1 Introduction: “Don’t Be Emotional, Let’s Focus on the Facts”
The fact that countries all over the world continue to develop new regulations for experimentation on non-human animals testament that this practice raises many doubts. Our aim in this chapter is to show that one important type of doubt should receive more attention: a particular type of moral doubt that could play a pivotal role in the ethical review of animal experiments. We assume that there are a range of emotions that indicate morally complex or problematic situations. When one or all of these emotions are experienced, we say that someone is experiencing moral doubt. To illustrate this point, we introduce the concept of moral doubt in the context of review processes, as they are legally required in the European Union (eu). Independent evaluation committees review animal research proposals to advise competent authorities whether applications for animal experiments comply with the legal standards. We chose the case of Germany as an example to explain what these committees decide upon and the degree to which their decisions may be influenced by emotions. We develop the argument that acknowledging emotional moral doubt throughout the review process, in specific ways, may have the positive effect of fostering paradigm change in animal experimentation, as envisioned in Directive 2010/63/EU (European Parliament, 2010).
2 Review Processes between Technical Checks and Ethical Advice: Lessons Learned from the German Practice
European animal welfare and protection laws regulate ethical conflict surrounding animal experimentation in the following way: They require that experiments be authorized based on a harm-benefit analysis and that the principles of the 3Rs (replacement, reduction, and refinement) be implemented, as outlined in Directive 2010/63/EU (European Parliament, 2010, Recital 11 and Article 4). Moreover, “animals should always be treated as sentient creatures and their use in procedures should be restricted to areas which may ultimately benefit human or animal health, or the environment” (European Parliament, 2010, Article 12). This is the extant ethical consensus, which is reflected in national legislations. We argue that review processes have two functions: a technical function to ensure that this consensus is implemented (technical function); and a normative function to identify new reasons for ethical concern (ethical function).
2.1 Evaluation Committees as Legal Advisors in European Animal Law
Under European Union legal harmonization, eu Member States have introduced review processes (rps) to evaluate whether applications comply with legal standards. Since information on the many different rps is scarce, we must rely on Silva et al. (2015), who collected and confirmed data from 20 Member States. However, all Member States have implemented some form of rp. In cases where information is available, Member States require that the opinion of an external evaluation committee must be taken into account by the competent authorities (Silva et al., 2015). The required expertise in such committees varies: most eu Member States require knowledge in technical, medical, or natural sciences as well as veterinary health and welfare. Some Member States require legal expertise (e.g., Finland, Poland, Denmark); others require expertise in ethics (e.g., Belgium, Estonia, Netherlands) or alternatives to animal experimentation (e.g., Latvia, Netherlands). In some states, representatives of interest groups are nominated, such as animal protection (e.g., Poland, Croatia, Sweden); patients (e.g., Denmark and Poland); or general society, as represented by lay persons (e.g., Portugal and the United Kingdom) (see Silva et al., 2015).
Despite the differences in expertise, any RP fulfills two functions. First, to evaluate what applicants describe as the scientific purpose of their experiments, with regards to their plausibility. Part of this plausibility check is an evaluation of whether common means to reduce suffering (refinement) are in place; and whether the smallest necessary number of non-human animals is used (reduction). We call this the technical function. However, it is widely
In cases of substantial conflict of interest, pluralist democracies enable representatives of interest groups to negotiate in parliament in order to achieve compromises that benefit the common good (Fraenkel, 2011). The outcome of such discussions usually leads to a normative decision, in the form of a law, to be enforced by executive forces (e.g., competent authorities). The institutional approach implicit in Article 9 of the ets (1986) is different because enforcement and normative decisions go hand in hand. Competent authorities in EU countries have to weigh the interests of non-human animals and researchers on a case-by-case basis and, by doing so, implement the law, while allowing for different interpretations. Hence, the weighing process is transferred from the legislative to the executive power. Since this can be problematic, external evaluation committees were introduced to include the contributions of experts and representatives of interest groups, as mentioned above (Silva et al. 2015). For example, in Germany and the United Kingdom, RPs were introduced in 1986 (Biedermann, 2009).
The ethical RP is important when it comes to research competition within the EU. Member states have “a certain flexibility to maintain national rules aimed at more extensive protection of animals” if the functioning of the internal market is not affected (see European Parliament, 2010, Directive 2010/63/EU, Article 7). Presumably, an economized medical and pharmaceutical sector will allocate its research where regulation is low and animal protection measures are least costly. Consequently, if a country uses the right to impose more extensive animal protection measures than those agreed upon at EU level, applicant institutions (e.g. international pharmaceutical companies) may look for other countries where regulations are less extensive. This is why the work of RPs is an important instrument in working towards a paradigm
2.2 The German “Ethics Committees”: Ethical Review or Technical Plausibility Checks?
According to most recent reports, over 2.8 million non-human vertebrates were used for scientific purposes in 2017 (Bundesministerium für Landwirtschaft und Ernährung, 2018) which makes Germany Europe’s second highest user of non-human animals for research purposes (Cruelty Free International, 2016). We now turn to the situation of the RP in this country to see how the ethical and technical functions are implemented and to understand some of its complicating factors. The German animal protection law, Tierschutzgesetz (TierSchG 2006, last amended in 2017), requires that competent authorities assess the indispensability of experiments (Section 7a); and that they be assisted by external committees (TierSchG 2006, Section 15) in reviewing the animal research proposals. These are the German rps. The declared intent was that these committees would support authorities with expert knowledge, and that animal protection organizations would be given the opportunity to propose members (Deutscher Bundestag Drucksache 10/3158, 1985). The majority of the members have to possess expertise in medicine, veterinary medicine, or natural sciences (Tierschutz-Versuchstierverordnung, TierSchVersV 2013, Section 42(1)). These members may conduct or may have conducted animal experiments themselves; and one third of the members should represent animal protection organizations (TierSchVersV 2013, Section 42(2)). Therefore, committee members from animal protection organizations are the minority (Hirt, Maisack and Moritz, 2016). Moreover, although the law makes reference to the need for ethical justification (TierSchG 2006, Section 7a(2)(3)) and for ethical expertise (TierSchG 2006, Section 9(1)), what it means is unclear. The fact that members of the committee work under strict confidentiality (presumably in order to protect personnel involved in the research, their families, and the animals themselves) adds to the lack of transparency; the public cannot be consulted on questions where the normative consensus is, arguably, in flux. Efforts have been made, post factum, to make basic information regarding authorized experiments easily accessible to the interested public (see https://www.animaltestinfo.de); however, the public, who are increasingly willing to stop certain experiments to protect animals (Eurobarometer, 2005; European Citizens’ Initiative, 2016; Greenpeace Magazin, 2003), have no say in the matter. Another complicating factor is the potential tension between animal advocates
Finally, the problem of finding animal-free alternatives to a proposed experiment remains. While it is incumbent upon the applicant to show that no such alternatives exist, this is often done by a simply stating that that is the case. While committee members are not supposed to be co-researchers, they will do what they can to find out whether that is true. At the same time, they can hardly be experts in all relevant animal research fields. For example, a research consortium proposed to test inequity aversion in mammals, including humans (Bundesinstitut für Risikobewertung, 2015). Not entirely without irony, the idea was to use rats (next to marmosets and tamarins) because of their highly social nature; and it was explicitly stipulated that, in the long run, results from this experiment would allow adaptations in human society that increase prosocial behavior and cooperation. It was also expected that the experiment would promote better protection for non-human animals who, socially, can prove to be much more complex creatures than expected. Six-hundred and four rats were to be confined in standard laboratory cages, and they would be killed at the end of the experiment. Harms inflicted on the non-human animals further included separation of individuals from their group (fear); injection of hormones; and handling. The applicant had to show that there were no non-animal alternatives for the experiment, and that results could not be obtained through observance of the behavior of free living non-human animals. However, one would need to be an expert in behavioral animal sciences and animal cognition to prove this assumption right or wrong. Given that committees do not specialize in certain themes or research topics, it would be a coincidence if a committee member knew the issues involved well enough. And even if such an expert happened to be a member of the group, they would need sufficient time to establish a compelling, suitable alternative to refuse the application.
Thus, we can see how the fact that it is often difficult to prove that alternatives exist practically reduces the application of the 3Rs to two, namely, reduction of animals involved and refinement, i.e., applying all methods and means to reduce pain, distress, harm, and suffering (see Herrmann, 2019, Chapter 1 in this Volume). However, simply living under laboratory conditions is distressing for the animals and raises ethical questions. Hence, we argue that such a reduced evaluation does not meet the ethical principle of the German animal protection law, which states that “experiments on vertebrates and cephalopods may only be conducted, if the expected pain, suffering and harm is ethically justifiable regarding the purpose of the experiment.” (TierSchG 2006, Section 7a(2)(3)). There is, then, a serious tension at the heart of the RP. Although the public is led to believe that ethical justification plays an important role in committee work—colloquially known as ethics committees in Germany (Hirt, Maisack, and Moritz, 2016)—the RP practically disregards real ethical alternatives and focuses on minor technical adaptations. Convincing RPs would necessarily involve a much more careful evaluation of the intended infliction of harm on animals, in light of the expected benefits of and possible alternatives to the experiment. In order to achieve this, we propose careful consideration of emotional sensitivities surrounding animal experiments.
There are good reasons to assume that emotions are important in identifying and clarifying ethical questions. Instead of singling out one emotion in particular, we suggest calling the experience of a range of potentially conflicting emotions when confronted with animal experiments moral doubt. While we explain this idea in more detail below, we emphasize that the distinction between ethical and technical assessment is not always straightforward. Consider, for example, the so called, severity assessment of animal suffering. The estimated individual condition of animals during an experiment can hardly be conducted without an empathetic understanding of the animals’ minds; for it is the empathetic engagement with a suffering animal that motivates the individual to alleviate the harm done to them (Aaltola, 2012; Gruen, 2015). Therefore, one cannot assess the urgency to alleviate the suffering—and that precisely must be the idea of a severity assessment—without any empathetic engagement. However, despite their obvious importance in moral and political
In 2012, the administrative court in Bremen ruled that competent authorities only need to ensure “qualified plausibility checks” of the experiments and may refrain from ethical assessment of harms and benefits (Higher Administrative Court Bremen, 2012, p. 16). Although this ruling has come under juridical critique and does not meet the requirements of Directive 2010/63/EU (Maisack, 2016; Peters and Stucki, 2014), it mirrors a tendency to focus on technical checks and to neglect more extensive ethical review in current RP practice. This tendency is reinforced by institutional factors, including, but not limited to, the dominance of life scientists in the committees, no proper compensation, lack of time, and the unresolved question of how to better include expertise on non-animal alternatives. Nevertheless, the public is under the impression that competent authorities do everything to seek ethical advice, and that no animal is killed without compelling reason.
3 Emotions in Inquiry and the Case for Moral Doubt in Ethical Review Processes
Now that we have highlighted the tensions surrounding the RP, what is the role of emotions here? Why should a particular form of emotional experience, namely what we term moral doubt, be at the heart of a well-functioning ethical review? And how can we achieve concrete improvements of the committees—such as, integrating committee work with the political process, or greater transparency of animal testing where committee members are allowed to voice their concerns publicly—if we take moral doubt seriously?
Emotions, in general, suffer from the stigma of being irrational (Midgley, 1983, Chapter 3). This is true in the context of the RP as well. If committee members show too much empathy for animals, they are at risk of being charged with anthropomorphism; they may be accused of being unprofessional if they get angry about something that may very well deserve an angry response, such as the general sloppiness of an application; the lack of standard forms of refinement (Herrmann, 2019, Chapter 1 in this Volume); or even the presence
3.1 Emotions, Value Recognition, and the Framework of Directive 2016/63/EU
While precise philosophical reconstruction is a matter of debate, an important connection is often assumed between emotions and values and our motivations to do something about values (e.g., Deonna and Teroni, 2015; Tappolet, 2016; Kriegel, 2015). To doubt, for example, by shaking your head and calling xunbelievable, crucially involves a hesitation to continue business as usual and a refusal to accept x as normal, good evidence, or appropriate; to say that x is disgusting or abhorrent is to identify x as predicated by a negative value that motivates a range of actions aimed at changing the situation. Emotions can also act as signals to others (van Kleef, 2009), about what you think or what you are likely to do next, a warning to others or a request for them to attend to a situation more closely. Such evaluations and suggestions regarding what to do are, of course, preliminary and are, at times, affected by other emotions. Your trust in the good intentions of other committee members may lead you to drop
Thus, there is a factual component to the question of whether something is, for example, cruel or not; and to rid oneself of emotional sensitivity makes it unlikely to discover this. It is important to mention that such sensitivity is already numbed at the level of the analytical terms at the committee members’ disposal. This is symptomatic of the misleading, objectifying language that surrounds animal testing (Crary, 2016). To give an example, committee work relies on a severity classification that defines categories of animal suffering, ranging from low to high: non-recovery, mild, moderate, and severe. However, the allegedly lowest category of severity, which most experiments imply, is the killing of animals at the end of the experiment, despite the fact that many of them could live much longer. At the same time, Directive 2016/63/EU requests an acknowledgement of the “intrinsic value of life” of animals (see European Parliament, 2010, Annex v). Similar knowledge of value and commitments are expected by the German animal protection law (TierSchG 2006, Section 1; TierSchVersV 2013, Annexes 2.2, 3.2). The tension between ethical rhetoric and reality provokes emotions and calls for intense debate about cruelty. The same is true for many other cases. For example, the deprivation of social partners for up to 24 hours is classified as mild. While most companion dogs are not left to endure prolonged separation from their social partners, why should it be okay for a rat not to know where her cagemates are for a much longer period of time? These examples only scratch the surface of the issue at hand, and we are not even close to evaluating questions involving intentional pain and suffering inflicted on animals. However, the fact that legitimate doubts already appear at this point supports the claim that more ethical inquiries are needed to foster change in the current system.
3.2 Exercising Moral Doubt in the Context of Animal Testing
We have discussed the disruptive nature of doubt, disgust, anger, and the like. Here, we illustrate the moral doubt that can arise concerning animal experiments. We follow the tradition of philosophical pragmatism, in that we propose a problem-driven, generally science-friendly approach to reasoning that subscribes to fallibilism and contextualism and maintains that there is no fundamental dichotomy between facts and values (Putnam, 1994), to name the pragmatist tenets that are important to our topic. Accordingly, we suppose that problems occur when our habits to think and to act break down, i.e. when we experience inconsistencies. If, for example, I experience distress from the use of an animal for the purpose of x, believing that x is unproblematic, my doubt by virtue of experiencing the creature’s distress is a sign that the practice is not unproblematic. Ideally, I would pause and reflect. My goal is to establish a belief that will not be easily questioned by future experience, for instance: “I shall not use any an animal for purpose x” or “Purpose x is unproblematic, but I need to change the situation for the animal in ways that eliminate the distress.” Emotions that occur in the context of animal experimentation include disgust, anger, compassion, and hope (to name but a few). When we experience one of these emotions, or a mix of them, in ways that demand that we pause and reflect, we experience moral doubt that can help us evaluate issues of animal experimentation.
It is important to note that doubts also need to be taken seriously when someone else expresses them, i.e. if I fail to find anything problematic in what I am doing, but someone else alerts to me to potential ethical problems that I may not have noticed (Trout, 2010). This reinforces the issue of diversity in sensitivities within the committees. If I have had to train myself to ignore moral doubts that I may otherwise experience, in order to pursue my career by experimenting on animals, I must rely on someone else’s emotional sensitivity whose moral doubt is intact. This is needed at multiple stages, assuming that any inquiry includes acknowledgement of a problematic situation, clarification of what the problem really is, determination of possible solutions, and (hypothetical) reasoning and the testing of the solution (Dewey, 1938, Chapter 6). Moral doubt is relevant because it functions as a sign that there is a problem. Moreover, it can entail suggestions as to what the problem may be. Finally, emotions are involved in suggesting solutions that are deemed morally appropriate (Fesmire, 2003). They can act as intellectual virtues, such as courage or conscientiousness; and they will play a role both in the hypothetical reasoning and, ideally, in the evaluation of whether the problem has been solved well.
However, emotions are not necessarily constructive. While, for example, empathy and anger over injustice done to rats, which are part of testing
In summary, we suggest that the integration of moral doubt into RPs can achieve two things. First, it may lead to a more conscientious adaptation of animal protection, already envisioned in Directive 2010/63/EU, by challenging both the relative neglect of the ethical dimension of the RP compared to technical checks and the moral numbness of people planning, conducting, evaluating, and overseeing the experiments. Since the pragmatist methodology emphasizes the importance of learning from errors and insists on the evaluation of tested solutions, a retrospective evaluation of projects that have been granted authorization would be highly desirable as part of the RP. Second, it is likely that some questions of animal testing will not be resolved within the RP, specifically those that are already unanswerable within the existing framework or those that arise when a regulatory framework itself is questionable. When doubt cannot be resolved, the practice should not proceed, so that important opportunities to inquire into value conflicts are not missed. While this may not sound very pragmatic, the principle of living doubt may provide a moral compass whenever a, so-called, dilemma between erring on the side of caution
4 Concluding Comments
Competent authorities throughout the EU face the challenge of ethically evaluating animal experiments, and Directive 2010/63/EU demands that applications be evaluated by third parties other than the applicant. Expert committees may be a suitable model for this purpose, as long as the basic principles of their work are submitted to democratic control. One way or another, experts will have to deal with emotions when deciding on the life and death of countless, sentient animals. The way in which experts deal with their own emotions and those of others is likely to impact their decisions. The question, then, is not whether but how this influence occurs. While we stress that no comprehensive study of experts’ actual emotional regulation has been conducted, in this chapter, we provide an answer to the normative question, whether competent authorities and experts have good reason to articulate and acknowledge clearly their emotional moral concerns and consider them as relevant for decision-making. The answer is, yes. We base this answer on a philosophical account of emotional functioning. Moral doubts signal problems in particular situations, say something about the nature of the problem, and push for solutions. In our case, the problem is the suffering of millions of animals subjected to experiments that will hypothetically improve human life—a definitive moral cost for an uncertain benefit. If the RP does not provide room to find the right words when articulating these emotional signs, the problem-solving potential is lost. We argue that acknowledging, and not suppressing and ignoring, moral doubts can foster the envisioned paradigm change in animal experimentation. In order to enable such an optimistic perspective, a variety of conditions need to be fulfilled.
In cases where a substantial debate cannot resolve a conflict, the RP should be able to communicate concrete, open-questions to political or legal decision makers. RPs are impeded by lack of clarity in the implementation of vague legal norms, such as the prohibition of unnecessary suffering. The public and the legislator need to know about the unanswered questions that follow from these impediments and push for solutions. Interaction should also exist at the
The tension between the current practice of animal experimentation and the ethical value of unnecessary suffering, hopefully, provokes emotions. Indeed, ethical review must be based on facts. However, given the many uncertainties and problems surrounding the RP, above all, one thing is clear: there is a strongly felt sense that we need non-animal alternatives in research. Ignoring this and continuing to participate in an inherently dubitable practice impedes reasonable solutions. Finding the right words when expressing moral doubts is a technical skill to inform legal decision making, and we currently disregard this skill at the expense of our moral and scientific integrity.
BiedermannM. (2009). Überwachung und Kontrolle genehmigungspflichtiger Tierversuche vergleichend in Deutschland und Großbritannien. Berlin: Mensch und Buch Verlag. [online] Available at: https://refubium.fu-berlin.de/bitstream/handle/fub188/12103/Biedermann.pdf?sequence=1 [Accessed 6 August 2018].
Bundesministerium für Landwirtschaft und Ernährung (BMEL) (Federal Ministry of Food and Agriculture) (2018). Verwendung von Versuchstieren im Jahr 2017. [online] Available at: https://www.bmel.de/DE/Tier/Tierschutz/_texte/Versuchstierzahlen2017.html#doc11850874bodyText1 [Accessed 20 December 2018].
Cojocaru M.D. (under review). Doing Ethics or Changing for the Better? On Pragmatism Ethics and Moral Pragmatics.
Cruelty Free International (2016). Action needed as numbers of animals used in experiments rise in Europe. [online] Available at: https://www.crueltyfreeinternational.org/what-we-do/breaking-news/action-needed-numbers-animals-used-experiments-rise-europe [Accessed 5 August 2018].
Deutscher Bundestag Drucksache 10/3158 (1985). Deutscher Bundestag: Entwurf eines Ersten Gesetzes zur Änderung des Tierschutzgesetzes (Draft for a first amendment of the animal protection law). [online] Available at: http://dipbt.bundestag.de/doc/btd/10/031/1003158.pdf[Accessed 5 August 2018].
Eurobarometer (2005). Europeans, Science and Technology. Special Eurobarometer224Brussels: Directorate General Press and Communication of the European Commission. [online] Available at: http://ec.europa.eu/commfrontoffice/publicopinion/archives/ebs/ebs_224_report_en.pdf [Accessed 5 August 2018].
European Parliament (2010). Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the Protection of Animals Used for Scientific Purposes. Official Journal of the European CommunitiesL276 p. 33–79. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32010L0063 [Accessed 13 October 2016].
Higher Administrative Court Bremen (2012). Judgement 1A 180/10; 1 A 367/10 of 11. December 2012. [online] Available at: https://dejure.org/dienste/vernetzung/rechtsprechung?Gericht=OVG%20Bremen&Datum=11.12.2012&Aktenzeichen=1%20A%20180%2F10 [Accessed 5 August 2018].
MaisackC. (2016). Gutachten zu der Frage ob und ggf. welche Bestimmungen der Richtlinie 2010/63/EU (EU-Tierversuchs-Richtlinie) durch das Dritte Gesetz zur Änderung des Tierschutzgesetzes und die Tierschutz-Versuchstierverordnung nicht oder nicht ausreichend in deutsches Recht umgesetzt worden sind. Bad Säckingen Germany: Legal report commissioned by Member of the German Parliament Nicole Maisch.
Tierschutzgesetz (TierSchG) in der Fassung der Bekanntmachung vom 18. Mai 2006 (bgbl. I S. 1206 1313) das zuletzt durch Artikel 141 des Gesetzes vom 29. März 2017 (bgbl. I S. 626) geändert worden ist. (German animal protection law). [online] Available at: https://www.gesetze-im-internet.de/tierschg/BJNR012770972.html [Accessed 5 August 2018].
Tierschutz-Versuchstierverordnung (TierSchVersV) vom 1. August 2013 (bgbl. I S. 3125 3126) die zuletzt durch Artikel 394 der Verordnung vom 31. August 2015 (bgbl. I S. 1474) geändert worden ist (Regulation for the protection of animals used for experimental or other scientific purposes). [online] Available at: https://www.gesetze-im-internet.de/tierschversv/TierSchVersV.pdf [Accessed 6 August 2018].