New York Denies “Personhood” for Elephant in Bronx Zoo

By Jacob Schramm, Features Editor

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Earlier this year, the Court of Appeals of New York declined to give legal personhood to Happy, a 45-year-old elephant who has been housed in the Bronx Zoo since she was a year old, often without any companion.[1] This decision determined that Happy was not endowed with liberty rights and safeguarded by the writ of habeas corpus.[2] The majority acknowledged that elephants are autonomous beings with clear internal cognitive processes, and capable of “self-awareness, long-term memory, intentional communication, learning and problem-solving skills, empathy, and significant emotional response.”[3] However, they reasoned that giving animals personhood would “lead to a labyrinth of questions that common-law processes are ill-equipped to answer.”[4] In a lengthy dissent, Justice Rowan D. Wilson made several arguments to afford substantive “personhood” rights to animals without entangling society in the “labyrinth” of legal problems that the majority forecasted.

Justice Wilson noted that the “day is upon us” to stop our harsh treatment of animals based on “the number of legs” or “the villosity of the skin.”[5] He argued that the writ of habeas corpus’ application to “a person illegally imprisoned” was meant to have no substantive component.[6] Rather than extend the concept of “personhood” to an animal or determine whether it can bear responsibilities, Wilson’s dissent approaches the writ of habeas corpus as one that should be used “to enhance liberty when a captivity is unjust, even when the captor has statutory or common law rights authorizing such captivities.”[7] Much like society’s understanding of enslaved persons, women, and children has changed, Justice Wilson wrote that society’s changed understanding of the cognitive and emotional capacity of elephants should equally compel an adaptation of the writ of habeas corpus to place Happy in an elephant sanctuary.[8]

Happy’s case was brought by the Non-Human Rights Project, an organization demanding the recognition of “the legal personhood and fundamental right to bodily liberty of autonomous nonhuman animals living in captivity.”[9] This is not the first time that the group has sought legal remedies for animals in captivity. In December 2014 the New York Supreme Court’s Appellate Division denied the application of the writ of habeas corpus for Tommy and Kiko, chimpanzees in the Fulton County Zoo.[10] There, the majority wrote that it is the “incapability to bear any legal responsibilities and social duties that renders it inappropriate to confer upon chimpanzees the legal rights…that have been afforded to human beings.”[11] The Non-Human Rights Project has continued this effort, with the most recent appeal being denied in 2018.[12]

The Non-Human Rights Project is not alone in their efforts, and such efforts are not confined to urban zoos. PETA, albeit unsuccessfully, previously championed efforts to phase out the captivity of orcas and dolphins in places like Seaworld, making similar arguments about the capacity of these animals and the cruelty of their captivity.[13] These efforts fit within a global effort to recognize animal rights. India has bolstered several constitutional provisions for the protection of animals,[14] and the State of Mendoza in Argentina ruled that Cecilia, a chimpanzee living along in a concrete enclosure at the Mendocino Zoo has a right to health and happiness.[15] Alternatively, Swiss voters recently rejected an initiative to guarantee the rights, and physical and mental integrity, of non-human primates.[16]

The resistance to these efforts comes from the prospective implications of allowing animals to be shrouded with constitutional protections. Justice Wilson, in his dissent of the decision to deny Happy personhood, clarified that the case “is not about whether Happy is a person or . . . can bear responsibilities or enter into a social contract,” rather, it is about “whether society’s norms have evolved such that elephants like Happy should be able to file habeas petitions to challenge unjust conditions.”[17] He offers a metaphor to elucidate this distinction: “If society determines that humans should not torture dogs, then dogs have a right to be free from torture. The dog’s right to be free from torture does not emanate from their ability to take on duties or responsibilities; it emanates from society’s determination that a sphere of action is a right worthy of protection.”[18] Whether or not Justice Wilson’s perspective will be adopted by courts moving forward remains unseen, but his dissent softens the critical opinions that have been issued against such efforts in the past and may become more popular in the future.

[1] Non-Human Rights Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. 2022)

[2] Id. at *7.

[3] Id. at *2.

[4] Id. at *3.

[5] Id. at *8.

[6] Non-Human Rights Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. 2022)

[7] Id. at *9.

[8] Id.


[10] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148 (N.Y. App. Div. 2014).

[11] Id. at 152.






[17] Non-Human Rights Project, Inc. v. Breheny, 2022 WL 2122141, 14 (N.Y. 2022)

[18] Id. at 13.

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