A/Prof Ngaio Beausoleil, Co-Director, Animal Welfare Science and Bioethics Centre, Massey University, New Zealand takes us through some key issues in the relationship between welfare science and animal law. 
Animal welfare law is evolving rapidly around the world as scientific knowledge and societal expectations change. Animal welfare science has informed, and will continue to inform, the evolution of law and supporting regulations, codes and guidelines. Here, I present three key points relating to the ways in which welfare science can contribute to modernizing animal law, with examples drawn from the New Zealand Animal Welfare Act (1999).
Implications of acknowledging sentience in animal welfare (AW) law
- In 2015, NZ’s Animal Welfare Act was amended to acknowledge sentience in those taxa legally defined as ‘animals’ (Section 2(1)). In Australia, ACT acknowledged animal sentience in 2019 and several other states are currently revising their animal welfare-related legislation and will likely follow suit.
- Animal sentience is already implicit in NZ’s AW law, evidenced in at least three ways: i) there is no need for specific animal welfare legislation at all if animals are not considered to have mental experiences (i.e., be sentient); ii) the law defines ‘animals’ as only those capable of sentience; iii) the law already uses terminology relating to animals’ feelings/mental experiences including pain, distress and suffering.
- Despite this, explicit acknowledgement of animal sentience in AW law is valuable as it focuses attention on animals’ affective/mental experiences (i.e., how the animal subjectively experiences its own life) which is consistent with contemporary understanding of animal welfare.
- NZ AW law does not define sentience but in scientific circles it is understood to be the capacity of animals to perceive by the senses and subjectively feel or experience the world around them; such experiences can be negative and positive (Mellor, 2019). So defined, acknowledgement of sentience lays the groundwork for inclusion of positive experiences in future welfare law.
Changing the intent of welfare law from anti-cruelty to duty to care
- Historically AW law has been designed to prevent ‘cruelty’ to animals. This generally means preventing conditions or treatment that lead animals to have intense and/or prolonged negative experiences, collectively termed ‘distress’ or ‘suffering’. However, the absence of negative experiences is no longer considered to be sufficient to provide ‘acceptable’ or ‘good’ welfare state or ‘a life worth living’ for animals. According to this idea, acceptable welfare can be achieved only when animals have few/minor/transient negative mental experiences AND frequent/meaningful positive experiences. Does current AW law, which protects animals only from the most extreme versions of negative experiences (i.e., distress or suffering), actually require owners to ‘attend properly to the welfare of animals’ deemed to be capable of both negative and positive experiences?
- In order to alter the intent of the NZ AW Act from anti-cruelty to ‘duty to care’, two key wording changes are suggested. First, including a definition of sentience which refers to both negative and positive states/experiences would extend the responsibility of those in charge of animals. Second, there is a need to clarify the relevance of animals being able to display normal patterns of behaviour in the definition of physical, health and behavioural needs (Section 4c). This could be expanded to “animals need opportunity to display normal patterns of behaviour that reflect positive experiences.” Reasons for this amendment are: a) emphasis on the need for positive experiences to attend properly to the welfare of the animals, i.e. achieve acceptable welfare states; b) normal patterns of behaviour can reflect negative experiences that could cause suffering, e.g. fear behaviour is a normal response to aggressive handling; c) what is ‘normal behaviour’ for domestic animals selected for human purposes, e.g. how much exercise is normal for brachycephalic (short-faced) dogs with respiratory impairment?
- Moving from anti-cruelty to ‘duty to care’ legislation will be scientifically challenging for many reasons including:
- How can we recognize and provide evidence of positive experiences in the wide variety of animals acknowledged in the law to be sentient?
- How much positive experience is enough to demonstrate compliance with the law?
- How can we account for variability in what is perceived as positive among species, breeds and even individual animals?
- Providing opportunities for positive experiences is not the same as animals having positive experiences. For example, animals are unlikely to be able to take advantage of opportunities for ‘environmental enrichment’ if they are having significant negative experiences such as pain, sickness, exhaustion or debility related to selective breeding.
- On the other hand, can some positive experiences offset some unavoidable negative experiences? For example, can providing a varied and preferred diet compensate for a lack of conspecific companionship or temporary restriction of movement?
Systematic and holistic scientific evaluation of welfare state is necessary for ‘duty to care’ welfare law and is facilitated by use of the Five Domains model for Animal Welfare Assessment
- Scientific evaluation of animal welfare state is necessary to develop the specific details in Codes, Regulations and Guidelines that can be used to support compliance with the law as well as to provide evidence that the law has been broken. The Five Domains model provides a method for systematic, holistic assessment of animals’ affective/mental experiences that influence their welfare state. Its structure focuses attention on the animal’s experience and encourages users to explore evidence for a wide range of specific negative experiences that might lead to distress/suffering as well as evidence supporting the occurrence of positive experiences. Importantly, the model allows consideration of, and organization of scientific support for, non-physical harms (situation-related negative experiences) – those that don’t ‘leave a mark’ but that can cause animal suffering nonetheless e.g., inappropriate handling, restriction of movement, social isolation.
- The model is generic, meaning it can be used to guide exploration and collation of evidence to support the welfare state of diverse species in various contexts and can be updated as scientific knowledge develops. It does not, however, answer ethical questions such as: How intense/prolonged must negative experiences be to cause distress/suffering?; What is reasonable/necessary suffering for animals to endure?; How much positive experience is sufficient to fulfil an owner’s duty to care? Evaluations using the Five Domains model can provide transparent, scientifically justified data to inform such discussions as societal expectations evolve.
Reference:
Mellor DJ. Welfare-aligned Sentience: Enhanced Capacities to Experience, Interact, Anticipate, Choose and Survive. Animals. 2019; 9(7):440. https://doi.org/10.3390/ani9070440
Ngaio is Associate Professor in Applied Ethology and Animal Welfare Science and Co-Director of the Animal Welfare Science and Bioethics Centre in the School of Veterinary Science, Massey University, New Zealand. Her research employs behavioural and physiological methods to investigate various aspects of animal welfare in both domestic and wild animal species. Ngaio teaches veterinary and animal science students and advises government and various animal industries on matters relating to animal welfare and ethics. Connect with Ngaio via LinkedIn
