A Veterinary Perspective on Captive Primate Welfare
Updates on Legal Personhood for Apes and the Captive Primate Safety Act

April 24, 2015
by Gwendy Reyes-Illg, DVM

Do veterinarians have a role in advocating for captive primate welfare?   The HSUS

Fifteen years ago, as a vet school-aspiring zoology major, I was so fascinated by what I was learning about primates that I decided to leave college for a bit to volunteer in an ape sanctuary. For six months, I spent nearly every day with young hominids: either with the juvenile chimpanzees and orangutans at the Center for Great Apes or the (human) children at the daycare center where I worked to support myself during this “sabbatical.”

This juxtaposition helped me develop a deep appreciation for the remarkable mental abilities of apes and the similarity between their emotional lives and ours. Today, as a veterinarian, I continue to work with and be amazed by our closest evolutionary relatives.

Primate Welfare Includes Mental and Psychological Health

Chimpanzees plan and carry out complex tasks and use tools they have made from natural materials. Tool use and ingestion of medicinal plants1 vary with what can only be called “culture.” They engage in “political” behavior: forming coalitions, expecting reciprocity from their allies, and – at times – manipulating others’ perceptions to their advantage2.

Great apes (chimpanzees, bonobos, gorillas, and orangutans) can learn to use something which looks very much like language; indeed, many argue that it is language. I have “spoken” with sanctuary apes who used signs like flower to request a fresh hibiscus bloom and hurt to point out a new wound on their body. Great apes recognize themselves in mirrors. And when they laugh, their unmistakable mirth is contagious.

For all primates, a group that includes apes, monkeys, and prosimians, the mother-infant bond is very strong. Most primates spend their infancy constantly being held by or holding on to their mothers. Childhood is measured in years for many monkey species and for all apes. During this prolonged period of dependency, mothers pass on knowledge and complex skills.

Most who work with apes and monkeys have little doubt as to their capacity to feel and recognize emotions. Science, while at times invoking the presumed theoretical impossibility of verifying primate emotions and what they might be like, has found ways to study emotions in primates; indeed, research in other areas, such as attention, takes for granted that primates feel emotions.

The highly-developed emotional and mental capabilities of apes and monkeys mean that, like humans, they can suffer and be harmed by more than just physical pain. Social deprivation and lack of stimulation frequently lead to stereotypic behaviors that resemble symptoms of mental illness in people. Though rocking and self-mutilation are often cited, I have known rescued primates to exhibit stereotypies including gingival-rubbing, cloth-eating, and continuous abnormal vocalizations.

Primate welfare is thus heavily influenced by mental and psychological health. Apes and monkeys require opportunities for self-determination, problem-solving, and social interaction. As awareness of primate minds increases, efforts to enhance legal protection for primates are gaining momentum, including on some novel fronts.

International Debate Concerning Legal Personhood of Apes Continues

Sandra, an orangutan in an Argentine zoo, made headlines when she was recognzied as a non-human person.  Claudio Bertonatti/Zoológico de Buenos Aires

At the end of 2014, Sandra, an orangutan in Argentina, made headlines around the world. It was reported that she had been recognized as a "non-human person unlawfully deprived of [her] freedom.” The ruling pertained to a suit filed by a group of animal lawyers asking that Sandra be removed from inadequate conditions at a zoo. After lower courts denied the group’s petition for habeas corpus (more on what this means below), a court of appeals whose role is to provide “a proper interpretation of the substantive law” ruled in Sandra’s favor.

Careful translation failed to confirm the “personhood” language, however the appellate court’s decision does clearly state that “non-human subjects (animals) are entitled to rights, and therefore their protection is required by the corresponding jurisprudence.” On returning to the lower court, Sandra’s case will be interpreted in light of the appellate court’s ruling.

This decision may signal a shift in Argentina’s understanding of Sandra’s legal status. “Property,” which Sandra and all other captive animals are legally designated as, is not the kind of entity that has legal rights – only persons and property owners do.

Similar judicial efforts are also underway in the United States. Several courtrooms in New York have been considering attorney Steven Wise’s argument that great apes should be granted the legal status of nonhuman persons. Specifically, the cases concern four chimpanzees, two of whom are legally owned by private individuals. Wise is petitioning for a common law writ of habeas corpus.

A writ of habeas corpus is a formal court order requiring that a “custodian” who is confining a prisoner appear before a judge or court so that it can be investigated whether that custodian has lawful authority to detain the prisoner. The legal mechanism of habeas corpus was used in the 1700s to get an enslaved African man recognized as a “legal person,” contributing to the undoing of the institution of slavery.

Though the chimpanzees’ living conditions sound dismal, this is not Wise’s focus; rather, he’s challenging what he refers to as the “unlawful detention” of the apes who, as pets and research subjects, are kept solely for their “owners’” benefit. Armed with a hundred pages of expert affidavits detailing chimpanzees’ mental and emotional lives, Wise maintains that their cognitive complexity endows the apes with the capacity for autonomy. Under our legal system, he argues, practical autonomy is essentially what rights protect. Chimpanzees, therefore, are entitled minimally to have their most fundamental interests protected, such as their rights to bodily liberty and bodily integrity3. Since only legal persons are eligible for any legal right, chimpanzees must first be recognized as legal persons.

UPDATE: Breaking News on
Legal Personhood for Apes
Hercules and Leo, two chimpanzees held at a research laboratory at Stony Brook University in New York, were briefly granted a writ of habeas corpus on April 20 by State Supreme Court justice Barbara Jaffe. The move implied to many that the chimpanzees were being legally recognized as persons and sparked headlines around the world about their nascent legal rights.

The document sets a date for Stony Brook to appear in court and “show cause...why an Order should not be entered granting…the following relief: upon a determination that Hercules and Leo are being unlawfully detained, ordering their immediate release and transfer to Save the Chimps [sanctuary].”

The following afternoon, Justice Jaffe removed the words “writ of habeas corpus” from the order, but left the designation “order to show cause.” Her spokesperson, David Bookstaver, told a local newspaper that she hadn’t meant to weigh in on personhood, but is allowing the chimpanzees’ case to be argued.

Attorneys with the Nonhuman Rights Project, who brought the suit, point out that this is the first time that an order to show cause has been issued for a non-human animal. In their press release, they summarize their understanding of the order’s significance: it means “that the Court believes at minimum that the chimpanzees could possibly be legal persons for the purpose of Article 70 [Habeas Corpus], without deciding that they are, and that the issue will be determined only after it is fully briefed and argued at the adversarial hearing” at the New York State Attorney General's office on May 27.

Stony Brook University, in an emailed statement, said: "The University does not comment on the specifics of litigation, and awaits the court's full consideration on this matter."

Stay tuned!

Philosophically, Wise’s assertion that chimpanzees can exercise autonomy may sound odd at first. Philosophers like Immanuel Kant have cited autonomy as what separates humans from other animals. Unlike animals, the argument goes, human actions are not just motivated by desires, like seeking pleasure or avoiding pain, or determined by instinct. Humans can act in accord with principles and act for reasons4.

Human autonomy may indeed be distinctive, given our capacity for more abstract thinking and complex discourse. Perhaps humans alone “act on principle,” at least if the “principle” in question must be articulated. However, the conception of animals as acting solely on instinct is now known to be flawed. Ethologists, psychologists, and veterinary behaviorists have discovered that, far from being automatons hard-wired to act as they do, many animals make deliberate decisions, risk pain and discomfort for “higher goals,” like protecting an ally, and pursue self-selected goals using diverse and novel means.

Chimpanzees’ advanced abilities, together with their “human-like” qualities, highlight their rationality, or ability to act for reasons. Watch a chimpanzee carefully select a particular stone, carry it to a distant palm nut tree, find an “anvil” to go with the “hammer” she has brought, and position a nut just right for cracking. Watch as a mother demonstrates the right grips, and then slows down and exaggerates the cracking process for her child to watch. Signing chimpanzee mothers are known to mold the hands of their infants to make the correct sign. Calling this “instinct” stretches the meaning of the term too far.

This is not to say that animals like chimpanzees don’t have any instincts. We humans have instincts, too, like running away from sudden danger. Rather, the contrast between instincts and autonomy make it easier to recognize the latter: in a wild group of chimpanzees, for example, we can find two individuals of the same sex and age, presumably endowed with very similar instincts. Yet their daily lives may vary greatly, with one individual doggedly seeking to become his group’s leader, while another is more interested in playing with youngsters or perfecting his tool use.

Since law is not my domain, I’ll leave it to legal scholars to assess Wise’s claim that legal rights are fundamentally intended to protect practical autonomy. But I have to agree that great apes have the capacity for autonomy. Their current legal status – that of property – not only fails to reflect their nature as intelligent, emotional, autonomous beings, but limits the protection of their welfare, especially when it conflicts with their “owners’”’ right to do what they wish with their “property.”

Captivity itself obviously limits apes’ exercise of autonomy: they are physically confined and rely on human caregivers for food, water, natural materials, and access to space and to conspecifics. However, U.S.-born chimpanzees cannot be safely released “back to the wild” – even African sanctuaries aiming to reintroduce wild-caught chimpanzees face an uphill battle.

The fact that Wise is requesting transfer to a sanctuary – where opportunities for autonomy could be maximized – rather than “freeing” the New York chimpanzees figured prominently in the judges’ decision not to grant the writ in the most recent case. Wise points out that, in this regard as in several others, his case resembles pleas for habeas corpus filed on behalf of children or mentally impaired individuals, rather than competent adults.

So far, Wise’s efforts in the court have been unsuccessful, but appeals are still in the works. Other measures around the world – like Spain’s resolution recognizing apes as bearers of basic rights -- together with the Argentine court’s decision regarding Sandra suggest we will see many more discussions on extending legal protections like personhood and rights beyond our species.

Legislative Remedies: The Captive Primate Safety Act»

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