What Obligations Have Scientists to Transgenic Animals?

Gary Comstock

Associate Professor of Philosophy
Coordinator, Bioethics Program
Iowa State University
Ames, IA 50011

Imagine yourself fifty years from now standing in the middle of a huge antiseptic warehouse staring at rows of tan colored objects that look something like footballs. Shiny stainless steel pipes descend from the ceiling and disappear into a mouth-like orifice on top of each object. Black rubber tubes are attached by suction cups to the bottoms. The only attendant in the building tells you that the pipes bring water and rations to what he calls “the birds,” while the rubber tubes carry excrement and urine to a sewer beneath the floor. Every twelve hours each bird drops a no cholesterol egg onto a conveyor belt. “Regular as clockwork,” he adds with a wink.

You are staring at thousands of living egg machines, transgenic animals genetically engineered to convert feed and water into eggs more efficiently than any of their evolutionary ancestors, layer hens. The science fiction objects I am asking you to imagine are biologically descended from the germplasm of many species unrelated in nature, including humans, turkeys, and today’s chickens, so the worker is not speaking in mere metaphor when he calls the objects “birds.” But unlike today’s poultry varieties, which are only treated as machines, the brave new birds I have in mind really seem to be more machine than animal. For, in coming up with the new birds, poultry scientists have not only selected for the trait of efficient conversion of feed into eggs; they have also selected for lack of responsiveness to the environment. The result is not a bird that is dumb or stupid, but an organism wholly lacking the ability to move or behave in dumb or stupid ways. Scientific research shows that the egg machine’s complete lack of any externally observable behaviors is paralleled by its lack of physiological equipment necessary to support behavioral activity. The brain of the bird is adept at controlling the digestive and reproductive tracts, but the areas of the brain required to receive and process sensory input and to initiate muscular movement have been selected against, bred away. The new bird not only has no eyes, no ears, no nose, and no nerve endings in its skin, it has no ability to perceive or respond to any information it might receive if it had eyes, ears, or a nose.

The unlikely organism I have just described is a philosopher’s fantasy, inspired by a remark of Bernie Rollin’s. I have never heard a poultry scientist or agbiotech enthusiast describe anything like it as a viable goal at which agricultural genetic engineers should aim. But why not? Are the moralists ahead of the gene-splicers here? Suppose we find them some funds, set them up in a lab, and encourage them to get to work?

I will return to this question in my conclusion. In order to answer it, however, we must first explore a prior issue, whether it is morally permissible to make transgenic animals (TAs) in the first place.

Some think not, and have called for a moratorium on TA research and development. Such a statement was included in a 1989 “Consultation on Respect for Life and the Environment,” which was signed by the National Council of Churches, the Foundation on Economic Trends, the Center for the Respect of Life and the Environment (one of the offices of the Humane Society of the United States), and four other organizations. It claims that transgenic technology is “a matter of deep philosophical and spiritual concern” insofar as it “portends fundamental changes in the public’s perception of, and attitude towards animals, which would be regarded as human creations, inventions, and commodities, rather than as God’s creation and subjects of nature.” Jeremy Rifkin and Michael Fox share the group’s position, and have offered their own arguments in opposition to TA production.

Others think so, and have prevailed over the opponents of TA research. Powerful groups, believing TA production can benefit humans, have underwritten this research program for more than a decade. The U.S. Department of Agriculture, along with dozens of private corporations and public universities, have invested millions of dollars in the field. The position of the U.S. government, the Industrial Biotechnology Association, and the American Medical Association, is that the consequences of TA research will be medically and economically beneficial, and should go forward. In its publication, “Patenting Life”, the U.S. Congress’s Office of Technology Assessment summarizes the ethical arguments for and against patenting TAs, and concludes by responding to the concern raised by the “Consultation on Respect for Life” statement: “It is unclear that patenting per se would substantially redirect the way society uses or relates to animals.” The implication is that the OTA finds moral arguments against the production of TAs unpersuasive, and believes transgenic production and patenting justified.

But who is right?

The Science

Transgenic animals are animals into whose DNA humans have inserted a foreign gene, a gene from an animal with which the TA’s mother could not naturally have bred. The first TA was produced by Palmiter in 1982, who injected a growth hormone gene from a rat into a mouse. Sine then, the mouse has served as the model of choice, with the vast majority of TAs being mice with genes taken from many different species, including humans. Typical is the Oncomouse, a mouse genetically modified so as to develop malignant tumors. Transgenic farm animals (TFAs) have also been “genefactured”: cattle, chickens, pigs, rabbits, sheep fish, and goats. The “geep,” an animal with the body of a sheep and the head of a goat produced at the University of Wyoming, has probably attracted the most public attention, although the Beltsville hogs, swine with human growth hormone genes, might run a close second.

At present, most TAs do not express the inserted gene. Hammer, et al., (1985), inserted human growth hormone (hGH) into 1032 sheep ova. Of this number, 73 ova developed into newborns, but only one of them successfully incorporated the hGH gene. Of 2035 transgenic pig ova, only 10.4 percent incorporated hGH. Experiments with mice have been more successful, but even with this species the success rate is still only about 25 percent. That is, according to the reports I have seen, only one quarter of all injected mouse embryos develop into transgenic mice. The others die or fail to incorporate the foreign gene. Concerning TFAs, Church’s lab superovulated a number of cows, then mated them using traditional techniques. The embryos were then flushed, resulting in 1161 embryos, into which were micro-injected the foreign hGH gene coupled to a metallothionein regulatory sequence (MT-hGH). Of 126 calves born, only 7 incorporated the MT-hGH fusion gene, and only one calf showed any signs of expressing the gene. Assessing the state of the science in 1985, Church wrote that the lack of success with livestock compared to mice was probably not a function of species differences, but because rather by “our lack of knowledge of development at the molecular level, the provision of inadequate culture conditions, and the use of inappropriate DNA constructs...”

The few livestock animals that have successfully developed from transgenic ova have not been healthy. A high frequency of sterility and other physiological problems plagues them. In another paper, I reported the results of the Beltsville hog experiment, in which:

Nineteen transgenic swine lived through birth and into maturity. Several expressed elevated levels of growth gene, but none grew more quickly or to greater size than their counterparts in the control group. However, many suffered from “deleterious pleiotropic effects,” medical problems not afflicting the controls. Those animals developed abnormally and exhibited deformed bodies and skulls. Some had swollen legs; others had ulcers, crossed eyes, renal disease, or arthritis. Many seemed to suffer from decreased immune function and were susceptible to pneumonia. All were sterile. Later, the researchers concluded that if transgenic swine were to be produced as successfully as transgenic mice, “better control of transgene expression, a different genetic background, or a modified husbandry regimen” would be required. Further experiments are underway.

I draw four lessons from this history:

  1. The science of producing transgenic farm animals is in its infancy.
  2. The infant science of producing TFAs currently results in a high frequency of sickly, sterile, deformed animals.
  3. In the course of this science’s maturation, many more generations of sickly, sterile, deformed animals should be expected.
  4. The mature science of producing TFAs will be largely aimed at producing healthy animals for slaughter.

The Purpose

The primary purpose of making transgenic mice is to improve the state of medical knowledge. For example, by introducing an activated oncogene sequence taken from humans, scientists can produce transgenic mice with an increased propensity for developing neoplasms. The physiology of the resultant mouse makes an improved animal “model” of human diseases such as cancer. Cancer researchers benefit from having TA mice because mice are extensively studied warm-blooded mammals with many physiological and genetic similarities to humans. From the transgenic mouse research program, scientists have learned the location and function of mouse genes and hope to use that information in identifying the location and function of human genes. The TA research program is an undeniably important tool in the battle against diseases such as cancer, Alzheimer’s, and diabetes. With GenPharm’s immunodeficient mouse, TA research may become a key part of the fight against AIDS as well. TA mice are also being used to discover diagnostic and therapeutic tools to treat genetic and developmental disorders.

Like TA research, TFA research promises to bring benefits to humans. For example, by improving the efficiency with which traditional farm products such as meat, eggs, milk, and wool are produced, scientists may be able to lower costs for the farmer and the consumer. Consider that the Beltsville research program was not aimed at producing hogs twice the size of their parents but at producing more cost effective swine, pigs that would convert grain into lean meat faster than their parents while eating proportionately less grain. Such animals would be a boon to certain sectors of the agricultural economy, including most of the pork industry, some hog farmers, and many meat consumers. The industry might cut costs by slaughtering fewer animals per pound of meat; farmers might reduce expenditures on feed grains while continuing to sell the same amount of pork; and consumers might benefit from industry and farm savings passed on to them at the meat counter.

In addition to aiming at more efficient production of traditional farm goods, scientists working with TFAs are aiming at production of nontraditional goods as well. One day, transgenic cows and goats may serve as protein factories, animals capable of producing pharmaceutical drugs in their milk.

The moral justification of the TFA research program, then, is utilitarian, based on the consequences the research is expected to have. By causing a certain amount of pain to animals, scientists hope to bring about great benefits to humans. But may we use animals willy-nilly as means to our own ends? Do scientists owe their TAs nothing? When faced with new cases, moralists often proceed the way judges do, by reasoning from precedents, decisions reached about analogous cases, and then by trying to extend the relevant rule to the new case. Unfortunately we do not have moral or legal precedents to guide reflection about TFA production. I propose to start with some intuitions about rules I think everyone would agree to regarding the production of transgenic humans (THs). I will then use our intuitions about possible THs as a basis from which to reason about the present issue, actual TAs.

What Obligations Have Scientists to Transgenic Humans?

Suppose that because of her genetic make-up, a woman is a high risk to develop cancer at an early age. So is her husband. Knowing full well that any children they bring into the world will almost certainly be saddled with a genetic predisposition to develop malignant tumors early in life, the couple still cannot overcome their desire to have a child of their own. Now suppose that science has progressed to the point that medical researchers feel confident that they can insert a gene into the woman’s ovum that will dramatically reduce the risks of cancer for the child. Suppose further that, due to a combination of regulatory hurdles and technological shortcomings, the researchers can only access the gene from another species, say, the ape. The baby we are now envisioning is the first transgenic human. What responsibilities would scientists have to her? What moral rules ought to guide us as we take the first tentative steps down the path of human germ cell therapy?

I will not try to develop a complete list of rules and regulations about this complex subject here. The medical community is now beginning to think about the more fundamental question, whether to allow the insertion of foreign genes into human sex cells at all and, as Paul Thompson points out, there presently seems to be “a widely shared conviction that human eugenics is morally wrong.” But if the consensus on that issue turns out the way it has with regard to the insertion of foreign genes into animal sex cells, then we shall soon have to begin thinking about guidelines, because the option of foregoing all germ cell therapy will not be a live one. Presuming that, one day, we will have transgenic human production, what basic rules ought to bind us? I have two very strong intuitions.

1. No harvest THs. Harvest animals are animals intentionally bred and raised for the purpose of being killed at a young age. In our culture, harvest animals fall largely into one of two groups. First, there are experimental animals, primarily mice and rats, which are killed so that researchers may do autopsies and learn scientific information. Second, there are farm animals, primarily chickens, cows, and hogs, which are slaughtered for their meat. Harvest transgenic humans would be transgenic humans intentionally bred and raised for the purpose of being harvested at a young age. I cannot imagine anyone proposing to raise humans for meat, but it is not implausible to imagine someone in the future proposing to bring a handful of injected human ova to term in order to discover whether the injected genotypic change will be expressed phenotypically. The argument, of course, would be that hundreds of thousands of humans would eventually benefit from the harvest THs. But I have great trust in our intuition here, that we should allow the prohibition against producing harvest THs to be overturned only in the face of arguments so extraordinary that I cannot now imagine how they would go.
1a. Protect innocent THs. This is an important corollary to the first intuition. Doctors and scientists should protect the basic interests of all human subjects used experimentally, but a special obligation exists to protect innocents. Not all writers are as uncompromising on this point as Hans Jonas, but the vast majority would agree with the spirit of his remark on the morality of using an unconscious or subconscious patient in research: “Drafting him for non-therapeutic experiments is simply and unqualifiedly impermissible; progress or not, he must never be used, on the inflexible principle that utter helplessness demands utter protection.” Suppose that the happy parents of the low cancer risk TH infant agree to let their doctors conduct a certain number of non-therapeutic tests on their child. They understand that the baby will not be harmed by these tests and, indeed, the youngster grows up to be healthy and content. After fifteen years, however, the adolescent decides that enough is enough, and makes her wish known that the tests end. Her refusal to grant consent should be treated the same as anyone’s refusal to grant consent, just as any informed choice of a TH should be treated in the same way that we would treat the informed choice of a non-TH. The classic legal principle of informed consent was stated by Chief Justice Cardozo: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages” (Schloendorff v. New York Hospital, 105 N.E. 92 (1914)).

The TH I have been imagining is one that is well positioned to give consent. But if we want to protect her, how much more we should want to protect a TH who turns out not to be so well positioned. Suppose the experiment, tragically, went awry, and the resultant child never developed the mental capacities required to give informed consent. I believe we should not run any non-therapeutic tests on such a misfortunate, simply because people who are least prepared to give informed consent, or who are utterly unable to give informed consent, should be most protected against experiments and tests that are not undertaken for their well being.

Which THs would we ideally use as experimental subjects? Those best able to understand and bear the risks to which they would be submitting themselves, and who would be most disposed and prepared to care for their TH offspring in the event that something went wrong. Jonas’s way of talking about informed consent is apt, and here is how Samuel Gorovitz summarizes it:

Morally permissible use of human beings in medical experimentation requires that they be those persons with a maximum of identification, understanding, and spontaneity — the most highly motivated, the most highly educated, and the least “captive” members of the community.

Notice that nothing I have said prohibits the production of transgenic humans. If a transgenic procedure would make a future human being better off, and if science could benefit from studying the future individual, I see no obvious reason why that person might not also be the subject of future testing, providing that certain conditions were met. One condition would be that the testing itself would not harm the person. Another would be that the person’s informed consent would be required. If, for example, scientists simply wanted to observe the TH to find out if the inserted gene had been incorporated or expressed, and if they could make their observations without harming the subject or infringing on her informed consent, then doing so would not be impermissible according to either rule (1) or (1a).

2. No worse off THs. My intuition is that it would be objectionable for scientists to experiment on THs, even with the informed consent of the TH, if the experiment would seriously undermine the well being of the TH. Claude Bernard, a leading nineteenth century physician, wrote that the very foundation of medical morality is “never to carry out on a human being an experiment that cannot but be injurious to him to some degree, even if the outcome could be of great interest to science, that is to say, the health of other human beings.” Following Bernard’s principle, we should not inject foreign genes into human ova if we have good reasons to suspect that the life of the prospective TH will be worse off than it would have been had it not been tampered with at the embryonic stage.

There are many things you can do to me without making me worse off, because my well being is not measured by a single criterion, such as the absence of physical disease. Because welfare is a composite measure of many different variables, and because welfare is ultimately determined by a person’s own feelings of well being, a slight setback in one area can be overcome by gains in another. For example, a patient dying of lung cancer might feel better off than an overworked single mother, depending upon how each person feels about her situation. If the single mother is under financial and emotional stress and constantly battles depression, she may have lower feelings of well being than the elderly woman who has spiritually and enthusiastically embraced her fate. Assessing welfare is a difficult chore.

But not an impossible one. There are many things I can do to you that will clearly make you worse off, and there are many things you can do to me that will clearly make me better off. To distinguish clear harms and benefits from the vast grey areas that lie in between them, it is important to draw attention to our fundamental interests, things we must have. Some things are nice to have, but we do not have to have them. I would be worse off without income sufficient to pay for violin lessons; I would be worse off without leisure time to spend with my brothers-in-law going to movies; and I would be worse off without an indoor basketball court on which to practice my fifteen footer. I take an interest in doing each of these things, and each of them is good for me. But if my violin money, my movie time, or my gym privileges were taken away, I would still be able to flourish by substituting different interests for those listed above. I could have my wife teach me to play piano instead of paying someone else to teach me violin; I could watch movies at home on PBS instead of taking entire evenings for a night out with the boys; and I could begin jogging around the block instead of playing basketball.

Things we take an interest in, but to which we have no fundamental right, are non-basic interests (NBIs). A transgenic procedure that deprived me of the ability to play the violin (in which I have an NBI) would not necessarily make me worse off. What would necessarily make me worse off was a transgenic procedure that deprived me of my ears and, therefore, my ability to hear sounds. The reason is that I have a basic interest (BI) in being able to hear sounds. Here are some typical human BIs:

  • to be able to ingest sufficient amounts of uncontaminated protein and water without undue pain; to be able to eliminate bodily wastes without wasting half the day doing it;
  • to be able to maintain sufficient psychological equilibrium that we are able to fall asleep at night;
  • to have access to sufficient open space that we can accelerate our heart rates to one hundred odd beats per minute for half an hour three times a week;
  • to possess a backbone and neck muscles strong enough that our heads do not need external support;
  • to have an immune system not vulnerable to common air borne viruses.

Things in a typical human’s BIs include:

  • clean water, clean air, and nutritious food;
  • sufficient room in which to exercise;
  • environments capable of stimulating and rewarding the imagination; and
  • social conditions congenial to our gregarious, familial, instincts.

If we are deprived of something that is in one of our BIs, then we are by definition worse off. If I am deprived of the capacity to hear musical sounds, or if the genes responsible for generating bone cells are harmed so that my skeleton cannot support my body weight, or if my immune system is genetically altered so that I cannot defend myself against common airborne viruses, then I am rendered unable to pursue things that are in my BIs, and I am worse off for it. To genefacture a TH who lacked the capacity to have these BIs met would violate fundamental human rights.

When our BIs are not thwarted we have the opportunity to flourish, to be happy, to experience feelings of well being. Chances are good that all those reading this paper have access to conditions in which their BIs can be met. Nonetheless, we can imagine how it would feel not to have ears, to be sick all the time, or to have immune systems that did not work. Our compassion for the victims of deprivation is all the reason we need to trust our intuition that it is wrong to deprive another human of something in their basic interest unless you have a very good reason to do so. Why shouldn’t we produce worse off THs? Because we can all imagine what it would be like to be the worse off TH, and we would not have that done to us. What we would not have done to ourselves we ought not to do to others.

I believe that the majority of rational people in western cultures would share these two intuitions about potential rules to guide the production of THs, assuming that they were properly informed about the purpose of the experimental science. Note that the rules are consistent with a long tradition of reflection in medical ethics, and may be seen as an extension of the time-honored injunctions of the Hippocratic Oath. All things being equal, doctors must not harm their patients, and scientists wanting to produce a harvest or worse off TH should be obligated to justify their position.

While I believe most will agree with these claims, I do not believe that most will agree with the next one, so I will spend the rest of the paper defending it. That claim is: The two rules about the production of THs should apply to the production of TAs. My argument for this claim has two parts. In the first, I discuss the powerful objection that “animals are obviously different from humans,” and I examine the most common reasons offered in support of that claim. In the second, I argue that the obligation not to thwart individuals’ interests is more than prima facie; it is so weighty that it needs no justification. Killing for trivial reasons, the worst form of thwarting an individual’s interests, needs to be justified by the person wanting to kill. Those opposed to killing need not assume the burden of proof.

“But Animals are Obviously Different From Humans”

This objection to my claim that the rule governing production of THs should also apply to the production of TAs is powerful because it is true. Animals are obviously different from humans. The question we must answer, however, is whether the difference between us is great enough to justify us in believing that we should protect all of us while being free to kill any of them. After all, we are not all alike, yet morality enjoins us not to be unfair. Humans differ greatly from each other, yet we do not take that as an excuse to discriminate against dumber, less sensitive, or weaker people merely because they have a deficiency in intellectual capacity, aesthetic sensibility, or physical strength. In order to justify a difference in treatment of TAs and THs, we must be able to point not merely to differences between the species, but to differences that are morally relevant. In order to justify the production of worse off TAs, the difference between us and them would have to be so great that it would serve to justify the act of undermining their welfare. In order to justify the production of harvest TAs, the difference between them and us will have to be so great that it will serve to justify the act of producing an animal in order to kill it at a young age.

The history of philosophy and theology knows several answers to the question of which differences between humans and animals are morally relevant. The strongest answers are: only humans have souls, only humans are rational, and only humans have moral rights. Alan Donagan identifies each of these candidates in discussing the basis of informed consent laws. According to Donagan, the main reasons usually offered as a basis for respecting humans are:

  1. that in nature as we know it, human beings have a dignity and worth that is unique;
  2. the Kantian principle that a human being is never to be used merely as a means, but always at the same time as an end; and
  3. a principle laid down in the Declaration of Independence...that every human being is endowed with an inalienable right to life, liberty, and the pursuit of happiness.

Let us examine these reasons in turn.

The first reason holds that humans are unique, and have special “dignity and worth” simply because they are members of a particular species. This reason is attractive because many human beings do not measure up to the high standard laid down in Donagan’s second principle: a fetus in the ninth month, a neonate, the mentally enfeebled, the aged Alzheimer’s patient, and those in apparently irreversibly comatose states. These so-called “marginal humans” are not rational human beings, but they constitute a group that any system of morality ought to protect. However, they will not be protected if only the rational among us are legitimate objects of moral concern. Donagan’s first principle is attractive, then, because of its inclusiveness; you can easily generate an obligation to protect neonates and mentally enfeebled humans if the only requirement for such protection is that they be human.

But there are two problems with this way of justifying the protection of innocents. First, there may be other innocent beings that we should protect, and yet this principle offers us no basis on which to protect them. Suppose there are other beings in the universe of whom we do not presently know, beings that are at least as caring and rational as we are. Think of a science fiction example, of ET, the extraterrestrial. If ET landed tomorrow, shouldn’t we have in place a system of morality that would extend moral protection to him? But if we hold that membership in the human species is a necessary requirement in order to be protected morally, then we could not protect ET without radically changing our beliefs. Indeed, we would be justified in killing ET for the same sort of trivial reasons we kill stray ants in our kitchen; the creature “just bugs us,” it’s “out of place,” it “doesn’t belong in the house.” But it would be brutish to kill a being as sensitive and compassionate as ET simply because his unusual shape rubs you the wrong way, or because you want to look at his insides, or because you’d like to know how his cooked flesh might taste. The first problem with Donagan’s first principle is that it fails to protect all innocents.

But why, you might respond, protect all innocents? Not everyone shares the intuition that we should protect them, not even among animal liberationists. Peter Singer, for example, denies that “gross mental defectives” have a right to life equal to an ordinary adult’s right to life. He holds this view because of his anti-speciesist belief that “merely being a member of the species Homo sapiens cannot carry with it any special moral status.” Singer’s position is a radical one; he is unsure whether his position can protect the mentally enfeebled, and he seems inclined to believe that we must be ready to change our attitudes toward marginal humans:

[My position] involves holding that mental defectives do not have a right to life, and therefore might be killed for food — if we should develop a taste for human flesh -- or (and this really might appeal to some people) for the purpose of scientific experimentation.

But insofar as a society has it within its resources to care for mental defectives, it ought to do so simply as a way of demonstrating its humanity. I do not disagree with Singer that “gross mental defectives” may lack a moral right to life, assuming that the individuals in question truly lack sentience, consciousness, and all conative live. It may be that gross mental defectives, who lie in perpetual and irreversibly comatose states, lack even the most basic of moral rights. But where Singer goes wrong is in thinking that moral rights are the only fence protecting such individuals from being killed for trivial reasons. Even grossly defective humans may be morally valuable for reasons that cannot be captured in the language of moral rights, so I disagree with Singer that the proper response to the marginal human problem is to revise common morality so as to exclude marginal humans from the protections morality offers. The proper response is to figure out what all but the most grossly marginal humans have that allows them to be included in morality’s protections, and then to extend those protections to all other beings that have what they have.

The second problem with holding that all and only human beings are unique is that it fails to tell us why being human is sufficient to merit special protections not afforded to others. In order to justify a difference in moral treatment between species, there must be some relevant moral difference, some capacity, X, which only humans possess, which no non-humans possess, and which succeeds in entitling us to preferential treatment. What might X be? Theologians have traditionally thought of X as “a soul,” or “God’s image,” and attributed our sacredness to that unique characteristic. The problem here is that many religious people disagree that only humans have souls. Hindus, for example, hold that animals have souls and within Judaism and Christianity, many agree. The Catholic saint, Francis of Assisi, held that animals have souls, and so do C.S. Lewis and Andrew Linzey, recent Anglican theologians. So there is not a consensus in Christianity, much less among the world’s religions, that animals’ lack “X,” where X is “a soul."

There are secular ways of trying to identify a unique human quality. Kantian and contractarian philosophers think of free will, or autonomy, as the X , which entitles us to be treated as ends in ourselves. Autonomy is defined in various ways, but many of the following human characteristics play central roles in the arguments of Kantians: free will, our ability to make choices, to exercise our will so as to pursue our own conception of the good life without infringing on the ability of others freely to pursue their conception of the good life. The Kantian view is that all and only humans are autonomous agents, and on this basis we are uniquely entitled to be treated as ends and never as means only.

The marginal human problem plagues this response too, because this response does not protect those humans who are neither rational nor moral agents. Marginal humans do not have what it takes to think for themselves, make their own choices, or form and pursue their own conceptions of the good life. Yet they have desires, needs, and feelings. So a system of morality that not only fails to protect them, the most frail and weak among us, but which actually excludes them as objects of legitimate moral concern, hardly qualifies in my mind as a “moral” system at all. Perhaps morality should not protect the grossly marginal. But anyone who is able to take an interest in something is a moral patient, and morality should protect them, even if they are not autonomous or rational. I conclude that the first two principles traditionally offered as reasons for denying non-human animals moral consideration are seriously flawed.

Donagan’s third reason is not flawed in the way the first two are, and I want to defend the line of reasoning that innocent humans should be protected because they have rights. A coherent and widely adopted conceptual paradigm of moral rights ties the possession of such rights to the possession of interests. If we adopt this paradigm, one way to try to justify differences between our treatment of humans and our treatment of animals goes as follows. Begin with the intuition that there are two kinds of things in the world: persons with basic moral rights, and nonliving things without basic moral rights. The paradigm case of something in the first category is the adult human being, who possesses what I shall call the most basic moral right: The most basic moral right (MBR) is the right not to be destroyed for trivial reasons. We have strong objections to those who would lightly kill other humans. To riddle someone’s body with bullets simply because you saw it done in a movie is to violate the victim’s MBR.

The paradigm case of something in the second category is a worn out machine. We do not have, and should not have, strong objections to those who would destroy a rusted out Corvair in an auto graveyard simply because they had seen it done in a movie. We might object to their wantonly riddling the windshield with bullets on the grounds that it suggests weakness in their character, but we cannot object on the grounds that the action would violate the car’s MBR because cars, like most objects, have no moral rights at all.

Between the paradigmatic cases of things without the MBR and persons with it fall a vast range of problematic cases, including grossly and lightly marginal humans, fetuses, super smart computers, extra-terrestrials, trees, plants, rivers and, of course, animals. Western cultures have traditionally put animals into the category of machines, and denied them the MBR. But has the tradition been right to do this? To decide that question, we must figure out why it is that all but the most grossly defective humans have the MBR, while old Corvairs do not.

We have already seen that the old dividing lines fail because they are drawn too high, and leave marginal humans unprotected. We need a lower line, perhaps sentience. Humans have feelings, whereas cars do not, so cars, incapable of feeling harmed, cannot be harmed. This line is more promising than the old lines, but it still excludes too many humans, humans who cannot feel harmed because, say, their sensory receptors have been damaged. A second line, and the line I want to defend, may be drawn at “having interests.” All but the most grossly defective of humans can take an interest in things, and initiate actions, however humble, in order to acquire them. All but the most marginal of humans can take an interest in things they are feeling or thinking, and can be conscious of things they lack. When we want something, and try to think of ways to get it, we are exhibiting desire, “taking an interest.” As G.E.M. Anscombe puts it, desiring is “trying to get.” Following Tom Regan, I will call these kinds of interests “preference-interests."

To have preference-interests is to have the X needed to possess the MBR. To have preference-interests is to have projects, intentions, a future, and for someone to deprive you for trivial reasons of your future is to violate your most basic right. Now some preference-interests are basic, while some are not. An interest in getting water to drink is basic if you are dying of thirst, but not if you are uncomfortable at a dinner party and reach for a glass merely out of nervousness. An interest in moving my arm is basic if I am warding off an attacker, but not if I am stroking my son’s hair as he falls asleep in my arms. Notice, however, that it does not matter whether the desire I am now pursing is fundamental or not. Merely having a preference-interest, no matter how humble, is sufficient to make me a possessor of the MBR so long as my current preference-interest does not conflict with someone else’s BI.

What about plant life? A few years ago the actor Mr. T cut down a stand of beautiful old oak trees on his property in suburban Chicago because they made his place “look cluttered.” Most of us believe that we can cut down trees for good reasons, such as to make desks and houses, but even Mr. T’s trivial reason does not seem to infringe on the tree’s moral rights because trees do not have moral rights. Should they? It is too quick to answer no, that trees lack interests and therefore should lack moral rights, because there is a sense of “interest” in which trees clearly have them. It is in a tree’s interest to exist in an environment, in which it will receive sufficient sunlight, avoid prolonged drought, and not be subject to deadly pathogens. All of these things are good for trees; they contribute to a tree’s welfare. So if trees have interests, then are they not proper candidates to possess moral rights? I think the answer must remain no, but my reasons cannot be clarified without distinguishing a second sense of the term.

Even though we talk about things that are in a tree’s interests, we do not talk about things trees desire or prefer. There is a second sense of interest at work here, which Regan labels “welfare-interests,” that is, interests the satisfaction of which contributes to some living thing’s well being. There are things that are good or bad for living things with welfare-interests, but such living things do not necessarily have the MBR. To have the MBR a thing must have preference-interests because we get absurd results if we attribute the MBR to things that have welfare-interests only. If all living things had the MBR, then amoebae and viruses and weeds would possess a moral right to life and it would be morally impermissible to thin lettuces in our garden, kill cockleburs in our cornfields, or spray Lysol on our toilet bowls. I take these consequences to be counterintuitive, and to indicate that something is wrong with attributing rights to things that lack preference-interests. There are good moral reasons to protect oak trees in suburban Chicago and even better reasons to protect seven hundred year old cedar trees along Opal Creek in Oregon, but the language of moral rights is not the language in which to do it.

The Burden of Proof Is On the Killer

I have given my reasons for believing that nonliving objects lack the MBR, and that all but grossly defective humans possess the MBR. Thus, I have presented arguments for my views. I have also said that I think it is plainly wrong to kill humans for trivial reasons. But, someone might ask, why do I think that? This might seem a difficult question, but I am convinced that it neither has nor needs an answer. The claim that it is wrong to destroy human beings for trivial reasons needs no more justification than the claim that it is wrong to cause humans pain for trivial reasons. Pain hurts, and that is that. Death ends a life, and that is that. The burden of proof is on those who think inflicting pain or death for trivial reasons is morally permissible. Steve Sapontzis quotes William James to this effect: “Take any demand, however slight, which any creature, however weak, may make. Ought it not, for its own sake, to be satisfied? If not, prove why not."

The obligation not to thwart preference-interests, no matter how humble those preference-interests may be, is more than a prima facie obligation; it is so weighty that it needs no further argument.

Ethical reflection means giving reasons for our judgments. When we say X is wrong, others are justified in asking us why we think that. When we give a reason, that reason may be formulated as a general moral principle. But our partners may want to know why that principle is true, and may justifiably ask us to ground our reasons for our decisions in some more basic, ultimately vindicating, reason. The work of ethics proceeds this way, with claims being grounded in reasons; and reasons in principles, and principles in theories.

But the dialectic of ethics does not go on forever, at some point we reach what is, for us, the true ultimately vindicating ground of our reasoning. When we reach this ground, others will ask us why we rest on that ground, and we may be tempted to try to provide a reason. We should resist this temptation, because, if we have truly reached bedrock, there is nothing further for us to say. Wittgenstein once remarked that the most difficult part of justification in philosophy is to recognize a justification as a justification, and to stop.

The wrongness of destroying desiring creatures for trivial reasons is such a stopping place. We need offer no further justification for why we believe this to be a stopping place, for if we cannot assume that riddling someone with bullets merely because that person looks “out of place” is always and irredeemably evil, then we have no place to begin reasoning about tougher cases. The burden of proof is clearly on those who think that destruction of humans for trivial reasons is permissible.

We may, of course, destroy desiring creatures for non-trivial reasons. If other obligations conflict with the obligation not to destroy, then we shall have to decide which obligation takes precedence. My obligation to feed my family might conflict with my obligation not to kill a buffalo, in which case the killing might be justified. My claim is not that the obligation not to kill animals for food is unexceptionable, but rather that it has the same status as the obligation not to kill human beings. It may be overridden by other obligations, but it may not be lightly overridden. A preference-interest for the taste of meat, when other sources of nutrition are available is not a weighty enough preference-interest to justify depriving cows and hogs and chickens of their futures.

Some hold that killing for trivial reasons is not wrong if it involves killing a being that has only brief, short-term, desires. Ruth Cigman, for example, holds that killing is wrong only insofar as the victim is capable of having what she calls “categorical desires,” desires in which the victim is not “blindly clinging on to life,” but in which it also “possesses the related concepts of long-term future possibilities, of life itself as an object of value, of consciousness, agency and their annihilation, and of tragedy and similar misfortunes.” Humans are able to have these sophisticated concepts and desires, and death harms them by depriving them of their categorical desires.

I have argued that the mere having of desires is sufficient to establish a moral right not to be blocked for trivial reasons from pursuing those desires. It does not matter whether the desires in question are long-term, categorical, desires, such as wanting to write a book, or short-term, “humble” desires, such as wanting to continue stroking my son’s hair. You have a basic moral right not to have others interfere with your preference-interests, whether they be basic or not basic, so long as their satisfaction does not conflict with the welfare of another desiring creature. The wrongness in killing a cow to eat it when your basic interest do not depend on your killing it, then, is simply this: In killing it, you deprive it of the ability to pursue whatever is its current preference-interest, which might be its desire to finish chewing the cud currently in its system or, alternately, to relieve its present anxiety by getting out of the slaughter house confinement pen. In killing an ape, you deprive it of the ability to finish what it now wants to do, which might be stroking his son’s hair as he falls asleep. The reason the Beltsville hogs were tampered with at the embryonic stage was to produce brave new pigs that would grow more quickly to slaughter weight, and the purpose of much TFA research is to produce animals to be killed for meat. What is wrong with this research is not that it involves gene splicing but, rather, that it is aimed at morally objectionable goals.

What Obligations Have Scientists to Transgenic Animals?

This way of thinking suggests a criterion to use in deciding about the in-between cases of fetuses, neonates, the severely retarded, and animals. The criterion is: does an individual have preference-interests? or, more simply, does the individual have desires? To answer this question requires separate empirical investigation of each of the ambiguous cases.

Do non-human animals have desires? Drawing on pioneering work by Gary Varner, I want to suggest that the answer will differ from species to species. The reason is that so-called lower species, which have welfare-interests, almost certainly do not have the physiological equipment necessary to have preference-interests. On the other hand, so-called higher mammals almost certainly do have the physiological equipment necessary to have preference-interests.

Just what is it to have desires? Varner recommends the following analysis:

A sentence of the form “A desires X” is true if and only if:
  1. A is disposed to pursue X,
  2. A pursues X in the way he, she or it does because A previously engaged or concurrently engages in practical reasoning about how to achieve X, where engaging in practical reasoning includes both drawing inferences from beliefs of the form “Y is a means to X,” and the hypothesis formation and testing by which such beliefs are acquired and revised; and
  3. this practical reasoning is at least potentially conscious.

There are good reasons to accept Varner’s analysis, including the one he mentions in his paper, namely that this analysis “has been widely accepted by the principals on either side of the animal rights debate,” including Tom Regan and R.G. Frey. Assuming that Varner’s account is correct, it becomes important to determine which species engage in behaviors that suggest they are capable of engaging in practical reasoning. Conscious practical reasoning, Varner suggests, is evidenced not so much by consciously entertaining beliefs and syllogisms, as some opponents of animals rights have it, but rather by hypothesis formation and testing, activities not involved in things we or animals do routinely. Conscious practical reasoning requires a level of intellectual activity that goes beyond habit and instinct, and is only found when a being turns its attention to the conditions and obstacles bearing on its desires. Here is Varner’s explanation of conscious practical reasoning:

Rarely do we consciously entertain the major and minor premises of an Aristotelian practical syllogism, “cold beer would be good; there is cold beer for sale down the street at Ralph’s,” before acting out the conclusion: walking to Ralph’s. But we do commonly devote conscious attention to the formation and testing of hypotheses relevant to the fulfillment of our desires. A beer drinker in a new city devotes conscious attention to the formation and testing of the minor premise, “there is cold beer for sale down the street at Ralph’s,” and, in general, when one first seeks to fulfill a new desire, or when changing circumstances make it impossible to fulfill an existing desire by habitual means, one consciously entertains and tests hypotheses about what means are conducive to one’s ends.

Conscious practical reasoning consists of entertaining and testing hypotheses as a way of overcoming obstacles and trying to get what you want. Commenting on the importance of this matter to the animal rights question, Varner adds that

it is the special kind of learning involved in hypothesis formation and testing that separates desire from instinct and simple habit. And, as we shall shortly see, showing that an animal is incapable of this kind of learning is the easiest way to show that it is incapable of having desires.

The empirical task, then, is to examine the behavioral and the physiological evidence for different species, and to try to determine which species are capable not simply of movement, which can be attributed to instinct and habit, but of the kind of learning involved in hypothesis formation and testing. Varner’s review of the available empirical evidence leads him to this conclusion:

Fish and lower animals almost certainly do not have desires. Mammals almost certainly have desires, and in them, the practical reasoning characteristic of desire is localized in the prefrontal cortex. Birds probably have desires (although the case for saying that they do is somewhat weaker than that for saying that mammals do), and in birds, practical reasoning is localized in the hyperstriatum. Reptiles may have desires (although the case for saying that they do is decisively weaker than that for saying that birds do), and if reptiles have desires, the related practical reasoning is localized somewhere in the primitive reptilian cerebrum.

How does this line of reasoning apply to the question in the title of this paper? The moral obligations scientists have to TAs will depend on the level of sentience and consciousness possessed by the animals with which they are working. It is wrong to cause pain for trivial reasons to any sentient animal, including fish. The reason is simply that pain is bad and 10 units of pain are 10 units of pain whether I suffer them, or you suffer them, or a rainbow trout suffers them. Here it does not matter that you and I can desire for the pain to cease, whereas the trout apparently cannot. Thus, all TA research on sentient animals should be bound by the worse off rule.

But research on animals that lack preference-interests need not be bound by the “No harvest TA” rule, even if the animals are sentient. Therefore, I presently see no valid objections to research that is aimed at the goal of producing harvest fish, assuming that the fish are killed painlessly. My reason is that fish appear incapable of conscious practical reasoning. Without conscious practical reasoning, fish cannot have desires or preference-interests. Fish clearly have welfare-interests, clearly feel pain and pleasure, and clearly will continue to live if the fisherman hovering over them does not kill them. But fish seem to survive off of instinct and habit alone and, so, apparently do not and cannot want to get; they apparently do not and cannot look forward. Thus, while it is still wrong to cause them pain, it may not be wrong to kill them painlessly. Doing so would not deprive them of any of their basic interests.

If I am right, scientists producing transgenic fish and lower organisms should not make worse off TAs, but may make harvest TAs.

It is important to point out, however, that fish and lower organisms are not the target animals for those doing TA and TFA research. The mouse is the most popular animal, and mice, along with rats and apes and cows and horses and sheep and goats and swine, clearly have preference-interests. Scientists working with these species need not necessarily call a moratorium on all of their research, but they do need to abide by both rules. The burden of proof is on them to show that their research does not involve making the TAs worse off, or killing them for trivial reasons.

What about scientists working with birds, reptiles, amphibians, and other in-between species? Our decisions on those species must wait on further empirical work. Meanwhile, we should err on the side of caution. Thus, I recommend: No harvest or worse off higher mammals, birds, or probably, reptiles. Fish and so-called lower organisms may be used as harvest TAs, but only if they can be killed painlessly, and only if they are not made worse off by the procedure.

Conclusion

The “Consultation on Life and the Environment” has apparently taken a position of unqualified opposition to TA research, while the U.S. Government has apparently taken a position of unqualified endorsement. In contrast to both positions, I believe that some TA research is morally justified, and some is not. How you decide which is which depends on where you draw the line between animals with the most basic of moral rights and animals without it. I have argued that the line should be drawn at preference-interests, defined in terms of desires and conscious practical reasoning. Scientists producing transgenic creatures capable of practical reasoning should be bound by the “No harvest” and “No worse off” rules that apply to the production of transgenic humans. Scientists producing TAs that are sentient but lack the ability to have preference-interests may make harvest TA’s, but should observe the “No worse off” rule.

The Beltsville hog experiment was undertaken in order to produce more efficient slaughter animals. The experiment produced transgenic hogs that were deprived of the capacity to pursue things in which they had a BI. On my view, scientists pursuing lines of TA research have the opportunity to strengthen and enrich the 10,000 year old bond that has evolved between us and the species we have we have domesticated, and they are morally justified in their research. But those pursuing TA research that involves the production of “Beltsville” animals, animals that wind up worse off than the animals they would have been had they not been tampered with at the cellular stage, are not morally justified in their research. Neither are those pursuing research in which the target animals are creatures with futures who, nonetheless, are being raised only to be slaughtered at a young age.

And, finally, what about the living egg machine? Assuming that the new birds could be created with a snap of the fingers, scientists would have no obligations to them, since “the birds” have neither feelings nor a future. Moreover, to snap our fingers and have living egg machines would be good insofar as it would provide humans with excellent sources of protein while removing the need for factory farm real chickens. Factory farm layers are blocked from pursuing their preference-interests for trivial reasons, and instant living egg machines would remove from the moral universe these utiles of disvalue without, presumably, introducing new utiles of disvalue.

But let us come back to reality. As any molecular biologist can tell you, genetic engineering is not done with a snap of the fingers. So agbiotech researchers should adopt the living egg machine as a goal only if they think they can go from a chicken to an egg machine in a single generation, without bringing into the world even one generation of “Beltsville” chickens. And any biotechnologist who genuinely thinks that that can be done should either be given a new lab, more research assistants, and lots of money, or, lots of sedatives.

The most prominent lines of TA medical research require the production of worse off animals, who are sentient, while the most prominent lines of TFA research require the production of harvest animals who have futures. If my arguments are valid, scientists pursuing transgenic animal research are not obliged to give up TA research. They are obliged to give up its currently most prominent lines.