Guest Blog: Swiss Court Prohibits Zebra Finch Experiment

By Katerina Stoykova and Nicole Lüthi | October 16th, 2024

Authorization of Animal Experiments in Switzerland 

In Switzerland, animal experimentation is regulated at the federal level by the animal welfare legislation. [1] Swiss law requires researchers to apply for authorization from the veterinary authority [2] of the canton where they plan to conduct an animal experiment. First, the veterinary authority assesses whether the proposed experiment will be stressful for the animals, i.e., if it is likely to cause significant pain, suffering, or harm, or substantially impair an animal’s well-being (generally understood as stress or harm).  

Animal experiments are classified according to severity, i.e. the level of stress they cause an animal (severity grades 0-3). Severity grade 0 means non-stressful experiments; this includes the killing of animals for organ and tissue extraction as well as their confinement for observational studies. Severity grades 1–3 range from mild to severe stress, such as skin biopsies (1), tests leading to temporary disturbance of bodily functions (2), or lethal dose testing (3). [3]  

If the veterinary authority decides that the experiment will likely be stressful, it must consult an independent cantonal experimentation committee. The latter then performs a thorough assessment of  the severity and permissibility of the experiment and advises the veterinary authority on whether or not to authorize it. The veterinary authority takes the final decision, thereby retaining the right to diverge from the committee recommendations. If the veterinary authority chooses to do so, it must provide a justification for not following the committee’s advice. Each canton must establish such an experimentation committee, which must include experts in animal experimentation and an appropriate representation of animal welfare organizations. The federal law does not specify what is appropriate in this context, which is considered to result in an over-representation of research interests. [4] For example, the cantonal Animal Welfare Act of Zurich only requires that three out of eleven members of the committee must be elected based on the recommendation of animal welfare organizations. 

Furthermore, in all cantons except Zurich, only the applicant (i.e., the researcher) has the right to contest the veterinary authority’s decision. Zurich is the sole canton that allows at least three members of the committee to appeal, ensuring that the interests of the animals can be adequately represented before an independent court.  

The Harm-Benefit Analysis as a Core Element of Animal Experimentation Law  

According to the legal principle of proportionality, an animal experiment can only be permitted if it is suitable and necessary to achieve the desired goal [5], and the anticipated knowledge gain outweighs the harm to the animals in the experiment in question. The third requirement is also known as the harm-benefit analysis. The veterinary authority and the cantonal experimentation committee must evaluate if these requirements have been met.   

According to this principle, even if an experiment is considered suitable and necessary to achieve a specific experimental goal, the experiment still needs to pass the harm-benefit test. The more severe the stress caused by an experiment, the greater the benefit expected to result from the experiment in question must be to justify it. For instance, experiments that involve severe stress (classified as severity grade 3) must demonstrate a more realistic and substantial benefit than experiments causing lower levels of stress, such as those classified as severity grade 1.  

Swiss legislation and case law require an impartial and realistic assessment of the potential benefits and harms of an experiment to carry out a comprehensive harm-benefit analysis. [6]  While there are at least some established criteria for evaluating harm, there is a general lack of concrete metrics to measure the benefits, making it particularly challenging to assess anticipated benefits.  

It is important to note that the Swiss Constitution grants equal protection to the freedom of scientific research (i.e. the right to conduct research) and animal dignity and welfare. [7] The legislator, by requiring that experiments must adhere to the principle of proportionality, has decided that the interests of animals can restrict the freedom of research. Therefore, as one element of the principle of proportionality, the harm-benefit analysis is not a tool to weigh these constitutional principles against each other – something that is often misunderstood. Instead, its sole purpose is to serve as a means to assess in an individual case if the expected benefit of an experiment outweighs the harm inflicted on the animals. [8]  

The Zebra Finch Case  

In 2019, three members of Zurich’s animal experimentation committee appealed the cantonal veterinary authority’s approval of a severity grade 3 basic research experiment with the primary goal of understanding the brain mechanisms responsible for the planning, preparation, and production of birdsong. It would have involved cranial surgery on over one hundred zebra finches, connecting the birds to a cable via an implant for hours, isolating them in cages while tethered, and euthanizing most of them at the end of the experiment. The case was first brought to the cantonal Department of Health, which oversees the veterinary authority. The department rejected the appeal. The case was then brought before the Administrative Court of Zurich, which upheld the appeal and deemed the experiment impermissible. [9] 

The Court clarified that while Swiss law does not explicitly rank applied research above basic research, an interpretation aligned with the Swiss Constitution favors research resulting in a specific clinical application related to human or animal health. As the benefits of an experiment are generally evaluated based on the societal value and the potential for future clinical applications, it is often difficult to assess the expected benefits in basic research experiments. Recognizing the harm-benefit analysis is a core instrument of animal experimentation law in Switzerland, the court determined that the bar for approval (in basic research) must be set very high when the harm to the animals is considerable.  

In the case of the zebra finch experiment, the Court determined that although there was a potential for future clinical benefits, these benefits were not expected within a reasonable and defined timeframe. Additionally, the experiment was merely the first in a series of planned studies needed before any clinical application could become feasible. The Court determined that the approval authorities had overestimated the benefits by incorrectly juxtaposing the potential benefits from a series of future experiments – each requiring a separate harm-benefit analysis – with the animal suffering in this particular experiment. The rationale behind this is that considering potential benefits from other experiments alongside the one in question would unfairly skew the balance in favor of the benefits, unjustly disadvantaging the side concerned with harm. As mentioned before, the law requires that the harm-benefit analysis only considers the benefits and harms of the individual experiment.  

The ruling by the Administrative Court of Zurich is the first of its kind in Switzerland since a 2009 Federal Supreme Court decision regarding a basic research experiment involving primates. The Administrative Court ruling has sparked intense debate, with some within the scientific community fearing it might threaten the viability of basic research.  

It is important to note that more recent judgment reinforces the existing case law of the Federal Supreme Court. The case law has made clear that the harm-benefit analysis becomes meaningless and does not fulfill its purpose if it is not performed according to the law. It is an established legal tool and thus has democratic legitimacy. There might be arguments that a different legal approach would be preferable to assess the permissibility of basic research experiments, as has been suggested by some in the scientific community. However, this would require amending the legal framework via a democratic process. As long as the law requires weighing up the conflicting interests prior to every single - basic or applied research - experiment, it must be applied correctly and consistently. 

Katerina Stoykova is a PhD candidate in the National Research Program (NRP) 79 Project “Implementation of the 3Rs in Swiss Law” at the University of Zurich’s Faculty of Law in Switzerland. Her research interests are in animal law, with a focus on animal experimentation law. Her PhD thesis focuses on regulatory animal testing.  

Nicole Lüthi is a PhD candidate in the National Research Program (NRP) 79 Project “Implementation of the 3Rs in Swiss Law” at the University of Zurich’s Faculty of Law in Switzerland. Her research interests are in animal law, with a focus on animal experimentation law, and medical law. Her PhD thesis offers a comparative analysis of the laws regulating animal experimentation and human research. 

Work Cited

[1] See Animal Welfare Act (AniWA) of 16 December 2005 (SR 455) https://www.fedlex.admin.ch/eli/cc/2008/414/en; Animal Welfare Ordinance (AniWO) of 23 April 2008 (SR 455.1) https://www.fedlex.admin.ch/eli/cc/2008/416/de (available only in German); Animal Experimentation Ordinance (AEO) of 12 April 2010 (SR 455.163) https://www.fedlex.admin.ch/eli/cc/2010/207/en.

[2] The veterinary authorities are specialized bodies tasked with overseeing compliance with the Animal Welfare Legislation, see Art. 33 AniWA. The authorities consist of publicly appointed veterinarians under the leadership of an executive veterinarian. The latter is elected by the members of the cantonal government. 

[3] Art. 24 f. AEO.

[4] Cf. Vanessa Gerritsen, Güterabwägung im Tierversuchsbewilligungsverfahren (Schriften zum Tier im Recht, Zurich, Schultess 2022) 618; Andreas Rüttimann, ‘Problematische Aspekte der Zusammensetzung der kantonalen Tierversuchskommissionen’ (2024) 28(1) TIERethik 91, 108 ff. (both publications are in German)

[5] Art. 137 AWO stipulates that the applicant must demonstrate that the aim of the experiment cannot be achieved with non-animal methods and that the chosen (animal) method is suitable to achieve the experimental goal. Additionally, the experiment must be planned in a way that ensures the smallest possible number of individual animals and the lowest possible severity grade.

[6] See Art. 34 AniWA, the corresponding legislative materials (https://www.fedlex.admin.ch/eli/fga/1990/3_1257__/de), and the case law of the Federal Supreme Court (http://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F135-II-384%3Ade&lang=de&type=show_document).

[7] See Federal Constitution of the Swiss Confederation of 18 April 1999 (SR 101; Cst.) https://www.fedlex.admin.ch/eli/cc/1999/404/en; see Arts. 20, 80, 120 Cst.  

[8] Cf. Nicole Lüthi, Katerina Stoykova, Margot Michel, ‘Animal Experimentation in Basic Research – Current Discussion and Implications of the Latest Jurisprudence in Switzerland’ (2024) LEOH 99, 105  (with further references).

[9] See decision of the Administrative Court of Zurich of 24 November 2022 https://entscheidsuche.ch/view/ZH_VG_001_-VB-2021-00276_2022-11-24.

This blogpost was written as part of the National Research Program (NRP) 79 "Advancing 3R", project no. 206392, funded by the Swiss National Science Foundation (SNSF).

The views expressed do not necessarily reflect the official policy or position of Johns Hopkins University or Johns Hopkins Bloomberg School of Public Health.