Criminalizing Vivisection

by Tom Regan

Animals are used in laboratories for three main purposes: education, product safety testing, and experimentation, including medical research. Unless otherwise indicated, my discussion is limited to their use in harmful, nontherapeutic experimentation or research (which, for simplicity, I sometimes refer to as “vivisection”). Experimentation of this kind differs from therapeutic experimentation, where the intention is to benefit the subjects on whom the experiments are conducted. In harmful, nontherapeutic experimentation, by contrast, subjects are harmed, often seriously, or put at risk of serious harm, in the absence of any intended benefit for them; instead, the intention is to obtain information that might ultimately lead to benefits for others.

Human beings, not only nonhuman animals, have been used in harmful, nontherapeutic experimentation. In fact, history is replete with examples of human vivisection, and it is doubtful whether the ethics of animal vivisection can be fully appreciated apart from the ethics of human vivisection, a topic to which I return below. Unless otherwise indicated, however, the current discussion of vivisection, and my use of the term, are limited to harmful, nontherapeutic experimentation using nonhuman animals.

If asked what we think of using animals in research, most of us probably will answer in terms of their use in medical research, the sort of research that promises to yield important advances in combating diseases like cancer and diabetes, research frequently featured on the evening news or in the morning newspaper. However, research of this type is only part of the picture. Not to go unnoticed is research that is hardly ever covered by the media. Here are some examples.

Eye research: Monkeys, rabbits, dogs, cats and other animals are used. The animals’ eyes are burned, or injured in other ways; sometimes lids are sutured shut or eyes removed.

Burn research: Animals (guinea pigs, rats, mice, dogs, for example) are burned using chemicals or radiation, or they may experience “thermal burns,” ranging in severity from mild to third degree. Thermal burns are caused by immersing all or part of the animals’ bodies in boiling water, or pressing a hot plate against their skin, or by using steam.

Radiation research: All or part of an animal’s body is subjected to radiation or, in some cases, the test animals are forced to inhale radioactive gases. Dogs, monkeys, rats, mice, and hamsters are among the animals used.

Brain research: Brain activity and behavior are studied in cats, dogs, monkeys, rabbits and rats, for example. The animals suffer experimental trauma (usually produced by direct physical injury to the head), undergo surgical manipulation, or are stimulated electrically (for example, after undergoing surgical implantation).

Electric shock research: The physiological and psychological responses to electric shock are studied in various animals, principally rats. Electric shock of varying degrees, and at various intervals, is administered primarily through the feet or tail.

Aggression research: The effects of such factors as social isolation, induced brain dysfunction, and sleep deprivation on aggressive behavior are investigated.

Stress research: Test animals are exposed to extremes of cold or heat, deprived of REM sleep, immobilized, or malnourished, for example, to investigate physiology and behavior.

Military research: Funded by the U. S. Department of Defense, various animals, including nonhuman primates, are subjected to conventional, biological and chemical weapons, nuclear radiation, lasers, and high power microwaves.

That animals are harmed by such research, no reasonable person will deny. When (to cite some other outcomes) animals are drowned, suffocated, and starved to death; when they have their limbs severed and their organs crushed; when they are the recipients of induced heart attacks, ulcers, paralysis, and seizures; when they are forced to inhale tobacco smoke, drink alcohol, and ingest various drugs, such as heroine and cocaine; when animals are on the receiving end of treatment of this kind, no reasonable person will say, “Yes, but are they ever harmed?”

It is important to realize that what I have just described is routine. From removal of eyes to thermal burns, suffocation to crushed organs, nothing I have described is the least bit unordinary. No law is broken, no codes are breached. Every experimental procedure listed is perfectly consistent with “the humane care and treatment” of animals used in research. Those are the words of the Animal Welfare Act, the only applicable United States federal legislation. When drowning, suffocating, starving, blinding, paralyzing, and the other outcomes sketched above count as “humane care and treatment” the suspicion will arise in some people that things are not as they should be. I return to this matter below.

The vivisection industries professional and lobbying organizations defend the practice with great earnestness and dismiss those who challenge it by invoking animal rights in less than commendatory terms. The same is true of vivisection’s principal philosophical ally, Carl Cohen. People who believe in animal rights are “out of their mind,” he writes, and what they believe he characterizes as “silly,” “absurd,” ”preposterous,” and “a fanatical conviction.” I make no charges of the same kind, either against Cohen or any other spokesperson for the vivisection industry. My charge is that the defense of vivisection they offer is rationally deficient, not in one or a few respects, but in every respect. After explaining why this is true, I sketch my argument for human rights, do the same for my argument for my “fanatical conviction” concerning animal rights, and conclude by explaining why vivisection should be against the law — should be recognized for the grrievious crime it is.

The Benefits Argument

There is only one serious moral defense of vivisection. That defense proceeds as follows. Human beings are better off because of vivisection. Indeed, we are much better off because of it. If not all, at least most of the most important improvements in human health and longevity are indebted to vivisection. Included among the advances often cited are open heart surgery, vaccines (for polio and small pox, for example), cataract and hip replacement surgery, and advances in rehabilitation techniques for victims of spinal cord injuries and strokes. Without these and the many other advances attributable to vivisection, proponents of the Benefits Argument maintain, the incidence of human disease, permanent disability, and premature death would be far, far greater than it is today.

Yes, vivisection’s apologists say, humans sometimes are harmed as a result of medcine’s reliance on vivisection. For example, drugs that were shown to be safe when administered to animals sometimes turn out to be harmful when used by humans. However, this happens very rarely, and the harms humans suffer are neglible, all things considered.

Defenders of the Benefits Argument are not indifferent (at least they say they are not indifferent) to how animals are treated. They agree that animals used in vivisection sometimes are harmed, both during the research itself and because of the restrictive conditions of their life in the laboratory. These harms are regrettable, vivisection’s defenders acknowledge, and everything that can be done should be done to minimize them. For example, to prevent overcrowding, animals should be housed in larger cages.

Moreover, every reasonable precaution should be taken to insure that animals are treated humanely and responsibly. This includes having adequate laws to regulate the practice and an adequate inspection system to insure that these laws are observed. And, too, review procedures should be in place that permit harm being done to animals only when the promise of benefits for humans is proportionately much greater.

But (so the argument goes) because there is no other way to secure the important human health benefits that vivisection yields so abundantly, benefits that greatly exceed any harms that animals endure, vivisection should be permitted to continue and, indeed, to flourish. As I hope to show, this defense of vivisection fails on every count.

The Inadequacy of Federal Law

Advocates of the Benefits Argument insist that the laws regulating vivisection are adequate. This is very far from the truth. In the United States, various federal and state laws apply to the animals used in research, but none offers serious protection. At the federal level, the Animal Welfare Act (AWA) addresses only the care and treatment of animals outside the research itself; it explicitly removes the federal government from playing any role in the “design, outlines, guidelines, or performance of actual research or experimentation by a research facility as determined by such a research facility.” Moreover, the AWA defines “animal” to mean “any live or dead dog, cat, monkey, [nonhuman] primate, guinea pig, hamster, rabbit, or other such warm-blooded animal as the Secretary [of the Department of Agriculture] may determine is being used, or is intended for use, for research, testing, experimentation or exhibition purposes.” Conspicuously absent from the list are rats and mice, as well as all birds, farmed animals, and fish which together account for at least 90% of the animals used in a research context.

No one really knows how many animals are used for scientific purposes in the United States. Still, everyone agrees the number runs in the millions. So the dispute is over how many million. Fifteen? Fifty? Somewhere in between? Somewhere in between, somewhere between twenty-five and fifty million, may not be an unreasonable estimate. Worldwide, the figure runs into the hundreds of millions.

In 2000, federal legislation was introduced in the U.S. Congress that would have included rodents and birds within the meaning of “animal.” The amendment was defeated, to the great relief and delight of the animal research community. Never mind that the insincerity of the United States government’s commitment to “humane care and treatment” was never more evident. When more than 90% of animals used in research don’t even count as animals, any serious claim to adequacy on behalf of the AWA lacks credibility.

The Inadequacy of Federal Enforcement

The Animal and Plant Health Inspection Service (APHIS) is responsible for enforcing the AWA in America’s laboratories. Facilities that do not use any of the regulated species are exempt from the Act, as are those facilities that do not receive federal funds and utilize animals they raise themselves. Despite these limitations, roughly 9,000 research facilities, animal dealers, animal shippers, and others are legally subject to inspection for compliance. It has been estimated that APHIS inspectors, whose primary responsibility is to prevent interstate shipments of diseased plants and livestock, devote a maximum of 6 percent of their time to enforcing the AWA.

As a result of steadily increasing budget cuts, the first half of the 1990s witnessed more than a 20 percent decline in the number of APHIS inspections performed. By 2001, only 100 APHIS inspectors remained on the job; as of June 2005 their number had declined to seventy.

Internal audits of APHIS, conducted in 1992 and 1995 by the Office of the Inspector General, found that “APHIS was still not able to make all the required inspection visits” to facilities already reported in violation of AWA. In response, APHIS officials noted that “some of the follow-up visits were not made due to staffing limitations and budgetary cutbacks . . .” Past violators were thus able to continue to treat animals in ways that [in APHIS's own words] could “jeopardize the health and safety of their animals without APHIS intervention.” No reasonable person would believe that things are better today, given the decline in the number of inspectors since these internal audits were performed.

All considered, then, the legally mandated and enforced protection afforded animals in labs is anything but adequate. Certainly it would be naive in the extreme to assume that “all is well” behind the locked doors blocking the day-to-day activities in America’s laboratories from public view. We have no better authority for this than the words of APHIS own auditors.

The Inadequacy of Selection Procedures

Most research institutions are required by law to have Animal Care and Use Committees. IACUCs are charged with the task of reviewing research protocols before they can go forward. Depending on the committee’s assessment, the research may proceed as proposed, or it may have to be modified, or (theoretically) it can be disallowed. Among the criteria IACUCs use, some concern the invasiveness of the proposed research and the amount and intensity of the pain it will cause. The underlying principle is of the cost-benefit variety. Animals should not suffer “unnecessarily.” Roughly speaking, invasive research that causes serious pain (or death) should only be permitted if the research promises important results.

The illusion of IACUC protection of animals was pierced by a study published in July 2001 in the prestigious journal Science. The study showed that, in the majority of cases, proposals that were approved by one IACUC were rejected by another. This does nothing to inspire confidence in “humane use” and “responsible care.” As one of the authors of the study observed, “the reliability of [IACUC] reviews is at chance levels—literally, a coin toss.” The claim to adequacy made on behalf of the selection process is nothing short of preposterous.

Benefits and Harms

The Benefits Argument conveniently overlooks much and includes little. Any argument that rests on comparing benefits and harms must not only state the benefits accurately; it must also do the same for the relevant harms. Advocates of the Benefits Argument fail on both counts. Independent of their lamentable tendency to minimize the harms done to animals and their fixed resolve to marginalize non-animal alternatives, advocates overestimate the human benefits attributable to vivisection and all but ignore the massive human harms that are an essential part of vivisection’s legacy. Even more fundamentally, they uniformly fail to provide an intelligible methodology for comparing benefits and harms across species. Let me address each of these three failures in turn.

Overestimation of benefits

Proponents of the Benefits Argument would have us believe that most of the truly important improvements in human health could not have been achieved without vivisection. The facts tell a different story. Public health scholars have shown that animal experimentation has made at best only a modest contribution to public health. By contrast, the vast majority of the most important health advances have resulted from improvements in living conditions (in sanitation, for example) and changes in personal hygiene and lifestyle, none of which has anything to do with animal experimentation.

These matters aside, supporters of the Benefits Argument apparently have not been listening to what experts within the pharmaceutical industry are telling us. Allen Roses is international vice-president of genetics at GlaxoSmithKline, among the largest pharmaceutical companies in the world. Addressing a scientific meeting in December 2003, Dr. Roses dared to say out loud what many in the drug industry wished he had kept to himself. When it comes to benefits derived from prescription drugs, the overall record is modest at best. “The vast majority of drugs,” Dr. Roses declared,” — more than 90 per cent [of them] — only work in 30 or 50 per cent of the people.” (Connor, 2003). Specific examples given by Dr. Roses are drugs for cancer (helpful to only one in four patients) and for Alzheimer’s (helpful to only one in three).

Writing in England’s The Independent, Science Editor Steve Connor observes that “[s]ome industry analysts said Dr. Roses comments were reminiscent of the 1991 gaffe by Gerald Ratner, . . . who famously said that his High Street [jewelry] shops are successful because they sold ‘total crap’. But [Connor continues] others believe Dr. Roses deserves credit for being honest about a little-publicized fact known to the drug industry for many years”(Ibid.): most drugs don’t help most patients most of the time. In fact, the odds of being helped in most cases are worse than a coin toss.

People would think otherwise if proponents of the Benefits Argument were correct. After all, all prescription drugs must first be shown to be effective when administered to animals. If the “animal model” truly was a reliable gauge of the effectiveness of drugs for humans, it would be reasonable to believe that what is effective in their case will be effective in ours, if not all of the time then at least most of the time. However, if Dr. Roses and other pharmaceutical experts are correct, this is very far from the truth. Overall, only in a comparatively small percentage of cases do prescription drugs actually benefit the humans who use them. When it comes to human benefits, therefore, proponents of the Benefits Argument greatly overstate their case.

Underestimation of harms

Advocates of the Benefits Argument conveniently ignore the hundreds of millions of deaths and the uncounted illnesses and disabilities that are attributable to reliance on the “animal model” in research. Sometimes the harms result from what reliance on vivisection makes available; sometime they result from what reliance on vivisection prevents. The deleterious effects of prescription medicines are an example of the former.

The Food and Drug Administration is charged with insuring the safety and effectiveness of medical procedures and products, including prescription drugs. A staff of 100 is responsible for monitoring the 3200 drugs currently available; another 700 oversee drug approval. Total costs for monitoring and evaluation represent only 4% of the FDA’s annual budget. (Frontline, 2001). Even if the methods the agency used to insure safety and effectiveness were adequate, critics of American drug policy note that too few people are given too little money to do far too much

As it happens, the FDA’s methods are anything but adequate. The FDA defines an “adverse event” as “any undesirable experience associated with the use of [a] drug that is both serious and unexpected.” (FDA, 2005) Specific examples of “undesirable experience” are “death, a life-threatening adverse drug experience, inpatient hospitalization or prolongation of existing hospitalization, a persistent or significant disability/incapacity, or a congenital anomaly/birth defect.” In other words, “adverse events” can involve much more than a runny nose or itchy feet. By definition, then, adverse events precipitated by prescription drugs (adverse drug reactions or ADRs) can be quite serious.

Among the adverse reactions patients have to prescription drugs, some are fatal. The drugs people take sometimes kill them, and do so more often than the public might suspect. A study published in 1998 found that approximately 100,000 hospitalized patients die annually because of ADRs, making prescription drugs the fourth leading cause of death in America, ranking behind only cancer, heart attack, and stroke. (Lazarou, J. et. al., 1998) And this figure does not include the number of non hospitalized patients who have fatal reactions to the drugs they are taking.

According to FDA guidelines, adverse events, including all ADRs, “should be reported.” The problem is, what “should” be done often is not. The FDA’s voluntary system of reporting (Medwatch) receives upwards of a thousand reports each working day, approximately 260,000 a year. Yet David Kessler, former director of the FDA, estimates that only 1 per cent of ADRs are reported. (Kessler, 1993). If true, that figure of 260,000 (and the same is true of FDA’s estimate of 2 million hospitalizations due to ADRs) does not reflect anything like the true dimensions of the problem.

Can the incidence of ADRs really be worse than the FDA says it is? Before answering, consider the following. In his book, Prescription for Disaster: The Hidden Dangers in Your Medicine Cabinet, Thomas J. Moore reports on a study done using the files of medical doctors in Rhode Island. The study revealed that patients had experienced 26,000 ADRs; of that number, 11 were reported. (Moore, 1998). When Dr. Kessler says that perhaps only 1 per cent of ADRs are reported, he may be giving an excessively inflated estimate.

Massive harm to humans also is attributable to what reliance on vivisection prevents. The role of cigarette smoking in the incidence of cancer is a case in point. As early as the 1950s, human epidemiological studies revealed a causal link between cigarette smoking and lung cancer. Nevertheless, repeated efforts, made over more than 50 years, rarely succeeded in inducing tobacco related cancers in animals. Despite the alarm sounded by public health advocates, governments around the world for decades relied on results using the “animal model.” As a result, educational campaigns geared to informing smokers about the grave risks they were running were delayed. Today, one in every five deaths in the United States is attributable to the effects of smoking, and fully 60 percent of direct health care costs in the United States go to treating tobacco-related illnesses.

How much of this massive human harm could have been prevented if the results of vivisection had not (mis)directed government health care policy? It is not clear that anyone knows the answer beyond saying, “A great deal. More than we will ever know.” One thing we do know, however: advocates of the Benefits Argument contravene the logic of their argument when they conveniently omit these harms in their defense of vivisection.

Research ideology

Not to go unmentioned, finally, is the universal failure of vivisection’s defenders to explain how we are to weigh benefits and harms across species. Before we can judge that vivisection’s benefits for humans greatly exceed vivisection’s harms to other animals, someone needs to explain how the relevant comparisons should be made. How much animal pain equals how much human relief from a drug that was tested on animals, for example? It does not suffice to say, to quote the American philosopher Carl Cohen, that “the suffering of our species does seem somehow to be more important than the suffering of other species.”(9) Not only does this fail to explain how much more important our suffering is supposed to be, it offers no reason why anyone should think that it is. (Cohen’s views are discussed at greater length in the discussion of speciesism, below).

Plainly, unless or until those who support the Benefits Argument offer an intelligible methodology for comparing benefits and harms across species, the claim that human benefits derived from vivisection greatly exceed the harms done to animals is more in the nature of unsupported ideology than demonstrated fact.

Summary

All things considered, then, vivisection’s defenders fail to justify the practice, not because they fail in one respect, but because they fail in all respects.

    They say the laws regulating the practice are adequate; in fact they are not.

    They say the laws are adequately enforced; in fact they are not.

    They say the procedures used to evaluate what research should be done are adequate; in fact they are not.

    They say vivisection is a reliable methodology; in fact it is not.

    They say humans benefit greatly from vivisection; in fact we do not.

    They say humans rarely are harmed because of vivisection; in fact we are harmed often.

    They say human benefits greatly outweigh the harms done to animals; in fact no basis for making the comparison is offered.

The very best that can be said for vivisection (and it is very little) is that some people sometimes benefits from using some medicines or some procedures that were first either given to or used on animals. And for this hundreds of billions of dollars are spent; hundreds of millions of animals are denied their freedom, are subjected to debilitating physical injury, are made to suffer, only to be killed in the end; and uncounted millions of human beings are harmed in ways both minor and major, even to the point of death. Vivisection as it is practiced today is not the panecea for the world’s ills its champions would have us believe; it poses a very serious threat both to humans and animals.

“But (it may be said) the problems you have described are surmountable. Laws can be changed. Inspections can be increased. Better selection procedures can be put in place. In all, vivisection can be reformed and improved. When that happens, then what will be the objections to having the practice continue?” My short answer to this question is, “Because it is morally wrong.” My longer answer follows.

Human Vivisection and Human Rights

The Benefits Argument suffers from an even more fundamental defect than those enumerated in the above. Despite appearances to the contrary, the argument begs all the most important moral questions; in particular, it assumes that animals lack rights without providing any reasons why we should agree. In so doing the argument obscures the role rights play in assessing harmful, nontherapeutic research on animals. The best way to understand its failure in this regard is to position the argument against the backdrop of human vivisection and human rights.

Human beings have been used in harmful, nontherapeutic experiments for thousands of years.(10) Not surprisingly, most human “guinea pigs” have not come from the wealthy and educated, not from the dominant race, not from those with the power to assert and enforce their rights. No, most of human vivisection’s victims have been coercively conscripted from the ranks of young children (especially orphans), the elderly, the severely developmentally disabled, the insane, the poor, the illiterate, members of “inferior” races, homosexuals, military personnel, prisoners of war, and convicted criminals, for example. One such case will be considered below.

The scientific rationale behind vivisecting human beings needs little explanation. Using human subjects in research overcomes the difficulty of extrapolating results from another species to our species. If “benefits for humans” establishes the morality of animal vivisection, should we favor human vivisection instead? After all, vivisection that uses members of our own species promises even greater benefits.

No serious advocate of human rights (and I count myself among this number) can support such research. This judgment is not capricious or arbitrary; it is a necessary consequence of the logic of basic moral rights, including our rights to bodily integrity and to life. This logic has two key components. (11)

First, possession of these rights confers a unique moral status. Those who possess these rights have a kind of protective moral shield, an invisible “No Trespassing” sign, so to speak, that prohibits others from injuring their bodies, taking their life, or putting them at risk of serious harm, including death.(12) When people violate our rights, when they “trespass on our moral property,” they do something wrong to us directly.

This does not mean that it must be wrong to hurt someone or even to take their life. When terrorists exceed their rights by violating ours, we act within our rights if we respond in ways that can cause serious harm to the violators. Still, what we are free to do when someone violates our rights does not translate into the freedom to override their rights without justifiable cause.

Second, the obligation to respect others’ rights to bodily integrity and to life trumps any obligation we have to benefit others.(13) Even if society in general would benefit if the rights of a few people were violated, that would not make violating their rights morally acceptable to any serious defender of human rights. The rights of the individual are not to be sacrificed in the name of promoting the general welfare. This is what it means to affirm our rights. It is also why the basic moral rights we possess, as the individuals we are, have the great moral importance they do.

Why the Benefits Argument Begs the Question

Once we understand why, given the logic of moral rights, respect for the rights of individuals takes priority over any obligation we might have to benefit others, we can understand why the Benefits Argument fails to justify vivisection on nonhuman animals. Clearly, all that the Benefits Argument can show is that vivisection on nonhuman animals benefits human beings. What this argument cannot show is that vivisecting animals for this purpose is morally justified. And it cannot show this because no amount of human benefits settles the question, “Do animals have rights?” If they do not, then there would be no reason in principle to object to the Benefits Argument. But if they do, then there would be a principled reason for objecting, an objection explained more fully below. So, which is it: Do animals have rights, or do they not? On this question, the Benefits Argument must remain absolutely moot. Why? Because the benefits humans do or do not derive from vivisection are logically irrelevant to the question of animal rights.

It will not suffice (and this for two reasons) for advocates of the Benefits Argument to insist that “there are no alternatives” to vivisection that will yield as many human benefits. First, this reply is more than a little disingenuous. The greatest impediment to developing new scientifically valid non animal alternatives, and to using those that already exist, is the hold that the ideology of vivisection currently has on medical researchers and those who fund them. Second, to reiterate the main point of the previous paragraph: whether animals have rights is not a question that can be answered by insisting that vivisection benefits human beings. No matter how great the human benefits might be, the practice is morally wrong if animals have rights that vivisection violates.
But do animals have any rights? The best way to answer this question is to begin with an actual case of human vivisection.(14)

The Children of Willowbrook

Now closed, Willowbrook State Hospital was a mental hospital located in Staten Island, one of New York City’s five boroughs. For fifteen years, from 1956 to 1971, under the leadership of New York University Professor Saul Krugman, hospital staff conducted a series of viral hepatitis experiments on thousands of the hospital’s severely retarded children, some as young as three years old. Among the research questions asked: Could injections of gamma globulin (a complex protein extracted from blood serum) produce long term immunity to the hepatitis virus?

What better way to find the answer, Dr. Krugman decided, than to separate the children in one of his experiments into two groups. In the one, children were fed the live hepatitis virus and given an injection of gamma globulin, which Dr. Krugman believed would produce immunity; in the other, children were fed the virus but received no injection. In both cases, the virus was obtained from the feces of other Willowbrook children who suffered from the disease. Parents or guardians were asked to sign a release form that would permit their children to be “given the benefit of this new preventive.”

The results of the experiment were instrumental in leading Dr. Krugman to conclude that hepatitis is not a single disease transmitted by a single virus; there are, he confirmed, at least two distinct viruses that transmit the disease, what today we know as hepatitis A and hepatitis B, the latter of which is the more severe. Early symptoms include fatigue, loss of appetite, malaise, abdominal pain, vomiting, headache, and intermittent fever; then the patient becomes jaundiced, the urine darkens, the liver swells, and enzymes normally stored in the liver enter the blood. Death results in 1 to 10 percent of cases.

Everyone agrees that many people have benefited from this knowledge and the therapies Dr. Krugman’s research made possible. Some question the necessity of his research, citing the comparable findings that Baruch Blumberg made by analyzing blood antigens in his laboratory, where no children were harmed or put at risk of grievous harm. But even if we assume that Dr. Krugman’s results could not have been achieved without experimenting on his uncomprehending subjects, what he did was wrong.

The purpose of his research, after all, was not to benefit each of the children. If that was his objective, he would not have withheld injections of gamma globulin from half of them. Those children certainly could not be counted among the intended beneficiaries. (Thus the misleading nature of the release form: not all the children were “given the benefit of this new preventive”).

Moreover, it is a perverse moral logic that says, “The children who received the injections of gamma globulin but who did not contract hepitius—they were the real beneficiaries.” Granted, if these children already had the hepatitis virus and failed to develop the disease because of the injections, it would make sense to say that they benefited from Dr. Klugman’s experiment. But these children did not already have the virus; they were given the virus by Dr. Klugman and his associates. How can they be described as “beneficiaries”? If I hide a time bomb under your bed, armed with an experimental device that I think will defuse the bomb before it is set to go off, and if the device works, I do not think you would shake my hand and thank me because you “benefited” from my experiment. I think you would (if you could) wring my neck for placing you in grave danger. Would that the children of Willowbrook could have done the same to Dr. Klugman and his associates.

No serious advocate of human rights can accept the moral propriety of Dr. Krugman’s actions. By intentionally infecting all the children in his experiment, he put each of them at risk of serious harm. And by withholding the suspected means of preventing the disease from half the children, he violated their rights twice over: first, by willfully placing them at risk of serious physical illness; second, by risking their very life. This grievous breach of ethics finds no justification in the benefits others derived. To violate the moral rights of the few is never justified by adding the benefits for the many.

The Basis of Human Rights

Those who deny that animals have rights frequently emphasize the uniqueness of human beings. We not only write poetry and compose symphonies, read history and solve math problems; we also understand our own mortality and make moral choices. Other animals do none of these things. That is why we have rights and they do not.

This way of thinking overlooks the fact that many human beings do not read history or solve math problems, do not understand their own mortality or make moral choices. The profoundly retarded children Dr. Krugman used in his research are a case in point. If possession of the moral rights to bodily integrity and life depended on understanding one’s mortality or making moral choices, for example, then those children lacked these rights. In their case, therefore, there would be no protective moral shield, no invisible “No Trespassing” sign that limited what others were free to do to them. Lacking the protection rights afford, the moral status of the children themselves would not have prohibited Dr. Krugman from injuring their bodies, taking their life, or putting them at risk of serious harm. Lacking the protection rights afford, Dr. Krugman did not — indeed, he could not — have done anything wrong to the children. Again, this is not a position any serious advocate of human rights can accept.

But what is there about those of us reading these words, on the one hand, and the children of Willowbrook, on the other, that can help us understand how they can have the same basic rights we claim for ourselves? Where will we find the basis of our moral equality? Not in the ability to write poetry, make moral choices, and the like. Not in human biology, including facts about the genetic make-up humans share. All humans are (in some sense) biologically the same. However, biological facts are indifferent to moral truths. Who has what genes has no moral relevance to who has what rights. Whatever else is in doubt, this we know.

But if not in some advanced cognitive capacity or genetic similarity, then where might we find the basis of our equality? Any plausible answer must begin with the obvious: The differences between the children of Willowbrook and those who read these words are many and varied. We do not denigrate these children when we say that our life has a richness that theirs lacked. Few among us would trade our life for theirs, even if we could.

Still, as important as these differences are, they should not obscure the similarities. For, like us, these children were the subjects-of-a-life, their life, a life that was experientially better or worse for the child whose life it was. Like us, each child was a unique somebody, not a replaceable something. True, they lacked the ability to read and to make moral choices, for example. Nevertheless, what was done to these children, both what they experienced and what they were deprived of, mattered to them, as the individuals they were, just as surely as what is done to us, when we are harmed, matters to us.

In this respect, as the subjects-of-a-life, we and the children of Willowbrook are the same, are equal. Only in this case, our sameness, our equality is important morally. Logically, we cannot claim that harms done to us violate our rights, but that harms done to these children do not. Logically, we cannot claim our rights to bodily integrity and to life, then deny these same rights in the case of the children. Relevantly similar cases must be judged similarly. This is among the first principles of rational thought, a principle that has immediate application here. Without a doubt, the children of Willowbrook had rights, if we do.

Why Animals Have Rights

We routinely divide the world into animals, vegetables, minerals. Amoebae and paramecia are not vegetables or minerals; they are animals. No one engaged in the vivisection debate thinks that the use of such simple animals poses a vexing moral question. By contrast, everyone engaged in the debate recognizes that using nonhuman primates must be assessed morally. All parties to the debate, therefore, must “draw a line” somewhere between the simplest forms of animate life and the most complex, a line that marks the boundary between those animals that do, and those that do not, clearly matter morally. Understandably, because so much of importance hinges on “where we draw the line,” it is unlikely that everyone will draw it in the same place. For this reason, I will here adopt a conservative strategy. The lime I will draw is one that I believe will cause the least amount of disagreement, a line

One way to avoid some of the controversies in this quarter is to follow Charles Darwin’s lead. When he compares (these are his words) “the Mental Powers of Man and the Lower Animals,”(15) Darwin restricts his explicit comparisons to humans and other mammals.

His reasons for doing so depend in part on structural considerations. In all essential respects, these animals are physiologically like us, and we, like them. Now, in our case, an intact, functioning central nervous system is associated with our capacity for subjective experience. For example, injuries to our brain or spinal cord can diminish our sense of sight or touch, or impair our ability to feel pain or remember. By analogy, Darwin thinks it is reasonable to infer that the same is true of animals who are most physiologically similar to us. Because our central nervous system provides the physical basis for our subjective awareness of the world, and because the central nervous system of other mammals resembles ours in all the relevant respects, it is reasonable to believe that their central nervous system provides the physical basis for their subjective awareness.

Of course, if attributing subjective awareness to nonhuman mammals clashed with common sense, made their behavior inexplicable, or was at odd with our best science, Darwin’s position would need to be abandoned. But just the opposite is true. Every person of common sense agrees with Darwin. All of us understand that dogs and pigs, cats and chimps enjoy some things and find others painful. Not surprisingly, they act accordingly, seeking to find the former and avoid the latter. In addition, both humans and other mammals share a family of cognitive abilities (we both are able to learn from experience, remember the past, anticipate the future) as well as a variety of emotions (Darwin lists fear, jealousy, and sadness). Not surprisingly, again, these mental capacities play a role in how they behave. For example, other mammals will behave one way rather than another because they remember which ways of acting had pleasant outcomes in the past, or because they are afraid or sad.

Moreover, that these animals are subjectively present in the world, Darwin understands, is required by evolutionary theory.(16) The mental complexity we find in humans did not arise from nothing. It is the culmination of a long evolutionary process. We should not be surprised, therefore, when Darwin summarizes his general outlook in these terms: “The differences between the mental faculties of humans and the higher animals, great as it is, is one of degree and not of kind.”(17)

The psychological complexity of mammals (henceforth “animals,” unless otherwise indicated) plays an important role in arguing for their rights. As in our case, so in theirs: they are the subjects-of-a-life, their life, a life that is experientially better or worse for the one whose life it is. Each is a unique somebody, not a replaceable something. True (like the children of Willowbrook), they lack the ability to read, write, or make moral choices. Nevertheless, what is done to animals, both what they experience and what they are deprived of, matters to them, as the individuals they are, just as what was done to the children of Willowbrook, when they were harmed, mattered to them.

In this respect, as the subjects-of-a-life, other mammals are our equals. And in this case, our sameness, our equality, is important morally. Logically, we cannot maintain that harms done to us matter morally, but that harms done to these animals do not. Relevantly similar cases must be judged similarly. As was noted earlier, this is among the first principles of rational thought, and one that again has immediate application here. Logically, we cannot claim our rights to bodily integrity and life, or claim these same rights for the children of Willowbrook, then deny them when it comes to other mammals. Without a doubt, these animals have rights, if humans do.

Challenging Human and Animal Equality: Speciesism

The argument for animal rights sketched in the preceding implies that humans and other animals are equal in morally relevant respects. Some philosophers (Carl Cohen principal among them) repudiate any form of species egalitarianism. According to Cohen, whereas humans are equal in morally relevant respects, regardless of our race, gender or ethnicity, humans and other animals are not morally equal in any respect, not even when it comes to suffering. Here are a few examples that will clarify his position.

First, imagine a boy and girl suffer equally. If someone assigns greater moral weight to the boy’s suffering because he is a white male from Ireland, and less moral weight to the girl’s suffering because she is a black female from Kenya, Cohen would protest — and rightly so. Human racial, gender and ethnic differences are not morally relevant differences. The situation differs, however, when it comes to differences in species. Imagine that a cat and dog both suffer as much as the boy and girl. For Cohen, there is nothing morally prejudicial, nothing morally arbitrary in assigning greater importance to the suffering of the children, because they are human, than to the equal suffering of the animals, because they are not.

Proponents of animal rights deny this. We believe that views like Cohen’s reflect a moral prejudice against animals that is fully analogous to moral prejudices, like sexism and racism, that humans often have against one another. We call this prejudice speciesism.(18)

For his part, Cohen affirms speciesism (human suffering does “somehow” count for more than the equal suffering of animal suffering) but denies its prejudicial status. Why? Because (he thinks) while there are no morally relevant differences between human men and women, or between whites and blacks, “the morally relevant differences [between humans and other animals] are enormous.”(19) In particular, human beings but not other animals are “morally autonomous”; we can, but they cannot, make moral choices for which we are morally responsible.

This defense of speciesism is no defense at all. Not only does it conveniently overlook the fact that a very large percentage of the human population (children up through many years of their life, for example) are not morally autonomous; moral autonomy is not relevant to the issues at hand. An example will help explain why.

Imagine someone says that Jack is smarter than Jill because Jack lives in Syracuse, Jill in San Francisco. Where the two live is different, certainly; and where different people live sometimes is a relevant consideration (for example, when a census is being taken or taxes are levied). But everyone will recognize that where Jack and Jill live has no logical bearing on whether Jack is smarter. To think otherwise is to commit a fallacy of irrelevance familiar to anyone who has taken a course in elementary logic.

The same is no less true when a speciesist says that Toto’s suffering counts for less than the equal suffering of Dorothy because Dorothy, but not Toto, is morally autonomous. If the question we are being asked is whether Jack is smarter than Jill, we are given no relevant reason for thinking one way or the other if we are told that Jack and Jill live in different cities. Similarly, if the question we are being asked is, “Does Toto’s pain count as much as Dorothy’s?,” we are given no relevant reason for thinking one way or the other if we are told that Dorothy is morally autonomous, Toto not.

This is not because the capacity for moral autonomy is never relevant to our moral thinking about humans and other animals. Sometimes it is. If Jack and Jill have this capacity, then they (but not Toto) will have an interest in being free to act as their conscience dictates. In this sense, the difference between Jack and Jill, on the one hand, and Toto, on the other, is morally relevant. But just because moral autonomy is morally relevant to the moral assessment of some cases, it does not follow that it is relevant in all cases. And one case in which it is not relevant is the moral assessment of pain. Logically, to discount Toto’s pain because Toto is not morally autonomous is fully analogous to discounting Jill’s intelligence because she does not live in Syracuse.

The question, then, is whether any defensible, relevant reason can be offered in support of the speciesist judgment that the moral importance of human and animal pain, equal in other respects, always should be weighted in favor of the human being over the animal being? To this question, neither Cohen nor any other philosopher, to my knowledge, offers a logically relevant answer. To persist in judging human pains (I note that the same applies to equal pleasures, benefits, harms, and so on, throughout all similar cases) as being more important than the like pains of other animals, because they are human pains, is not rationally defensible. Speciesism is a moral prejudice. Contrary to Cohen’s assurances to the contrary, it is wrong, not right.

Criminalizing Vivisection

As was noted at the outset, animals are used in laboratories for three main purposes: education, product safety testing, and experimentation, harmful nontherapeutic experimentation in particular. Of the three, the latter has been the object of special consideration. However, the implications for the remaining purposes should be obvious.(23) Any time any animals’ rights are violated in pursuit of benefits for others, what is done is wrong. It is conceivable that some uses of animals for educational purposes (for example, having students observe the behavior of injured animals when they are returned to their natural habitat) might be justified. By contrast, it is not conceivable that using animals in product testing can be. Harming animals to establish what brands of cosmetics or combinations of chemicals are safe for humans is an exercise in power, not morality. In the moral universe, animals are not our tasters, we are not their kings.

The implications of animal rights for vivisection are both clear and uncompromising. Vivisection is morally wrong. It should never have begun and, like all great speciesist evils, it ought to end, the sooner, the better. To reply (again) that “there are no alternatives” not only misses the point, it is false. It misses the point because it assumes that the benefits humans derive from vivisection are derived morally when they are not. And it is false because, apart from using already existing and developing new non animal research techniques, there is another, more fundamental alternative to vivisection. This is to stop doing it. When all is said and done, the only adequate moral response to vivisection is empty cages, not larger cages.(24)

The Preamble of the Universal Declaration of Human Rights declares that “human rights should be protected by the rule of law,” a precept honored, in aspiration if not in fact, by representative democracies throughout the world. Our moral rights to bodily integrity, to liberty, to life are mere words if they lack the protection provided by the force of law. Those who would, without provocation, injure our body, deny us the exercise of our freedom, or take our life must be subject to criminal prosecution, the harshness of the punishment to fit the severity of the crime.

In the particular case of non-therapuetic human experimentation, the law is called upon to protect all who are subject to abuse. The more vulnerable the potential subjects, including orphaned children and the mentally disadvantaged, the weightier are the obligations to endeavor to prevent their abuse and to punish those who cause it. The “benefits for others” claimed by those who would harm humans in non-therapeutic experimentation does not right the wrong done to the victims. Human vivisection should be and, throughout the world, human vivisection is recognized as the criminal felony that it is.

The same is not true in the case of vivisection on nonhuman animals. Here we do not find the same dedication to animal rights in the Universal Declaration as we find to human rights. Yet (if my argument is sound) this simple truth remains: vivisection violates the rights of animals. As such, the animal victims, as is true of their human counterparts, should be protected by the rule of law. Vivisection should be recognized for the crime that it is, and those who engage in it should be recognized as the criminals they are.

In saying this I add my voice to those who have expressed the same findings before me, most famously the nineteenth century English philosopher Jeremy Bentham. Recall his stirring words: that “[t]he day may come, when the rest of animal creation may acquire those rights which never could have been withholden from them but by the hand of human tyranny.”1 (emphasis added). The day “may come,” he writes, not the day “will come.” Whether may becomes will obviously depends on many factors. No single key can unlock the vast storehouse of speciesist prejudice that pervades virtually every aspect human traditions, including those found in the law. Still, no locks are opened if no keys are forged.

NOTES

1. One could attempt to justify animal vivisection by arguing that it is interesting, challenging, and yields knowledge, which is intrinsically good even when it is not useful. However, a defender of human vivisection could make the same claims, and no one (one hopes) would think that this settles any moral question in that case. Logically, there is no reason to judge animal vivisection any differently. Even if it is interesting and challenging, and even if it yields knowledge (which is intrinsically good), that would not make it right.
2. For representative statements of the Benefits Argument, consult the web sites of Americans for Medical Progress and the National Association for Biomedical Research.
3. For a classic inventory of varieties of vivisection, see Jeff Diner, Behind the Laboratory Door (Washington, DC: Animal Welfare Institute, 1985).
4. The philosopher Carl Cohen, the most strident defender of the Benefits Argument, is guilty on both counts. The most he will admit is that “some” animals “sometimes” are caused “some pain”; as for alternatives, he dismisses their validity as “specious.” See his contribution (and my rejoinder) in Carl Cohen and Tom Regan, The Animal Rights Debate (Lanham, MD: Rowman & Littlefield, 2001). I discuss his ideas more pointedly in the sequel.
5. For a summary of the relevant literature, see Hugh Lafollette and Niall Shanks, Brute Science: Dilemmas of Animal Experimentation. London: Routledge, 1996). In addition, see C. Ray Greek, MD and Jean Swingle Greek, DVM, Sacred Cows and Golden Geese: The Human Costs of Experiments on Animals (New York: Continuum, 2000) and Specious Science: How Genetics and Evolution Reveal Why Medical Research on Animals Harms Humans (New York: Continuum, 2002).
6. The statistics concerning the toxicity of FDA approved drugs will be found in U.S. General Accounting Office, Report to the Chairman, Subcommittee on Human Resources and Intergovernmental Relations Committee on Government Operations, House of Representatives, FDA Drug Review, Postapproval Risk, 1976-1985 (Washington, D.C.: U.S. Government Printing Office, 1990).
7. The estimate of 1 percent of adverse drug reactions that are reported is given in D. A. Kessler, “Introducing MedWatch: A New Approach to Reporting Medication and Adverse Effects and Product Problems,” Journal of the American Medical Association 269 (1993): 2765-68.
8. The estimate of 60% of total health costs that are attributable to smoking is included in Robert Shubinski, M.D. comprehensive economic analysis of smoking.
9. The Animal Rights Debate, p. 291.
10. Representative studies of human vivisection include of human vivisection include George J. Annas and Michael A. Grodin, eds., The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (New York: Oxford University Press, 1992), chapters. 1-7, 11; Allen M. Homblum, Acres of Skin (London: Routledge, 1999); James Jones, Bad Blood: The Tuskegee Syphilis Experiment (New York: Free Press, 1993); Coral Lansbury, The Old Brown Dog: Women, Workers, and Vivisection in Edwardian England (Madison, Wisconsin, 1985), chapters 1-4; Susan E. Lederer, Subjected to Science: Human Experimentation in America before the Second World War (Baltimore, 1995), chapters 2, 4-5.
9. More complete explanations of my analysis of rights will be found in The Case for Animal Rights (Berkeley: University of California Press, 1983) and Animal Rights, Human Wrongs: An Introduction to Moral Philosophy (Lanham, MD: Rowman and Littlefield, 2004).
10. The analogy of rights with “No Trespassing” signs I owe to Robert Nozick, Anarachy, State and Utopia (New York: Basic Books, 1974).
11. The analogy of rights with “trump” I owe to Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass: Harvard University Press, 1977).
12. The best general account of the research conducted on the children of Willowbrook is David and Shelia Rothman, The Willowbrook Wars (New York: Harper & Row, 1984).
13. For Darwin’s views, see his “Comparison of the Mental Powers of Man and the Lower Animals,” in Tom Regan and Peter Singer (eds.), Animal Rights and Human Obligations (Englewood-Cliffs, NJ: Prentice Hall, 1976) pp. 72-81.
16. Many people of good will do not believe in evolution. They believe that human existence is the result of a special creation by God, something that took place approximately 10,000 years ago. For these people, the evidence for animal minds provided by evolutionary theory is no evidence at all. Despite first impressions, the rejection of evolution need not undermine the main conclusions summarized in the previous paragraph. All of the world’s religions speak with one voice when it comes to the question before us. Read the Bible, the Torah, the Koran. Study Confucianism, Buddhism, Hinduism, or Native American spiritual writings. The message is everywhere the same. Mammals most certainly are psychologically present in the world. These animals most certainly have both preference and welfare interests. In these respects, all the world’s religions teach the same thing. Thus, while the argument I have given appeals to the implications of evolutionary theory, the conclusions I reach are entirely consistent with the religiously based convictions of people who do not believe in evolution. And for those who believe both in God and in evolution? Well, these people have reasons of both kinds for recognizing the minds of other the animals with whom we share a common habitat: the Earth.
17. Darwin, op. cit., p. 80. Elsewhere I argue that this same argument can be extended to birds. In addition, I argue that fish and other vertebrates should be given the benefit of the doubt. See Animal Rights, Human Wrongs, chapter four. Because of space constraints, I limit my argument here to mammals only.
18. The term speciesism was coined by Richard Ryder. See his Victims of Science: The Use of Animnals in Science (London: David-Poynter, 1975).
19. The Animal Rights Debate, p. 62.
20. I address a number of more philosophical objections in “The Case for Animal Rights: A Decade’s Passing,” in my Defending Animal Rights (Champaigne: University of Illinois Press, 2001) pp. 39-65.
21. Cohen favors this argument. See “Do Animals Have Rights?,” Ethics and Behavior 7, no. 2:94-95. I reply more fully in The Animal Rights Debate, pp. 281-284.
22. For fuller discussions of religious convictions and animal rights, see Animal Rights, Human Wrongs, chapter 8, and my “Christians Are What Christians Eat,” The Thee Generation: Reflections on the Coming Revolution (Philadelphia: Temple University Press, 1991) pp. 143-158.
23. I explore the use of animals in education and product testing in Empty Cages: Facing the Challenge of Animal Rights (Lanham, MD: Rowman and Littlefield, 2004), chapter 10.
24. The present essay adapts material from my “Empty Cages: Animal Rights and Vivisection,” Tony Gilland (ed.), Animal Experimentation: Good or Bad? (London: Hodder & Stoughton, 2002) and The Animal Rights Debate.

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