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THE THING IS: New York Court of Appeals to consider animal personhood

Rejecting human exceptionalism constitutes a moral and spiritual about face, but it’s not remotely a new idea. In the early twentieth century, Charles Darwin taught us that species are on a continuum; humans are merely one kind of animal.

ALEXANDRA ISFAHANI-HAMMOND: In her essay, “The Pandemic is a Portal”, Arundhati Roy conjectured that COVID-19 could ignite a reckoning. Was it possible that our extractive orientation to the earth and living beings could pivot to an economy of care?… As it happens, Wuhan’s caged pangolins are conceptually related to a Big Apple pachyderm, since the legal battle centered on Happy, a 52-year-old elephant in the Bronx Zoo, points in the direction of such structural transformation. Though her case has received significant media attention, it has not yet been placed it in the context of the incarceration of “food” animals …

The Nonhuman Rights Project has been advocating on behalf of Happy since 2019. On February 18, 2020, they argued before the Bronx Supreme Court that she is a person, not a thing, invoking the writ of habeas corpus to achieve her release to a sanctuary. Happy’s bio belies her name: following capture in Thailand along with six other calves, an event that almost certainly entailed killing her mother and other herd adults who would have fought to protect her, she has spent nearly her entire life either in a one-acre enclosure with an indoor holding area, or a barren, cemented, walled outdoor elephant yard, miniscule fragments of the natural home range for Asian elephants that can reach up to 600 square kilometers.

Whereas elephants normally live in complex societies, forming strong, lifelong social bonds, Happy has lived in isolation since 2006. She spends much of her time standing in place, swinging her trunk and raising and lowering her feet, standard examples of “zoochosis,” defined by ethologist Marc Bekoff as the “repetitive, functionless behavior caused by the frustration of living in a highly unnatural and impoverished environment,” itself akin to “psychological torture”…

While Bronx Supreme Court Justice Alice Truitt did not accede to the NhRP’s plea, she declared that she was sympathetic with their mission on Happy’s behalf and referenced New York Court of Appeals Judge Eugene Fahey’s 2018 statements that “the issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching” and that “Ultimately, we will not be able to ignore it.” Happy’s attorneys will appeal Tuitt’s decision on May 18, 2022, marking the first time that the highest court of any U.S. jurisdiction will hear a habeas corpus case brought on behalf of someone other than a human being…

Habeas corpus has already been employed successfully to protect members of other species in Brazil and Argentina. The first time in history that a court agreed to consider the writ of habeas corpus on behalf of a nonhuman animal was in 2005 in Salvador da Bahia, Brazil, when attorneys representing the Animal Abolitionist Institute sought release of a chimpanzee named Suíça from solitary confinement in the Getúlio Vargas Zoo…

Another habeas corpus case in Salvador da Bahia achieved direct benefit for the incarcerated. In 2010, attorneys from the Brazilian Association of Green Living Earth and Mother Cell Association represented two elephants, Guida and Maia, arguing that they were being unethically and illegally detained by the Portugal Circus. Judge Ana Conceição Ferreira determined that Guida and Maia were rights-bearing subjects and ordered their transference to a sanctuary…

Other successful cases include the 2015 habeas corpus trial on behalf of Sandra, an orangutang in the Buenos Aires Zoo… Judge Elena Libertori determined that she be relocated to a primate sanctuary in Florida. Libertori explicitly recognized that Sandra was a “nonhuman person and subject with rights”… While it did not involve habeas corpus, the 2000 Indian case of Balakrishnan et al v Union of India also demonstrates judicial commitment to abolishing the instrumentalization of animals…

Switzerland’s constitution contains an “animals are not things” declaration and recognizes the “dignity of living beings” in what is known as it’s “dignity of the creature” provision, while Brazil’s 1988 constitution prohibits subjecting animals to cruelty, India’s describes “compassion for living creatures” as a “fundamental duty” and German civil code includes the statement that “animals are not things.” Legal scholar Maneesha Deckha observes that, for the most part, the potential of such language has been thwarted by speciesist bias; causing harm to animals remains legally justified in the service of human interests, such that other creatures are “amenable to a cost-benefit calculation”…

Rejecting human exceptionalism constitutes a moral and spiritual about face, but it’s not remotely a new idea. In the early twentieth century, Charles Darwin taught us that species are on a continuum; humans are merely one kind of animal, a member of the strata of great apes: orangutans, bonobos, gorillas, chimpanzees and humans, all part of the family Hominidae. The similarities don’t stop there; for instance, pigs and humans share approximately 98% of the same DNA… The second idea upon which our relationships to other species is based is the philosophy of the early 17th-century scientist René Descartes. In Descartes view, animals are objects without feelings, much less intelligence or the right to live without being held captive or subjected to gratuitous violence…

Our current treatment of animals, whose consent and autonomy we consistently override, resembles Descartes’17th-century mindset rather than Darwin’s. Approximately 150 billion nonhuman animals are subjected annually to the most brutal suffering in animal agriculture, while approximately 115 million nonhuman animals are used in scientific experiments annually worldwide. Most people do not know what occurs in these places. How many readers are aware that beagles are hooked up to hoses inhaling cigarette smoke until they expire, simply to determine what we already know, that tar and nicotine are indeed toxic? Or that it is standard industry practice to cut off piglets’ ears and tails and to castrate bulls, all without anesthesia?

That infant monkeys are subjected to maternal deprivation experiments where they are kept in isolation without touch or contact of any kind, simply in order to determine whether they will decline and die from such deprivation? That male chicks, useless to the egg industry, are killed by feeding them into grinders while fully conscious? Or that dairy production is dependent upon forced reproduction and the repetitive, constant disruption of the mother-child bond, with mother cows wailing for calves taken from them soon after birth and auctioned, often with a few inches of umbilical cord still intact and dripping with uterine fluid, as veal? These examples are not aberrations but, rather, the norm.

In short, we continue to operate according to the Cartesian idea of animals as unfeeling beings, mere commodities, regardless of what Darwin told us about our similarities. It is imperative to stress that membership within the human species is itself no guarantee of the protections from gratuitous harm and incarceration afforded by “Human” status, since whole categories of humans have, throughout history, been characterized as “animals” and, therein, subjected to legally and morally condoned confinement, commodification and death, all to uphold and preserve an ever-shifting, culturally and historically contingent “inner circle” of moral protection. Our adherence to the Medieval notion of the great chain of being has proven catastrophic… Darwin was ahead of his time. Can we catch up to him? Our survival depends upon it. SOURCE…

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