Legal Advisor to Torah Mitzion
Last year, Israel’s High Court of Justice was petitioned by “Noah – The Israeli Federation of Animal Protection Organizations,” an umbrella organization for animal rights organizations in Israel, to declare illegal the force-feeding of geese for the production of foie gras (fatty liver, considered to be a gastronomic delicacy), in light of the “unnecessary suffering” caused to the geese during their feeding.
How did the Court rule on the issue of the delicate balance between ‘cruelty to animals’ and ‘agricultural needs’?
During the force-feeding period the goose is forcibly fed by the insertion of a tube into its esophagus. This process is repeated several times daily. The geese are fed high-caloric food in order to make their liver especially fatty. The amount of food they are forced to digest is much greater than the amount they require. The process lasts several weeks, until the liver reaches its optimal size. At optimal size the liver is several times the size of a normal liver. During the force-feeding period, the goose is fed exclusively by this method, though it continues to drink normally.
Section 2(a) of the Protection of Animals Law, 1994, prohibits torture, cruelty or abuse to animals. The Minister of Agriculture issued regulations in 2001 pursuant to this section, the purpose of which was “to prevent the suffering of geese caused by feeding with the aim of producing foie gras, and to freeze the foie gras industry in Israel. This is in the spirit of the Recommendations of the Standing Committee working under the European Council’s Convention for Protection of Animals Kept for Farming Purposes.”
The regulations regulated the force-feeding of geese, providing, for example, that force-feeding may only be carried out with a pneumatic machine. The regulations also set a maximum limit for the length and diameter of the feeding tube, and for the amount the geese are fed daily. In addition, in regulation 7, the Minister of Agriculture ordered the foie gras industry to be frozen, i.e. no new farms for force-feeding geese would be established, and the existing ones would not be expanded.
“Noah” petitioned the Israeli Supreme Court to declare the above regulations unlawful, mainly because the process of forcefeeding, even within the limitations set out by the regulations, caused cruelty to animals under section 2(a) of the Protection of Animals Law, 1994.
The respondents to the petition included the Minister of Agriculture (which supported and encouraged the development of this industry), the Egg and Poultry Board and 32 farm owners involved in the industry. These countered that, were the petition to be accepted, it would bring an end to the entire industry since, without force-feeding, the liver is not a marketable product. Israel produces over 500 tons of foie gras annually, half of which goes to the local market, while the rest is exported. The annual turnover of the industry reaches tens of millions of shekels. In addition to those who raise the geese, there are businesses that provide secondary services. Thus, the livelihood of several hundred families depends on this industry, which has been active in Israel for about 40 years. Furthermore they argued that the method of force-feeding does not constitute cruel treatment of animals, and that the purpose of the regulations was to reduce their suffering during feeding. Respondents pointed out that the European Council and the European Union did not outlaw force-feeding, and that the Israeli regulations followed those created in Europe.
The Supreme Court Justices found that “the tendency is to balance the interest of protecting animals against man’s right to use
animals for his sustenance” and the question was whether this delicate balance had been breached. It was agreed, however, that the interest of animal protection could be superseded by “agricultural needs.”
After the Court reviewed legal systems from many different countries – from the U.S.A. to India, and including Europe and New Zealand – the Court concluded that “overall the regulations do not stand up to the ‘prohibition of abuse’ test of the law.” It reached this conclusion based on the distinction it decided to make between those food items which are necessary for human existence, and those which are mere luxuries. To the extent that the food item is less essential and necessary to human existence, the less the weight that will be given to the consideration of “agricultural needs” where their production inflicts grave suffering on animals. And because the regulations did not meet the prevailing standards in Europe, the balance had been overstepped:
“We have carefully examined all the facts before us. The subject is complex, and we have considered the opinions of experts in several fields, the legal situation in various countries and in the international community, the domestic legal situation, and the extra-legal questions raised by this issue. We have reached the conclusion that the regulations deviate significantly from the purpose of the law, and thus they should be annulled.”
At the same time, the Court added, “The decision regarding the annulment of the regulations and the prohibition of the said practice will be suspended until March 31, 2005… During this suspension period those involved will contend with the problem and consider the appropriate policy regarding force-feeding geese. The developments in the field in Israel and abroad will be examined… If it is decided to allow the foie gras industry to continue, the legislature will have to issue regulations that will assure the use of means that will significantly reduce the suffering of the geese.”
*** Regrettably, the Supreme Court did not see fit to delve into the age-old provisions of the Halacha, when arriving at its decision to outlaw the force feeding of geese (even though it was presented with a detailed breakdown of these by the Department for Jewish Law (Mishpat Ivri) in the Ministry of Justice. The Court took into consideration the approaches developed by legal systems all over the world, and yet did not deem it appropriate to include even one Jewish source that related to the issue (save for a passing reference to the phrase tza’ar ba’alei haim as being the ancient equivalent to what is currently referred to as ‘animal welfare’). This contrasts with the Hamat Gader judgment, detailed in our last column, which was replete with references to Halachic and Talmudic principles.
In our next column, we shall examine the balance between ‘cruelty to animals’ and ‘human needs’ from the Halachic perspective, and assess whether the Halacha would have arrived at the same conclusion as the Supreme Court on the issue of forcefeeding geese.