THE ‘RIGHT TO BE’ HAPPY: A person or a thing? Inside the fight for animal personhood
A 2012 Seattle Times investigation found that of the 390 elephants that had died in accredited U.S. zoos in a 50-year period, the majority succumbed to captivity-related injuries or disease.
RACHEL FOBAR: As we watch her on this sunny spring day at the Bronx Zoo, in New York City, the chirpy guide cracks jokes and rattles off facts: Happy, a 50-year-old Asian elephant, drinks up to 60 gallons of water every day, she enjoys digging in the sand, she gets frequent pedicures from zoo staff. The elephant lumbers over to the fence, swings her trunk, and lifts her massive right foot. “She came over to say hello!” a fellow zoo-goer says to his daughter.
Happy doesn’t know it, but she’s at the center of a nationwide debate that turns on one question: Is Happy happy? According to the Nonhuman Rights Project (NhRP), a Florida-based animal civil rights organization, the answer is no. On May 4, the New York Court of Appeals, the state’s highest court, agreed to hear the NhRP’s case for declaring Happy a legal person. A date hasn’t been set, but the NhRP expects it will be heard this fall.
We’re “arguing that Happy has the right to bodily liberty,” or freedom from imprisonment, says Steven Wise, the organization’s founder and president. He wants Happy to be moved to an accredited elephant sanctuary where she’ll be with others of her kind in a larger, more natural setting than her present acre-size enclosure where she lives alone.
This is the fourth court the NhRP has argued before on Happy’s behalf. It’s the first time the New York Court of Appeals, which accepts only about 5 percent of cases submitted, has agreed to hear one relating to animal rights. “We think our arguments are very powerful,” Wise says. “But who knows?”
Personhood is “a matter of public policy and moral principle,” he says. It’s a legal designation indicating that an entity has the capacity for rights or responsibilities (such as, for example, to pay taxes and obey laws). It’s “not a biological question,” and it doesn’t mean that Happy would be thought of as equivalent to a human. Corporations, bodies of water, animals, and even deities around the world have been recognized as persons. But in the United States, where no legal designation exists for nonhuman animals, Happy is merely a thing…
In a November 2020 hearing for Happy before the Appellate Division of the New York Supreme Court, First Department, held virtually, an associate judge named Ellen Gesmer asked Wise whether Happy, if she was granted legal rights, “would have all the rights of personhood in our country, including, for example, the right to vote?”
Asking whether Happy would have the right to vote shows a fundamental misunderstanding about the meaning of personhood, Wise says. Just as children are legal persons but can’t vote, drink alcohol, or own property, nonhuman animals can be persons without acquiring all the rights granted to adult humans… Corporations have been afforded rights — and therefore considered legal persons — since the 1800s…
A deepening pool of scientific research gives clear evidence that elephants and other animals are smarter, more aware, and more emotional than previously thought. In light of this, a number of countries—including Germany, France, New Zealand, and the U.K.—have recognized in law their sentience. The U.S. remains conspicuously absent from the growing list…
“I find what’s happening [with Happy] to be the most exciting way that people are legally rethinking and approaching these issues,” says Janet Davis, a historian and professor at the University of Texas at Austin who is not associated with NhRP. “This is the way ultimately to open the floodgates for all creatures”…
Wise, unlike most lawyers, has never met his client, but he’s seen Happy on visits to the zoo. “I’m looking at a depressed elephant,” he says. “She doesn’t look up at us, she just stands there with her head down … I never saw an elephant do that.” Research shows that elephants suffer in captivity. Zoo elephants die younger than wild elephants, and wild-captured elephants have an even shorter lifespan than their captive-born counterparts. They suffer from foot and joint issues, including arthritis, from standing on hard, unnatural surfaces.
A 2012 Seattle Times investigation found that of the 390 elephants that had died in accredited U.S. zoos in a 50-year period, the majority succumbed to captivity-related injuries or disease. Given all this, in recent years more than 30 other zoos in North America have phased out their elephant exhibits or, like the Bronx Zoo, have announced plans to do so…
Elephants are intelligent and empathetic. They use tools, have close family ties, comfort their friends, and even appear to mourn their dead… The experts supporting the case with affidavits or briefs include, in addition to Poole, elephant scientist Cynthia Moss, 50 animal law professors, 12 philosophers, five Catholic theologians, and two habeas corpus scholars…
If New York’s Court of Appeals rules for the NhRP, it wouldn’t mean that all elephants are automatically considered legal persons. After that, Wise says, “we’d probably work our way through the rest of the elephants in New York.” A win for Happy would help, he says. In approaching other facilities that have elephants, “we’d say, do you really want us to sue you, when the Court of Appeals has already said Happy has [rights]?”…
Regardless of how the legal precedent might affect other animals, if Happy wins personhood, Wise says the NhRP will ask the court to order her transfer to a sanctuary, where she’d be with other elephants… Whatever the result, the case before New York’s Court of Appeals may be Happy’s last chance for personhood. It “could be the end of our litigation,” Wise says, “either because we’ve won, or we’ve lost”. SOURCE…
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