Germany court case: constitutional complaint against piglet castration without anesthesia

Summary

On 18 November 2019, the animal rights organization PETA Germany filed a constitutional complaint with the Federal Constitutional Court on behalf of 20,000 male piglets, arguing that the piglets are rights-holders under German law.

The legal action was prompted by the following circumstances: At the time the constitutional complaint was filed, male piglets younger than eight days old were still castrated without anesthesia in Germany. PETA claims that the pig farming industry carries out the practice of castrating male piglets because three to five per cent of uncastrated male pigs develop so-called boar taint, which is perceived by humans as an unpleasant odor that may render the meat of male pigs difficult or impossible to sell.

The German Animal Welfare Act
Although the German Animal Welfare Act was amended in 2013 to prohibit piglet castration without anesthesia with effect from 1 January 2019, shortly before the prohibition was due to enter into force the transitional period was extended by two years. As a result, the ban did not take effect until 1 January 2021. The Federal Minister of Food and Agriculture justified the extension on the grounds of the economic challenges the ban of castrating piglets without anesthesia was expected to pose, particularly for small and medium-sized pig farming businesses in Germany.

Constitutional Court Proceedings
The Federal Constitutional Court is both a court and a constitutional organ. As the “guardian of the Basic Law”, it provides binding interpretations of the Basic Law (Germany’s Constitution) and ensures that fundamental rights are upheld. A constitutional complaint may be lodged by anyone who thinks that a German public authority has violated their fundamental rights.

The male piglets—specifically those kept on breeding and pig-fattening farms in the territory of the Federal Republic of Germany, and which were surgically castrated either without anesthesia or pursuant to the Piglet Anesthesia Competence Ordinance—acted as complainants in the proceedings before the German Federal Constitutional Court, alongside Harald Ullmann, Christine Ax and Dr. Karsten Brensig as co-complainants. A lawyer of PETA Germany, the organization that legally represented the piglets before the Court, said: “The piglets themselves do not want to be castrated without anesthesia anymore.”

In their constitutional complaint, the male piglets challenged the extension of permitting piglet castration without anesthesia until 31 December 2020, pursuant to the German Animal Welfare Act (TierSchG) § 21, paragraph 1. They argued it was unconstitutional and violated the piglets’ rights under the Basic Law, either through: Article 2, paragraph 2, first sentence and Article 1, paragraph 1 (in analogy) | or | Article 1, paragraph 1 in conjunction with Article 20a.

The relevant legal provisions read as follows:

German Animal Welfare Act (TierSchG)
§ 21 By way of derogation from § 5, paragraph 1, first sentence, anesthesia is not required for the castration of male pigs under eight days old until 31 December 2020 at the latest, provided that no abnormal anatomical condition is found. Where anesthesia is not required pursuant to the first sentence, § 5, paragraph 1, sixth sentence, shall apply accordingly, requiring in particular the administration of pain-relieving medication.

German Basic Law
Article 1 [Human dignity – Human rights – Legally binding force of basic rights]
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

Article 2 [Personal freedoms]
(2) Every person shall have the right to life and physical integrity.

Article 20a [Protection of the natural foundations of life and animals]
Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

Ruling
During the proceedings, the prohibition of piglet castration without anesthesia entered into force on 1 January 2021. On 14 May 2021, the Federal Constitutional Court issued an order (1 BvR 2612/19) declining to accept the male piglets’ constitutional complaint for adjudication. The Court did not state the reasons for this decision.

Castration without anesthesia
This procedure occurs when a piglet is barely a week old. It involves restraining a male piglet and using a sharp scalpel to cut into the piglet’s body and pull out the testicles by breaking the spermatic cords, all while the piglet remains fully conscious. Scientific evidence shows that surgical castration induces acute pain in piglets. During the procedure, the animals frequently exhibit intense physical struggle and emit high-frequency distress calls. Afterwards, they display pain-related behaviors such as trembling, stiffness, spending more time motionless, while reducing social interaction with other piglets.

Involved Organizations