by Arthur Ruiz
What makes a person deserving of human rights? Is it something intrinsic in our nature, “endowed by [our] Creator with certain unalienable Rights”, as Thomas Jefferson wrote? Or is it simply the result of mutually-agreed-upon social conventions? Early humans defined “themselves” by their small tribal communities, and any outsiders were usually seen with a mix of suspicion and distrust. As societies began to develop and expand, the “in-group” of people consisted of villages, city-states, ethnic identities, and then nations. Even vaunted legal landmarks recognizing a certain baseline level of rights, like the Magna Carta or the Bill of Rights, still applied to a select group of “rights holders” (English nobles and property-holding white males, respectively). An important social achievement of the 20th and early 21st centuries has been the entrenchment of the idea that all human beings, regardless of their origins, beliefs or identities, are entitled to certain “inalienable” rights by virtue of their humanity.
The scope of this concept took an interesting turn this past April, when New York Supreme Court Justice Barbara Jaffe granted a writ of habeas corpus to two research chimpanzees, Hercules and Leo, who were being used for experiments in human cognition at Stony Brook University. This decision resulted from lawsuits filed by the Nonhuman Rights Project (NhRP), on behalf of four chimpanzees (the two Stony Brook ones, as well as two others held on private property), which made the argument that the chimpanzees should be considered “legal persons”, based on their advanced emotional and cognitive capabilities. The writ of habeas corpus granted to the chimpanzees did not by itself confer legal personhood (and Jaffe quickly amended her decision to remove the specific term “writ of habeas corpus”), but it was an important step towards the possible recognition as such. In practical terms, it legally obligated Stony Brook University to answer charges that Hercules and Leo had been “unlawfully detained”.
Since its formation in 2007, NhRP has advanced the idea that certain animals, like chimpanzees and dolphins, are advanced enough that keeping them in captivity amounts to slavery. And while this is not necessarily a new idea, the lawyers and policy experts in NhRP have spent several years designing their legal approach to optimize their chances for successful recognition of animal personhood. Their strategy centered around petitioning judges for a writ of habeas corpus – a legal principle (literally meaning “present the body”) which has been interpreted over the centuries to allow an accused person a fair and impartial trial, access to an attorney, the ability to examine the evidence against them and question their accusers, etc. The legal impetus for the abolition movement occurred in 1772, when an English judge granted a writ of habeas corpus to a black slave named James Sommersett, an implicit admission of his legal standing as a human being and not a piece of property.
Justice Jaffe’s April decision, while ultimately not conferring habeas corpus on the chimps, did compel further hearings regarding NhRP’s suit. On July 29, she issued a decision ruling that habeas corpus did not extend to the chimpanzees: “For the purpose of establishing rights, the law presently categorizes entities in a simple, binary, ‘all or nothing,’ fashion,” the judge wrote. “Persons have rights, duties, and obligations. Things do not.” So humans are still people, and animals are not. Yet is this definition of “personhood” too restricted?
No one denies that animals should be treated with empathy and respect as fellow living creatures. Some animals have indeed been demonstrated to possess impressive intellectual and cognitive capabilities, such as tool use, long-term planning, social empathy, self-recognition, etc. Every effort should be made to ensure that any research project involving animals, especially those with appreciable cognitive capacities, are performed with a goal to minimize the amount of suffering and distress inflicted upon them. And there have been several unfortunate cases of scientists failing in their ethical duties to treat their animal subjects with appropriate concerns for their well-being, or engaging in traumatizing studies with dubious scientific benefits . But the solution does not consist of expanding our understanding of “humanity” or “personhood” to animals. The contention that “humanity” can be defined by a certain level of sapience and cognitive ability proposes a dangerous precedent, where “humanity” is not something that we are but something that we do.
Even barring philosophical ruminations about the possession and nature of a “soul”, there are important ethical and functional distinctions to be made. If a chimpanzee was recognized to have human rights, how far would they go? Could a chimpanzee marry a human, or vote, or receive welfare benefits, or be a defendant in a lawsuit? Would an accused chimpanzee be entitled to be judged by “a jury of his peers”? Without the capability to understand or independently exercise their rights, these animals would constitute a permanent class of incapacitated “people”, with the need for a corps of professional advocates to ascertain and act upon their client’s “wishes”. The current legal environment of representing human beings with incapacitating disabilities or medical conditions is already fraught with intrinsic problems of determining their desires or best interests. How can anyone truly claim to have the capability to advocate for an animal like a chimpanzee? Who determines how much cognitive capability is deserving of personhood – if chimpanzees and dolphins, what about pigs and dogs? Do only the smart chimpanzees get personhood – surely there must be some stupid ones on the bell curve of simian intelligence? The practical effects of this kind of ruling would be an immediate cessation of all laboratory research involving animals – primates surely, but perhaps as “low” on the scale of cognitive complexity as mice or even zebrafish.
More dangerously, this kind of cognitive metric of personhood has ominous implications for humans. If animals can be granted person-status because of cognitive capabilities, why can a human being not have their personhood rescinded because of a lack of these capabilities? Is a mentally handicapped or comatose person less deserving of human rights than a Nobel Prize Laureate? (full disclosure: my older brother is autistic and has significant developmental and cognitive disabilities). The inescapable parallels with early 20th century eugenics are unsettling. And at what point will leaps and bounds in artificial intelligence result in a computer with enough “cognitive” capability to apply for personhood?
While Justice Jaffe ruled correctly in her judgment that Hercules and Leo are not capable of wielding human rights, the efforts of the NhRP continue. Stephen Wise, the founder of NhRP, says “No matter how these first cases turn out, we’re going to move onto other cases, other states, other species of animals. We’re going to file as many lawsuits as we can over the next 10 or 20 years.” The sentiments behind these proposed lawsuits address an important need for animal empathy. The NIH has been responsive to legitimate criticisms of inappropriate experimentation, and recently announced a plan to reduce its research chimpanzee population by more than 85%. We must ensure than any proposed experiments involving higher mammals pass an extremely rigorous standard of compelling utility, and that the science cannot be attained in lower creatures, cell cultures or computer simulations. However, blurring the legal distinctions between animals and humans is not the appropriate recourse. Rather than elevate intelligent animals to a higher level of protection, it risks debasing and trivializing what makes us human.
Arthur is working on his Ph.D. at Einstein, studying the interplay of viral and host factors that result in HIV neurocognitive disorders. He grew up in San Diego, California, and earned a B.S. in Biology at UC San Diego. He worked in biotech for a few years in the field of vaccine development, then earned his M.S. in Biology at NYU before coming to Einstein. Besides science, Arthur has interests in history, politics, public policy and social justice