Animal Law Definition - Research Paper Example

Animal Law: Research Assignment Introduction: Animal welfare is concerned with mitigating cruelty to animals but the motive behind preventing crueltyis not because animal have specific moral rights. On the other hand, animal rights is the idea that all animals are entitled to certain rights because they also possess moral rights, as a result of which those rights should be recognised within the framework of the law.1 Legislative provisions that currently exist are Prevention of Cruelty to Animals Act2 and the Animal Research Act,3 with further provisions spelt out in the Australian Code of Practice for the Care and Use of Animals for Scientific Purposes,4 which are geared towards the elimination of unnecessary suffering of animals. Legislative provisions in other countries of the world are below par when compared to Australia, however the question of rights for animals must also encompass a wider frame of reference rather than the alleviation of suffering. Therefore, from the perspective of animals used in scientific research, the question that is proposed to be examined is “Should animal rights be legally recognized and should the legislative provisions be modified to include this aspect?” Animals used in research: Animals are routinely used as guinea pigs in experiments involving research on new drugs or behavioral research that may also cause pain and used as subjects in toxicity tests to assess the safety of consumer products.5 In this connection for example, the Draize Test6, which is legal in NSW, is one where rabbits with their inefficient tear ducts are tested for cosmetic eye products by placing them in stocks and immobilising them, while the substance to be tested is dropped into one eye.7 Drug testing carried on in animals is intended to examine the safety of these drugs prior to their use in humans, since human life is perceived as more precious as compared to an animal. Since animals undoubtedly suffer pain and discomfort during these experiments, are their rights being adversely affected? Gendin questions the value of scientific research on the basis that different species may react differently for different doses, likewise since animals cannot describe their experiences, nor can the provide information on symptoms such as giddiness or nausea. He also suggests various alternatives to using animals for research purposes, such as using lesser organisms like bacteria or fungi, the use of mathematical and/or computer modeling and more studies performed on humans under carefully regulated conditions. Gallistel on the other hand has advocated the unrestricted use of animals for research purposes, especially in the study of the nervous system.8 He points out that studies on the nervous system may involve the destruction or stimulation of a part of the system to examine the ramifications and could cause pain and temporary distress to the animals used. But he also draws upon the valuable results that were obtained from experiments conducted by neuroscientists during an age where anesthetics had not been discovered and pain was caused to animals, which however, considerably enhanced man’s knowledge of the nervous system and potential therapeutic treatments. On this basis therefore, he argues that restricting research on animals would in fact restrict the progress in human understanding of the nervous system.9 It would interfere with the process of providing a moral and scientific basis for the amassing of knowledge that produces tangible benefits for the nervous ailments of humans and benefits in treatment. He contends that the suffering of a few animals cannot be accorded greater importance than the benefits that are provided to the human race.10 Gendin and Gallistel therefore advocate opposite points of view, the former questioning whether there is any benefit at all from using animals in research while causing them so much pain,11 while Gallistel contends that animals should be used unrestricted, because their pain cannot outweigh the benefits to humankind arising out of the results of research.12 Midgeley on the other hand adopts a position that animal research may be beneficial in some instances, though it must be limited.13 He points out that experiments which may be conducted to corroborate a hypothesis already adequately proved or disproved cannot justify causing pain to an animal, just as less important experiments or those with obscure results end up causing pain and suffering to animals for no well defined purpose cannot be permitted from an ethical and moral standpoint, a view also corroborated by Frey and Patton.14 Should animal rights be recognized? Ethical treatment of animals and the question of protection of their rights arise from the perspective of whether or not it suffers. Animals are conscious beings that have a point of view or perspective and definitely suffer when pain is inflicted on them. On this basis, animal rights proponents such as Peter Singer15 advocate a position whereby the interests of conscious beings turn on the absence of suffering. Fox reiterates the utilitarian views of Bentham16 who spelt out the criterion for deciding how animals are to be treated, which should not to be dependent upon whether they can reason or talk, but whether they suffer. According to Bentham, animal pain is as real as human pain and the ability to suffer must be the determinant of how we treat other beings, since using the criterion of reason to determine the same would mean that beings like babies and the disabled would be treated badly.17 Gendin has critiqued the Draize Test and other tests used in behavioral and drug testing precisely because they cause suffering and pain to the animals.18 The utilitarian approach is also the foundation of the views of Singer, who is considered the founder of the animal liberation movement. In considering whether animals should have rights, he also supports the views of Bentham that the question of whether they are suffering should determine our conduct towards them, because their interests should also be considered on an equal basis with those of humans, and excluding animals from such consideration would be tantamount to a form of discrimination known as specicism.19 Singer argues out that treating animals as sub humans from the standpoint that they cannot make moral decisions is flawed, because a mentally disabled person or a baby may also not be able to make moral judgments, however their rights cannot be denied. On this basis, it would appear that animal rights must be recognised under the law. According to Wise, human rights are a function of human autonomy, which implies a high level of moral reasoning, and such autonomy cannot exist independently of human dignity.20 As an animal rights lawyer, he sees the first step in granting rights to animals being derived from the protection of three of their basic rights on par with human beings (a) the right to life (b) the protection of their individual liberty and (c) protection from torture – an inclusion within a community of equals with humans, which he characterizes by quoting economist Robert Samuelson as follows: “Progress occurs funeral by funeral.”21 However, animal rights activists do not necessarily seek a declaration that human and non human rights are equal – for example, they do not advocate voting rights for animals. On the contrary, it is the self-awareness or autonomy that animals possess which entitles them to the right to possess their own bodies and remain unrestricted in their movements and freedom, since they may experience frustration when such freedoms are diminished. For example, Segliman has written about dogs involved in animal research experiments that were subjected to repeated shocks and became very depressed as a result, resulting in both physical and mental helplessness of the animal.22 Therefore, animals may deserve provisions in the law for humane treatment, but not necessarily for equal rights with humans. Nevertheless, activists such as Tom Regan view animals as self-conscious beings that have a distinct point of view and on this basis; they have certain fundamental rights, such as the right not to suffer through confinement or through the infliction of pain.23 Ryder is of the view that all beings that feel pain deserve human rights.24 According to Regan, non-human animals have the same rights as humans because the rights accorded to humans are based upon their cognitive abilities, which some sentient or self-conscious animals also possess, therefore they also have moral rights, just as humans do.25 Accordingly, the focus of those who press for animal rights is the notion that they have moral rights. Hence, activists such as Regan advocate the treatment of animals on par with persons, while critics of this position advocate the improvement of the conditions and treatment of animals, but not that they be accorded rights under the law on par with humans. Also corroborating Regan’s views for ascribing moral status to animals is Francoine, who is of the view that the status of animals under the law as property is the root cause of the ill-treatment meted out of them.26 Therefore, he vigorously advocates animal rights and presses for the abolishing of the status of animals as property under the law. Singer and Regan share a similar where animal testing such as that used in research is concerned - both experts advocate the abolishing of all kinds of testing because it would be ethically wrong to make an animal suffer. Consequently, on an overall basis, it may be noted that while the views of the activists mentioned above may differ in some details, they are agreed in principle upon the question of animal rights and that it should be recognised under the law. Nonetheless, there have been several criticisms raised against the position that animal rights must be recognised under the law because they also have moral rights. For example, Cohen argues that a person who is entitled to a right should be in a position to recognise “possible conflicts between what is in their own interest and what is just. Only in a community of beings capable of self restricting moral judgments can the concept of a right be correctly invoked.” On this basis, he also rejects Singer’s argument that mentally regressive human beings are incapable of moral judgments and yet are accorded rights, stating instead that the test for moral judgment cannot be one that is “administered to humans one by one.”27 Therefore, his criticism of equal rights for animals is based on their inability to execute moral judgments and that animals cannot be equated to mentally disabled humans in this aspect. Another criticism that has been raised of the position advocated by activists advocating animal rights and its recognition under the law is Scruton’s view that rights can be assigned only to those who are able to understand the obligations that go along with such rights. Expecting an animal to understand the obligations co-existing with rights and ensuring preservation of equal rights for animals with humans will be also difficult to actually execute in practice. In this context he cites two examples to illustrate this difficulty in demarcation of the extent to which animal rights should be practiced – the first in support of foxhunting in order to protect the habitat of the foxes28 while on the other, he condemns factory farming on the grounds that animals are subjected to inhuman conditions.29 The question of obligations running concurrent with rights is also addressed by Carruthers, who argues that the framework of the law is geared towards enforcing rules that are a part of a hypothetical social contract30 that exists among the members of a particular society – i.e, humans. Consequently, animals are not included within this group and as a result, humans have no obligations towards them to treat them equally under the law.31 The concept of social contract is important in examining whether animal rights must be included within the scope of the law. Since animals do not have the capacity to enter into social contracts or to make the necessary choices that will be required to adhere to such social contracts, they either cannot understand or respect the rights of others or therefore cannot be deemed to posses moral rights. For example, Frey argues that based on animals not possessing moral rights due to their inability to enter into social contracts, it is perfectly acceptable to use them for purposes of research or for food, provided however, that necessary precautions are taken to ensure that the animals do not suffer needlessly.32 From the foregoing, it may be noted that the question of whether or not animal rights must be recognised appears to center upon whether or not they can be attributed to have moral rights. The question of obligations that go along with rights is another aspect that is important, because rights can be accorded only when their significance can be comprehended by right holders who possess the ability to make choices. The membership of animals in the community of living beings is undisputed, as is the fact that research experiments do cause pain and suffering to animals. The treatment meted out to animals and consequently rights that must be accorded to them must be geared towards mitigating suffering of animals. Yet, to some extent, some suffering of animals may be justified when considered in the context of the invaluable benefits that result to humanity human community in the field of medicine. Animal welfare aims to alleviate suffering in animals and there appears to be little doubt that provision must be made in the law to ensure that needless suffering of animals is abolished altogether. However, the question of whether animals have moral rights is not so clear-cut. While some animals are self-conscious and endowed with the ability to make choices; while they may also have the right to liberty and freedom, nevertheless, a position that advocates placing them on par with humans and according them equal rights with humans may not be tenable under the law. Animal rights can be exercised to the extent that a duty of care is placed upon caretakers of animals to see to their welfare and prevent suffering of animals, however where research is concerned, the benefits to humanity must be the guiding criterion in the framing of the law. Consequently, it may be possible to recognize and implement animal rights through the law only to a limited degree. Current Legislative provisions: The ARA33 is one of the main legislative provisions dealing with animals. The use of animals for research purposes is covered under Part 4. Part 5 of the Act addresses the issue of illegal and unlicensed use of animals for research. The ARA governs the use of animals for purposes of research, which also constitutes a defense against animal cruelty as spelt out under the POCTAA.34 However, the offences spelt out under POCTAA35 may also apply to the case of animals used in research, for example, s9 of the POCTAA36 prevents confinement of animals without exercise while the immobilising that is practiced under the Dreize Test and causes pain and irritation to animals could be actionable under that section of the POCTAA. The failure to provide exercise to a confined animal to the extent of causing pain and suffering was the grounds on which pet owner Diana Johnson of Foster was found guilty under the POCTAA.37 Although the most significant aspect addressing the rights of animals used for research purposes is the Australian Code of Practice,38 which has been incorporated into the ARA.39 Written approval must be obtained from AEC before experimentation for research purposes can be initiated and the three ‘Rs’ must be taken into consideration as detailed further below. The Australian Code of Practice40 emphasises the responsibilities associated with the use of research animals; therefore, the use of animals must first be justified by demonstrating that the predicted educational or scientific value of the project is such that it outweighs the suffering that may be caused to animals.41 Secondly, the three ‘Rs’ associated with such use are: Responsibilities, Reduction and Refinement.42 Therefore, person/s conducting the research have a responsibility of duty of care towards the animal/s they are using and are obliged to treat the animals with respect and consideration. Furthermore, while the least number of animals should be used, reducing the number of animals used in a particular experiment will not be justified if greater individual suffering is produced instead. Lastly, animal experimentation should not be carried out on a random basis without well-defined goals and procedures. Species selection should be specific and animals must be suitable for the precise purpose of the experiment and the nature of results that are expected, so that generalised testing without adequate refinement in selection of experimental animals may not be justified. Adequacy of Legislative provisions: Some animal rights advocates question whether the structure of the law itself is geared towards the preservation of animal rights. In developing countries where addressing basic human rights itself remains limited through legislation, the question of animal rights may be accorded much less importance than in Australia. Francoine points out the limits of legislation that is geared against cruelty to animals by addressing the status of animals as property.43 He points out that since non-human animals are considered the property of humans under the law, the question of considering property and human rights equally is an absurd proposition, which is untenable as a basis upon which any laws to protect animal rights can stand.44 According to Francoine, unless the property status of animals is abolished altogether, they will always be exploited. Nevertheless, it must be noted that although Francoine advocates that animals as sentient beings should receive equal moral consideration,45 he does not advocate equal legal protection for all sentient beings – human and non-human. As pointed out by Perz, Francoice is silent on the question of what other rights they [animals] may or may not have.”46 Dunayer on the other hand, argues that all sentient beings deserve all applicable human rights and therefore equal consideration requires equal protection under the law.47 However, in the case of animals used for research purposes, the potential medical and scientific developments that are beneficial to man and his interests must be placed on a higher plane than the rights of non-humans. The major question that must be addressed in determining adequacy of legislative provisions is whether they have been successful in mitigating animal suffering. The Australian Code of Practice48 in particular, makes every effort to eliminate those experiments that may cause pain and suffering to animals without demonstrating an adequate level of potential benefit. Moreover, the duty of care placed upon those who conduct these experiments ensures that any violations could be actionable under the law. Placing animals on par with humans will mean that research experiments will have to be completely abolished and this is an untenable position, which the law cannot provide for. However, the high incidence of animal cruelty suggests that animals may need to be accorded extended protection under the law, albeit not on par with humans. Restricting research through legislative provisions appears justified in the interest of reducing incidence of animal cruelty. Additionally, there are also legislative provisions to punish cruelty to animals;49 hence, their interests are well represented under the law. The recognition that exists through the Australian Code of Practice to mitigate needless suffering appears adequate when balanced against the interests of the human community at large. However, as pointed out by Etherington50, legislative provisions in Australia against use of animals in research are founded upon a utilitarian perspective, as a result of which the perceived good of the majority may override individual rights of animals. As a result, the pain and suffering of animals may be condoned to a higher degree since they are perceived to produce beneficial results for the majority – i.e, humans. Hence, legislative provisions may not be adequate unless they are geared towards addressing individual suffering of animals so that such needless suffering can be mitigated. While animal research cannot be abolished, alternative sources as suggested by Gendin can be explored to minimize pain and suffering of animals. The failure to provide such alternatives would only shift animal research into countries which have limited animal welfare legislation, thereby further eroding their rights.51 Therefore the extreme position mooted by animal rights advocates may not be feasible in law; however, refining existing legislation to provide viable alternatives in research and enhancing protection extended to animals under the law could achieve the desired goals. Bibliography * The Australian Society for Medical Research, “Submission to the NSW Animal Research Act Review”, August 1999, , (2 January 2007). * Carruthers, Peter, 1992. “The animals issue: moral theory in practice.” Cambridge University Press, pp 90-92 * Cohen, Carl, 1986. “The case for the use of animals in biomedical research.” New England Journal of Medicine, 315 (14): 865-70 * Etherington, Simon, 2003. “Animal protection and art: A legal analysis” [online] available at: http://www.artslaw.com.au/ArtLaw/Archive/03whenyoulayyourmoneydown.asp * Francoine, Gary, 2000. “Introduction to animal rights: Your child or the dog?” Philadelphia: Temple University Press * Francoine, G. “The assumptions of new welfarism” IN Francoine, G.” Animal rights and animal welfare” [online] available at: www.animal-law.org/library/araw.htm * Franklin, Julian H, 2005. “Animal Rights and Moral Philosophy” Columbia University Press * Frey, R and Patton, W. “Vivisection, morals and medicine: An exchange.” in “The Treatment of animals in science.” * Frey, R.G, 1980. “Interests and Rights” The case against animals.” Clarendon Press National Health and Medical Research Council (NHRMC), 2004. Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (7th ed * Gendin, S, 1989. “The use of animals in science” IN Regan, T and Singer, P (eds). “Animal Rights and Human Obligations” 2nd edn, Reading 10-2-1 * Gallistel, C. “The case for unrestricted research using animals” in “The Treatment of animals in Science” * Midgley M, “The case for restricting research using animals” in “The Treatment of Animals in Science” * Regan, Tom, 1984. “The case for animal rights” New York: Routledge. * Ryder, Richard D, 2005. “All beings that feel pain deserve human rights” The Guardian, August 6. * Scruton, Roger, 1998. “Animal rights and wrongs.” Demos, pp 82-85 * Seligman, M.E, 1974. “Depression and Learned Helplessness.” IN (Friedmand, R.J. and Katz, M.M. Eds.)”The Psychology of Depression: Contemporary Theory and Research” V.H. Winston and Sons. * Singer, Peter. “Animal Liberation: A new ethic for our treatment of animals and practical ethics.” * Singer, Peter, 1975. “Animal Liberation” (2nd edn) New York: Avon Books. * Wise. Stephen M, 1999. “Address at the 5th Annual Conference on animals and the law” of the Committee on legal issues pertaining to animals, Association of the Bar of the city of New York. (Sept 25 1999) Read More