veterinarian. Even if such guidelines were provided, they would in no way limit the
scientific investigator since any regulation promulgated by the Secretary may
be waived. To waive out of the regulations all that is required
is that the laboratory veterinarian or principal investigator explain the
deviation in the research protocol and in a report filed with the IACUC. The explanations given for any deviations
from the regulations or the Act do not even have to be approved by the IACUC;
they must only be filed. Thus, the already minimal regulations
concerning housing, feeding, medical care, minimization of pain and distress,
the consideration of alternatives and the use of analgesics and anesthetics for
procedures likely to produce pain can all be waived. There is nothing in the Act that prevents a
researcher from including an explanation for waiving every regulation in every
single protocol that he or she writes. The practical effect of this waiver provision
is to give the researchers whom are allegedly regulated the choice of whether
or not to be regulated. As if these provisions did not already make
clear that scientific researchers have absolute decision making authority with
respect to animal use and treatment, the regulations spell it out by stating
that:
“nothing in this
act…shall be construed as authorizing the Secretary to promulgate rules [or]
regulations…with regard to the design, outlines, or guidelines of actual
research or experimentation…performance of actual research or experimentation
[or to] interrupt the conduct of actual research or experimentation.”
From a practical standpoint, these
regulations suggest that scientific investigators can do what they want
provided they simply comply with the formalities expressed in the law. In some instances, the law expressly states
that researchers are immune to the regulations even when they are found
violating the law. For instance, the law
allows inspectors to confiscate or destroy animals found to be suffering as a
result of violations of the Act or regulations unless that animal is still
required by the research facility to carry out further research. The absolute subordination of the laws and
regulations to the mission of scientific research is precisely what Congress
envisioned when creating the law, as evidenced by their remark “under this bill
the research scientist still holds the key to the laboratory door.” Although the rules and regulations of the AWA
may appear to offer an organized framework for protection of animal interests,
it is nothing more than a jumble of formalities with no certified protection of
animal welfare or interests whatsoever.
The AWA was severely weakened in 2002, when
the Federal Farm Bill contained an amendment by Jesse Helms (R-NC) to exclude
from the definition of “animal” all birds, mice of the genus Mus, and rats of
the genus Rattus, bred for use in research. Senator Helms explained to the Senate that
the amendment was necessary so that none of the important work that was taking
place in the medical research community got delayed or made more expensive. During the debates surrounding the amendment
a video began circulating among members of Congress. The video showed a researcher cutting open
the skull of a squirming baby rat and removing his brain without first numbing
the animal in a bucket of ice, a procedure which the researcher acknowledged
was in violation of experimental protocol to begin with. Companies who notoriously test on animals,
such as Colgate-Palmolive and Procter & Gamble protested the passage of the
Helms amendment. A survey conducted prior to the passage of
the Helms amendment demonstrated that 73.3% of the members of the IACUC’s
opposed the exclusions called for by the amendment. Nevertheless, Congress passed the amendment
and erased ninety-five percent of all animals used in experimentation from any
legislative protection. The amendment applies to birds, mice and rats
used not only in medical research but all other types of research including
cosmetics, perfumes, toothpaste, shampoo and industrial detergents. Thus, the minimal protections provided by the
AWA now only covers five percent of all animals used in research, leaving
ninety-five percent unprotected by any laws. To put this into context, in 2001 more than
1.2 million animals other than birds, rats and mice were used in research,
experiments and testing in the
United
States
. An estimated 20 to 25 million birds, rats and
mice are used and killed in research and education each year.
The AWA lacks provisions for the criminal
prosecution of persons who torture animals in research laboratories. Most state animal-cruelty laws contain
exceptions that make it inapplicable to what occurs in the research laboratory. Even those state statutes that have not
expressly listed such exceptions are trumped by the AWA, meaning that
lab-animals are at the mercy of the scientists running the lab. In Taub
v. State, Dr. Edward Taub conducted research by surgically abolishing
sensation in the limbs of monkeys in an effort to mimic the lack of sensation
found in stroke victims. Dr. Taub investigated techniques to retrain
the limbs by using restraint, electric shock and withholding of food to coerce
animals to use the limbs they could not feel. Authorities raided the lab and found each
monkey in a small cage that had not been cleaned for days. Several of the monkeys had bitten off
fingers, and some had chewed into their limbs, leaving raw, open wounds the
size of silver dollars that were covered with filthy bandages or not covered at
all. The trial court found Dr. Taub guilty of
violating the state anticruelty law for failing to provide veterinary care for
six of seventeen monkeys. However, the appellate court vacated the
conviction holding that the state animal cruelty law was inapplicable to
research animals pertaining to a federally funded program. This landmark case indicates that state
animal cruelty statutes simply do not apply to animals involved in federally
funded research, which are regulated by the AWA. Given the lack of efficacy of the AWA and its
complete deference to the investigators conducting the experiment, the
implication is that those who experiment on animals are protected by absolute
immunity from laws prohibiting cruelty to animals provided they comply with the
formalities of the law.
b. Regulations designed to promote
psychological well being of primates
The regulations in Title 9 CFR requiring a
physical environment adequate to promote the psychological well being of
primates are inadequate and completely fail to fulfill its expressed purpose. To develop the initial 1989 proposed
regulations APHIS called for the recommendations of the National Institute of
Health and the American Association of Zoological Parks and Aquariums. The consensus among the primate experts was
to require “sufficient space to engage in species-typical behavior,” enclosure
complexities, manipulable objects and varying methods of feeding. The “reports [from these experts] indicated
that social interaction and exercise are equally necessary to promote
psychological well being and that social grouping increases the primates’
physical activity.” Consequently, the regulations proposed in
1989 required social groupings, multiple forms of inanimate enrichments, and
regular exercise. The discussions surrounding the proposal
acknowledged that the minimal cage size requirements might not be large enough
for the performance of species typical behavior, with or without other enrichments. The proposed standards resolved this by
requiring the regular release of primates from cages for exercise. However, the final rule issued in 1991
removed the requirement for the release of primates from cages due to the risk
of human safety and further refrained from imposing general group housing
requirements. Instead, APHIS simply reasserted the
principle of social grouping, a balance of multiple enrichment forms and
adequate space to achieve psychological well being of primates.
i.
social grouping and environmental enrichment
Every research facility must develop and
follow an environmental enhancement plan that addresses the social needs of
non-human primates known to exist in social groups in nature as well as the
environmental requirements enabling them to express their species-typical
activities. The provisions must be in accordance with
accepted professional standards. The problem is that the generally accepted
standards describe conditions in which non-human primates fail to demonstrate
behavioral pathologies in captivity. The absence of abnormal behavior alone is not
the best indicator of well being. A proper social grouping for nonhuman
primates reflects the organizational and social structure in their natural
environment and not in an artificial environment that fails to produce
behavioral pathologies. Consider the rhesus macaques (Macaca mulatta), who are the most widely
used nonhuman primates in research laboratories today. These nonhuman primates are intensely social
by nature and, like human primates, require basic social interactions for their
psychological well being. Overall, heterosexual group sizes for M. Mulatta is 8-180. The groups consist of mothers, fathers,
sisters, brothers, playmates and grooming partners. Generally there are from two to four times as
many adult females than males. There exist dominance hierarchies in both
sexes. Relationships among males range from peaceful
to hostile while females generally live together in harmony. There is generally a tendency for mating
between high-ranking adults. Although males lead and defend the group,
the females and infants form a central subgroup within which the young are
raised. The social status of the young is dependent
on the ranking of the mother. All macaques have arboreal capability. They come down from the trees to forage or
move over long distances. The macaque spends many hours traveling long
distances, roughly 1,428 meters per day. They travel searching and foraging for food,
which includes a wide variety of fruit, berries, grains, buds, seeds, leaves,
grasses, roots and invertebrates. As she chooses, the macaque can climb a tree,
relax under a bush, groom her mother or nurse her infant. These macaques are able swimmers and divers
and prefer areas with accessible stretches of water. Their amazing intelligence makes them able to
perform complex tasks, such as using colored rings as markers of different
value in exchange for treats of different popularity. One macaque who went on a space flight
learned to operate a complex system of levers, buttons and keys in the correct
sequence in response to certain signals.
In captivity the social grouping of nonhuman
primates is radically distorted. Single caging is still the norm for
laboratory primates. Solitary confinement is a serious stressor
leading to apathy, depression, and behavioral pathologies such as
self-mutilation, self-grasping, eye poking, rocking, pacing, and jumping in
place and autoerotic stimulation. Self-stimulation is an exaggerated coping
mechanism to combat boredom because "the chimpanzee's body and its
products are among the very few objects in the restricted environment that are
freely manipulable and subject to alteration." Rocking helps an infant compensate for the
lack of motion stimulation normally provided by the mother. Behavioral pathologies such as
self-mutilation are more common among single-caged monkeys than severely
stressed socially grouped monkeys. Single-caged monkeys have a higher rate of
diseases, such as hypertension, coronary atherosclerosis and immunosuppression. Even monkeys that are paired with mothers and
are repeatedly separated for routine research procedures, such as weighing and
blood draws, exhibit higher levels of distress and pathological disturbance. In one study the value of social
companionship was so high that some nonhuman primates chose it instead of food
even when they were very hungry. Every potentially meaningful provision in the
federal regulations concerning social grouping is crippled by the deference
given to scientific investigators who create disturbing housing arrangements
for these social and energetic animals. For instance, the committee may exempt an
individual member from participation in the environmental enhancement plans
“for scientific reasons set forth in the research protocols.” One need only look to specific environmental
enhancement plans to verify that these exceptions are thoroughly exploited. The
Southwest
National Primate
Research
Center
places macaques in single cages “if required by approved research protocol.” The New York University School of Medicine
environmental enrichment plan states “while species-typical groupings…clearly
provide the richest and most naturalistic social stimulation, this housing
setting is often not possible for animals used in biomedical research. It then states that “housing without social
contact is employed if…necessary…for research protocols.
The provisions in Title 9 CFR requiring
facilities to address the social needs of nonhuman primates fail to insure that
the social requirements of nonhuman primates are actually met and thus do not
protect their fundamental interests. A research facility can decide whether or not
it wants to accommodate and cultivate the social needs of the nonhuman
primate. If it does not want to it
simply records a reason for not doing so in the research protocol, such as fear
of disease transmission. From the Federal Register’s legislative
history up to and including the final rule social grouping was meant to become
the default-housing scheme. Those discussions acknowledged “group housing
to be the most efficient and appropriate method of ensuring that animals’
social needs are met.” The failure of the final regulations to
mandate social grouping was unsuccessfully challenged in court. The court noted that while not formally
mandated, the enumeration of exceptions to social grouping, such as contagious
diseases and incompatibility of companions makes social grouping the norm. However, nearly half of inspectors for APHIS
who were polled felt that exemptions for social grouping were claimed by
facilities for convenience rather than legitimate reasons. They further reported that at least half of
the facilities they were assigned to inspect were single housing primates. During a follow-up interview, APHIS
inspectors stated that too many primates were unnecessarily single-housed. The very young monkeys (even 1-day old) were
removed from their mothers for human hand rearing to create highly human
dependent animals. These animals develop severe behavior
pathologies and are never truly domesticated. They become aggressive toward humans and, as
a result, have their teeth removed to improve human safety. The behavioral and anatomical pathologies
that result from failed attempts to domesticate the nonhuman primates
completely cripple the primate’s ability to ever successfully integrate into a
social group.
Research facilities fail to provide adequate
environmental enrichment for the nonhuman primates. The regulations require an enriched
environment that will permit the expression of species-typical behavior. Examples listed to achieve this include
perches, swings, mirrors, objects to manipulate, task-oriented feeding methods
and interactions with humans. The lack of specificity fails to make clear
what constitutes an acceptable plan. Hence, providing a single perch a few inches
off the floor or a single toy such as a Frisbee satisfies the law. Because federal regulations allow a human to
clean a cage while the primate is still in it a research facility could
consider it adequate psychological enrichment that a human interacted with the
primate by making her move to one side of the cage to avoid being blasted by
the hose. Perhaps several times a day a human may come
into the lab to draw her blood. The rest of the time the monkey may sit
still, bored, perhaps turning around occasionally, 24 hours a day, 7 days a
week. As the years go by the monkey may be driven
mad by loneliness, fear and boredom. She may begin to bounce up and down,
occasionally stopping to bite herself, and in the process drawing blood or
tearing flesh.
Especially disturbing is the section
purporting to give “special attention” to infants, juveniles, those in
psychological distress and those used in research for which the protocol
requires restricted activity. It is unthinkable that these special cases,
along with any other nonhuman primate in the lab, may be exempt from any part
of, or the entire enhancement plan for reasons due to health, well being or
“scientific reasons set forth in the research proposal.” Nevertheless, this is precisely what the
regulations permit. On the contrary, all nonhuman primates,
especially those requiring special attention with legitimate health problems or
whom captivity and the stress of research have depleted their ability to cope,
should be provided with alternative forms of enrichment and not the absence of
it. Indeed, if a research protocol can not be
accomplished without providing for the psychological and environmental needs of
a nonhuman primate then it simply should not be approved. If nonhuman primates are unwillingly
sacrificing their lives for a research project then the lab should be required
to pay for their every need to protect the nonhuman primate’s interest to the
best of its ability.
APHIS inspectors have reported concerns about
facilities that satisfy enrichment requirements with one perch, one rubber toy
and occasional grapes for a single-caged primate. Some facilities address one area of
species-typical behavior but neglect others. APHIS inspectors have reported that the
requirement for special attention for certain primates fails to generate the
needed increase in enrichment for these animals. In fact, a relatively large percentage of
citations issued to violators have involved the provision for primates
requiring special attention. APHIS inspectors have indicated that the lack
of specific criteria and the vague language of the regulations make it
difficult to judge whether a facility is in compliance or out of compliance
with the regulations.
ii.
cage sizes
The living conditions required for primate
housing is utterly astonishing. Cage
sizes are established based on the weight of the animal, not its size, and this
falls far short of the necessary space to promote the well being of this
intelligent and dynamic species. Under current regulations it is acceptable to
house a 22-pound monkey in a cage that is 2x2x2 feet, which yields 4.3 square
feet of floor space and 30 inches in height. This is equivalent to keeping a full-grown
cocker spaniel in a 2x2-foot cage. Long-tailed macaques will sit with their tail soaking in pans of their
urine and feces because cage size regulations do not take into account the
length of the animal, including the tail. Surely, we know enough about these animals to
know that such regulations are an unequivocal interference with their
fundamental interest. Incredibly, research facilities may be exempt
from even these most minimal of standards by simply stating their reason in the
research proposal or receiving approval by the veterinarian.
The laboratory conditions under which the
nonhuman primates live are staggering. APHIS has publicly admitted that the federal requirements establish
standards that are less than ideal and encourages facilities to surpass these
minimum standards. Our Federal government’s failed attempt to
improve the welfare of these animals that unwillingly surrender their lives for
the sake of human scientific knowledge must be reconsidered. The interests of these animals must be
irrevocably protected. Not only are the
current federal laws and regulations grossly incapable of preventing the
suffering caused by research protocols, they fail to require without exception
that measures be taken to meet the most basic and fundamental needs of nonhuman
primates. They fail to mandate the
comfort of family and friends. They fail
to mandate social grouping to permit physical contact, grooming, sharing and
caring. They fail to mandate interesting
and stimulating activities to occupy their bodies and their minds. They fail to ensure adequate space for
animals to express their desire to run, swing and play. When research
institutions claim that their practices comply with current and applicable law,
do not be comforted, because individuals living in these institutions are not.
They suffer, each and every day, under current and applicable animal welfare
law.
a.
Lack of enforcement of the law and its regulations
A 2005 Audit Report published by the USDA’s Office of the
Inspector General of the Animal Care Program’s Inspection and Enforcement
Activities further conveys the inadequacies of animal care and treatment. The report itself reflects the results of an
audit of APHIS’s Animal Care unit and the effectiveness of the IACUC. The report indicated that APHIS’s Eastern
Region failed to pursue enforcement actions against 126 of 439 violators of
AWA. While the region reported an average of 209
suspected violators to the Inspector in 2002-2003, only 82 cases were reported
in 2004. Referring to the report, Congressman George
E. Brown stated that he was “deeply concerned with the agency’s ability and
willingness to adequately monitor and reasonably ensure the humane care and
treatment of animals.”
The report also indicated that “fines assessed against
violators of the AWA are usually minimal.” APHIS gives an automatic 75-percent discount
to almost all violators as a means of reaching an agreement on the fine amount
and avoiding the court. As a result of the net minimal fine
“violators now consider the monetary stipulation as a normal cost of conducting
business rather than as a deterrent for violating the AWA.” In addition to the 75-percent discount, APHIS
offers other concessions, such as using a portion of the fine to improve
facilities, making the fines utterly meaningless. In one instance, APHIS calculated the fine to
be $17,325. After the 75-percent discount the fee was
$4,300-$1,000 in cash and $3,300 to be forgiven if there is compliance with the
AWA for 2 years. In effect, the violator paid 6-percent of the
original fine. Lack of adequate
resources was determined to be part of the problem associated with APHIS'
inability to adequately monitor and inspect animals and facilities. In addition to fiscal constraints, however,
the Inspector General's report indicated that APHIS was neglecting its
statutory obligations by renewing facility licenses even when cited violations
past and present had not yet been corrected. Additionally, APHIS is not inspecting
research facilities before issuing the initial registrations; therefore,
noncompliance with the Act may go unnoticed until APHIS' first inspection up to
a year later. In the words of Congressman Brown, “much more
needs to be done to ensure that the animals in our care are treated
humanely….and provided a more meaningful level of protection.” The question, then, is what can be done to
provide this meaningful level protection of animal interest?
IV.
Proposal for change
A. Property status is no longer
justified
The property status of animals has led to
laws that not only fail to protect the interest of animals but also facilitate
the institutionalized torture of animals. Within the context of scientific research,
the law cannot regulate the way animals are used because they are the property
of the laboratory facility. The mere five- percent of research animals
whose use is supposed to be regulated by the AWA cannot access the courts to
contest any inhumane treatment because they have no enforceable legal rights. Interestingly, other forms of property such
as corporations, ships and churches have been granted standing to sue in court. This is odd given the unique quality to
living, breathing property that distinguishes it from inanimate property. Animals suffer, desire, love and learn, while
other property forms such as corporations and ships do not. It is puzzling that our legal system grants
some forms of inanimate objects legally enforceable rights and denies them to
sentient animals. One commentator
explains that granting personhood to inanimate entities is an efficacious
mechanism for courts to conduct and regulate business transactions and
practices. This is justified because it does not create
the enormous societal upheaval that would occur if animals could no longer be
enslaved or have their bodies used without their consent. Granting rights to nonhuman animals would
incur significant costs to society in the loss of potential medical advances
that will relieve suffering and death for both humans and animals. This logic is seriously flawed. It is akin to arguing that in a world where
owning slaves does not provoke social upheaval, it may be justified if it is
economically or socially efficacious. This type of argument highlights why ethical tenets ought to motivate
our social and economic undertakings and not the other way around.
The property status of animals should be eliminated
because the classification stems from ancient laws and philosophies whose
foundations have been scientifically and morally discredited. The classification of animals as property
emerged from the ancient Greek law. The first known comprehensive European Law
Code, the Cretan Law Code of Gortyn from the 5th Century BC,
referred to the ownership of cattle and to the division of inherited livestock. The prevailing Stoic philosophy during the 3rd Century BC regarded the world and everything in it as created for the benefit
of humans, who occupied the pinnacle of a natural hierarchy of living beings. Greek law considerably shaped Roman law,
which in turn shaped Western law. Like the Greek law, Roman law regarded
animals as property. A set of adjunct Roman laws created in 287
B.C. provided that anyone who unlawfully killed a four-footed beast was
required to pay the highest value of the property. The Old Testament, which was written between
the years 1400BC-400BC describes humans as occupying a central place in the
universe between God and nature. According to the story of creation, after creating the fish, birds, and cattle, God created mankind in His own
image. God let mankind “have dominion
over the fish of the sea, the birds of the air, and the cattle, and over all
the wild animals and all the creatures that crawl on the ground." The English common law classification of
animals as property was an amalgam of Greek, Roman and Biblical laws. In the mid-eighteenth century William
Blackstone published his enormously influential Commentary on the Laws of England identifying the legal thinghood
of animals as originating from Roman laws and cosmology. He referred to Genesis as the divine source of humanity’s claim to ownership of
nearly everything, including nonhuman animals. One hundred years later in the
post-revolutionary era, a man named James Kent transplanted the English common
law to
America
through his Commentaries on American Law. American law thereby embraced the English
common law principle that animals were property.
The American animal laws that evolved from
the property status of animals were generally interpreted under the assumption
that humans transcended over nonhuman animals. While no record of legislative debates exist,
the early construing courts commonly understood the statutes’ purpose as being
“directed against acts which may be thought to have a tendency to dull
humanitarian feelings” or “corrupt the morals” of those who observe such acts.
“Such statutes were not
intended to interfere…with the necessary discipline…of such animals…Cruelty to
them manifests a vicious and degraded nature, and it tends inevitably to
cruelty to men…it may have been one of the purposes of their creation and
subordination to enlarge the sympathies and expand the better feelings of our
race…human beings should be kind and just to dumb brutes; if for no other
reason that to learn how to be kind and just to each other.”
Judicial opinions convey that the impetus
behind the creation of animal cruelty laws was not to protect the interest of
animals but rather to prevent the desensitization of humans toward each other. Modern cases have remained faithful to this
notion of indirect duty to animals.
Early developing laws recognized that any
attempt to prevent animal pain and suffering needed to be balanced against
human interests. That is why statutes often only prohibit
“unnecessary” pain and suffering. Unnecessary pain and suffering, or “cruel”
treatment, is understood as that suffering that is not a part of customary
practices or does not productively facilitate animal exploitation. If the conduct is not linked to economic
benefit, or is accompanied by societal perspectives deemed undesirable, such as
the moral disapproval of gambling that occurs with dog fighting, then the
activity is considered “cruel” or unnecessary. For instance, pain and suffering is regarded
as necessary when an animal is killed during research for the advancement of scientific
knowledge. However, that same animal may not be starved
to death just because the researcher feels like it since this behavior does not
facilitate the exploitation of animals for science or any other purpose. The threshold for inflicting necessary pain
and suffering on an animal is comparatively lower than that required for
inflicting necessary pain and suffering on a human. If a researcher needed fifty non-consenting
human beings in order to investigate a cure for HIV, most people would say that
the rights of the potential victims trump the necessity of inflicting them with
pain and suffering. When it comes to experimenting on animals,
however, human interest in achieving a cure for HIV justifies the necessity of
inflicting pain and suffering on the animal.
B. Intermediate status of animals
The courts
are well equipped to elevate the legal status of animals to a category that
occupies a position between person and property. For instance in Davis v. Davis, the issue was whether frozen pre-embryos produced
through in-vitro-fertilization were property or persons. If they were persons then the court was
obligated to provide the pre-embryos the opportunity for implantation and
thereby ban any activity that might harm the pre-embryos. If they were property the couple who produced
the products could do as they wished with them. The court found that the frozen products were
not persons because they had not yet developed the features of personhood, had
not become developmentally individual and may never realize their full biological
potential. Neither was the product property because of
its potential to become a person. The court concluded that a pre-embryo is
neither “person” nor “property,” but instead occupies an “interim category”
that entitles it to “special respect” because of its potential for human life. The special respect created the obligation
not to injure the potential offspring who might be born. The court made clear that this category is
not a property interest.
Another entity that occupies an intermediate
status is the sperm cell. In Hecht v. Superior Court of Los Angeles
County, the issue was whether frozen sperm were property and thereby
subject to the terms of a settlement agreement between the deceased donors
children and his girlfriend. The court concluded that sperm has the
potential to create a child after fertilization, growth and birth and thus
occupies an intermediate position between persons and property and should be
treated with “special respect.” Similar to other biological entities, animals
must be recognized as something more than property to have their interest
rightfully protected. Like pre-embryos
that have the potential for life, and sperm that have the potential to be
fertilized and create a child, animals are sentient lives with the potential to
feel pain, experience emotions, give and return love. People often love animals, especially their
pets, because they convey some of the best human traits, including loyalty,
trust, playfulness and love. The departure from property status captures
our empirical understanding that the psychological, emotional and physiological
characteristics of animals are very similar to ours. A departure from property status must be
complete and unconditional such that the new legal category has no connection to,
or in any way implicates, property status. Terms such as ‘quasi-property’ or ‘special-property’ would defeat the
legal recognition of animals as having intrinsic value worthy of protection
regardless of their utility to humans.
The
intermediate classification of animals would entitle animals to “special
respect,” imposing upon humans the “obligation not to injure” the animals. This category would reflect the inherent
value of animals by giving them legally enforceable rights to protect their
interests. When the law balances the loss of human
interest in not using the animal versus the loss of interest to the animal in
being used, it can no longer presuppose that an animal’s interest counts for
less than a human’s interest because the animal is no longer property. The protection of animal interests will shift
the legal issue away from whether the least amount of suffering has been
inflicted to achieve a given purpose toward whether a given reason to exploit animals
is necessary in the first place. Unnecessary suffering will no longer be
regarded as suffering over and above what is required to achieve a given
purpose. Instead, unnecessary suffering
will be that which is produced in order to achieve human interests that are not
essential to the well being or survival of human beings. Under this
classification, lifestyle enrichment “provided by improved cosmetics and
perfume does not seem sufficient to justify the infliction of real suffering.” Scientific
research, however, has provided a wealth of understanding that cannot be
ignored. Research with primates spearheaded the development of the polio vaccine, and other animal
research has contributed to the discovery of insulin, the invention of
transplantation techniques, and the improvement of cancer therapies. Although the rights of animals may lead to
fewer experiments, any scientific experiments that will lead to advances that
offer promise for survival benefit may be justified. On the other hand, those experiments that
kill and maim animals, yet serve no legitimate scientific purpose would not be
justified. Rodent exposure to the saccharine equivalent
to 1,800 bottles of soda pop a day would not justify the deprivation of the animal’s
interests. Rhesus monkeys who are taught to hit a button
to administer cocaine into their bloodstream, allowed to become addicted and to
continue hitting the button again and again even in the midst of convulsions
may not justify the deprivation of animal interest. Scientists with proposals for developing a
cure for cancer or AIDS may have a stronger claim, but even still the rights of
the animals will protect those interests whose deprivation is not necessary in
order to achieve reliable scientific data, such as adequate living space to
express their species-typical behavior and an enriched environment to stimulate
their minds and bodies.
As holders of
rights, animals will have standing to access courts and defend the unlawful
deprivation of their interests. Methods
for bringing claims on behalf of plaintiffs that cannot defend themselves are
already incorporated into the American judicial system. A comatose man or a 6-month old child are
able to defend their interests in court through the device of appointing a
guardian ad litem, who is not
required to plead any direct personal injury. A guardian ad litem can represent to interest of an anencephalic child or a
person in a persistent vegetative state. Similarly, animals with legal rights will
satisfy standing by meeting the three criteria of injury-in-fact, causation and
redressibility. The guardian ad litem of the animal could plead as
the injury-in-fact the injury to the animal. This would more completely capture the intent
that the Framers had when developing the standing doctrine by providing access
to federal courts to those with a personal stake in the outcome of a case.
C.
Criteria for Animal Use
If the intermediate status of animals is to
protect the deprivation of animal interests from unnecessary exploitation there
must be some guidelines to follow. Here
are some fundamental criteria that can be used:
1.
Animals
have fundamental rights
·
Fundamental
rights include the right to be free from pain and suffering, the right to the
continued existence of life, and the right to express species-typical behavior.
2.
Any
experiment that deprives animals of their right must aim to provide scientific
data that will improve the well-being or survival capability of human.
·
Experiments
that aim to improve the well-being of humans produce scientific data that will
protect or promote the quality of human health.
·
Experiments
that aim to improve the survival capability of humans produce scientific data
that increase the longevity of human life.
3.
An
experiment can deprive only those animal interests whose protection would
otherwise make the performance of the experiment impossible. Any interest that can be protected without
interfering with the research protocol must be fully protected.
V. Animal Advocacy movement
The legal protections currently afforded to animals
are welfare based. The central tenet of animal welfare is that
animal suffering can be considerably reduced by regulations that promote the
humane treatment of exploited animals. The goal of welfare based laws is to
incrementally improve the lives of exploited animals without directly
challenging either the underlying exploitation itself or the property status of
animals. That is why it is not only permissible to
exploit animals for scientific research but also to deprive animals of those
interests that are not indispensable to the successful performance of an
experiment. Because animal welfare laws are grounded in
the property status of animals, the interest of animals will always count for
less than human interests do. For this
reason, animal welfare laws will never equitably protect animal interests from
human exploitation.
Laws granting animals legal rights can better
protect animal interests because they will ultimately abolish, rather than
regulate, animal exploitation except when justifiable human interests prevail. Because the property status of animals is a
structural and practical obstacle to the recognition of animal rights, there
must be an incremental deconstruction of the property status of animals through
legal changes as well as social and individual education. The inevitable eradication of the property
status of animals must be the end goal of any movement that seeks to provide
animals with the equitable protection of their interests.
Conclusion
Animals are breathing, living beings. They
have beating hearts. They have mothers
and fathers. They form communities to
foster their social and psychological interests. Although animals are property under the law
it is all too apparent that they are not the typical inanimate objects. The legal status of animals as property is
antiquated, inhumane and out of step with reality. Animals now deserve identifiable, enforceable
legal rights that at the very least protect them from unnecessary harm, abuse,
cruelty, suffering, starvation, inadequate shelter, and the deprivation of
their fundamental interests. Their legal
property status precludes their acquisition of these rights, which in turn facilitates
the large-scale animal exploitation often for reasons that serve no fundamental
human purpose. The reluctance of the
political system to interfere with property rights of owners in order to
protect animals is a result of a political system that is dominated by economic
and personal interests that stand to lose in the event of tighter and more
stringent animal protection. If science and morality support the equal
consideration of living, breathing, sentient beings, then the law must develop
along side of these disciplines and not apart from them. To this end, the law ought to respect the
inherent value of sentient animals
by protecting their interests with rights. In order to give animals the rights
they deserve changes in legal policy and procedure must be accompanied by
change in the individual and social conscience. Heightened levels of education
surrounding animal exploitation are indispensable to producing the social and
individual political foundation to reinforce legal change. Education should address how animal rights
will fundamentally change the way we live by ending those scientific
experiments whose only purpose is to enhance our lifestyle but further no
fundamental human purpose. Individuals
must learn about the biological, physiological and psychological similarities
between animals and humans that make the effects of their suffering and
deprivation of interests the same as ours. This understanding undermines the contention
that providing any rights to animals challenges the sanctity and primacy of
human rights. The reason the first animal protection laws
were passed in this country was to prevent the desensitization of humans toward
each other. The animal brutality that ensued during the
so called enlightened period reminds us of the regrettable actions that may
occur without appreciating the sanctity of all sentient life. The
societal and moral benefits that will accrue from respecting the interests of
animals, including a reduction on violent crime, domestic violence and serial
killing, are also important. The implication of elevating animal legal
status to an intermediate position does not necessarily prevent our choosing
human interests over animal interests in situations of genuine conflict- when
the use of animals will lead to fundamental human gains. But it will require a moral obligation to
stop using animals in situations that can not be considered necessary for the
well being or survival of our species.
The underlying reason for animal exploitation
must be challenged in order to achieve equal consideration of interest for
animals. Animal welfare laws will never lead to the equal consideration of
animal interests because the property status of animals justifies animal
interests counting for less than human interests. The development of animal rights laws will
better protect the interest of animals. The incremental deconstruction of the property status of animals will
ultimately lead to the extension of genuine rights to animals and the equal
consideration of their interests. This
will protect animals from being exploited for trivial human interests. The common law is already equipped with the
legal mechanisms to promote these ends. The courts have already developed the intermediate classification for
biological entities that are regarded as more than property but not quite
persons. The device of appointing a
guardian ad litem allows persons to
represent the best interest of animals who cannot defend themselves without
help. The common law has historically proven itself willing to evolve along
side moral and scientific advancements. Courts have already begun to recognize that animals have inherent value whose
interests are worthy of protection. Jurists should now use this recognition as the foundation for ending the
unnecessary exploitation of animals through the equitable and just evolution of
the common law.
Acknowledgements
I
would like to thank my parents for their enduring support and Tiger for
inspiring my visions of equity.
98 In Re Estate of Howard H. Brand No. 28473 (Vt. Prob. Ct. Mar 17, 1999);
Brooke J. Bearup, Pets: Property and the
Paradigm of Protection, Journal of Animal Law, 177 Vol.3 (2007).
392 Animal Legal Defense Fund Boston, Inc. v. Provimi Veal Corp., 626 F.Supp.
278, 280 (D. Mass. 1986) (stating that cruelty to animal statutes target acts
that dull humanitarian feelings); Knox v. Massachusetts S.P.C.A.,
425 N.E.2d 393, 409 (Mass. App. Ct. 1981) (stating that
statutes are directed against acts that tend to dull humanitarian feelings); Peck v. Dunn, 574 P.2d 367, 369
(Utah 1978) (in holding that cockfighting violated the anticruelty
statute, the court noted that legislation against [cruelty] is
justified for the purpose of regulating morals and promoting the good order and
general welfare of society).
453 Waisman, supra note 56, at 529 (citing Daniel
Hellman & Nathan Blackman, Enuresis,
Firesetting, and Cruelty to Animals: A Triad Predictive of Adult Crime, 122
Am. J. Psychiatry, 1431-35 (1966) study showing 75 percent of inmates had early
records of animal cruelty) (citing Alan R. Felthous & Stephen R. Keller, Violence Against Animal and People: Is
Aggression Against Living Creatures Generalized?, 14 Bull. Am. Acad.
Psychiatry Law §1 (1986) study were criminals were interviewed and the results
showed an association between childhood cruelty to animals and later aggressive
behavior against people); (citing Luke Carter et. al., Cruelty to Animals and Other Crimes: A Study By the MSPCA and
Northeastern University (1997) showing that 70 percent of people who committed
violent crimes against animals also had criminal records for violent, property,
drug, or disorderly conduct crimes)); see
also Vanderau, supra note 169, at
738 (“Violations of animal cruelty statutes have a correlation to crime. In areas
where animal humane officers and police have compared numbers, the correlation
between domestic violence and violations of cruelty to animal statutes is
anywhere from 50 to 100 percent. Authorities use abuse of animals to determine
a propensity to violence against humans. There has long been a suggestion that
serial killers begin by torturing and killing animals”).
