Getting the Elephant out of the Room: A Needed Update to the Animal Welfare Act’s Humaneness Requirement as a Prohibition of Elephant Captivity in Zoos

Numerous policy changes over the last several years reflect a growing concern among the U.S. public over the treatment of captive animals. For example, in 2015, the National Institutes of Health decided to end medical experimentation on chimpanzees. And following the release of Blackfish, a documentary that highlighted problems associated with orca whale captivity, California in 2016 enacted the Orca Welfare and Safety Act, which phases out orca captivity altogether. Furthermore, repeated accusations of animal cruelty, plus declining ticket sales, compelled Ringling Brothers and Barnum & Bailey Circus to shut down in 2017.

The shuttering of the circus and SeaWorld’s decision to end its theatrical orca shows demonstrate a clear distaste for the instrumentalization of animals purely for spectacle.

But some captive animals provide more than just entertainment to humans, and policy questions surrounding those animals’ captivity are more fraught. Animals kept by zoos provide a prime example. Although zoos charge admission the same way a circus or SeaWorld does, and seeing zoo animals provides entertainment to visitors, there are at least two compelling policy reasons to keep animals in zoos.

The first is that many zoos help to safeguard the survival of endangered animals through breeding and reintroduction programs called “Species Survival Plans.” To be eligible for participation in these programs, zoos must meet accreditation standards set forth by the Association of Zoos & Aquariums (“AZA”), a self-regulatory organization that conducts inspections of member institution sites every five years. A successful Species Survival program can bring a species back from the brink of extinction. Take, for example, the California condor. In 1982, only 22 California condors remained in the wild. AZA-accredited zoos took those birds into captivity, where scientists and zookeepers oversaw the breeding and care of the animals and eventually reintroduced many of them into the wild. As of 2014, the population of California condors had increased to 425. Without zoos, the condors likely would have gone extinct.

Another policy justification for keeping animals in zoos is that visitors are more likely to care about animals and help support conservation efforts if they have seen those animals in person.

Both of these rationales for keeping most species of animals in zoos perhaps, on balance, overcome the obvious flaw that the individual animals in zoos did not get to choose to be conservation ambassadors for their species. However, there are some animals’ captivity in zoos that, given current conditions, can never be justified. In this article, I will focus my attention on elephant care.

7 U.S. Code §2143, better known as the Animal Welfare Act (AWA), states that the U.S. Secretary of Agriculture must “promulgate standards to govern the humane handling, care, [and] treatment . . . of animals by dealers, research facilities, and exhibitors.” Those standards include establishing minimum requirements for “handling, housing, . . . [and] shelter from extremes of weather and temperature.” Under this Act, zoos are considered to be exhibitors. The Secretary of Agriculture has authorized the Animal and Plant Health Inspection Service to set criteria for and oversee compliance with the humaneness requirement. But there is evidence that the current standards for humaneness are lacking, in particular with regard to elephants.

The federal government does not specifically define “humane” in the AWA, but it does in the Marine Mammal Protection Act (MMPA) a statute dealing with the conservation and capture of animals. Humaneness in that context entails the “least possible degree of pain and suffering practicable” to the animal. And the plain meaning of “humane” involves showing compassion and alleviating suffering. It would be proper, and likely be consistent with legislative intent, to impute the plain meaning of “humane,” or the government’s definition of “humane” from the MMPA, into the AWA.

But there is ample evidence that the standards set forth by APHIS are not enough to ensure elephant welfare based on those definitions. Regulatory bodies like APHIS and the AZA require that zoos provide elephants with, among other things, large enough indoor enclosures that the elephants can lie down, exhibits with ceilings and fixtures high enough that they won’t bump their heads, and access to shade. Elephants also must be tested and, if diagnosed, treated for certain diseases to which they are prone. Even when zoos comply with those provisions, however, elephants in zoos are suffering.

This indicates that there is a gulf between APHIS’s standards and elephant well-being. The AWA’s humaneness requirement should be updated to reflect the plain meaning or the MMPA definition of “humane.”  Importantly, this change would effectively preclude zoos from properly and justifiably holding elephants in captivity.

Three significant issues point towards deeming current treatment of zoo elephants as inhumane, within the plain meaning or the MMPA definition of that word, and current regulatory protections as insufficient: (1) insufficient habitat size, (2) high infant mortality rate, and (3) diminished longevity compared to wild elephants.

Zoo elephant habitats are too small to be considered sufficient for elephant welfare because current habitats lead to significant and widespread health problems among zoo elephants. Wild elephants often walk long distances, sometimes as much as 50 miles per day, in the course of foraging for food and water. But the AZA requires only 1800 square feet of space be allotted per elephant, and elephants in zoos walk an average of just over three miles per day. Zoo elephants are therefore prone to foot problems such as overgrown nails and foot pads, plus bone and bacterial foot diseases. One UK study found that 80.4% of a sample of elephants kept in enclosures with hard ground had foot problems including cracked pads and infections. Foot problems often cause significant suffering and even death for afflicted elephants. One study suggested that about half of all“mortality in captive elephants is due to foot problems.”

Poor reproductive health and high infant mortality rates among zoo elephants also indicate that zoo conditions fall below a proper standard of care. Zoo elephants largely do not experience a regular estrus cycle—a fact that is itself troubling and is likely an indicator of stress or substandard dietary conditions. Zoos therefore rely on artificial insemination to impregnate elephants, but more than half of elephants conceived through artificial insemination die in utero or are stillborn. For those elephants who survive being born, the infant mortality rate of captive elephants is greater than 30%. In the wild, elephant infant mortality rate is two-thirds lower.

A third indicator that zoo care for elephants is inhumane, using the plain meaning or MMPA definition of that word, is that elephants live about half as long as their wild counterparts. Since longevity in zoos is higher than in the wild for the vast majority of animals, zoo elephants’ shorter lifespan should be of special concern in assessing humaneness of zoo conditions.

For the reasons described above, current zoo care of elephants should be considered insufficient. To remedy this, zoos could theoretically adapt to better care for elephants. But it would likely take years to research and implement solutions to the vast problems facing captive elephants, and expanding exhibits enough to meet elephant space needs would be impracticable in many cases. The best solution for elephants currently suffering in zoos is to move them to elephant sanctuaries. A chorus of public and institutional support already exists for getting elephants out of zoos. More than 30 U.S. zoos have joined the expanding list of Canadian, U.K., and Indian zoos that already closed or have announced plans to close their elephant exhibits. The Scientific American and Jane Goodall have called for an end to zoo captivity of elephants. In 2016, Ringling Brothers and Barnum & Bailey’s circus voluntarily ended their elephant shows and rehomed the remaining elephants to a sanctuary, citing an “[evolving] public mood” as the reason for the change.

Promisingly, there is case precedent to suggest that the current standards of elephants care are open to challenge. The D.C. Circuit found that a private citizen had standing to sue a zoo for lack of humane conditions for its animals even though USDA inspectors had found the zoo to be in compliance with AWA humaneness standards.

Policy changes with regard to other species can provide a guide for legislation concerning captive elephants. California’s law phasing out captivity for orcas arose from advocacy following research demonstrating that captive orcas swim less, live shorter lives, and reproduce less successfully than their wild counterparts. Sound familiar?

With or without an update to the AWA’s humaneness requirement, states and the federal government should follow California’s lead and get rid of elephant captivity in zoos. But the important goals of population expansion and promoting public interest in conservation remain.

To meet the conservation goal and care for elephants humanely, the U.S. should adopt legislation providing for elephant sanctuaries. For a blueprint, the U.S. should look to federal provisions for the retirement of medical research chimpanzees.

42 U.S.C. §283 provides for the “establishment and operation” of a sanctuary system for chimpanzees who had formerly lived in laboratories and been the subjects of medical experiments. The most notable difference between a sanctuary and a laboratory, or, as it relates to elephants, a zoo, is that a sanctuary’s primary purpose is not research, exhibition, or entertainment, but rather to simulate the animals’ wild ecologies to the greatest extent possible and to provide each animal individualized care.

In the case of chimps, federal funds constitute a large part of sanctuary operating costs.This serves the federal humaneness requirement in several ways. First, using federal funding removes the perverse incentives often created when institutions rely solely on visitors’ fees, such as giving them inadequate opportunities to escape the public eye. Because of their focus on simulating the animals’ wild environments, sanctuaries offer hundreds or thousands of acres for elephants to roam, proper climate and shelter conditions, and, to the extent possible, social conditions elephants would find in the wild.

In terms of connecting with the public, some sanctuaries offer escorted public visitation, and many offer live-streamed elephant cameras to people who want to view the animals and are unable to personally visit the sanctuary.

Two arguments against the removal of elephants from zoos are: (1) that zoos will lose money and visitorship, and not as many people will be able to see elephants in person, and (2) that phasing out breeding programs will put worldwide elephant populations at risk.

To the first issue, since zoos do important conservation work, it is legitimately concerning that losing a big attraction like elephants could spell financial harm for zoos. But maybe this concern is misplaced, as many people are more likely to attend institutions with captive animals if those institutions do not keep animals whose confinement is highly controversial. For example, 14% of people surveyed said they would be more likely to visit SeaWorld if it stopped exhibiting orcas. Given a growing public distaste for elephant captivity, zoos might be more likely to get visitors if they stopped keeping elephants.

The second issue presents more of a challenge to people who say elephants should remain in zoos. Captive breeding Species Survival programs, like the one described above for the California condor, are central to zoo care of endangered animals but are at odds with the mission of sanctuaries. Indeed, the Global Federation of Animal Sanctuaries stipulates that sanctuaries can not have breeding programs. So removing elephants from zoos would mean an end to captive breeding. Fostering better protections for wild elephants will help ensure species survival, but of course doing so offers a complex set of challenges. However, the poor reproductive success of zoo elephants makes it difficult to justify keeping elephants in zoos for population reasons alone.

Even in the absence of legislation, common sense and concern for animal well-being point toward getting rid of zoo captivity for elephants. When using a definition of “humane” likely intended by Congress when it enacted the AWA’s, it is clear elephant care in zoos explicitly falls short of acceptable. Elephants in zoos live materially shorter lives, reproduce significantly less successfully, and experience higher rates of health problems than their wild counterparts. Following its own example with regard to chimpanzees, Congress should enact legislation providing for the transfer of captive elephants to sanctuaries.

Suggested citation: Debbie McElwaine, Getting the Elephant out of the Room: A Needed Update to the Animal Welfare Act’s Humaneness Requirement as a Prohibition of Elephant Captivity in Zoos, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Sept. 22, 2018), https://live-journal-of-law-and-public-policy.pantheonsite.io/getting-the-elephant-out-of-the-room-a-needed-update-to-the-animal-welfare-acts-humaneness-requirement-as-a-prohibition-of-elephant-captivity-in-zoos/.