The person in the room? Court mulls if elephant has human rights

Happy, by species, is an Asian elephant. But can she also be considered a person?

That question was before New York’s highest court on Wednesday in a closely watched case over whether a basic human right can be extended to an animal.

The advocates at the Nonhuman Rights Project say yes: Happy is an autonomous, cognitively complex elephant worthy of the right reserved in law for “a person”.

The Bronx Zoo, where Happy resides, says no: through an attorney, the zoo argues Happy is neither illegally imprisoned nor a person, but a well-cared-for elephant “respected as the magnificent creature she is.”

Happy has lived at the Bronx Zoo for 45 anni. The state court of appeals heard arguments over whether she should be released through a habeas corpus proceeding, which is a way for people to challenge illegal confinement.

The Nonhuman Rights Project wants her moved from a “one-acre prison” at the zoo to a more spacious sanctuary.

“She has an interest in exercising her choices and deciding who she wants to be with, and where to go, and what to do, and what to eat,” project attorney Monica Miller told the Associated Press ahead of the oral arguments. “And the zoo is prohibiting her from making any of those choices herself.”

The group said that in 2005, Happy became the first elephant to pass a self-awareness indicator test, repeatedly touching a white “X” on her forehead as she looked into a large mirror.

The zoo and its supporters warn that a win for advocates at the Nonhuman Rights Project could open the door to more legal actions on behalf of animals, including pets and other species in zoos.

“If there’s going to entire be a rewrite and a granting to animals of rights that they never had before, shouldn’t that be done by the legislature?” Kenneth Manning, an attorney for zoo operator fauna selvatica Conservation Society, asked the judges.

Happy was born in the wild in Asia in the early 1970s, captured and brought as a one-year-old to the US, where she was eventually named for one of the characters from Snow White and the Seven Dwarves.

She arrived at the Bronx Zoo in 1977.

Happy now lives in an enclosure adjacent to the zoo’s other elephant, Patty. The zoo’s attorney argued in court filings that Happy can swim, forage and engage in other behavior natural for elephants.

“The blatant exploitation of Happy the elephant by NRP to advance their coordinated agenda shows no concern for the individual animal and reveals the fact they are willing to sacrifice Happy’s health and psychological wellbeing to set precedent,” the zoo said in a prepared statement.

NRP’s attorneys say no matter how Happy is being treated at the zoo, her right to “bodily liberty” is being violated. They argue that if the court recognises Happy’s right to that liberty under habeas corpus, she will be a “person” for that purpose. And then she must be released.

Judges peppered attorneys for both side with pointed questions during oral arguments. Judge Jenny Rivera asked Miller about the implications of NRP’s position on human-animal relationships.

“So does that mean that I couldn’t keep a dog?” Rivera asked. "Voglio dire, dogs can memorise words.”

Miller said right now there’s more evidence showing elephants are extraordinarily cognitively complex with advanced analytical abilities.

Lower courts have ruled against the NRP. And the group has failed to prevail in similar cases, including those involving a chimpanzee in upstate New York named Tommy.

But last October, at the urging of a different animal rights group, un federal judge ruled that Colombian drug kingpin Pablo Escobar’s infamous “cocaine hippos” could be recognised as people or “interested persons” with legal rights in the US. The decision had no real ramifications for the hippos themselves, given that they reside in Colombia.

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