Trapped between zoo and sanctuary: the dilemma of the institutionalized ape named Sandra (commentary)

Argentina Justice Elena Amanda Liberatori has the difficult and unprecedented task in the next few months of 2015 of deciding the basic question of whether the orangutan Sandra would be better in a zoo or a sanctuary.

The legal decision is complicated enough; it grows even more complicated if Justice Liberatori, a liberal-minded judge working to expand rights, considers Sandra as an autonomous, thinking, sentient being, or, in other words, not an object, not a kind of biological automaton, but essentially a legal “person.”

One way to define a person is a being who is autonomous, able to think independently and able to make independent choices.

And that is the concept for the orangutan Sandra proposed to Justice Liberatori in a report submitted to the court that I wrote with two experienced orangutan experts, the Australian Leif Cocks, president of The Orangutan Project, and the American Gary Shapiro, president of the Orang Utan Republik.

Our report was originally requested by the lawyer Pablo Buompadre, president of the Argentina lawyer’s association for animal rights named AFADA, in seeking legal rights for Sandra, a resident of the zoo in Buenos Aires. The report, submitted to the court by AFADA, is independent of AFADA and was not guided or edited by AFADA. Even Buompadre did not anticipate where our report would lead in asserting the essential autonomy of an ape person.

Our report in February gave five principles of humane accommodation for an orangutan like Sandra, namely the right to adequate space, the right to privacy when Sandra chooses, the right to socialization with either other animals or people when Sandra chooses, the right of freedom and choice, and the right of a stimulating environment. We did not give anything more specific than the principles and we did not endorse the choice of either zoos or sanctuaries.

AFADA has now proposed to the court to send Sandra to a privately owned chimpanzee sanctuary in Brazil affiliated with the Great Ape Project or GAP. GAP defines itself as “an international movement that aims to defend the rights of the non-human great primates.” We are examining the details proposed for accommodating Sandra in the Brazil sanctuary, after the judge asked us previously to comment on details for improvements for the conditions of Sandra in the zoo in Buenos Aires. Our recommendation in the end will likely be based on how a zoo or a sanctuary accommodates the autonomy of an orangutan in a captive setting.

The ethical ape: Explorations, experiments and analyses of the moral lives of people and apes Shawn Thompson is a journalist, photographer, book author, university professor living in British Columbia, Canada. His last book was The Intimate Ape: Orangutans and the Secret Life of a Vanishing Species. He has written an online column for Psychology Today magazine about people and apes and is now writing a book about morality, people and apes. He can be found on Youtube, Flickr and Twitter under IntimateApe. Email: prof.shawnthompson[at]outlook.comRead more posts from the The Ethical Ape column

The legal situation with Sandra is intriguing and unique. Because of the persistence of AFADA, a court in Argentina gave the opinion in December 2014 that Sandra is a “subject of rights,” not an object as living beings other than Homo sapiens are generally defined in legal systems around the world. After that, AFADA launched a type of constitutional challenge in 2015 called an amparo for rights on behalf of Sandra, another unique legal situation to pursue the rights of an ape.

If Sandra were a wild orangutan, the circumstances would be simpler and without the current dilemmas. A healthy, wild orangutan would probably be best returned to its freedom and ability to make choices for itself in the wild. But Sandra is different. She is an institutionalized orangutan, born in captivity in a zoo in Germany as a hybrid between the two distinct species of Borneo orangutans and Sumatra orangutans. Sandra does not know the free and natural life of an orangutan outside the zoos where she has lived in the care of human beings in Germany and Argentina. She is like a prisoner who does not know the conditions of life outside her prison and adapts to that environment as her sole reality.

Since Sandra has now the legal status in Argentina as a “subject of rights” – a legally ambiguous status with little clear implications beyond Sandra as an individual orangutan – we thought it was time to try to set standards for humane accommodation that would treat Sandra as a “person,” not a mere animal, not a mere object.

One of the rights that Leif Cocks, Gary Shapiro and I proposed to the court was the right of choice. We anticipated some blustery objections that it is absurd to think that apes are capable of choice and that even if a notion that preposterous is accepted, that apes can’t communicate their choices. To the contrary, Cocks and Shapiro insisted that there are empirical ways to determine the preferences of an orangutan like Sandra, which we included in our report to the court.

Hence, the dilemma. Consider this: if we accept that an ape is an autonomous being with rights, then don’t we need to accept the right of an ape to make a choice, even if we disagree with that choice? If we simply veto an ape’s choices that we don’t like, in what sense are we treating the ape as an autonomous being? Of course, we might not allow any choices that would cause the ape harm, particularly in situations where we might believe the ape incapable of predicting the harm. But other than blatantly harmful choices, how much choice would we allow an autonomous being?

So, in the case of the orangutan Sandra, what if Sandra prefers the conditions she has known all her life of living in a zoo? We may not agree with her preferences, we may be opposed to zoos on principle, but how much freedom to make her own choices should we allow Sandra?

This is a dangerous thought for which science does not have a solution. Think of where it would take us.

Consider that if Sandra has an enclosure in a zoo with sufficient space that allows her to choose when she wants privacy and when she wants to socialize, would she prefer that and what she knows in the zoo to a strange sanctuary populated mainly by chimpanzees, and possibly more isolated for her?

I have watched orangutans in zoos around the world. Even orangutans in captivity make choices all the time, asserting their wills, sometimes just to thwart the power and will of their human captors. As an example of this, Sandra has demonstrated her ability to choose and to assert her will when her zoo tried to breed her with a male orangutan named Max. Rather than submit, Sandra chose to sit outside in the rain and snow by herself. Some orangutans in a zoo or a sanctuary also choose to socialize with human beings. They move as close as they can to the window or fence so that they can interact with people, rather move as far as they can for privacy. Recently a video has circulated on the Internet of a remarkable interaction of a male orangutan named Rajang at the Colchester Zoo in England kissing through the glass the belly of a pregnant woman.

If we accept that apes are autonomous, thinking, sentient beings capable of making choices, and if we believe that apes should have rights, then don’t we have to be careful not to obliterate those rights by deciding in all cases what we alone think is best for an ape?

The answer to that question is a test of how ready we are as Homo sapiens to agree to the real autonomy of a fellow primate.