The Wall Street Journal Thursday, April 25, 2002
Is a Chimp a 'Person' With a Legal Right To a Lawyer in Court?  Prof. Tribe of Harvard Allies Himself
With the Friends Of 1,500 Captive Primates By David Bank
MESA, Ariz. -- Simba has had a good life since he retired from the Ice Capades more than two decades ago. The 31-year-old chimpanzee lives here with five other chimps in a clean enclosure shaded from the desert sun. For lunch, he eats half a melon, six oranges, a bunch of spinach and a head of lettuce. His caregivers cater to his fondness for Pavarotti. His teeth are cleaned every six months.

At any moment, however, Simba could be yanked from this home provided by the Primate Foundation of Arizona and sent to a laboratory as a subject for medical research.

It sounds as if he could use a lawyer. More and more legal reformers think so. They are pressing to give chimpanzees legal standing -- specifically, the ability to have suits filed in their names and to ask courts to protect their interests. Chimpanzees couldn't take such action on their own, of course, but animal-rights advocates say judges could appoint a human "guardian ad litem," or guardian at law, to represent a chimp, much as judges now appoint such guardians to represent children in abuse cases or mentally incompetent adults.

The Chimpanzee Collaboratory, a new, national coalition of research and advocacy groups, has drafted model legislation to allow nonprofit groups to petition courts to act as guardians for any chimpanzee "subjected to the willful use of force or violence upon its body." Members of the coalition have received a total of $1 million over the past two years from the foundation of Rob Glaser, chief executive of RealNetworks Inc., a Seattle software company.

The advocates of granting legal standing to chimps have gained support from constitutional scholar Laurence Tribe, a Harvard Law School professor. Mr. Tribe argues that the leap isn't as great as it might appear: Courts recognize corporations as juristic, or legal, "persons"; that is, they enjoy and are subject to legal rights and duties.

"The whole status of animals as things is what needs to be rethought," says Mr. Tribe. "Nonhuman animals certainly can be given standing."

In legal terms, animals are "things," that is, they don't possess rights on their own. The push is to extend the legal definition of "persons" to Pan troglodytes, the species closest to man.

With legal standing, chimpanzee plaintiffs could seek injunctions against researchers, Hollywood animal trainers and operators of roadside attractions who might harm them physically or psychologically. They might seek compensatory damages to cover medical expenses or to provide for a comfortable retirement. Punitive damages might even be levied on those who deny chimps their basic rights.

Steven Wise, a lecturer at Harvard and author of "Rattling the Cage," a 2000 manifesto for chimpanzee rights, says the animals are more like our children than our property. It isn't just the 98.7% of DNA the two species have in common. Like Homo sapiens, chimps have complex social interactions, use tools and teach their offspring distinctive cultural traits. With sign language, some chimps seem to be able to communicate at about the level of a three- or four- year-old child.

"If a human four-year-old has what it takes for legal personhood, then a chimpanzee should be able to be a legal person in terms of legal rights," Mr. Wise says.

Outright abuse is already illegal. The federal Animal Welfare Act requires "a physical environment adequate to promote the psychological well-being of primates." But because chimps currently lack legal standing, advocates say it is difficult to compel the Department of Agriculture to enforce the law.

"Our culture is much more interested in protecting animals than our laws are," says Cass Sunstein, a prominent law professor at the University of Chicago who supports the appointment of legal guardians for animals as a way to bolster enforcement. "The lawsuits are just beginning," he says.

One reason for the interest is that there are so many chimps in captivity. Chimpanzees were bred aggressively in the 1980s for AIDS research but proved to be too similar to humans for testing treatments and vaccines: It also took years for them to get sick after exposure to the HIV virus. Chimpanzees continue to have a role in research on hepatitis, malaria and other diseases, but because they are expensive and difficult to manage, few are used. Since 1997, the National Institutes of Health has imposed a moratorium on breeding.

That has left in limbo many of the 1,500 captive chimpanzees, who can live 50 years or more. Congress in 2000 passed the Chimpanzee Health Improvement, Maintenance and Protection -- or CHIMP -- Act, which provided financing for a few chimp sanctuaries for fully retired chimps. Others, such as Simba and most of the 74 other chimps housed here are available for research if the need arises.

The pharmaceutical industry's lobbying group in Washington opposes legal standing for chimps to stop what it sees as a broader effort to end all animal research.

"The chimpanzee example is the beginning of what we view as a slippery slope," says Frankie Trull, president of the National Association for Biomedical Research. "What concerns us is the increasingly litigious nature of those who believe that no animal should be used for any reason."

Mr. Wise has publicized the case of Jerom, a 13-year-old chimpanzee who he says died alone in 1996 in a windowless box at a research facility in Atlanta after being infected with several strains of HIV virus. In a speech in Boston and a later law-review article, Mr. Tribe agreed, "Clearly, Jerom was enslaved."

But Mr. Tribe says there's no need for constitutional protections on that score. The 13th Amendment already forbids slavery. Mr. Tribe notes that nowhere does it state that only humans are covered; the status itself is forbidden, he argues. Likewise, the 8th Amendment bars cruel and unusual punishment. Legal standing for chimpanzees could make it easier, not harder, for courts to balance conflicting interests, he says.

"Recognizing that a being is entitled to being treated with respect, not wanton cruelty, and an eye to its own flourishing by no means translates into an absolute right, an absolute veto, over any possible use of that entity to save a human life, or achieve a higher goal," says Mr. Tribe. In other words using chimps for medical research would remain possible.

At the Primate Foundation, where Simba lives, the chimpanzees' care is largely paid for by medical-research funds. Jo Fritz, the director, has taken in more than 100 chimpanzees abandoned by pet owners or declared surplus by zoos or medical labs since 1969. She kept the first three chimps, retired from an animal act, in cages in a downtown Phoenix apartment. Then she moved to a former chicken farm. She nearly went broke before getting research money from the National Institutes of Health to help build a $4 million facility in a converted hydroelectric plant just beyond the suburban sprawl.

Ms. Fritz says her ability to provide quality care is worth the tradeoff of the chimps' possible use in research. Ms. Fritz is scornful of animal-rights activists who oppose all invasive procedures. Chimps under her care are anesthetized every six months so veterinarians can perform complete physicals, including blood tests and teeth cleaning. She is equally dismissive of those who would entangle chimpanzees in the legal system, when what they really need are dedicated caregivers.

"They don't need guardians. We're all guardians here," she says. "I am so against legal rights for these chimpanzees."

Simba's ice-skating career, which took him to Japan and the "Donny and Marie Show," ended before he was seven years old. His trainers claimed he had become hostile toward women. Now he spends much of each day banging his feet against the steel mesh of his cage in a distinctive rhythm his caregivers surmise he learned in his performing days. Simba calms down as soon as he hears the opening bars of Pavarotti singing "O Sole Mio." Recently, Ms. Fritz invited a 24-piece orchestra from Arizona State University to perform for the chimps.