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Is an Elephant a Person?

By Steven Ellison, Esq. | Last updated on

Is an elephant a "person" with rights belonging to human beings? The New York Court of Appeals, New York's highest court, has been asked to say "yes."

The elephant's name is "Happy." She has lived for 40 years at the Bronx Zoo in New York. An animal rights organization, the Nonhuman Rights Project (NhRP), sued to have Happy transferred to an animal sanctuary where she would have much more living space.

Under American law, animals are property. The NhRP doesn't own Happy; the zoo does.

Writ of Habeas Corpus for Animals?

To get around this, NhRP is pursuing a novel legal theory. They seek relief that has been available under the common law — to human beings, anyway — for hundreds and hundreds of years. A writ of habeas corpus.

"Habeas corpus" is Latin for "produce the body." This ancient remedy enables a court to require that a detained person be brought before it as a means of securing their release unless and until lawful grounds are shown for their detention.

There are a number of legal requirements that must be satisfied for a court to issue the writ, but one historically has gone without saying: you need to be a person to be detained illegally. In other words, the only "body" a court has ever ordered to be produced is a human one.

Happy's Story

NhRP seeks to extend the writ to Happy, a female Asian elephant born in 1971 in Thailand. She was captured in the wild with six other calves. The seven, each named for one of Snow White's seven dwarfs, were shipped to the United States and sent to various zoos.

Happy is unusual. Most animals show no interest in their own image. In the summer of 2005, scientists painted a mark on Happy's head and put a mirror in front of her. Happy noticed the mark and touched it repeatedly with her trunk; she seemed to recognize that she was looking at herself. Until then, only apes, dolphins, and humans (and now, the magpie) had passed this test, which is associated with higher forms of empathy and behavior.

Animal Rights

But does this apparent self-awareness make Happy a "person"? That conclusion may not be as far-fetched as it may seem. Animals in America already enjoy certain "rights," such as the right to be free from animal cruelty.

Other countries have gone further. In 2014, a court in India ruled that the elephant Raju, after being held in captivity for 50 years, was actually a free being and could be cared for by his rescuers. India's Supreme Court also ruled in 2014 that elephants have real legal rights. A little more than a month ago, Ecuador's Constitutional Court ruled that a monkey named Estrellita had the right to exist and, crucially, the right to free behavior.

Natural Resources Have Rights

In 2017, after more than 160 years of negotiation with the indigenous Māori people, New Zealand granted legal personhood to the Whanganui River. The Māori have a deep connection with the river and believe that their tribes and water are intertwined. Harm to the river is harm to the tribe. Like corporations, the river can sue, be sued, own property, and enter into contracts.

The Whanganui River isn't the only natural resource in New Zealand to be granted legal personhood. In 2014, the Te Urewera park, the ancestral home of the Tuhoe people, became a legal person. Similarly, in 2018, Mount Taranaki, a volcano sacred to the Māori, became a person.

Hindu Idols Can Be Persons

Perhaps the most expansive view of personhood was taken by the British Privy Council in 1925. It declared that a Hindu idol was a legal person with a "will" of its own.

Corporations Are Persons

The law does not limit personhood to tangible things. Corporations are legal entities. But they are considered persons with rights under the law. They can sue and be sued in court. They can enter into contracts. They can own property. They have to pay taxes. Corporations even have certain constitutional rights, including the right to free speech and free association.

So Is Happy a Person?

If a river, a park, a volcano, an idol, and a corporation can be persons, why not an elephant?

Happy's fate lies with the Court of Appeals. The issues have been briefed, and the court is expected to hear arguments in early 2022. We will see if "produce the body" includes Happy.

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