5. Innovative <strong>the</strong>rapy may be carried out only after <strong>the</strong> subject or his legal representative hasunambiguously consented to <strong>the</strong> procedure in <strong>the</strong> light of relevant information provided inadvance. Where consent is refused, innovative <strong>the</strong>rapy may be initiated only if it constitutes anurgent procedure to preserve life or prevent serious damage to health and prior consent couldnot be obtained under <strong>the</strong> circumstances.6. The question of whe<strong>the</strong>r to use innovative <strong>the</strong>rapy must be examined with particular carewhere <strong>the</strong> subject is a child or a person under 18 years of age. (Ghooi, 2011, p. 74)5.35. The Nuremberg Code was drafted at <strong>the</strong> end of <strong>the</strong> Second World War. The code was a landmark documentin <strong>the</strong> development of <strong>the</strong> ethics of research involving human subjects. Six out of <strong>the</strong> ten points of <strong>the</strong> NurembergCode were derived from <strong>the</strong> 1931 guidelines. Although <strong>the</strong> Nuremberg Code was not a legal document, it was<strong>the</strong> first international document to advocate voluntary participation and informed consent. The NurembergCode states that ‘<strong>the</strong> voluntary consent of <strong>the</strong> human participant is absolutely essential’ and that <strong>the</strong> benefits ofresearch must outweigh <strong>the</strong> risks (Nuremberg Code, 1949, para 1).5.36. In 1964, <strong>the</strong> World Medical Association established recommendations guiding doctors in biomedicalresearch involving human participants. These recommendations were set down in <strong>the</strong> Declaration of Helsinki(World Medical Association, 2013), which governs international research ethics and defines rules for researchcombined with clinical care and for non-<strong>the</strong>rapeutic research.5.37. The declaration has been updated regularly, <strong>the</strong> last update being in 2013. One ethical stipulation isespecially relevant: ‘Informed consent from research participants is necessary’ (World Medical Association, 2013).5.38. In response to <strong>the</strong> prejudice (unjustifiable bias) that had been shown to occur during <strong>the</strong> TuskegeeSyphilis Study (1932–1972), <strong>the</strong> National Research Act (1974) was passed in <strong>the</strong> US. This act created <strong>the</strong> NationalCommission for <strong>the</strong> Protection of Human Subjects of Biomedical and Behavioral Research (hereafter ‘NationalCommission’). The National Commission was charged with identifying <strong>the</strong> basic ethical principles that shouldunderlie <strong>the</strong> conduct of biomedical and behavioural research involving human subjects and with developingguidelines that should be followed to ensure such research is conducted in accordance with those principles.The National Commission drafted <strong>the</strong> Belmont <strong>Report</strong> in 1979, which was to become a foundational documentfor <strong>the</strong> ethics of research involving human participants in <strong>the</strong> US. It is pertinent to note that <strong>the</strong> Belmont <strong>Report</strong>established three basic ethical principles, as follows: (1) respect for persons, (2) beneficence, and (3) justice(National Commission, 1979).5.39. The first principle, ‘respect for persons’, encapsulates <strong>the</strong> issue well:a. Individuals should be treated as autonomous agents.b. Persons with diminished autonomy are entitled to protection.5.40. Of note is that an autonomous person is defined in <strong>the</strong> Belmont <strong>Report</strong> as an individual who is capable ofdeliberation about personal goals and of acting under <strong>the</strong> direction of such deliberation.5.41. The application of this particular ethical principle is in informed consent, as follows:a. Participants, to <strong>the</strong> degree that <strong>the</strong>y are capable, must be given <strong>the</strong> opportunity to choosewhat shall or shall not happen to <strong>the</strong>m.b. The consent process must include <strong>the</strong> following three elements: information, comprehension,and voluntary participation.5.42. But <strong>the</strong> question must be asked: if <strong>the</strong>se principles are sound, why should <strong>the</strong>y not apply to non-humansubjects as well?5.43. The irony is rendered acute when it is appreciated that <strong>the</strong> Declaration of Helsinki (World MedicalAssociation, 2013) expressly endorses experiments on animals as a precursor to ethical experiments on humans.28 <strong>Normalising</strong> <strong>the</strong> <strong>Unthinkable</strong>: The Ethics of Using Animals in Research
5.44. The fact that it is impossible to obtain informed consent (with all that it should entail) highlights <strong>the</strong> moraldifficulty of using animals. Constitutionally, animals are unable to give fully informed, voluntary consent for <strong>the</strong>following reasons:a. It is not possible to communicate <strong>the</strong> relevant information to <strong>the</strong>m.b. It is reasonable to argue that <strong>the</strong>y may not fully comprehend <strong>the</strong> information, even if it werepossible to communicate <strong>the</strong> information to <strong>the</strong>m.c. Therefore, <strong>the</strong>y are not in a position to make sound judgements between alternative (longterm)future optional courses of action.5.45. In o<strong>the</strong>r words, <strong>the</strong> animals are being coerced, and coercion is an example of pathogenic (situational)vulnerability (MacKenzie, 2014, p. 39).b. Animals cannot represent or vocalise <strong>the</strong>ir own interests5.46. Animals cannot vocalise <strong>the</strong>ir own interests except by behavioural indicators, as illustrated previously.Individuals who cannot adequately represent <strong>the</strong>mselves have to depend upon o<strong>the</strong>rs to represent <strong>the</strong>m. Theplight of animals, like that of children or <strong>the</strong> elderly who suffer from dementia, should invoke a heightened senseof obligation – precisely because <strong>the</strong>y cannot articulate <strong>the</strong>ir needs or represent <strong>the</strong>ir interests.5.47. Again, it may be claimed that animals can and do represent <strong>the</strong>ir interest – as in, for example, an animalfound scouring rubbish bins may be said to ‘represent his interest’ in getting food. In such ways animals may besaid to ‘speak to us’ so we have some sense of <strong>the</strong>ir interests. But one cannot logically insist upon <strong>the</strong> ‘linguisticdeficiency’ of animals (as so many philosophers have done) and <strong>the</strong>n refuse its conclusion that animals cannotproperly represent <strong>the</strong>mselves – at least in terms that humans can verbally understand. Of course, those whowish to exploit animals pretend to know only too well what ‘<strong>the</strong>ir’ animals ‘want’. But in fact, while we can andshould take behavioural indications seriously, our general (and sometimes specific) unknowing should be countedin <strong>the</strong>ir favour.c. Animals cannot understand or rationalise <strong>the</strong>ir suffering5.48. The underlying assumption (at least as it is utilised in contemporary debate) is that rational incomprehensionmakes suffering less morally considerable because <strong>the</strong> suffering of rational beings is incomparably greater.Rational comprehension might heighten suffering if, for example, it involves anticipation of harm or death, whichanimals cannot experience. It is sometimes claimed, for example, that animals have no anticipation of death andare <strong>the</strong>refore spared that ontological anxiety which besets human beings. If that is true, <strong>the</strong>n it must be grantedthat humans may be liable to more suffering in those situations.5.49. Ano<strong>the</strong>r example is when a prisoner of war is told that his country has been destroyed or that his familyhas been killed or will be killed. Verbal threats or abusive comments may cause considerable suffering, whilesuch threats (as long as <strong>the</strong>y remain purely verbal) would not increase <strong>the</strong> suffering of an animal. Again, in <strong>the</strong>secases, it should be accepted that humans suffer more, or ra<strong>the</strong>r that <strong>the</strong>y suffer in ways in which animals cannot.5.50. But is it true that rational comprehension always or generally heightens suffering? The general claim is lesswell founded. Consider <strong>the</strong> case of free-living animals – for example, NHPs who are captured, taken from <strong>the</strong>irnatural state, and <strong>the</strong>n subjected to captivity in zoos or laboratories. The animals concerned do not know why<strong>the</strong>y have been captured, why <strong>the</strong>y are being transported, and what will happen to <strong>the</strong>m. They experience <strong>the</strong>raw terror of not knowing. And since <strong>the</strong> implication of <strong>the</strong> argument is that animals live closer to <strong>the</strong>ir bodilysenses than we do, <strong>the</strong> frustration of <strong>the</strong>ir natural freedoms may well induce more suffering than we allow.Human suffering, on <strong>the</strong> o<strong>the</strong>r hand, can be softened by an intellectual comprehension of <strong>the</strong> circumstances.When, for example, a human visits <strong>the</strong> dentist, who <strong>the</strong>n performs procedures ranging from <strong>the</strong> uncomfortableto <strong>the</strong> traumatic, <strong>the</strong> patient can at least console himself or herself that <strong>the</strong> procedures are for his or her ownputative good. No such consolations are available to animals who are denied <strong>the</strong>ir liberty and who haveprocedures performed upon <strong>the</strong>m that are equally, if not more, uncomfortable or traumatic.A <strong>Report</strong> by <strong>the</strong> Working Group of <strong>the</strong> Oxford Centre for Animal Ethics29
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