No Pain, No Gain? In Defence of Genetically Disenhancing (Most) Research Animals (original) (raw)
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With the rising global awareness about farm animal suffering, the law that governs the treatment of research animals is a less and less popular academic field among animal lawyers. In 2000, Google Scholar hits on “the law of animals in research” were four times that for “farm animal law,” but in 2015, there were only twice as many hits on “the law of animals in research” as hits on “farm animal law.” Prima vista, this development is surprising, since few concerns other than the treatment of animals used for scientific purposes have prompted as many legislators to adopt legal instruction on the “proper” use of animals. Today, the 3Rs enjoy global acceptance by a vast majority of states (Blattner, 2014) and prominent international organizations, such as the World Organization for Animal Health (Terrestrial Code, 2016, art. 7.1.2.3), or the Council of Europe (CoE) (Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes, arts. 6.2, 7, 8). Widespread acceptance of the 3Rs is a notable achievement, since animal law is a relatively young field of law and societal attitudes about the human-animal relationship diverge sharply. But, as progressive as this widespread consensus appears, the fact that the 3Rs are accepted by so many legislators and readily endorsed by scientists and the industry behind them should give one pause (Greek, 2015). Unfortunately, the decline of the popularity of the law of animals in research among academics does not indicate that the law sufficiently fulfils its regulatory role in this field. In fact, the law of animals in research – especially the 3R maxim that dominates this legal landscape – suffers from regulatory failure. Researchers and commissions seem to abide by refinement to a certain extent, by requiring the use of analgesics and anaesthetics or using animals they regard as less sentient (i.e., animals lower on the phylogenic scale), such as rodents and fish (e.g., Indian AWA, §37(2)(e); German AWA, §7a(2)5.); disputing less sentience of animals lower on the phylogenic scale: Tomasik, 2014). A real danger of refinement rules is that they initially appear sensitive to animals’ needs, but a closer examination reveals that refinement is often designed to make us feel better about exploiting animals, while not fulfilling the animals’ needs for basic welfare during research. For instance, pursuant to the U.S. National Research Council Guide, a pig who weighs up to 50kg can be confined for up to five years on 15 square feet (0.9 m2), without any access to the outside. The Guide states that thereby “animals can turn around and move freely without touching food or water troughs, have ready access to food and water, and have sufficient space to comfortably rest away from areas soiled by urine and feces” (U.S. NRC Guide, p.63). A pig cannot possibly exhibit natural behaviour under these circumstances. No human of the same weight has ever exhibited natural behaviour in a 0.9m2 elevator, and certainly not for over a period of five years. Despite attempts to justify the deplorable conditions of animals in research by refinement, statistics show that two of the 3Rs, reduction and replacement, have failed thus far. Most research proposals are reviewed perfunctorily and are approved as a rule, unless applications are sloppy. For instance, by 2014, Taiwan’s Institutional Animal Care and Use Committees (IACUCs) had approved 3,994 research projects and rejected only 47 (resulting in a rejection rate of 0.91%) (Miki-Kurosawa, Park, and Hong, 2014, p.288; for similar numbers in Switzerland, see Gerritsen, 2015, p.38). Worldwide numbers reflect the same trend. As a result of this lax practice, the number of animals exploited for experimental purposes worldwide is now the same as it was in the 1980s (the number dropped in 1990s and 2000s, and then increased to unprecedented levels: COM(2013) 859 final, at 3; Taylor, 2013; Taylor et al., 2008; Taylor and Rego, 2016; Bayne et al., 2015). Adopting the 3Rs has thus not reduce animal suffering: We are witnessing a steady high of animal suffering in quantitative terms, and even a rising number of animals who are forced to endure the most severe forms of research in qualitative terms (e.g., NZZ, 2016). At the same time, societal demands for better animal protection are more common than ever before (Eurobarometer, 2016). Most citizens are concerned about the welfare of animals used in research, and agree that more needs to be done to replace animals in research (Gallup Poll, 2015; Clemence and Leaman, 2016; Pew Research Center, 2015; European Citizen’s Initiative “Stop Vivisection”). Although the 3Rs have left citizens’ demands and regulatory goals unaccomplished, they are still popular policy tools for legislators and research facilities, who use them as examples of their efforts to ameliorate the suffering of animals. That the law continues to uphold a concept, which has neither reduced, nor replaced research animals for decades, is striking. We practice refinement and call it “the 3Rs,” and fool ourselves into thinking we have sufficiently considered animals in moral terms. The worldwide acceptance and simultaneous failure of the 3Rs has turned the maxim – intentionally or not – into a means of whitewashing the images of scientists, research industries, and regulators vis-à-vis the public. Although the 3Rs have been extensively critiqued by academics, there are few reform proposals. Most importantly, no academic contribution in the field has so far sought to change the 3Rs enough to shift the paradigm. This chapter starts to fill the knowledge gap by addressing these problems from a legal perspective, while paying careful attention to scientific knowledge. I endorse a critical positivist approach to law, pursuant to which lawyers should both interpret existing law, and contribute to gradually changing the law in normatively desirable directions. The chapter takes a comparative approach to scrutinizing the ability of legal systems to contribute to reforming the law of animals in research (functional comparative method). Throughout this chapter, I use the terms “research” and “experimentation” interchangeably as governmental or private procedures that make use of animals for fundamental research, applied research, testing, teaching, or education, that breed animals, transport, or use them in other ways until their point of death and beyond, be it in biology, medicine, biochemistry, pharmacology, physiology, psychology, or other disciplines (Cf. U.K. Animals (Scientific Procedures) Act 1986, §5C; U.S. NRC Guide, p.2).