1 This has not always been the whole story. Animals have been prosecuted and even executed for offenses such as laying an egg useful to the sorcerers' craft. See Tom Regan, Animals and the Law, in All That Dwell Therein: Animal Rights and Environmental Ethics 150–52 (Berkeley: University of California Press, 1982).Google Scholar

2 See Stephen I. Burr, Toward Legal Rights for Animals, 4 Envtl. Aff. 205, 209–12 (1975). Christopher Stone has challenged the legal status of natural objects. Christopher D. Stone, Should Trees Have Standing?–-Toward Legal Rights for Natural Objects (Los Altos, Cal.: William Kaufman, 1974), originally published in 45 S. Cal. L. Rev. 450 (1972). Stone argues that natural objects meet the requirements for legal identity. He points out that the law has conferred this status on such entities as ships and corporations and that guardianship proceedings have been devised as a means for recognizing the legal rights of humans incompetent to assert rights for themselves. Id. at 5–6,17–18. Other commentators have referred to his ideas in articles proposing legal rights for animals. E.g., Burr, supra, at 227–29.Google Scholar

3 Anita Dichter, Legal Definitions of Cruelty and Animal Rights, 7 B.C. Envtl. Aff. L. Rev. 147 (1978); Burr, supra note 2, at 212–16, 220–27.Google Scholar

4 See Bernard E. Rollin, Animal Rights and Human Morality 76–81 (Buffalo, N.Y.: Prometheus Books, 1981); Dichter, supra note 3; Burr, supra note 2, at 212–16,220–27. Anticruelty statutes and their judicial interpretations have favored most human interests over those of the animals whenever there is a conflict. Burr, supra note 2, at 213 (discussing case excluding cock-fighting from anticruelty statute's coverage, because of its stature as sport). Animal welfare laws reflect not simply concern for the animals' well-being, but concern for the human brutalization entailed in animal abuse. Regan, supra note 1, at 160; Rollin, supra, at 78–79. Laws governing experimentation on animals were stimulated by the desire to prevent the theft of pets for this purpose. See Lauren Stiller Rikleen, The Animal Welfare Act: Still a Cruelty to Animals, 7 B.C. Envtl. Aff. L. Rev. 129–31 (1978). The statutory protection given to endangered species reflects as well a concern for the human environment, both present and future. See Regan, supra note 1, at 160.Google Scholar

5 See Regan, supra note 1, at 157–58; Rollin, supra note 4, at 81.Google Scholar

6 Robert Nozick, About Mammals and People, N.Y. Times Book Review, Nov. 27, 1983, at 11.Google Scholar

7 E.g., Rollin, supra note 4; Peter Singer, Animal Liberation (New York: Random House, 1975); Christina Hoff, Immoral and Moral Uses of Animals, 302 N. Engl. J. Med. 115 (1980).Google Scholar

8 See, e.g., David Sperlinger, ed., Animals in Research: New Perspectives on Animal Experimentation (New York: John Wiley & Sons, 1981).Google Scholar

9 See Rollin, supra note 4, at 30–33.Google Scholar

10 It is scientists themselves who have provided us with the information on animal consciousness and experience that reveals the morally disturbing elements of our current practices. See, e.g., David Mac-Donald & Marian Dawkins, Ethology–-The Science and the Tool, in Animals in Research, supra note 8, at 203–23.Google Scholar

11 Donald R. Griffin, The Question of Animal Awareness: Evolutionary Continuity of Mental Experience 170 (rev. ed. New York: Rockefeller University Press, 1981).Google Scholar

12 Id. at 171.Google Scholar

13 Id. at 170.Google Scholar

14 “The chemical, geometric, and other properties of ‘Bones Fido Recognizes’ as against ‘Bones Fido Doesn't Recognize.’” Regan at 57.Google Scholar

15 See, e.g., Carolyn A. Ristau, Language, Cognition, and Awareness in Animals?in Jeri Sechzer, ed., The Role of Animals in Biomedical Research 170 (New York: New York Academy of Sciences, 1983).Google Scholar

16 Regan at 87–88. Courts and commentators have struggled to formulate substantive standards and procedures for ascertaining when humans should be disqualified from exercising autonomous decision making and what guidelines proxy decision makers should follow to show respect for the incompetent person and to further his or her welfare. See, e.g., Sup't of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977). See also Loren H. Roth, Alan Meisel, & Charles W. Lidz, Tests of Competency to Consent to Treatment, 134 Am. J. Psychiatry 279 (1977); John A. Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 Colum. L. Rev. 48 (1976). Their relatively less complex preferences and needs might reduce the difficulties inherent in proxy decision making on behalf of animals. On the other hand, because we are less knowledgeable about the preferences and needs of species other than our own, sach proxy decision making may present formidable challenges.Google Scholar

17 For a concise summary of the debate over the role of intuitions in moral philosophy, see Baruch A. Brody, Ethics and Its Applications 24–33 (New York: Harcourt Brace Jovanovich, 1983).Google Scholar

18 Regan at 177–78, quoting Immanuel Kant, Duties to Animals and Spirits, in Lectures on Ethics 239–41, trans. Louis Infield (New York: Harper & Row, 1963). The indirect duty position has been manipulated to support the use of experimental animals in medical education. A developer of computer programs simulating human and animal systems reports the following: “Many physicians have expressed to me concern that medical students trained with computers will come to regard their patients in a less humanitarian way than those trained with experimental animals.” James R. Walker, Computer Simulation of Animal Systems in the Medical School Laboratory, 11 Alternatives to Laboratory Animals 47 (1983).Google Scholar

19 Regan at 187–93. See infra text accompanying notes 30–34.Google Scholar

20 Regan recognizes that rule utilitarians might dispute this critique; he addresses the particular shortcomings of this variation of utilitarianism in a separate section of the chapter. See pp. 250–58.Google Scholar

21 Id. at 301–12, 331–33.Google Scholar

22 Regan leaves some ambiguity in analyzing the concept of comparable harm. (At 303–04, 324–25) Imagine a human with an extremely painful and completely disabling chronic heart condition. The only treatment for the condition is to transplant a valve from a cow's heart into the human. The cow will die painlessly as a result of the transplant. If we must choose to further the interests of one of these individuals, which individual shall we choose? Which harm forecloses more opportunities and imposes greater deprivation?Google Scholar

23 Acquired duties are valid if they meet the respect principle's requirements for just treatment. A slave trader, then, cannot appeal to an employment-related duty to justify modifying the application of the miniride or worse-off principle.Google Scholar

24 See, e.g., Peter Singer, Practical Ethics 67–68 (Cambridge: Cambridge University Press, 1979).Google Scholar

25 See id. at 68.Google Scholar

26 See Peter Singer, Sanctity of Life or Quality of Life? 72 J. Pediatrics 128 (1983).Google Scholar

27 Jonathan Swift's proposal to raise human infants for food furnishes a clever and disturbing complement to Regan's analysis. See Swift, A Modest Proposal for Preventing the Children of Poor People from Being a Burden to Their Parents or Country, and for Making Them Beneficial to the Public (1729). excerpts reprinted in Tom Regan & Peter Singer, eds., Animal Rights and Human Obligations 234 (Englewood Cliffs, N.J.: Prentice-Hall, 1976).Google Scholar

28 The present legal status of animals must be altered as well, Regan insists. The view that animals are mere property, lacking the legal status of persons, is morally unjustified and analogous to the former view of human slaves as legal property. Regan at 347–49. See supra text accompanying notes 1–5.Google Scholar

29 Regan at 352–53. He objects to consumption of poultry for the same reasons he objects to the use of nonmammals in scientific research.Google Scholar

30 See James Turner, Reckoning with the Beast: Animals, Pain, and Humanity in the Victorian Mind (Baltimore: Johns Hopkins University Press, 1980); Richard D. French, Antivivisection and Medical Science in Victorian England (Princeton, N.J.: Princeton University Press, 1975).Google Scholar

31 Jeffrey L. Fox, Lab Animal Welfare Issue Gathers Momentum, 223 Science 468 (1984). There is evidence that the U.S. figures may be declining, but the matter is in dispute. See Constance Holden, New Focus on Replacing Animals in the Lab, 251 Science 35, 37 (1982).Google Scholar

32 Regan at 371, quoting Singer, supra note 7, at 48.Google Scholar

33 21 U.S.C.A. § 355(b) (1983).Google Scholar

34 See 16 C.F.R. §§ 1500.3(b)(6), (c)(l), (c)(2) (1983) (CPSC); 40 C.F.R. §§ 162.3(e), (f), (ff11), 162.10(h), 162.11(a)(3) (1983) (EPA); 49 C.F.R. § 173.343(a)(1) (1982) (DOT).Google Scholar

35 See generally Marjorie Sun, Lots of Talk About LD₅₀, 222 Science 1106 (1983).Google Scholar

36 See Richard Ryder, Victims of Science: The Use of Animals in Research 158–63 (London: Davis-Poynter, 1975). Alternatives to animal tests take several forms. E.g., Walker, supra note 18 (computer simulation of animal systems); R. C. Brown & A. Poole, The In Vitro Effects of Mineral Dusts, 11 Alternatives to Laboratory Animals 79 (1983) (cell culture to assess potentially harmful effects of substance).Google Scholar

37 Andrew N. Rowan, Of Mice, Models, & Men: A Critical Evaluation of Animal Research 203–40 (Albany: State University of New York Press, 1984).Google Scholar

38 Id. Google Scholar

39 Holden, supra note 31, at 36. See also Fund for the Replacement of Animals in Medical Experiments, Alternatives to Laboratory Animals (U.K. organization and journal dedicated to promoting research for reducing suffering entailed in animal testing, replacing animal tests, and reducing numbers of animals used).Google Scholar

40 Screening a research project for its potential utility requires a prediction that may be inaccurate. See Jeri Sechzer, The Ethical Dilemma of Some Classical Animal Experiments, in Sechzer, supra note 15, at 5, 9–11. Yet the inevitability of some inaccuracy does not warrant rejecting this approach. Rollin argues that scientists can successfully review research for its theoretical support and potential for advancing scientific inquiry. Rollin, supra note 4, at 130–31. Moreover, institutional review boards presently weigh the risk imposed by research on human subjects against the benefits to subjects and the value of the knowledge that may be generated. DHHS Protection of Human Subjects Guidelines, 45 C.F.R. § 46.111(a)(2) (1983). See also Rebecca Dresser, Research on Animals: Values, Politics, and Regulatory Reform, S. Cal. L. Rev. (forthcoming).Google Scholar

41 Regan at 384 (emphasis in original), quoting C.R. Gallistel, Bell, Magendie and the Proposal to Restrict the Use of Animals in Neurobehavioral Research, 36 Am. Psychologist 357–58, 360 (1981).Google Scholar

42 Henry J. Baker, J. Russell Lindsey, & Craig A. DaRif, Responsibilities of Institutions for the Welfare of Experimental Animals, in W. Jean Dodds & F. Barbara Orlans, eds., Scientific Perspectives on Animal Welfare 49, 51 (New York: Academic Press, 1982).Google Scholar

43 See F. Barbara Orlans, Summary of Workshop on Funding Agency Responsibilities, in id. at 85, 89–91.Google Scholar

Federal regulations require institutional committees to review all research involving human subjects (except for certain exempt categories) funded by the Department of Health and Human Services. Protection of Human Subjects, 45 C.F.R. § 46.101 (1983). The institutional committee mechanism is also being adopted to resolve general ethical issues involving the care of hospitalized patients. See A. Edward Doudera & Ronald E. Cranford, eds., Institutional Ethics Committees and Healthcare Decisionmaking (Boston: American Society of Law & Medicine, in press).Google Scholar

44 Cal. Educ. Code § 51540 (West 1978).Google Scholar

45 7 U.S.C. §§ 2131–256 (1983). At present, the protections of the AWA do not extend to the actual experimental procedures. Id. at § 2143(a). See also H. Rep. No. 91–1651, 91st Cong., 2d Sess. 2, reprinted in [1970] US. Code Cong. & Ad. News 5103, 5104 (explicitly noting bill's failure to cover research procedures). Moreover, none of the Act applies to rats and mice, the animals most often used in experimentation. 9 C.F.R. § 1. 1(n) (1983). A summary of the Act's legislative history and subsequent implementation is recounted in Rikleen, supra note 4.Google Scholar

46 The Public Health Service Grants Administration Manual ch. 1–43 (“Responsibility for Care and Use of Animals”), requires institutions receiving research support to assure NIH in writing that they are committed to the agency standards for animal use. National Institutes of Health, Guide for the Care and Use of Laboratory Animals 68, DHEW No. (NIH) 78–23 (rev. ed. 1978). The NIH provisions extend to experimental procedures and furnish more protection for laboratory animals than those of the Animal Welfare Act. NIH personnel, however, have been criticized for their failure to enforce the provisions of the Guide. See Orlans, supra note 43, at 85, 87–91. Likewise, the US. Department of Agriculture's inspections to enforce the Animal Welfare Act are labeled insufficient. See David J. Ramsey & Joseph S. Spinelli, Responsibility of Funding Agencies: Central or Local Control?in Dodds & Orlans, supra note 42, at 77, 79; Rikleen, supra note 4, at 134–43. The recent proposed federal legislation attempts to strengthen enforcement procedures as well as to increase the substantive federal protection given to animals. See Note, Towards Legal Rights for Laboratory Animals? 10 J. Legis. 198, 207–11 (1983). In addition, NIH personnel are presently revising NIH policy to strengthen the force of the Guide's provisions. DHHS, Laboratory Animal Welfare, 13 NIH Guide for Grants and Contracts 13 (April 5, 1984).Google Scholar

47 See Fox, supra note 31, at 468–69. One reform bill was passed by the Congress, but vetoed by President Reagan. See Colin Norman, President Vetoes NIH Bill, 226 Science 811 (1984). For a summary of recent political activity, see Dresser, supra note 40. In late 1983, the Office of Technology Assessment began an 18-month study of alternatives to animal testing and experimentation. Congressional Study of Alternatives, 6 Scientists Center for Animal Welfare Newsletter 3 (April 3, 1984).Google Scholar

48 See Sun, supra note 35, at 1106.Google Scholar

49 In late 1983, the Parliamentary Assembly of the Council of Europe failed to approve the most recent draft convention on animal research. Draft Convention Fails to Impress Assembly, 11 Alternatives to Laboratory Animals 44 (1983). As a result, the draft will be sent to a newly assembled committee of experts for continued examination. Id. Observers believe the draft was rejected due to the lobbying efforts of West German animal welfare groups who viewed its protection as too weak. Id. See also Judith E. Hamp-son, Legislation to Protect Laboratory Animals, 11 Alternatives to Laboratory Animals 93 (1983).Google Scholar

50 Public Responsibility in Medicine and Research, Standards for Research with Animals: Current Issues and Proposed Legislation, Boston, Mass. (October 3–4, 1983), proceedings published in Standards for Research with Animals: Current Issues and Proposed Legislation (in press); New York Academy of Sciences, The Role of Animals in Biomedical Research, New York City (April 28–29,1982), proceedings published in Sechzer, supra note 15; Scientists Center for Animal Welfare, First Conference on Scientific Perspectives in Animal Welfare, Chevy Chase, Md. (Nov. 11–13, 1981), proceedings published in Scientific Perspectives on Animal Welfare, supra note 42.Google Scholar

51 These principles were first set forth in William M. S. Russell & Rex L. Burch, The Principles of Humane Experimental Technique (London: Methuen, 1959): “Replacement means the substitution for conscious living higher animals of insentient material. Reduction means reduction in the numbers of animals used to obtain information of given amount and precision. Refinement means any decrease in the incidence or severity of inhumane procedures applied to those animals which still have to be used.”Id. at 64.Google Scholar

52 A few professional societies have recently formulated more protective guidelines for research on animals. E.g., Ethical Guidelines for Investigations of Experimental Pain in Conscious Animals, 16 Pain 109 (1983) (investigator should try most noninvasive pain stimuli on self; analgesics should be administered to laboratory animal).Google Scholar

53 See Turner, supra note 30; French, supra note 30.Google Scholar

54 Supra note 4.Google Scholar

55 Id. at 92–95.Google Scholar

56 As noted earlier, Bernard Rollin offers two principles for reviewing research on animals, one of which incorporates the rights view. See infra text accompanying notes 54–55. An additional set of review standards devised in Sweden classifies biomedical experiments according to their intrusiveness to the research subjects and varies the level of review accordingly. Certain experiments involving severe pain or deprivation are deemed “unacceptable irrespective of the significance of anticipated results.” Categories of Biomedical Experiments Based on Increasing Ethical Concerns for Non-Human Species, available from Scientists Center for Animal Welfare, P.O. Box 3755, Washington, D.C. 20007.Google Scholar

57 Regan's analysis focuses on various burdens he believes humans unjustly impose on animals. He does not explore the realm of distributive justice to determine what benefits animals might be owed under his principles. How would conferring moral and legal rights on animals affect the allocation of society's resources? To what social goods are nonhuman moral patients entitled? As my colleague John Robertson aptly posed the question: Are Veticare and Veticaid morally required?”Google Scholar