“Hath not a Jew eyes? hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us, do we not bleed? … if you poison us, do we not die?”

Shylock, The Merchant of Venice

INTRODUCTION

It is not clear whether Shylock would have been opposed to animal experiments. But he should have been, if he was being consistent in his ethics. He understood that, when determining how we should treat others, we should put ourselves in their shoes and ask how we would feel in the same circumstances. In other words, we should empathise. Just as Jews suffer in the same way as Christians if they are poisoned, so do animals. Like Christians and Jews, animals bleed if pricked.

In this article I will argue that consistency is the hallmark of a coherent ethical philosophy and that the obvious comparator with animal experiments is non-consensual experiments on people. We regard the latter as unethical, so we should the former. As a society we have no difficulty in empathising with the victims of human experiments. Horror at the thought of being experimented upon is no doubt why we regard the practice as abhorrent. It should not take a big leap of imagination to empathise with the victims of animal experiments as well. In short: if we would not want done to ourselves what we do to laboratory animals, we should not do it to them.

Animals suffer

Crucially for the debate about the morality of animal experiments, non-human animals suffer just as human ones do. Descartes may have described animals as “these mechanical robots [who] could give such a realistic illusion of agony” (my emphasis) but no serious scientist today doubts that the manifestation of agony is real, not illusory. Indeed, the whole pro-vivisection case is based on the premise that animals are sufficiently similar to us physiologically, and for some experiments behaviourally too, for valid conclusions to be extrapolated from experimenting on them.

Of course, the nature and degree of suffering will not always be identical. Some species of animal will suffer less than people in equivalent situations, and people probably experience greater distress at witnessing someone close to them suffer than many animals would, adding to the totality of suffering in the human context.

Equally, however, lab animals will sometimes suffer more than people would, sometimes physically, sometimes psychologically. Unlike Terry Waite, who composed novels in his head as a coping mechanism during his five years of captivity,¹ animals are (as far as we know) not fortified by a sense of mission or injustice and do not know that their suffering will eventually come to an end.

The law has sometimes been slow to recognise that animals suffer. However, the European Union now accepts that animals are sentient beings and therefore qualitatively different from other traded “products”.² The European Patent Convention and the European Patent Directive³ each acknowledge that the genetic engineering of animals raises moral issues precisely because the engineered animals are liable to suffer; in principle, a patent could be refused on these grounds.⁴ And, in the UK, a licence to conduct an experiment on animals is only required if it is liable to cause “pain, suffering, distress or lasting harm”.⁵ Nearly three million laboratory animals fell within this definition in 2003.

Suffering, indeed, lies at the heart of all morality. We have moral codes precisely because our behaviour may adversely affect others. It is not surprising, therefore, that animal experimentation has become one of the ethical issues of our time. In a recent survey carried out by MORI for the Coalition for Medical Progress (CMP), over two thirds of respondents said they were either very or fairly concerned about the issue. The Animal Procedures Committee (APC), the government’s advisory body, has recently entered the ethical debate in its report on the cost:benefit test which lies at the heart of the Animals (Scientific Procedures) Act 1986.⁶ “Cost”, of course, refers principally to animal suffering. The APC’s contribution is intelligent but flawed in one crucial respect, as I will explain.

The battle for hearts and minds

The CMP is a newly formed coalition of multinational pharmaceutical and contract testing companies (such as GlaxoSmithKline (GSK) and Huntingdon Life Sciences (HLS)), pro-vivisection pressure groups such as the Research Defence Society (RDS), bodies funding animal research like the Medical Research Council, and a trade union, Amicus (which has members at HLS). The fact that yet another lobby group has been set up shows how crucial the battle for hearts and minds on this issue has become. It is fair to point out that many CMP members have a large financial interest in animal experiments.

It is beyond dispute that the present government, ever ready to promote British business, has recently entered the propaganda fray firmly on the side of animal researchers. It contributed an astonishing £85 000 towards the cost of the MORI survey.⁷ In 2002 the Prime Minister publicly supported Cambridge University’s controversial planning application to extend its primate facility. Rather embarrassingly for him, his intervention came on the very day that BBC’s Newsnight carried the British Union for Abolition of Vivisection’s exposé of the suffering endured by primates at the university’s existing facility.

The ethical issue in a nutshell

So the battle lines are drawn, sometimes literally. Although there are, increasingly, arguments around the scientific efficacy of vivisection, at root it is an ethical issue: is it justifiable to inflict suffering on animals when it is not for their benefit but rather for the benefit of those doing the inflicting (or those they purport to represent)? As with all ethical dilemmas, the proposition is capable of neither proof nor disproof. If a person’s political opinions are merely the rationalisation of his or her instinctive response, so it is with matters of ethics. We react to a given situation at an emotional level and then find the reasons to justify our position. The assumptions we make in addressing an issue will often determine the outcome, and those assumptions will often be the product of our cultural conditioning. Vivisection is no different from other issues in this respect.

The 18th century Scottish philosopher David Hume put it like this:

“The approbation of moral qualities most certainly is not deriv’d from reason, or any comparison of ideas; but proceeds entirely from a moral taste, and from certain sentiments of pleasure or disgust, which arise upon contemplation and view of particular qualities or characters.”⁸

Adam Smith’s view was that the general rules of morality are founded upon experience of what, in particular instances, our moral faculties and sense of propriety approve or disapprove.⁹ None of this means, of course, that rational thought has no place when considering ethical issues. As a minimum, we should, firstly, ensure that we have sufficient facts to make a reasonable judgement; and, secondly, strive for consistency across ethically comparable issues. The debate about animal experiments suffers from a deficiency in both these prerequisites, as I will try to explain.

I will focus on those animal experiments which can truly be said to be designed to address particular human diseases. They are, in fact, a minority of those carried out but it is here that the rival ethical positions are most sharply engaged.

INFORMATION

A secret system

Animal experiments in this country are shrouded in secrecy. Under section 24 of the Animals (Scientific Procedures) Act 1986, the Home Secretary could be sent to prison for up to two years were he to disclose information given to him in confidence by a researcher. The RDS advises researchers to mark everything they send the Home Office “in confidence” to try to prevent disclosure. A few years ago, Smith Kline French (as it then was) took a judicial review all the way to the House of Lords in an attempt to stop the medicines regulator even referring to test data (which SKF had supplied) when considering applications from other companies.¹⁰ Fortunately the attempt failed, but this is the secrecy mentality. Occasionally companies openly admit that they prefer their rivals to conduct “blind alley” research, irrespective of the cost to lab animals.¹¹

The Home Office claims that it makes its own judgement about what is confidential, but usually seems to find a reason to join in the conspiracy of silence.

The outcome of some research is published, of course, but only if the researcher finds it advantageous to do so. He or she is unlikely to highlight the animal suffering involved. Negative results are rarely published. As result, duplication is rife, as international institutions and the industry itself now acknowledge. Where results are published, an article in the BMJ has recently highlighted the flaws in the system.¹² The authors concluded: “Systematic bias favours products which are made by the company funding the research. Explanations include the selection of an inappropriate comparator to the product being investigated and publication bias.”

The public is therefore denied the information on which to make sound ethical judgements about animal experiments. It has to rely on the media, which traditionally prefers easy sensationalism to painstaking investigation and stories about animal rights militancy to serious argument. Animal protection groups feel they have to conduct undercover investigations to educate the public.

The ethical judgement at the heart of the legislation

Crucially, the culture of secrecy means that the legislation cannot work properly. The cost:benefit test is a moral judgement. Before he grants a licence for animal experiments, the Home Secretary is enjoined to weigh the likely “adverse effects” on an animal against the likely benefits of an experiment.¹³ That is, of course, a value laden judgement. How much suffering (if any) is acceptable? Does it depend on the species? What about the fact that the animal may die in the experiment, or be killed when it is no longer required? Should commercial benefit suffice? Should society just do without certain products, such that we do not need to worry about their safety? What about fundamental research, from which the benefits are by definition speculative?

There is no arithmetical formula to be applied to these ethical questions. In a mature democracy, how they are answered should reflect informed public opinion. But, this is not possible if the public does not really know what is going on and has no opportunity of influencing regulatory decisions, at however general a level. According to the Home Office, most of its inspectors—who in practice run the system—have previously held licences to experiment on animals, and therefore inevitably bring a pro-vivisection ethical perspective to their task.

Many believe that the government should publish detailed information about animal experiments—what they involve for the animals, their purpose, and their results—unless the researchers can, in an individual case, make out a strong objection. That would reflect the presumption of openness contained in the Freedom of Information Act 2000 (FOI Act), which has just come fully into effect. Information can be made public in anonymised form, in order to protect researchers from any risk of attack; information which is truly commercially sensitive can be omitted for as long as it retains such sensitivity.

Only in this way can there be the informed debate essential for formulation of ethical principles. It remains to be seen how much difference the FOI Act will make.

THE NEED FOR CONSISTENCY

So, the first prerequisite to a reasoned ethical judgement—the availability of sufficient information—is missing with animal experiments. What about consistency across comparable issues?

Most people would accept that an ethical philosophy should be internally consistent, insofar as possible, and that similar cases should be treated alike. Otherwise, the philosophy is likely to be opportunistic and self serving. To paraphrase John Donne: no ethical issue is an island.

In reaching our view about animal experiments, we should therefore search for a valid comparator and test our view about the former against our view of the latter. The obvious—and I believe correct—comparator is non-consensual experiments on people. In both cases, suffering and perhaps death is knowingly caused to the victim, the intended beneficiary is someone else and the victim does not consent.

The APC rightly raises the question of consistency in its discourse on the ethics of vivisection.⁶ However, it chooses the wrong comparator. It suggests that the “appropriate point of comparison should perhaps be with an ‘improved’ food animal industry”. Certainly, there is an ethical overlap between the way we treat food animals and the way we treat lab animals. However, the much more pertinent comparator is non-consensual experiments on people and it is surprising that the APC missed it.

Recent examples of non-consensual experiments on people

Recent history has witnessed many examples of non-consensual experiments on people. For example:

• the barbaric experiments carried out by Nazi and Japanese scientists during the second world war;

• the long running syphilis experiments on black people in Alabama over four decades up to the 1970s;

• the radiological experiments conducted at the Burden Neurological Institute in Bristol during the 1950 and 1960s by British scientists for the US Office for Naval Research. According to The Ecologist, holes were drilled at random through the skulls and into the brains of the institute’s patients. Steel electrodes, which had been coated with a radioactive chemical, were then sent deep into the brain via these holes, and electric shocks pumped through them. Some of the patients later had tumours deliberately induced in their brains.¹⁴

Sometimes, the human victim gives no consent at all; on other occasions, he or she may give consent but not on an informed basis. In November 2001, BBC Radio 4’s File on Four carried a damning report on the practice of some pharmaceutical companies, particularly in Eastern Europe and Africa, of abusing the principle of informed consent in clinical trials, including with children and mentally vulnerable people. Animals of course, cannot give any form of consent—informed or otherwise. I will return to the question of consent because it is central to the debate.

Why experiments on people and on animals are comparable

Some people will argue that, despite the superficial similarities, non-consensual experiments on people and experiments on animals are not ethically comparable. I have described these arguments below.

1. People have greater value than animals

It is said that, on the one hand, all people have equal intrinsic value¹⁵ and that, on the other, all people have greater value than all (non-human) animals. So, it is concluded, experimenting on people is unethical whereas experimenting on animals is ethical. There are two points here. Firstly, judging relative value is a subjective, wholly unscientific exercise, not least because the criteria one chooses will almost inevitably determine the outcome. There is no set of obviously correct objective criteria ready to be plucked off the shelf. It rather depends who you ask. Just as for each human being our own existence is inevitably the most important, however altruistic we may try to be, to the laboratory rat its existence matters more than anyone else’s.

Secondly, and more importantly, why should the fact (if this is what it is) that A has more value than B mean that A is at liberty to cause pain to B for A’s benefit? This is the crucial gap in logic which pro-vivisectionists rarely address. Let us accept for the sake of argument that it was provable that the human species was more important than other species—whether because people generally (though not always) have greater capacity for rational thought, may have greater self awareness, are better able to empathise, or have more sophisticated culture. It is not explained why those attributes mean that we can cause pain to those we relegate further down the hierarchy of value. And, if cruel exploitation of other species is justified on a relative value basis, then, logically, so must cruel exploitation within our species. Some people, indisputably, have greater capacity for rational thought, have greater self awareness, are better able to empathise, or have a deeper cultural appreciation than other people. However, most people do not conclude that the more endowed are for that reason entitled to cause pain to the less endowed for their own benefit.

The racist, the religious fundamentalist, and the misogynist do, of course, discriminate in their treatment of others according to the hierarchies of value they espouse. The majority of people may profoundly disagree with these hierarchies, but we cannot prove empirically that they are misconceived. Once one has breached the moral dam by allowing relative value to be the justification for cruel behaviour in one situation (vivisection), there is no rational basis on which one can tell someone that he does not have the right to be cruel to another person he genuinely (if misguidedly) believes to be of lesser value.

The important point is that the Nazis experimented on Jews because they regarded them as being of less value; those carrying out syphilis experiments on black men in Alabama no doubt privately justified them on the basis that they were “only” blacks. The US Bill of Rights deemed slaves to be worth only half a person, with the predictable exploitative results. In Honduras, Guatemala, and Brazil they kill street children by the thousand, because, after all, they are “only” street children, of no more value than last night’s rubbish.

In truth, relative value is a very dangerous criterion for making ethical judgements.

2. People are more intelligent than animals

Supporters of vivisection also point out that people are more intelligent than animals. This, it is claimed, is a morally distinguishing feature. It is, of course, true that people are generally more intelligent than animals (at least according to our own perception of intelligence). However, intelligence is a morally neutral attribute, not least because no moral choice is exercised in acquiring it. We do not give greater rights to the Nobel prize winning scientist than to the unemployed labourer. As Jeremy Bentham put it over 200 years ago in his well known epithet (his italics):

“The question is not, Can [animals] reason? Nor, Can they talk?, but, Can they suffer?”¹⁶

In any event, as Bentham noted, some animals are clearly more intelligent than some people. For example, many animals are more intelligent than people with severe learning disabilities or advanced senile dementia. If intelligence were the determining factor, it would be at least as justifiable to experiment on those people as on those animals.

3. Only people can exercise responsibility

A linked argument is that, in the mantra of New Labour, rights and responsibilities are the flip sides of the same coin. No one is entitled to enjoy rights unless also willing to exercise responsibility. As people can and do exercise responsibility, they should, it is argued, therefore enjoy the right of not being experimented upon; animals, on the other hand, often do not exercise responsibility (in the way we understand that concept) and are therefore entitled to no concomitant right.

In fact, there is no logical reason why one’s right to protection from physical harm should be conditional on what one can give back. No sensible person would deny babies, the mentally handicapped, or the comatose protection from harm because they cannot exercise responsibility.

In truth, there is no ethically relevant criterion which differentiates experimenting non-consensually on people from experimenting on animals. Ultimately, all that the proponent of vivisection has to fall back on is the fact that humans belong to one species and other animals belong to other species: “we are human and they are only animals”. This is a truism but one only has to state it to see that it has no intrinsic moral relevance. There may be a natural inclination, even a genetic disposition, to “protect one’s own”, but as Richard Dawkins acknowledged in The Selfish Gene,¹⁷ speciesism (the word first coined by Richard Ryder) has “no proper basis in evolutionary biology”. Why, then, do we allow it to determine our ethics?

INFORMED CONSENT AND BENEFIT

Consent by people

As I have indicated, the question of consent lies at the heart of the debate about experiments on people and experiments on animals. Experiments on people are sometimes permitted by law and supported by accepted norms. Indeed, the Declaration of Helsinki: Ethical principles for medical research involving human subjects (the Helsinki Declaration), as amended in October 2000, says that “[m]edical progress is based on research which ultimately must rest in part on experimentation involving human subjects”. However, consent is crucial; without it, the experiment may not be carried out. There are three types of situation where consent is relevant in the case of experimental treatment on people:

• Healthy volunteers. Healthy individuals—typically students needing money—take part in trials for new drugs for which they have no therapeutic need. Companies such as GSK advertise for volunteers in publications such as the Big Issue. The Helsinki Declaration emphasises the importance of informed consent: “each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail”. Consent can be withdrawn at any time “without reprisal”. Similarly, the Nuremberg Code, which arose out of the post-war Nuremberg Trials, says that “[t]he voluntary consent of the human subject is absolutely essential”. Again, the basic principle is that consent can be withdrawn

• Patients who have capacity. Patients sometimes consent to treatment which, although experimental, may benefit them. People suffering from AIDS provide the obvious example. The Helsinki Declaration describes this as “medical research combined with medical care”. Additional safeguards are put in place. The benefits and risks of the procedure in question must be tested against the best current prophylactic, diagnostic, and therapeutic methods and the patient must be given access to the best treatment identified by the study at its conclusion. Again, informed consent is key. The patient must be told which aspects of his care are related to the research.

• Patients who do not have capacity. The Helsinki Declaration provides that “[s]pecial attention is … required for those who cannot give … consent for themselves”. Presumably, experimentation is only permitted where the person without capacity stands to benefit directly from the process. In the UK, the law gives a high level of protection to patients without capacity, even for non-experimental treatment. For example, under section 58 of the Mental Health Act 1983 a registered medical practitioner, before embarking on a course of psychiatric treatment for a patient who is incapable of understanding its nature, purpose, and likely effect, must consult two other people who have been professionally concerned with the patient. It must be convincingly shown that the treatment is in the patient’s best interests.¹⁸ In some circumstances the consent of the High Court must be obtained before treatment is given to patients lacking capacity. What happens is that, where the safeguards are met, the law in effect presumes that the patient would have given consent had he or she been able to—because the treatment is in his or her best interests.

In each of these cases, consent is either volunteered or presumed; and in each case the subject’s interests are paramount.

Animals and consent

Animals, of course, cannot give consent. In a therapeutic setting, they rely on their owners to give consent on their behalf. The fact that treatment may be experimental is no bar, provided again that the particular animal may benefit. As with patients lacking capacity, the consent of the animal is, in effect, presumed if the treatment is in its best interests.

Animal experiments, by contrast, never benefit the particular animals experimented upon and are not designed to. This is why the correct comparison is with non-consensual experiments on people. A devil’s advocate might nevertheless argue that, as with people without capacity, a lab animal’s consent might sometimes be presumed. He might paint an optimistic scenario in which a mouse is adequately fed and watered and is housed in a laboratory in a way that is environmentally enriching and comfortable. He might also ask us to imagine that the procedures to which the particular mouse is subjected are only mild, such as the occasional taking of a blood sample, and not the more invasive procedures to which many lab mice are subjected (such as the creation of cancerous tumours and ascitic monoclonal antibody production).

Of course, the mouse would prefer not to be subjected to any procedure. But a rational mouse in its position, so the argument could run, might conclude that its life in the laboratory is nevertheless better than life outside, where it would have to search for food and live in constant danger from predators. It might judge that the loss of freedom and the occasional mild discomfort (under our scenario) are worth the security gained. Even if is likely to be killed prematurely, it might reason that, but for its proposed use in an experiment, it would not have been born in the first place. Better to have a life cut short than no life, it might ponder in an insightful moment.

In reality, even our hypothetical mouse might well prefer to take its chances in the wild. It is a reasonable assumption that primates and domesticated species such as dogs and cats would be most unlikely, under any circumstances, to swap freedom in the wild or a comfortable home for life in the laboratory. Clearly, one could not look to researchers (or government inspectors immersed in the culture of lab animal research) to make an impartial judgement that an animal would have given its consent had it been able to. In addition, the suffering experienced by lab animals is usually greater than mild discomfort, often far greater, even ignoring the distress caused by confinement in unnatural conditions.

However, the important point for the purpose of philosophical discourse is that it is theoretically possible to conceive of cases where, looked at from an animal’s perspective, the cost of being involved in an experiment might be outweighed by other considerations, in the same way as a poor student might make that judgement. Crucially, however, prevailing morality treats the two situations very differently. The law is simply not interested in whether an animal might be presumed to consent to an experiment. Its interests are overridden, ultimately rendered at naught. By contrast, the interests of the human experimental subject are always paramount. Intriguingly, the Helsinki Declaration and the Nuremberg Code embody the fundamental difference in approach. The Helsinki Declaration requires that experiments on people must, where appropriate, be based on information derived from animal experiments; and the Nuremberg Code says that the experiment “should be … based on the results of animal experiments”.

In other words, the codes stress the importance of consent with experiments on people but brush it aside when it comes to experiments on animals. There is a complete absence of consistency. Lord Winston recently fell into the same trap.¹⁹ He complained that doctors trying out new IVF techniques were effectively experimenting, without informed consent, on patients and babies. His solution? More experiments, necessarily without any consent, on apes and other primates.

Benefit to other animals

It is often pointed out, in defence of animal experiments, that animals also benefit from them (from the development of veterinary drugs and so forth). So they may, although in fact most experiments on animals for the benefit of animals are in the context of the farming and pet food industries—in other words, for (human) commercial benefit. In any event, here again the glaring inconsistency in approach manifests itself. The proposition is that it is justifiable to experiment on, say, a dog (against its will) so that dogs as a species may benefit. But if that is right, it must, by parity of reasoning, also be justifiable to experiment on a person (against his will) so that people generally will benefit. However, very few pro-vivisectionists subscribe to this view, at least openly.

CONCLUSION

Experiments on animals and non-consensual experiments on people are obvious comparators because both involve physical and psychological suffering for an unwilling, sentient victim. In each case consent is neither sought nor presumed and the victim is not the intended beneficiary.

However, society treats the two cases very differently. This is because ethical sleight of hand is deployed. Different ethical principles are applied to the two types of experiment.

With non-consensual experiments on people, a deontological approach is taken. The prevailing view is that such experiments are inherently wrong, whatever the potential benefits to others. Even where consent is given, the interests of the experimental subject are emphasised. The Helsinki Declaration states as one of its key principles: “In medical research on human subjects, considerations related to the well-being of the human subject should take precedence over the interests of science and society”. Science engages in a self-denying ordinance: the interest of the individual trumps that of humanity as a whole, even though this probably slows the search for a cure for Aids.

With animals, by contrast, the approach is a kind of utilitarianism. The law allows scientists to cause pain to animals if others might benefit. The Royal Society has recently argued that it is the alleged benefits of animal experiments which justify them. What it apparently failed to notice is that, if all that was needed for moral justification was a successful outcome, experiments on people would also be justified—indeed, much more so because people are indisputably a much better scientific model than animals for inquiries into human disease.

Some people, of course, do adopt a utilitarian approach to non-consensual experiments on people. The BMJ’s correspondent at the Nuremberg trial of Nazi scientists, Kenneth Mellanby, was prepared to justify those experiments which produced benefits. For example, he praised the notorious paper on typhus vaccines which an SS medical officer, Erwin Ding, published in 1943 as an “important and unique piece of medical research” which might lead to 20 000 people being saved for every victim of the research.²⁰ We have, fortunately, advanced as a society from the Machiavellian ends and means guide to a moral life—except when it comes to animals.

In making the sort of moral judgement discussed in this article, the best guide, as Shylock realised, is to empathise. The New Oxford Dictionary of English defines empathy as “the ability to understand and share the feelings of others”. The Oxford English Dictionary definition is a little more sophisticated: ‘the power of projecting one’s personality into (and so fully comprehending) the object of contemplation’. As a moral principle empathy finds best expression in St Matthew’s Golden Rule: “Do unto others as you would have them do unto you”. If I do not want pain inflicted on me, I should not inflict it on others. The reason we should include animals in our circle of compassion, as Albert Schweitzer put it, is because they, too, can suffer.

The ancient Greek poet Bion summarised it in this way: “Boys stone a frog in sport, but the frog dies in earnest”. In other words, we should look at things from the perspective of the victim—human or animal—not that of the would-be exploiter. By this yardstick, animal experiments must be immoral, just as non-consensual experiments on people are. In each case, the degree of immorality is in direct proportion to the degree of suffering caused—experiments causing severe suffering are more immoral than those causing only mild, transient suffering.

Consistency demands that, if we condemn one form of highly invasive physical exploitation, we must condemn all forms. In matters of ethics, the identity of the victim—black or white, Aryan or Jew, man or woman, human or non-human animal—should be irrelevant.

NOTE

David Thomas is a solicitor, specialising in animal protection and human rights law. He is legal adviser to the British Union for the Abolition of Vivisection and chairman of the Royal Society for the Prevention of Cruelty to Animals. The views expressed are his own.