At the end of February 2023, animals had an important victory in Brazil: The National Council for the Control of Animal Experimentation (in Portuguese, Conselho Nacional de Controle de Experimentação Animal – CONCEA), of the Ministry of Science, Technology and Innovation, prohibited, through its resolution n. 58/2023, the use of animals in research, development and control of cosmetics, personal care products and perfumes.
According to this new regulation, vertebrate animals – who, it has been proved, are sentient, that is, capable of consciously experiencing pain and pleasure, such as fish, amphibians, reptiles, birds and mammals – can no longer be used in research when there is already proof of safety and efficacy of the ingredients and compounds in question. If there are new formulas, however, the norm imposes the use of alternative methods to animal experimentation.
With that, moreover, Brazil has aligned itself with the norms of the European Union, in which the Theory of the three R’s of William Russell and Rex Burch (1959) prevails: “Reductions, Replacemente, e Refinement” (Reduction, Substitution and Refinement):
The basic corollary of the principle of reduction is that the use of animals for experimentation can only be carried out when another scientifically satisfactory method that does not involve the use of animals is not possible.
The principle of refinement, in turn, aims to reduce the number of tests with animals and the number of animals used and, at the same time, ensure a minimum of pain, suffering and affliction of the animals used during the experimentation.
The principle of substitution, finally, aims at the progressive replacement of experiments with animals by research procedures in which the use of animals is minimal or, desirably, null (FERREIRA; PEREIRA, 2019, p. 45)
In addition to the ethical advances made possible by resolution n. 58/2023, it is important to highlight that the very credibility of animal experimentation has been consistently questioned in the scientific field.
Paula Brügger (2008), for example, states that there are already several scientists who criticize vivisection (which is the practice of cutting a living body). First, because there is, of course, an ethical problem in sacrificing animal interests and rights to the detriment of human interests and rights, just because we belong to different species (SINGER, 2015; FRANCIONE, 2020). However, there is also a relevant question regarding the lack of reliability in the results.
As an example, in the United States, only 1% of new drugs tested in laboratories move on to the clinical stage, in which they are finally tested in human volunteers and, after that, only 5% of them are approved by the FDA (Food and Drug Administration). Another survey revealed that 51.5% of the approved drugs offered risks not foreseen in the tests. Thalidomide, for example, was approved and, in animal tests, did not present any problems. In pregnant human women, however, the problems caused to fetuses were very serious (BRÜGGER, 2018; BERNARD; KAUFMAN, 1997; GREEK; GREEK, 2000).
With regard to AIDS, animal models brought benefits only to nonhuman primates, that is, researchers working with primates made important discoveries to treat chimpanzees, but which were inapplicable to humans (GREEK; GREEK, 2000; BRÜGGER , 2018).
Regarding cancer, equally, no essential drug for the treatment of the disease was originated from animal models, and the drugs developed were tested on animals only after there were already clues about their therapeutic possibilities based on data obtained clinically. This is because, although thousands of animals suffer each year at the hands of scientists who induce cancerous formations in them, such formations are totally different from naturally occurring forms of human cancer, since the cancer cells cannot be seen as something detached from the organism that produced them (GREEK; GREEK, 2000; BRÜGGER, 2015).
What Brügger claims, therefore, is that even though nonhuman animals have common origins with each other, including us, they are very different from one another and from ourselves in relevant aspects – including metabolic, anatomical, biochemical, behavioral factors etc. –, and this is why the results are flawed (BRÜGGER, 2018).
Again, we cannot leave aside the ethical implications of causing suffering to beings that we know are capable of consciously experiencing pain, so even if the animal model of scientific research would prove to be effective – which is not the case –, there would be no justification for using it.
There is already scientific consensus stating that human animals are not the only ones that have consciousness. On the other hand, as noted in the 2012 Cambridge Declaration on Animal Consciousness, “the study of neuroscience has evolved in such a way that it is no longer possible to exclude mammals, birds and even octopuses from the group of living beings that have consciousness” (HOHENDORFF; LAZZARETTI, 2022, p. 217). Thus, it is possible to state that, to the extent that animals are sentient, “they are, without a doubt, endowed with consciousness and capable of feeling pain. For that, they can no longer be considered just as things by law” (Idem, p. 207).
Even our Federal Constitution already recognizes the sentience of nonhuman animals and prohibits cruelty against them, which is made clear by article 225, item VII, paragraph 1:
§ 1 To ensure the effectiveness of this right, it is incumbent upon the Government to: VII – protect the fauna and flora, prohibiting, as provided by law, practices that jeopardize their ecological function, cause the extinction of species or subject animals to cruelty (emphasis is ours)
The rule transcribed above contains two distinct prohibition rules: (1) practices that jeopardize the ecological function of the fauna and flora and cause the extinction of species; or (2) subject animals, as individuals, to cruelty.
In our legal system, therefore, the position of nonhuman animals as subjects of fundamental rights is already secured, since they are not protected as a mere part of the fauna, but as beings who matter individually, capable of being victims of cruelty and experiencing suffering (ATAÍDE JR., 2020). With that, they must be allowed not only the right to live, but also the right to live without pain and cruelty (MEDEIROS; NETTO; PETTERLE, 2016).
This has been, more and more, the position employed by our Federal Supreme Court (STF), as we can see in the Direct Unconstitutionality Action (Ação Direta de Inconstitucionalidade – ADI) n. 2514 of the State of Santa Catarina (2005), ADI n. 3.776-5 of the State of Rio Grande do Norte (2007), ADI n. 1,856 of the State of Rio de Janeiro (2011), the RE 153,531/SC of 1998, and the very well-known ‘ADI da Vaquejada’ (Vaquejada is a Brazilian practice similar to that of the rodeo), n. 4,983 of 2016, in which not only sentience was recognized, but also animal dignity itself, as we can see by the vote of Supreme Court Minister Rosa Weber:
The Constitution, in its article 225, § 1st, VII, accompanies the level of enlightenment reached by humanity in the sense of overcoming the anthropocentric limitation that places man at the center of everything, and everything else as an instrument at its service, in favor of the recognition that animals have their own dignity that must be respected (emphasis is mine). Finally, it is important to highlight that there are already alternatives to animal experimentation, but it is necessary to work so that other ways of producing and testing medicines and medical procedures are increasingly effective and ethica
