This piece was written for Lewis & Clark’s Emerging Topics in Animal Law course. All views expressed are those of the author.
By Marcia Condoy Truyenque
Given the recent attitudinal change towards animals, many people recognize themselves as part of a multispecies family, a family composed by human and other animal species, united by affective ties, of mutual recognition, and in a supportive and equitable relationship. Today, more than before, the law accepts the plurality of family structures. Therefore, the legal concept of family should also apply to multispecies families. This desirable protection is possible in the Latin American legal system under constitutional protections, having into account the constitutional interpretation and the open catalogue of rights recognized that include, among others, the right to free development of personality.
This work (1) begins by analyzing the reasons why our fellow animals (also called pets or companion animals) can subjectively and objectively be members of the family and therefore (2) need to be recognized as such under the law as part of a multispecies family. Next (3) it will be briefly presented the respective constitutional framework in Latin America related with multispecies family to finally (4) point out the benefits of recognize our fellow animals as family members in specific cases and contexts.
- Animals as family members and the subjective and objective elements of their legal configuration
That animals are considered as members of the family, obeys two factors: the first is that people recognize their animals as family members. The second is that it is possible that the same animals assumes themselves as members of the family when they are included.
The first factor is given by the familial quality that people recognize in their fellow animals, which is the subjective element sine qua non of the multispecies family that also gives legitimacy to their legal configuration.
Recognizing our fellow animals as family members is not a recent social phenomenon, rather animal presence has always been a feature of family life.[1] What is recent is the general attitudinal shift towards animals that has expanded how much we are willing to do for them. Recognizing an animal as a member of the family no longer only implies to letting them live within the family environment. Today people make real emotional, financial and time efforts[2] that go beyond the mere satisfaction of basic needs: grant cosmetic care, daily walks the parks, giving them nutritional supplements, taking them to the spa or even creating a social media account. Pablo Suarez points out that for the animals with whom we live:
(1) we give them a name (personality attribute), (2) we take into account their existence and their needs when moving, vacationing, when a separation occurs in the family, etc., (3) we sometimes recognize in them familial statuses (son, brother).[3]
The main point here is that people develop genuine affective bonds with their fellow animal because they identify certain roles in them including company, care, confidence, emotional support, support in solitude, among others[4], which is why animals are particularly important during family crises[5] as they are capable of fulfilling a stabilizing role in the family[6]. The chemistry that binds humans to their fellow animals creates an emotional attachment[7] that explains why they mean so much to humans.
In this sense, it is not uncommon to hear people refer to their fellow animal as sons or brothers. However, it should be taken into account that research indicates that in most cases our fellow animals are not an element of “replacement of gaps” (hypothesis of compensation or substitution) but rather a complement of family systems (hypothesis of complementarity)[8], which is connected with the second factor of the multispecies family.
The second factor, is the psychological response of the animals themselves, which assumes they are a member of the family when they are included in its structure. For this factor, we will take the contribution of interspecies psychology studies.
Díaz Videla and Rodríguez Ceberio explain that “various concepts of Bowen’s Systemic Family Theory have been identified in human-animal family dynamics”[9]. For instance, family triangulations are a mechanism that allows families to deal with intense emotional states and are made up of three members. In “Pets as Family Members,” Ann Ottney Cain explains that in families where animals are included, they participate in triangulations[10]. In a conflict situation, animals try to stop a fight by performing behaviors that include seeking to be petted or behaving in a way that people find funny, seeking to provoke laughter in the conflicting members. These behaviors are intended to try to release tension, or to make the people in conflict forget their anger[11].
Another example is the under-functioning/over-functioning dynamics. When a family system becomes unbalanced (like when a member is sick or in pain), “one member takes over the responsibility and becomes overly focused on the under-functioning member while the under-functioning member relies on the over-functioning member”[12]. In cases of multispecies families, this over-functioning/under-functioning relationship includes animals. Thus, an animal has the ability to detect disease or emotional distress in another human member of the family, a human member of the family can detect a disease or emotional distress in their fellow animal, just as an animal can detect a problem in other animal members of their family[13].
This phenomenon by which animals assumes themselves as members of the family could be identified as the objective element of the multispecies family. Nevertheless, it is not a necessary condition for their legal configuration because it is not expected or define what animal species have the capacities to develop this sentiment of membership. It will be necessary more interspecies psychology studies to define this issue, nevertheless, it is not a sine qua non condition.
Therefore, the configuration of a multispecies family is not a unilateral issue (from humans to their animals) it is bilateral one, because animals, as active agents and according to their capacities, choose for themselves to be members, actively delineating the rules of families[14].
- The multispecies family as a new form of family under the law
From other fields of study, such as sociology, or as we have seen in psychology, the family is not characterized by a biological relationship, but rather by the roles of its members, where each of them is important in the functioning of the family system. From this perspective, there is no doubt that our fellow animals are members of our family, because, as we have seen, they are recognized as such and because they interact through roles with other family members.
Despite this, the historical legal concept of family comprises only human members united by a first-order consanguineous relationship (parents, children and siblings), that is, a heterosexual, matrimonialized, paternalized, patrimonialized, sacred and biologized family. This is because as part of civil law, family law “is an area of law historically very influenced by religious and conservative ideas”[15].
However, recently, family law in Latin America prioritizes the protection of the family and the autonomy of its individuals over the traditional and conservative demands of public order. An example of this is the principle of the best interests of the child that weighs rights such as the right to identity over the social refusal to allow a child to have two fathers or two mothers. Therefore, today is accepted the plurality of family structures that, for instance, includes the extended family, assembled family (families reconstituted by members of previous families), homoparental families and even the society of coexistence and familiarization of the friend. All this family forms are based on the principles of solidarity and mutual help and with legal consequences between the parties and toward third parties[16].
In this order of ideas, if a family implies the recognition of its members as such and their interactions through roles, and if there is no “single form of family organization”[17], it is possible and necessary to integrate the multispecies family into the law.
Given a legal concept to the multispecies family, we can say that it the family integrated by members of different animal species united by affective ties in an equitable relationship of mutual recognition and solidarity.
According to Pablo Suárez, the multispecies family responds to a “realistic conception, sensitive to social changes, based on socio-affective relationships (and not biological relationships), respectful of the decisions and ways of life of its members (and not with a structure and rules determined by religion or state)”.[18]
Taking into account the flexibility of family law in Latin America, the multispecies family can and must be considered as a legal family and, therefore, shall be protected, supported, and treated equally before the law.[19]
- Constitutional framework of protection
One cannot speak of the introduction of the multispecies family within law without referring to the constitutional framework that allows it. The Latin American constitutional framework allows greater flexibility when it comes to recognizing animals as members of the family. This is because the paradigm of young Constitutions and justice administrations seem to be focused on recovering the forgotten social question, directing efforts towards the development of Welfare States[20]. This has meant a leap from a purely legalistic legal system to a non-formalistic one that is consistent with a constitutional state. Thus, the constitutional law today recognizes rights such as gender rights, and indigenous or multicultural rights, which until recently were marginalized.[21]
This new model, designed to protect fundamental rights[22] and freedoms from state power and from third parties, [23] is characterized by a connection between law and morality,[24] and an “over-interpretation”[25] of the constitutional rights by judges as they are the guarantors of such rights. This is the reason because Latin American constitutional judges enjoy a wide margin for creativity and in their response to justice demands. In doing so, they use to apply an analysis on a case-by-case basis[26]. It is important to highlight also that the list of rights within Latin-American Constitutions -in most cases- corresponds to the same rights of international human rights treaties, and also, the list of rights are a numerus apertus. Under this umbrella, it is possible a general animal protection from the Constitutions.
To begin with, animals are recognized as elements of nature, and they can be protected under the constitutional mandates that protect the nature or environmental rights. In the case of the constitutions from Ecuador and Bolivia, they recognize the Rights of Nature and the principle of interpretation of “Good living” of Article 71 of the Constitution of Ecuador and article 1 of the Bolivian constitution. In the case of Colombia, Argentina, or Peru, the Constitutions recognize the right to a healthy and balanced environment. Under this Latin American constitutional framework, animal protection has a constitutional basis, based in the moral and solidarity duties towards animals. In the judgment C– 041/17, the Constitutional Court of Colombia indicated that:
Although the Constitution does not explicitly recognize animals as rights holders, this should not be understood as their denial, and even less as a prohibition for their recognition - named -. Its demand attends to factors such as the evolution of humanity and the changes that a society presents, which can lead the Court to make visible what at first glance is not envisioned in the Constitution. Furthermore, regardless of the classification of rights over time (generational), they form a unit inasmuch as they are interdependent, integral and universal.[27]
Particularly, in relation to multispecies family, the right to free development of personality includes in its essence the right to have a fellow animal as a constitutional right. The free development of personality means the right to develop individual capacities for the construction of the own meaning of material life, in the exercise of moral autonomy, and in spaces of freedom where state intervention is excluded[28]. In a case in which a person was prohibited from going up with his fellow animal in the elevator of the building in which they live, forcing them to go down and up from the 16th floor using only the steps, the Peruvian Constitutional Court, referring to a ruling prior to the Colombian Constitutional Court, recognized that:
The possession of a pet is a manifestation of the right to free development of the personality, in the understanding that it is the option of each person to decide whether or not to have a pet, which corresponds to the life plan of each individual. Although for some, the possession of a pet may seem like a minor or even banal decision, for many people - in the position of the Constitutional Court of Colombia, embodied in ruling T-034/13, which this Collegiate shares - it, in greater or less intensity, it can have an important meaning in their life, developing certain affective and emotional bonds; to which is added that, for certain people, they are a decisive support in the deployment of their daily activities[29].
If to “have a pet” is a constitutional right, we can argue that to have a multispecies family is also part of the development of personality insofar as it is only one form of the plurality of ways in which a human being conceives what is a family, what are the life options, how love, all they equally respectable and therefore, object of legal protection.
Finally, it is important to mention that the Inter-American Court of Human Rights has already indicated in the case Fornerón and daughter v. Argentina, that “in the American Convention a closed concept of family is not determined, much less is only a model of it protected”, but rather that “the term” family members “should be understood in a broad sense”.[30]
I had previously mentioned that in multispecies families, membership is assumed by both human and animal members in an equitable relationship. So, shouldn’t all members be equally protected in rights?
- The multispecies family applied to specific cases
Finally, it is necessary to identify some specific cases in which the legal concept of multispecies family can be applied.
The first refers to the fact that the loss or damage of a fellow animal does not suppose (exclusively) an economic damage, but rather generates a moral or sentimental damage to human family members. When the affective ties that humans create with their fellow animal are cut or damaged, evidently, there is a destabilization in the family system[31], which, translated into law, implies moral or sentimental damage for the death or harm to a relative[32]. In such cases, it will be important to prove the existence of affective ties between the members of the multispecies family, so that the emotional burden claimed as non-pecuniary damage is qualified as evident.
The moral or sentimental damage can also be used for criminal contexts in which there is not an animal protection law or it is inapplicable, for example in the Tita case[33]. In March 2020, in the Province of Chubut in Argentina, a police officer, who was in the exercise of his duties, was attacked by a mixed-breed dog with Pitbull features called Tita. When Tita was walking away from him, the policeman shot Tita with his firearm, causing her pulmonary hemorrhage. Tita had to be euthanized. All of this happened in front of Tita’s family members.
The criminal judge in the case found that the offence of damage of article 183 of the Argentine penal Code was applicable. Nevertheless, the judge emphasized that the damage caused to the family exceeded one of an economic nature, since:
Tita’s death has caused an irreparable loss in her family, the testimonies of CASTILLO and MUÑOZ showed the integration of Tita in family life, transforming it into a Multispecies family.
(…)
Without a doubt, the damage caused to Tita’s family has been immense.[34]
In Tita’s case, the defendant was sentenced for the crimes of Abuse of Authority and Damage to one year of suspended prison and two years of disqualification.
Another successful case of the application of the multispecies family is the protection of the health and survival of the fellow animal in connection with the right to family unity. In 2020, in the city of Ibagué in Colombia, the family of Clifor, a schnauzer who suffers from idiopathic epilepsy, was without access to phenobarbital. The phenobarbital is a drug for the treatment of epilepsy that in Colombia is only distributed by the State. In May 2020, there was no stock of phenobarbital because the contract with the distributor had not yet been made. Lina Sofía Lozano Cárdenas, who identified herself as Clifor’s sister (and pointed out that her family is made up of Clifor, her father and her sister), filed a constitutional application in order to obtain the medicine in 48 hours[35].
In the Clifor case, the judge found that the State’s refusal to provide phenobarbital implied a violation of Clifor’s right to access the supply of medicines, which reduced his life expectancy and he put his health and his life at risk. The judge also found that the fundamental right of the Clifor family to the preservation of the family unit and the tranquility of the members of his family was violated:
This situation violates the fundamental rights of preservation of the family unit of Mrs. LINA SOFÍA LOZANO CÁRDENAS, since it puts her at risk, given that the CLIFOR pet is part of said family, as the emotional attachment of the members of the family is evident. family with the dog, with which this factual situation is framed within the concept of a diverse family that evolves into a sociologically accepted concept and is that of the multispecies family, which considers that animals in a family environment fulfill important and defined functions in this area, for which reason, special consideration must be taken with them.[36]
In other words, the judge in the Clifor case protected not only the rights of the animal but also, holistically, his multispecies family. The judge ordered the State to acquire Phenobarbital, within 48 hours, to be delivered to the family of the sentient being named CLIFOR, in order to continue with his medical treatment. [37]
These are just some examples in which the legal concept of multispecies family can be used for the protection of our fellow animals and the family as a whole. There is the possibility of thinking about prompt cases that involve inheritances for human and animal members of the family, the possibility of extending health insurance to our fellow animals, among others.
Footnotes
[1] Marcos Díaz Videla, El miembro no humano de la familia: las mascotas a través del ciclo vital familiar, (1) Revista Ciencia Animal, (83) (2015). p 85.
[2] Id.
[3] Pablo Suárez, Animales, incapaces y familias multiespecie. (II) Revista Latinoamericana de Estudios Críticos Animales. (58) (2017). p. 67.
[4] Díaz Videla, supra, at p. 85.
[5] Díaz Videla and Rodríguez Ceberio, Las mascotas en el sistema familiar. Legitimidad, formación y dinámicas de las familias humano-animal. (1) Revista de Psicología. (44) (2019) p. 52. (During challenging moments of life such as moving, divorce or death, many families acquire an animal or turn to their animals for emotional support and relief).
[6] Id.
[7] Id. at 52. (Research has highlighted that “pets help families to overcome crisis or transition periods by reducing stress, having been conceptualized as resilience tutors. And in fact, the resilience tutor is an attachment figure, although not necessarily human, since a novel, a phrase, a movie, an animal can operate as a resilience tutor”)
[8] Id.
[9] Díaz Videla and Rodríguez Ceberio, supra, at 55.
[10] Ann Ottney Cain, Pets as Family Members, (8) Marriage & Family Review. (1985).
[11] Id.
[12] Cassandra Leow, It’s Not Just A Dog: The Role of Companion Animals in the Family ‘s Emotional System, University of Nebraska (2018) at p. 10.
[13] Id.
[14] Díaz Videla and Rodríguez Ceberio, supra, at 51.
[15] Pablo Suárez, supra, at 60.
[16] María de Montserrat Pérez Contreras, Derechos de las familias, p. 5, (Instituto Nacional de Estudios Históricos de las Revoluciones de México Serie Nuestros Derechos), 3th edición. 2015.
[17] Pablo Suárez, supra, at 65.
[18] Id. at 67.
[19] Jardim Geissler, Disconzi and Silveira Flain, La mascota bajo la perspectiva de la familia multiespecie y su inserción en el ordenamiento jurídico brasileño, (8) Revista dA, Forum of Animal Law Studies. (2017). at 4.
[20] Roberto Gargarella, El nuevo constitucionalismo Latinoamericano, (48) Estudios Sociales: Revista Universitaria Semestral, (169) (2015) at 171.
[21] Id.
[22] Paolo Comanducci, Formas de (neo)constitucionalismo: un análisis metateórico, (16) Isonomía (89) (2001). At 89.
[23] Id. at 91.
[24] Id. at 97.
[25] Ricardo Guastini, La constitucionalización del ordenamiento: el caso italiano, Estudios de teoría constitucional, (49) (2001).
[26] This phenomenon is also seen in the Inter-American Court of Human Rights, whose sentences are considered more progressive compared to the European Court of Human Rights, whose sentences are considered more conservative.
[27] Constitutional Court of Colombia. Aug. 22, 2018. judgment C– 041/17. Available in: https://www.corteconstitucional.gov.co/relatoria/2017/C-041-17.htm
[28] Constitutional Court of Peru. December 12, 2018, Judgment 01413-2017-PA/TC. Available in: https://tc.gob.pe/jurisprudencia/2019/01413-2017-AA.pdf
[29] Id.
[30] The Inter-American Court of Human Rights (IACHR), Apr. 27, 2012. Case of Fornerón and Daughter v. Argentina.
[31] Díaz Videla and Rodríguez Ceberio, supra.
[32] Article 1984 of the Peruvian Civil Code states that non-pecuniary damage includes the damage and impairment caused to the victim or his family.
[33] Juzgado Penal de la ciudad de Rawson, Provincia del Chubut [Criminal Court of the city of Rawson, Province of Chubut] (Argentina). Jun 10, 2021.
[34] Id.
[35] Juzgado Primero Penal Del Circuito con Funciones de Conocimiento de Ibagué [First Criminal Circuit Court with Knowledge Functions of Ibagué] (Colombia), Jun. 26, 2020.
[36] Id.
[37] Id.