Animals have been companions to humans for thousands of years. Most Western countries consider their pets as a member of their family. It comes as no surprise that people continue to hold a close relationship to their companion animal during their last days and even after their death – in the United States, one’s pet can be buried at one of about 600 pet cemeteries. (Sara A. Wiswall, Animal Euthanasia and Duties Owed to Animals, 30 McGeorge L. Rev. 801 (1999)). The Hartsdale Pet Cemetery was the first pet cemetery, established in 1896 in the state of New York, and continues to be the oldest operating pet cemetery in the world. (About, Hartsdale Pet Cemetery, available at http://www.petcem.com). In Florida, the legislature passed a law that allows a pet owner to have his cremated pet remains buried along with him in his casket or urn as long as the remains are not being commingled. (FLA. STAT. § 497.273(4)). However, not all animals share a similar destiny of being able to peacefully leave this world. Millions of animals are being euthanized each year under questionable circumstances. In fact, euthanasia is the most common cause of death for healthy unwanted dogs and cats. (Rebecca J. Huss, Rescue Me: Legislating Cooperation Between Animal Control Authorities and Rescue Organization, 39 Conn. L. Rev. 2059 (2007)).
Animal euthanasia has been part of human culture for millennia or many years. (Brian K. Cooke, Extended Suicide With a Pet, 41(3) J. Am. Acad. Psychiatry L., 437, 438 (2013); Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals As Property, and the Presumed Primacy of Humans, 39 Rutgers L. J. 247 (2008)). In ancient Egypt, pet owners requested their pets to be buried with them. However, most of the time the animals were still alive at the master’s death. (Brian K. Cooke, Extended Suicide With a Pet, 41(3) J. Am. Acad. Psychiatry L., 437, 438 (2013). As a result, the pets were euthanized and mummified with their owners to be united forever. Today, there are new factors underlying pet euthanasia, although healthy pets are still killed much like ancient Egypt. In addition, the person or entity requesting euthanasia or ordering an animal to be euthanized is not limited to a pet owner. The act of performing euthanasia of an animal is mainly limited to veterinarians or certified euthanasia technicians, but can also extend to police officers (or other governmental personnel) under certain situations. Notably, almost all states have enacted some kind of laws that regulate animal euthanasia, including the procedures to be used as well as persons who may perform the euthanasia of an animal.
This paper addresses animal euthanasia and its position with state legislatures. Methods and provisions differ from state to state, with some states recognizing the importance to provide detailed guidelines while others needing to improve their outdated laws in their dealings with this topic. This paper begins with a discussion on the historical origins of animal euthanasia by explaining the difference between euthanasia and killing as well as statistical data for animal euthanasia and where the trend is heading. The paper then examines the reasons of different groups that request animal euthanasia. In addition, the paper highlights state laws addressing different euthanasia methods and who may perform euthanasia. This includes surveying how different state laws approach issues like inhumane euthanasia methods, emergency euthanasia, and the requirement of maintaining records related to animal euthanasia. Finally, the paper concludes with an examination of the legal and ethical issues involved with animal euthanasia such as veterinarians and animal shelter employees dealing with euthanasia requests, the emerging trend of in-home euthanasia, provisions in one’s last will to request his or her companion animal to be euthanized, and a comparison between animal cruelty and animal euthanasia.
II. Distinguishing Euthanasia from Killing
Euthanasia has its origin in the Greek language. (Methods For the Euthanasia of Dogs and Cats: Comparison and Recommendations, World Society for the Protection of Animals, available at http://www.icam-coalition.org/downloads/Methods%20for%20the%20euthanasia%20of%20dogs%20and%20cats-%20English.pdf). “Euthanatos” translates into “good death,” and is defined as an act of either killing or permitting the death of a terminally ill or hopelessly injured individual or animal by using a humane method for reasons of mercy. (Merriam-Webster, available at https://www.merriam-webster.com/dictionary/euthanasia). Euthanasia is considered humane either by painlessly administering a lethal dose of an agent or by a method of euthanasia recognized by the AVMA, the American Veterinary Medical Association, “the nation’s leading advocate for the veterinary profession,” (Who We Are, AVMA (2017), available at https://www.avma.org/About/WhoWeAre/Pages/default.aspx) causing “the painless death of an animal.” (510 ILCS 70/2.09). These requirements can be accomplished by using a method that causes the instant “loss of consciousness followed by cardiac and respiratory arrest” leading to the animal’s death. (Definition of Euthanasia, Iowa State University, College of Veterinary Medicine, available at https://vetmed.iastate.edu/vdpam/about/production-animal-medicine/dairy/dairy-extension/humane-euthanasia/humane-euthanasia/definition-euthanasia; Methods For the Euthanasia of Dogs and Cats: Comparison and Recommendations, World Society for the Protection of Animals (no date), available at http://www.icam-coalition.org/downloads/Methods%20for%20the%20euthanasia%20of%20dogs%20and%20cats-%20English.pdf). Killing an animal is defined as to end a life, to cause the physical death (Black’s Law Dictionary 4th Ed.), or “to slaughter (an animal) for food.” (Merriam-Webster, available at https://www.merriam-webster.com/dictionary/kill). However, euthanasia in veterinary medicine also includes the death of healthy animals. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). Humane organizations argue that depending on the circumstances of the euthanasia, even though the euthanasia is painless, it still should not be considered a mercy killing because euthanasia should only be based on a medical decision in the best interest of the companion animal. (The Difference Between Euthanasia and Killing, The Alley Cat, available at https://www.alleycat.org/resources/the-difference-between-euthanasia-and-killing/).
Animal welfare advocates often compare animal euthanasia to the selective killing of humans. They suggest that if a human were homeless and or poor, society would never consider to request that human to be euthanized. (Rachel Cartledge, Killing Healthy Animals, an Ethical Dilemma?, 56 St. George’s University SVM Paws Print (2008), available at http://etalk.sgu.edu/contribute/pawsprint/documents/KillingHealthyAnimalsRachelCartledge.pdf). In fact, it would be called murder. Advocates suggest that euthanasia of humans is considered as a degradation of the person being killed making it look like the person performing the euthanasia is superior to the person being euthanized. (Tomas A. Cavanaugh, Dignity, Pet Euthanasia and Person Euthanasia, In G.E.M. Anscombe and Human Dignity by John Mizzoni (2016)). The same can be argued as true for animal euthanasia, with the logic of animals being subordinate to humans. Scholars are even drawing a parallel between today’s requests for euthanasia of humans and the procedure of euthanasia of humans during the second world war, when certain groups of people were considered to be “unworthy of life,” and defective and therefore were euthanized. It is important to understand the underlying implications of euthanasia: degradation and superior power, and how dangerous this tool is. Some argue that the death of a human signifies the ultimate loss of that person and that person cannot be replaced. A dog or a cat however is not necessarily irreplaceable even though animal owners do not tend to directly replace the animal after it has been euthanized. (Tomas A. Cavanaugh, Dignity, Pet Euthanasia and Person Euthanasia, In G.E.M. Anscombe and Human Dignity by John Mizzoni (2016)).
Society should not hide behind the ‘safety’ of euthanasia when healthy animals are being euthanized for reasons such as overpopulation, being strays, or when the owner or shelter is unable to carry the financial burden of taking care of the animal. (Rachel Cartledge, Killing Healthy Animals, an Ethical Dilemma?, 56 St. George’s University SVM Paws Print (2008), available at http://etalk.sgu.edu/contribute/pawsprint/documents/KillingHealthyAnimalsRachelCartledge.pdf). Despite these discussions about euthanasia being morally and ethically right or wrong, in the majority of countries, including the United States, animals are considered personal property, and an euthanasia request for a healthy companion animal by its owner is lawful. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011), available at http://cdn.intechopen.com/pdfs/19620/InTech-Debate_for_and_against_euthanasia_in_the_control_of_dog_populations.pdf).
III. Euthanasia Statistics and Trends
There are no exact numbers of animals being euthanized each year. Only a few states require animal shelters to keep records about animals being euthanized. (From Death Row to Adoption: Saving Animals by Car, Van, Bus and Even Plane, Bangor Daily News, available at http://bangordailynews.com/2017/05/14/news/nation/from-death-row-to-adoption-saving-animals-by-car-van-bus-and-even-plane/). Even where numbers are collected, the data may be inaccurate or underreport animals euthanized since the numbers available are based on voluntary surveys conducted at animal shelters or are projections based on older surveys. (Paul C. Bartlett et al., Rates of Euthanasia and Adoption for Dogs and Cats in Michigan Animal Shelters, 8(2) J. Applied Animal Welfare Sci. 97 (2005)). Despite this, there does appear to be a downward trend in the past several decades. According to the Humane Society of the United States, euthanasia of animals in shelters has been declining sharply since 1970 when fifteen million cats and dogs had been euthanized (Statement on Euthanasia, The Humane Society of the United States, available at http://www.humanesociety.org/about/policy_statements/statement_euthanasia.html). A recent publication by the American Society for the Prevention of Cruelty to Animals (ASPCA) states that about 1.5 million animals - 670,000 dogs and 860,000 cats - in shelters have been euthanized during the past years. There is a steady decline of animal euthanasia over the years as apparent from the euthanasia rates in the 1970s and even from 2011 when about 2.6 million dogs and cats were euthanized. (Shelter Intake and Surrender, Pet Statistics, ASPCA, available at https://www.aspca.org/animal-homelessness/shelter-intake-and-surrender/pet-statistics). Such a decline can be attributed to changes in how animal populations are controlled. One reason that animal euthanasia is declining is that many states have implemented spay-neuter program. Another reason is a recently adopted initiative of adoption campaigns where animals in “high-kill southern regions” are transported to areas where animals for adoptions are needed. (From Death Row to Adoption: Saving Animals by Car, Van, Bus and Even Plane, Bangor Daily News, available at http://bangordailynews.com/2017/05/14/news/nation/from-death-row-to-adoption-saving-animals-by-car-van-bus-and-even-plane/). While trends may indicate an overall decline in pet euthanasia, the ability of an owner to decide his or her pet’s fate has not changed.
IV. Reasons Supporting Euthanasia Requests
Euthanasia of animals might be requested by individuals or even organizations such as animal shelters, pounds, rescues, and pet shops, (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf) or even a government agency. Each person or institution may request the euthanasia of animals for a different reason, such as terminal illness, illness, accident, behavioral issues, age, life changing circumstances, overpopulation, or convenience. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011), available at http://cdn.intechopen.com/pdfs/19620/InTech-Debate_for_and_against_euthanasia_in_the_control_of_dog_populations.pdf).
Even Natural disasters like Hurricane Harvey that recently destroyed thousands of homes have an impact on animal euthanasia. Families might have been forced to leave their pets behind (Natural Disasters Reshape Animal Rescue, WNYC Radio, available at http://www.wnyc.org/story/161349-animal-emegency-response/ like it was the case when Hurricane Katrina hit. (How the Chaos of Hurricane Katrina Helped Save Pets From Flooding In Texas, Washington Post, available at https://www.washingtonpost.com/news/animalia/wp/2017/08/31/how-the-chaos-of-hurricane-katrina-helped-save-pets-from-flooding-in-texas/?utm_term=.5a3e94c797da). Facing a hurricane also puts animal shelters in a difficult spot. Most of the time, shelters are already filled to its capacity. The threat of flooding leaves shelters sometimes no other option but to euthanize the animals currently in the shelter to safe those from the flooding and already make room for those animals that become victims of the hurricane and lose their home. (Dogs Safe After Risking Euthanasia In Wake Of Harvey, KRGV available at http://www.krgv.com/story/36212326/homeless-dogs-desperately-need-foster-homes-ahead-of-hurricane). Those animals that become victims of natural disasters are “stray or become strays at the time of the disaster.” (Sebastian E. Heath & Robert D. Linnabary, Challenges of Managing Animals in Disasters in the U.S., 5(2) Animals 173 (2015), available at http://www.mdpi.com/2076-2615/5/2/173).
The reasons underlying euthanasia may vary greatly, and often have little bearing on the outcome. However, the issue of who makes the request, whether an individual pet owner or government entity, affects both the method of euthanasia and the speed at which euthanasia can occur.
A. Pet Owners
As previously mentioned, companion animals are deemed the personal property of their owners in all fifty states. Animals can be bought, sold, adopted, transferred, gifted, devised, and even humanely euthanized by their owners. (David Favre, Living Property: A New Status for Animals Within the Legal System, 93 Marq. L. Rev. 1021 (2010)). Generally, three main reasons exist for pet owners euthanizing their animals: (1) medical/ health euthanasia; (2) economic euthanasia; and (3) convenience euthanasia.
1. Medical/Health Euthanasia
Oftentimes, the major, and also justifiable, reason for owners of companion animals to request their pet to be euthanized is based on the health of the animal. The decision is made from a medical standpoint to be in the best interest of the animal due to the companion animal’s quality of life based on a terminable illness or suffering of the animal. (Susan J. Hankin, Making Decisions About Our Animals' Health Care: Does It Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Pol'y 1 (2009)). Such reasoning is deemed merciful because it delivers the animal from pain, avoiding unnecessary prolonging of the animal’s suffering and distress. The owner and veterinarian facilitate the decision for the animal to “go to sleep” in dignity. Besides the medical based reasons for an owner to request a pet to be euthanized, an owner might request the euthanasia of a perfectly healthy pet. Such requests can be based on “economic, emotional, and space limitations or changes in lifestyle.” (Rachel Cartledge, Killing Healthy Animals, an Ethical Dilemma?, 56 St. George’s University SVM Paws Print (2008), available at http://etalk.sgu.edu/contribute/pawsprint/documents/KillingHealthyAnimalsRachelCartledge.pdf).
2. Economic Euthanasia
The Great Recession of 2008 also spawned unforeseen collateral damage: economic euthanasia of pets. One reason for economic euthanasia relates to an owner’s inability to continue paying the mortgage for his home, resulting in a foreclosure, leaving the owner with no other option in his mind than to have his companion animal euthanized because he is unable to pay the medical bills incurred for treating his pet. Even without the foreclosure crisis the United States faced just a few years ago, some owners have their pets euthanized when they are moving into a smaller home, rental, or even move in with family because the pet is getting too expensive to take care of it. (Stacy A. Nowicki, Give Me Shelter: The Foreclosure Crisis and Its Effect on America’s Animals, 4 Stan. J. Animal L. & Pol’y 97 (2011)). Economic euthanasia also occurs in cases when the companion “animal has a treatable condition, but the client cannot afford (or chooses not to spend the money on) the treatment and requests instead that the animal be humanely euthanized.” (Susan J. Hankin, Making Decisions about Our Animals' Health Care: Does It Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Pol'y 1 (2009)). Despite the potential ethical issues of euthanizing for purely economic reasons, no state law has been enacted demanding an owner to justify his or her reasons to have his or her pet euthanized.
3. Convenience Euthanasia
Another form of euthanasia by pet owners may be termed convenience euthanasia, which describes an owner’s request to have his healthy companion animal euthanized “because it is no longer convenient to keep” it. (Susan J. Hankin, Making Decisions about Our Animals' Health Care: Does It Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Pol'y 1 (2009)). Such decision to euthanize is solely being made based on the owner’s convenience, e.g., he or she is moving and can no longer provide enough space for the pet or the cute puppy has grown into a full size dog, which is less cute in the owner’s opinion. The law provides minimal to no restraints on owners who request convenience euthanasia. In fact, Missouri specifically enacted a regulation that when an owner of a dog or cat requests the euthanasia of his pet no holding period is required and the animal may immediately be euthanized upon the owner’s request. (2 CSR 30-9.020(13)(C)).
B. Public Animal Shelters
While pet owners face few legal or regulatory hurdles in electing euthanasia for their pets, public animal shelters may face holding periods and other procedural steps. Several reasons underlie the euthanasia of animals by these entities. Animal shelters and pounds mostly dispose of animals to take in new pets, to deal with diseases, or based on financial reasons due to lack of funding or understaffing. (The Difference Between Euthanasia and Killing, The Alley Cat (2017), available at https://www.alleycat.org/resources/the-difference-between-euthanasia-and-killing/). For shelters, euthanasia is a method to fight overpopulation of animals in their care due to the number of animals within the shelters and the minimal rate of adoption. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). Animal shelters also induce euthanasia on animals due to economic and financial reasons. They might not receive enough founding or donations to be able to provide enough care for all animals, or employ sufficient number of staff to take care of the animals within the shelter. Generally, each state’s law provides criteria for when animals may be euthanized by public shelters as well as guidelines on euthanasia methods and performance of euthanasia. (see Infra Sections V, VI, VII).
C. Animal Control and Law Enforcement
The court might order humane euthanasia of a dog if a judge determines the dog to be dangerous, i.e. the dog has a known vicious tendency supported by previous unjustified attacks on an individual causing serious physical injury or even death amongst other factors. (NY CLS Agr & M § 123 (3)(b)). Law enforcement officers have the authority to conduct emergency euthanasia of dogs and cats in the event that such an animal is found maimed, wounded, injured or diseased and the owner cannot be located in a timely manner without the animal unnecessarily suffering. (Miss. Code Ann. § 97-41-3 (2)(a)(i); Code of Ala. § 34-29-132). Statutes also allow the humane euthanasia in emergency events and describe the humane euthanasia methods to be performed by law enforcement officers. (510 ILCS 70/4.02(a)). For example, New Mexico allows euthanasia performed by a law enforcement officer by gunshot (§ 188.8.131.52. NMAC(A); Code of Ala. § 34-29-132 (1)), and Alabama allows a law enforcement officer to perform euthanasia by injection with a barbiturate drug (Code of Ala. § 34-29-132 (1)). Ohio prohibits the killing of a dog that is chasing, injuring, threatening, or killing another dog but implemented the exception that law enforcement officers are allowed to kill “a dog that attacks a police dog.” (ORC Ann. 955.28(A)). Some states such as Wisconsin enacted laws that allow police officers to perform euthanasia of an animal if the law enforcement officer reasonably believes that the animal is either dangerous or injured. (Wis. Stat. § 173.25). After reviewing these statutes it can be said that law enforcement officers have great discretion in determining the euthanasia of an animal in certain emergency situations. Therefore, a few states added additional restrains to situations when the owner cannot be located after reasonable efforts have been made such as consulting with a licensed veterinarian (Code of Ala. § 34-29-132 (1)). The majority of states are silent about law enforcement officers performing emergency euthanasia.
D. Private Humane Societies and Shelters
Humane Society organizations differ with public animal shelters by one major factor: funding. While animal shelters, pounds, or animal control are receiving their funding from the government, humane societies live through donations. Another difference between those institutions is that while animal control takes in stray animals, humane societies mostly just take in adoptable animals based on available space. By making such a choice upfront, humane societies are less likely to euthanize animals. However, sometimes humane societies still have to make the decision to request the euthanasia of an animal. They only do so in cases when the animal shows aggressive behavior, is severely ill or injured, and the humane society is unable to provide adequate treatment. (The Differences: Animal Control Vs. Humane Society, WCYB (May 2016), available at http://www.wcyb.com/news/the-differences-animal-control-vs-humane-society/13590943). Some humane societies, on the other hand, might have a contract with animal control, which can lead to higher euthanasia rates to make room for the next animals they have to take in to honor the contract with animal control. (Shelter, SPCA, humane society, or rescue?, Adopt a Pet (March 2010), available at http://www.adoptapet.com/blog/shelter-spca-humane-society-or-rescue/#.WX9izaOZM_U).
The practice of euthanasia in private shelters is not without controversy. In 2015, a report revealed that the majority of animals in PETA’s only shelter (located in Virginia) had been euthanized between 1998, when reporting date concerning euthanasia became mandatory (PETA’s The Best – At Killing Dogs And Cats, Center for Consumer Freedom (March 2017), available at https://www.consumerfreedom.com/2017/03/petas-the-best-at-killing-dogs-and-cats/) and the revelation in 2015. (PETA’s Virginia Shelter Killed 88% Of Rescued Pets Last Year, Up 30%: Report, Washington Times (February 2015), available at http://www.washingtontimes.com/news/2015/feb/11/peta-virginia-shelter-killed-88-of-rescued-pets-l/). Numbers of animals that had been euthanized during those years ranged from about 73% to about 97%. (PETA’s Pet Killing Claimed 1,456 Victims in 2015, Center for Consumer Freedom (March 2016), available at https://www.consumerfreedom.com/2016/03/petas-pet-killing-claimed-1456-victims-in-2015/). Virginia generally has a low euthanasia rate with shelters euthanizing 38.5% of its cat and 17.5% of its dog intake in 2013 whereas PETA euthanized 83.8% of the cats and 68.4% of the dogs they took in during the same year. (PETA Euthanized A Lot Of Animals At Its Shelter In 2014, And No-Kill Advocates Are Not Happy About It, Huffington Post (February 2015), available at http://www.huffingtonpost.com/2015/02/05/pets-shelter-euthanization-rate_n_6612490.html).
Based on those findings, the legislature acted immediately and passed a law in February 2015 defining “a private animal shelter as a place where the primary mission is to find permanent homes for animals.” (At PETA’s Shelter, Most Animals Are Put Down. PETA Calls Them Mercy Killings., Washington Post (March 2015), available at https://www.washingtonpost.com/national/religion/at-petas-shelter-most-animals-are-put-down-peta-calls-them-mercy-killings/2015/03/12/e84e9af2-c8fa-11e4-bea5-b893e7ac3fb3_story.html?utm_term=.dca57c10ce79). Despite this newly enacted law, and while the average rate for animal euthanasia in Virginia’s shelters amounted to 16.9 percent in 2016, PETA euthanized about 72 percent during the same period of time. (PETA Shelter Was A ‘Slaughterhouse,’ Group Claims, Fox News (March 2017), available at http://www.foxnews.com/us/2017/03/08/consumer-group-blasts-peta-for-euthanizing-high-rate-animals-at-its-shelter.html). PETA justifies its euthanizing practice by claiming “it must euthanize animals because it’s an ‘open-admissions’ shelter.” (PETA Euthanized A Lot Of Animals At Its Shelter In 2014, And No-Kill Advocates Are Not Happy About It, Huffington Post (February 2015), available at http://www.huffingtonpost.com/2015/02/05/pets-shelter-euthanization-rate_n_6612490.html). Being an open-admissions shelter, PETA argues that it is taking in all those “aggressive, sick, elderly, injured, feral, and otherwise unadoptable animals” that other shelters are turning away. (PETA Shelter Was A ‘Slaughterhouse,’ Group Claims, Fox News (March 2017), available at http://www.foxnews.com/us/2017/03/08/consumer-group-blasts-peta-for-euthanizing-high-rate-animals-at-its-shelter.html). PETA’s statement is clear: “To be able to offer refuge to every animal in need, open-admission shelters must euthanize unadopted and unadoptable animals.” (PETA Shelter Was A ‘Slaughterhouse,’ Group Claims, Fox News (March 2017), available at http://www.foxnews.com/us/2017/03/08/consumer-group-blasts-peta-for-euthanizing-high-rate-animals-at-its-shelter.html). While private animal shelters’ mission is to safe and provide homes for unwanted animals, some of the privately owned shelters have to make the decision to have animals euthanized in some instances.
V. Methods of Companion Animal Euthanasia
Usually, euthanasia of an animal takes place either at a veterinarian clinic when the euthanasia has been requested by an individual owner, or at public animal shelters by certified technicians. The preferred and most humane method for animal euthanasia is by intravenous injection, but the AVMA guidelines also recognize other acceptable methods, acceptable methods with conditions, and adjunctive methods as well as unacceptable methods for euthanizing a companion animal. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf). In recent decades, certain methods of euthanasia such as gas chambers have ceased and even have been outlawed due to humane concerns.
A. Injections/Noninhaled Agents
The AVMA is recognized as an accrediting body and educational resource in aiding to set guidelines for veterinarians. Its guidelines offer support for veterinarians such as discussing methods for the euthanasia of animals. The preferred method of euthanasia is an intravenous injection of a barbituric acid derivative. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf). A barbiturate is a synthetic drug that is used as a central nervous system depressant, which can result in mild sedation as well as coma. It is mostly being used as a sedative or part of anesthesia. (What Are Barbiturates?, News Medical (June 2016), available at https://www.news-medical.net/health/What-are-Barbiturates.aspx).
The most used form of a barbituric acid derivative is pentobarbital or a pentobarbital combination product. There are two similar procedures when using intravenous injections to euthanize a companion animal. One approach is to administer the barbiturate intravenous just by itself. Another approach is to use the barbiturate after the pet had been sedated or anesthetized. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf). The main reason why barbiturates are being administered is that these drugs cause the animal to be deeply anesthetized and therefore unconscious before the drugs result in respiratory failure. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)).
In the event that intravenous administration would be dangerous or impractical, as is the case for smaller animals like small dogs and cats, the AVMA guidelines suggest to administer sodium pentobarbital intraperitoneal. There are also other noninhaled agent methods available for animal euthanasia such as nonbarbiturate anesthetic overdose, administration of tributame, or use of T-61. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf).
B. Gas Chamber
There is a huge controversy with regard to using gas chambers as a method to euthanize animals. Using gas chambers as a method to euthanize animals had been a recognized method for animal euthanasia in U.S. animal shelters since World War II. The AVMA had previously considered the use of carbon monoxide as an acceptable method to euthanize animals when using the proper equipment. (Animal Gas Chamber Draw Fire In U.S., National Geographic (April 2005), available at http://news.nationalgeographic.com/news/2005/04/0411_050411_peteuthanasia.html). In 2007, the AVMA revised its guidelines to incorporate that “[c]arbon monoxide is extremely hazardous for personnel because it is highly toxic and difficult to detect.” (Gas Chambers, Utah Animal Rights Coalition (no date), available at https://utahanimalrights.com/gas-chambers/). Most animal-welfare advocates added that this method is inhumane to animals. (Animal Gas Chamber Draw Fire In U.S., National Geographic (April 2005), available at http://news.nationalgeographic.com/news/2005/04/0411_050411_peteuthanasia.html). In addition, advocates argue that the method is outdated, causes unnecessary pain and suffering to animals, and is even more expensive than performing euthanasia by injections. (Gas Chambers, Utah Animal Rights Coalition (no date) available at https://utahanimalrights.com/gas-chambers/).
The argument about causing unnecessary pain has been proven to be true. The entire process of euthanizing an animal by gas takes about twenty-five minutes. The procedure begins with placing one or more animals within an airtight chamber before “a high concentration of bottled carbon monoxide gas is released. (Animal Gas Chamber Draw Fire In U.S., National Geographic (April 2005), available at http://news.nationalgeographic.com/news/2005/04/0411_050411_peteuthanasia.html).
Before the gas can take full effect, a certain concentration of that gas has to reach the lungs of the animal. When several animals have been placed in the chamber, it becomes impossible for each animal to receive the appropriate amount of lethal gas. (Euthanasia via Gas Chambers, The Humane Society Veterinary Medical Association (October 2014), available at http://www.hsvma.org/euthanasia_via_gas_chambers). Normally the animal will be unconscious fairly quickly, but the animal might only get dizzy and start to panic. At that point, fights amongst the animals placed in the gas chamber together can break out. (Animal Gas Chamber Draw Fire In U.S., National Geographic (April 2005), available at http://news.nationalgeographic.com/news/2005/04/0411_050411_peteuthanasia.html). All in all, the euthanasia method by use of gas chamber is inhumane since the animal’s death might be prolonged and leaves the animal to suffer. (Euthanasia via Gas Chambers, The Humane Society Veterinary Medical Association (October 2014), available at http://www.hsvma.org/euthanasia_via_gas_chambers).
As of July 2016, twenty-two states have banned the use of gas chambers as means to animal euthanasia, whereas five states (Illinois, Kansas, Louisiana, Maryland and North Carolina) have implemented partial bans on gas chambers. There are no known gas chambers in use at this time in these states. Of those five partial-ban states, Kansas, Louisiana, Maryland, and North Carolina specifically banned carbon monoxide (CO), but did not ban the use of carbon dioxide (CO2), whch left a loophole to technically still use CO2. As of 2016, even California had a loophole in its laws, allowing animal shelters to still use gas chambers when euthanizing animals. Although the use of several gases had been banned since 1998, the legislature had not included carbon dioxide in that ban. (Animal Rights Activists Aim To End Gas Chamber Use In California Shelters, KCBS (June 2016), available at http://sanfrancisco.cbslocal.com/2016/06/06/animal-rights-activists-aim-to-end-gas-chamber-use-in-california-shelters/).
Nineteen states have no formal ban on the use of gas chambers to euthanize pets; however, there is no indication that those states use this method. In Missouri, Ohio, Utah, and Wyoming, the legislature has not banned the use of gas chambers, and the use of gas chambers as a euthanasia method is either confirmed or suspected. (Eliminating Gas Chambers, Animal Sheltering (2017), available at https://www.animalsheltering.org/page/eliminating-gas-chambers). All in all, about seventy gas chambers located within thirteen states have voluntarily closed its doors since 2013. The most important organization to advocate ending the use of gas chambers as a euthanasia method is The Humane Society of the United States. Its goal is to ensure that gas chambers are being completely abolished as a method to euthanize animals. (Brining An End To Inhumane Euthanasia, Humane Society of the United States (2017), available at http://www.humanesociety.org/animals/resources/facts/end-inhumane-gas-chambers.html).
C. Decompression Chambers
In 1950, (T. Carding & Michael W. Fox, Euthanasia of Dogs and Cats: An Analysis of Experience and Current Knowledge With Recommendation for Research, ISAP Special Reports (August 1978)) the American Humane Association (AHA) endorsed the use of decompression chambers for homeless dogs and cats. (Decompression: A New Way to Torture Chickens & Turkeys to Death, United Poultry Concerns (April 2011), available at http://www.upc-online.org/slaughter/decompression/). The method of killing pets by the use of decompression is performed by placing the animals in cages inside a cylindrical chamber, and then reducing the ambient air pressure. (T. Carding & Michael W. Fox, Euthanasia of Dogs and Cats: An Analysis of Experience and Current Knowledge With Recommendation for Research, ISAP Special Reports (August 1978)).
Decades after the endorsement by the AHA in 1950, the City of Berkeley, California became the first to declare decompression to be inhumane and ban the use as a euthanasia method in 1972. (Decompression: A New Way to Torture Chickens & Turkeys to Death, United Poultry Concerns (April 2011), available at http://www.upc-online.org/slaughter/decompression/). A huge controversy arose between animal shelters and animal advocates and the public, whereby the latter wanted shelters to convert their euthanasia method from decompression chambers to euthanasia by intravenous injection of sodium pentobarbital as the common method. In 1978, the ASPCA regained its role as national organization and started “to convert euthanasia methods from decompression to lethal injection of sodium pentobarbital.” (Marion S. Lane & Stephen L. Zawistowski, Heritage of Care: The American Society for the Prevention of Cruelty to Animals (Praeger Publishers, 2008)). More and more cities decided against the use of decompression chambers for euthanasia and, by the end of 1985, the use of decompression chambers to kill animals in shelters had been completely banned in the United States. (Decompression: A New Way to Torture Chickens & Turkeys to Death, United Poultry Concerns (April 2011), available at http://www.upc-online.org/slaughter/decompression/).
D. Gunshot/Physical Method
Death by gunshot as a euthanasia method is typically allowed only in emergency situations, when the animal would experience unnecessarily prolonged pain and suffering or the animal poses an imminent danger to human life. The use of gunshot should not be considered a routine method to euthanize companion animals nor should a gun be used when other methods are available. In addition, the use of a penetrating captive bolt might be a safe and applicable method to euthanize a dog or rabbit in a laboratory. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf).
VI. Who May Perform Animal Euthanasia
The 1957 movie “Old Yeller,” which is based on the same-named book, tells about a family who had to shoot its beloved dog. The dog had been bitten by a “wolf infected by rabies” when the dog tried to protect its family. (Old Yeller, Wikipedia, available at https://en.wikipedia.org/wiki/Old_Yeller). While no law during the 19th and early 20th century prohibited an owner to put one’s own dog “down,” today a local veterinarian does the job. In fact, most states are very specific on who can perform the task. Forty-five out of fifty states allow a licensed veterinarian to perform euthanasia of an animal. (State Laws Governing Euthanasia, AVMA Division of State Advocacy & Leadership (last updated July 2017), available at https://www.avma.org/Advocacy/StateAndLocal/Documents/Euthanasia_Laws.pdf). New Jersey specifically permits New Jersey licensed veterinarians (N.J.A.C. 8:23A-1.11(e)), and Vermont only authorizes Vermont licensed veterinarians (CVR 20-022-020(III)(A)) to perform euthanasia of animals. All other states are silent with regard to the license issuance authority. Georgia also permits a licensed physician to perform euthanasia of animals. (O.C.G.A. §4-11-5.1(f)).
In addition to veterinarians, the majority of states implemented a special training program to become a certified euthanasia technician to perform euthanasia. (State Laws Governing Euthanasia, AVMA Division of State Advocacy & Leadership (last updated July 2017), available at https://www.avma.org/Advocacy/StateAndLocal/Documents/Euthanasia_Laws.pdf). Florida only allows employees or agents of public or private agencies or animal shelters to become certified euthanasia technicians after successfully completing a sixteen-hour euthanasia technician certification course. (Fla. Stat. §828.058(4)(a)).
Just a few states like Delaware (16 Del. C. § 3004F(d)(4)) permit licensed or registered veterinarian technicians to perform euthanasia of an animal. Some states demand additional requirements that the licensed veterinarian technician has to be employed or an agent of a licensed veterinarian or shelter like in Alabama (Code of Ala. § 34-29-131(c)), or that the licensed veterinarian technician is under the indirect supervision of a licensed veterinarian like in Pennsylvania (3 P.S. § 328.304(a)(2)) or Washington (WAC 246-935-050(4)(a), (g)).
Iowa, in addition to permitting licensed veterinarians to perform euthanasia of animals, also refers to the 2007 AVMA guidelines for further information on who may perform euthanasia of animals. (21 IAC 67.9). Similarly, Kansas refers to the 2000 Report of the AVMA Panel on Euthanasia. (K.A.R. 9-18-31; K.S.A. § 47-1718(a)). Massachusetts is even more unclear in regards to animal euthanasia. The statute allows euthanasia of dogs or cats “whose killing is authorized . . . only by the administration of barbiturates in a manner deemed acceptable by the American Veterinary Medical Association Guidelines on Euthanasia.” (ALM GL ch. 140, § 174A)
States like California, Indiana, Mississippi, and Tennessee respectively allow employees of animal shelters, humane societies, animal control agencies either with proper training or under the direction and supervision of a licensed veterinarian to perform euthanasia on animals. (State Laws Governing Euthanasia, AVMA Division of State Advocacy & Leadership (last updated July 2017), available at https://www.avma.org/Advocacy/StateAndLocal/Documents/Euthanasia_Laws.pdf). Interestingly, Georgia permits lay persons who are trained to properly and humanely use euthanasia methods under the supervision of a licensed veterinarian or physician to perform animal euthanasia. (O.C.G.A. §4-11-5.1(f)).
Normally, euthanasia of an animal takes place at the veterinarian office or clinic, or in a shelter performed by one of the persons listed above. A fairly new trend is emerging where owners are able to request that their companion animal may be euthanized at home. There are discussions about the pros and cons of such request, but when the euthanasia of a companion animal is performed at home, normally only veterinarians or licensed euthanasia technicians may perform the process. (At-Home Pet Euthanasia, WebMD (2011), available at http://pets.webmd.com/features/pet-euthanasia-at-home#1).
VII. Survey of State Laws Concerning Animal Euthanasia
A. Approved Methods by Law
Forty-nine out of fifty states have enacted laws in regards to the euthanasia of animals with North Dakota being the lone holdout. Most state laws cover three general areas: (1) who may perform animal euthanasia; (2) what methods (chemicals or otherwise) may be used; and (3) what exceptions exist for emergency euthanasia. In recent years, there has been a push to outlaw certain methods of animal euthanasia deemed inhumane such as the use of gas chambers.
Examining those state laws, most states limit the ability to perform animal euthanasia to licensed veterinarians. As referred to previously, certain states such as Arkansas (A.C.A. § 4-97-103) or Delaware (16 Del. C. § 3004F(d)(4)), amongst other states, permit certified euthanasia technicians to perform euthanasia of animals. Other states again include provisions in their laws permitting shelter employees under the supervision of a licensed veterinarian to perform euthanasia, e.g. Mississippi (Miss. Code Ann. § 73-39-61(q)). Some states like Michigan (R 338.3507) require an animal control or shelter employee to complete an adequate training of eight hours, and others such as Tennessee (Tenn. Code Ann. § 44-17-303(d)) require the shelter employee to complete a euthanasia technician certification course.
The majority of states have implemented rules to use sodium pentobarbital as the standard method for animal euthanasia. The use of other means as euthanasia methods such as administering other drugs, or the use of gunshot may be allowed in emergency situations. Such circumstances arise when the standard method is either not available, would lead to prolonged pain and suffering for the animal, or the animal poses a threat to health and safety to personnel or the public and therefore euthanasia by gunshot or another drug can be justified.
B. Inhumane Methods of Euthanasia
There has been a push by animal advocates to move from certain methods of euthanasia in animal shelters. Particularly, there has been a movement to ban the use of gas chambers for animal destruction as discussed previously. Due to the unnecessary suffering caused by the unequal distribution of gas based on the number of animals placed in the gas chamber at the same time, leaving some of the animals with not enough gas concentration in the lungs and therefore prolonging the death, gas chambers are considered an inhume method for animal euthanasia. Currently, only twenty-two states have implemented bans on the use of gas chambers in public animal shelters.
Additional unacceptable methods for animal euthanasia include the subcutaneous, intramuscular, intrapulmonary, and intrathecal injections of injectable euthanasia agents, which are not acceptable due to a high possibility of causing pain to the animal as well as being less effective. Furthermore, the guidelines also prohibit the poisoning of a companion animal by any household chemicals, disinfectants, cleaning agents or pesticides, as well as drowning or hypothermia as euthanasia methods. The AVMA guidelines do not outright prohibit electrocution of dogs, though the guidelines agree that disadvantages outweigh the advantages of this approach. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf).
Florida is very specific in regards to the methods to be used not to be used for animal euthanasia. According to Fla. Stat. §828.058 and §828.065, the administration of sodium pentobarbital, or a sodium pentobarbital derivative to euthanize a dog or a cat is permitted. In addition, the statute also lists the method of administration of the lethal solution in an order of preference, stating that an intravenous injection by hypodermic needle is the preferred method followed by intraperitoneal injection by hypodermic needle, or intracardial injection by hypodermic needle when “the dog or cat is unconscious with no corneal reflex.” (Fla. Stat. §828.058(1)) But other states also provide such detailed information as to the method of injection to be used such as Georgia (O.C.G.A. § 4-11-5.1(a)), Idaho (IDAPA § 46.01.01.205-02), Nevada (NAC § 638.515 (NRS § 638.070, § 638.119)) Ohio (ORC Ann. § 4729.532(A)), Oklahoma (4 Okl. St. § 502), and South Carolina (S.C. Code Ann. § 47-3-420(A)(1)) to name a few. Arizona revised A.R.S. § 11-1021(B) with effective date of August 9, 2017 to only permit the use of sodium pentobarbital or a derivative of sodium pentobarbital to destroy an animal. Until then, an animal also could have been destroyed by using a T-61 euthanasia solution or its generic equivalent.
Some states refer to the methods that are recognized by the AVMA to be humane. Those states include Colorado (C.R.S. § 18-9-201, C.R.S. § 35-80-102), Georgia (O.C.G.A. § 4-11-5.1(b)), Hawaii (HRS § 711-1108.5(3)), Iowa (Iowa Code § 21-67.9(162)), Kansas (K.A.R. 9-18-31), Kentucky (KRS § 258.095), Missouri (2 CSR § 30-9.010(Y)), North Carolina (N.C. Gen. Stat. § 19A-24(a)(5)), Oklahoma (4 Okl. St. § 501(3)(c)), and Pennsylvania (3 P.S. § 328.302(a), (c)). Other states formulate specific prohibitions on methods that are not allowed to be used. Florida, again, is one of those states. Pursuant to Fla. Stat. §828.058(3), certain substances such as succinylcholine chloride, any substance acting as a neuromuscular blocking agent are prohibited methods of animal euthanasia so are chambers which cause changes in body oxygen. Pennsylvania enacted 3 P.S. § 328.301 to prohibit the destruction of animals using methods such as high altitude decompression chambers or decompression devices, drowning, chloroform, ether, or carbon monoxide gas amongst others.
In Kentucky, the legislature enacted KRS § 258.505 to prohibit gunshots as a routine method for euthanasia, at least in animal shelters. The same statute does allow the use of gunshots in an animal shelter only when an animal is considered to be “a threat to the health or safety of” a person that is lawfully present at the shelter. (KRS § 258.505). Another exception in that statute refers to peace officers and animal control officers that are not in a shelter for situation such as impossibility to seize the animal, the animal is “a threat to the health or safety of the general public, or” the animal is injured or has a physical condition causing the animal suffering. (KRS § 258.505). In California, Cal. Pen Code § 597u(b) prohibits the killing of dogs and cats by means of high-altitude decompression chambers, nitrogen gas and carbon dioxide gas. Illinois specifically prohibits persons to “knowingly poison or cause to be poisoned any dog or other animal.” (510 ILCS 70/6).
C. Emergency Euthanasia under State Law
The exceptions mentioned in the previous section already illustrated a few options of emergency euthanasia. Several states have enacted certain rules to provide justification for emergency euthanasia and defined situations in which emergency euthanasia is permitted. As already discussed, gunshots might be a permissible method for emergency euthanasia as it is in Kentucky. Maine as well permits the destruction of animals by shooting an animal in emergency situations such as threats to the safety of people or other animals or when regular methods of euthanasia cannot be implemented und would cause undue suffering pursuant to 17 M.R.S. § 1043. Such shooting might only be “performed by highly skilled and trained personnel.” (17 M.R.S. § 1043). New Mexico permits the use of gunshot for field emergency euthanasia “performed by a commissioned law enforcement officer” under § 184.108.40.206 NMAC and § 220.127.116.11 NMAC. According to § 18.104.22.168 NMAC, situations considered to be emergencies are such situations when an animal “is in severe, acute distress or is irremediably suffering” and any delay or even moving of the animal would result in severe pain and suffering.
Alabama permits immediate euthanasia by “a law enforcement officer, a veterinarian, or an agent or designee of a local animal control unit” in the event that an animal is “so injured or diseased” and seems to suffer, and it seems reasonable to believe that the animal is near death without any possibility to be cured, or is considered dangerous. (Code of Ala. § 34-29-132). Such permission for the emergency euthanasia still is limited. Before immediate euthanasia may be performed the law enforcement officer first has to make reasonable but unsuccessful efforts to locate the owner or a veterinarian before such officer in good faith may destroy the animal by shooting the animal. (Code of Ala. § 34-29-132). Florida, pursuant to Fla. Stat. §828.058(3), allows the humane destruction through immediate euthanasia by “a law enforcement officer, a veterinarian, or an agent of a local animal control unit or the designee of such an agent” in emergency situations which exists in the event of injured, diseased, or dangerous animals.
Some states, for example Alaska, allow for lawful killing of dogs in situations where the dog is vicious running at large. (Alaska Stat. § 03.55.010). New Hampshire legalizes the killing of a dog by any person when the dog “suddenly assaults the person while such person is peaceably walking or riding without the enclosure of its owner or keeper.” (RSA § 466:28). Another example is the state of New York. Pursuant to NY CLS Agr & M §374(4)(a), the New York legislature permits euthanasia of an animal by gunshot in emergency situations when the animal poses “an imminent threat of serious physical injury to a person or to another animal” and any humane method of euthanasia permissible under the law of New York cannot be performed or an animal is severely injured and suffering and no other method to aid the animal is possible. Wisconsin took another approach. Under Wis. Stat. § 173.25, “a political subdivision, . . . a humane officer or a law enforcement officer who” reasonably believes that an animal is dangerous “is not liable for damages for the loss of the animal resulting from euthanizing the animal.” All in all, several states enacted laws providing information and permission for emergency euthanasia whereas each state considers different situations to represent an emergency.
D. Accountability and Euthanasia Records Laws
As previously discussed, most states do not require recordkeeping for the performance of euthanasia. Therefore, the numbers for animal euthanasia are estimates, based on voluntary surveys. There are only a few states that require shelters to keep records of the performance of euthanasia of animals.
In enacting Code of Ala. § 3-10-3, Alabama legislature requires animal shelters to report the number of animals that had been euthanized based on overcrowding, health, or behavior on a monthly basis. Connecticut requires pet shop owners to maintain records for dogs and cats acquired by pet shop owners in regards to euthanasia and the method used according to Regs., Conn. State Agencies § 22-344-25c(a)(4). Similar to Alabama, Delaware law requires animal shelters shall maintain records about the euthanasia rate, including the age of each animal, and each shelter must publish the information on the shelter’s website every quarter pursuant to 16 Del. C. § 3007F. Florida enacted § 823.15(2)(a), which compels a “public or private animal shelter, humane organization, or animal control agency operated by a humane society or by a county, municipality, or other incorporated political subdivision, divided into species” to collect data about euthanasia requested by the owner as well as euthanasia performed by the organization, and the data must be made available to the public.
Animal shelters and pounds in Iowa are required under 21 IAC 67.7(2)(d)(1) to maintain “euthanasia records, including date of entry, source of animal, and date of euthanasia” for twelve months. La. R.S. § 3:2465, which is effective as of August 1, 2017, requires with subsection (D) that records “shall be prepared for every animal that” is being euthanized including the date and such “records shall be available for inspection at all times.” Maryland has enacted Md. AGRICULTURE Code Ann. § 2-1602, which requires in subsection (h) that animal control shelters must submit reports to the Department on a quarterly basis providing the numbers of cats and dogs that have been disposed, by listing each method of disposal, including euthanasia. Michigan has very strict laws in regards to records for the dispensation of sodium pentobarbital. (R 338.3510). Pursuant to R 338.3510(1)(f), (4) “animal control shelter, animal protection shelter, or by the class b dealer” must record information “of the dispensation of the pre-mixed solution for the purpose of practicing euthanasia,” showing the quantity used, as well as “the time and date it was dispensed,” and such records must be kept for two years.
In South Carolina, animal shelters must compile records about the method of euthanasia and submit “the report to the Department of Labor, Licensing and Regulation” every year before the end of January for the department to publish such reports on its Internet website. (S.C. Code Ann. § 40-69-300(D)). There are additional states that enacted different laws to maintain and keep records in regards to animal euthanasia such as Nebraska (Nebraska Admin. Code Title 23, Ch. 18, 010.05A and 010.06F), New Jersey (N.J.A.C. § 8:23A-1.13), Nevada (NAC 638.535), New Mexico (22.214.171.124 NMAC), New York (10 NYCRR § 80.134(j)), Oregon (OAR 855-080-0100(1)(b)), Tennessee (Tenn. Comp. R. & Regs. R. 1730-05-.14), Vermont (CVR 20-022-020 IV-8), Washington (WAC 246-886-080), and West Virginia (W. Va. CSR § 26-5-13). These relatively new laws making the reporting of euthanasia data mandatory at least for public shelters may reflect a greater push toward transparency in local government.
In enacting laws that make recordkeeping of euthanasia of animals in shelters mandatory and accessible to the public, the legislatures of those states turning towards greater transparency of an animal shelters operation. Advocates as well as the public appreciate such transparency because based on the now publicly available information; donors are now certain where their donations go, whether the shelter is a no kill shelter or kill shelter. (Ballot Petitions Tackle Animal Shelter Records, Euthanasia, Enterprise News (updated September 2015), available at http://www.enterprisenews.com/article/20150912/NEWS/150918432). Whereas public shelters are required to provide records to their municipalities or other governmental authorities, private shelters might most likely keep records, but they are not required by law to collect and submit the data. (State Law Kicks in; Humane Society Euthanasia Stats Public, Sun Sentinal (August 2013), available at http://articles.sun-sentinel.com/2013-08-12/news/sfl-state-law-kicks-in-humane-society-euthanasia-stats-public-20130812_1_animal-shelter-dogs-and-cats-euthanasia). While one reason behind those recordkeeping laws is the transparency, such laws also direct towards a possible method to control euthanasia of animals. (Not All County Animal Shelters In Florida Are Following A New Law, WUFT (July 2013), available at https://www.wuft.org/news/2013/07/17/not-all-county-animal-shelters-in-florida-are-following-a-new-law/). Receiving mandatory data from animal shelters about euthanasia rates might help the states to implement better programs to reduce animal euthanasia. It also may encourage adoption of animals in shelters due to the public’s awareness based on the transparency of euthanasia rates.
VIII. Legal and Ethical Issues with Animal Euthanasia
Although the legislatures have adopted euthanasia methods and guidelines to assist veterinarians, animal euthanasia still poses ethical and sometimes legal dilemmas. In particular, those administering euthanasia drugs may experience moral concerns when asked to perform “convenience euthanasia.” The pet owners’ ability to choose euthanasia even emerges with testamentary planning for humans. The evolution of animal welfare laws may also implicate animal euthanasia, with some forms of “euthanasia” being deemed outright animal abuse.
A. Ethical Concerns and the AVMA Guidelines for the Euthanasia of Animals
Every time a healthy companion animal is being requested to be euthanatized, veterinarians face a moral dilemma. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). The veterinarian is left with evaluating the ethical standpoint of when euthanizing an animal is appropriate. Veterinarians receive guidance and support with regard to “the morality of euthanasia” as well as “ethic decision aids for euthanasia” from the the introduction of the AVMA Guidelines for the Euthanasia of Animals. (Oliver Knesl et al., Veterinarians and Humane Endings: When Is It the Right Time to Euthanize a Companion Animal?, 4:45 Frontiers in Veterinary Science 1 (2017)).
The AVMA issued its first guidelines in 1963 to convey an ethical approach concerning “the death of an animal.” To support the veterinary profession with guidance on the ethical issue when intentionally killing an animal the AVMA intended the guidelines to offer the legislative body with guidance to protect the welfare of animals. The AVMA wants to ensure that an intentional killing of an animal by a veterinarian or other professional “is done with respect for the interests of the animal and that the process is as humane as possible (i.e., that it minimizes pain and distress to the animal and that death occurs as rapidly as possible).” (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf). Receiving an owner’s request to euthanize a healthy companion animal constitutes a moral dilemma within the profession because of the veterinarians’ awareness that dogs are able to experience pain as well as pleasure. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). In the event that an owner requests the euthanasia of his healthy companion animal because the owner is unable to continue to keep it at home or it is less convenient to keep the animal, a veterinarian should be firm and discuss alternative options with the owner to avoid euthanizing the healthy animal. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf). But there is also the opposite situation where an owner is seeking to prolong the life of an animal suffering from an untreatable illness or serious injury leaving the veterinarian with the moral dilemma that the animal is unnecessarily suffering when no euthanasia is being provided. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). In situations like this, a veterinarian has the ethical responsibility to guide the owner to the compassionate treatment option of euthanasia in order to avoid the prolonged suffering of the animal. (AVMA Guidelines for the Euthanasia of Animals: 2013 Edition, AVMA (2013), available at https://www.avma.org/KB/Policies/Documents/euthanasia.pdf).
Not only veterinarians have to deal with such a moral dilemma. Animal shelters and pounds are facing a moral dilemma because animal euthanasia is being used as a method to control overpopulation but euthanasia only offers a temporary relief “to cure the symptoms rather than causes of the problem of overpopulation.” Euthanasia imposes moral stress on animal shelter workers even though the workers are aware that euthanasia of animals is one method to approach overpopulation. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). Such policy does not change the issue that shelter employees have to act against their interests of taking care and interacting with the animals in the shelter when they are confronted with the task to euthanize the animals. (Stephanie S. Frommer & Arnold Arluke, Loving Them to Death: Blame-Displacing Strategies of Animal Shelter Workers and Surrenderers, 7 Society & Animals 1, (1999). Animal shelter employees who are certified as euthanasia technicians “often experience guilt, grief, and frustration” due to them performing euthanasia. (Benjamin E. Baran et al., Euthanasia-Related Strain and Coping Strategies In Animal Shelter Employees, 235 JAVMA 83 (2009)). At least, the euthanasia training for shelter employees normally contains seminars on how to handle “the irony that responsible animal care sometimes includes killing animal.” (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)).
The previous explanations show that not only must veterinarians and animal shelter employees have to constantly deal with the ethical and moral dilemma of curing and caring for the animals under their control, but they must sometimes cause the death of healthy animals. Mainly for animal shelter workers, the underlying factor of animal euthanasia is overpopulation, but concerns over rabies/other diseases and environmental damage play a role. Still, there will always be the ethical and moral concern when healthy animals need to be euthanized. Euthanasia will not solve the problem of overpopulation, which can only be solved by educating the public to avoid continuous breeding as well as owners abandoning their pets. (Antonio Ortega-Pacheco & Matilde Jiménez-Coello, Debate For and Against Euthanasia in the Control of Dog Populations, Euthanasia - The "Good Death" Controversy in Humans and Animals 233 (2011)). As long as all of the causes of overpopulation are still in place, veterinarians and animal shelter employees will continue to face the ethical and moral predicament of caring for animals by performing euthanasia.
B. The In-home Euthanasia Movement
During the past years, a movement for at-home euthanasia evolved, which is gaining more and more in popularity. (At-Home Pet Euthanasia, WebMD (2011), available at http://pets.webmd.com/features/pet-euthanasia-at-home#1). Veterinarians not only have to perform the medical part of euthanasia but also have to slip into a non-medical role, as they try to counsel grieving pet owners facing euthanasia of animal companions. (Euthanasia, the Difference Between Human and Animal Medicine or The Need for a Painless Method of Killing, The Anstendig Institute (1989), available at http://www.anstendig.org/Euthanasia.html). Being aware of the emotional toll it takes on pet owners, veterinarians have begun to offer in-home animal euthanasia.
The Association for Pet Loss and Bereavement serves as a platform for veterinarians, listed by state, who offer in-home euthanasia and pet owners looking for a veterinarian in their area who performs euthanasia at home. (In-Home Euthanasia, Association for Pet Loss & Bereavement, available at http://www.aplb.org/support/euthanasia/in-home.html). As of now, veterinarians in thirty-three states participate in at-home euthanasia. The advantage of in-home euthanasia is for the owner who just lost his or her companion to not need to drive the body of the pet home if local law allows the owner to bury the pet in the backyard. (At-Home Pet Euthanasia, WebMD (2011), available at http://pets.webmd.com/features/pet-euthanasia-at-home#1). However, one negative aspect for euthanasia being performed at home is the possibility that something might go wrong during the procedure which could be detrimental to the animal or owner. (At-Home Pet Euthanasia, WebMD (2011), available at http://pets.webmd.com/features/pet-euthanasia-at-home#1). Taking a look at the state laws does not offer much assistance in regards to in-home euthanasia. No state has prohibited the use of sodium pentobarbital by a veterinarian outside his or her office or clinic.
Certain state laws and regulations may indirectly affect at-home euthanasia. R 338.3502 in Michigan specifies that only registered animal control or protection shelters “may apply for a permit to store, handle, and use a commercially prepared, pre-mixed solution of sodium pentobarbital to practice euthanasia on animals.” West Virginia prohibits a certified euthanasia technician to perform his or her services “outside the direct authority of the animal control facility which employs him or her.” (W. Va. Code § 30-10-14(c)). In Delaware, animal shelters are required to “have a specific area designated for euthanasia” that is explained in more detail in 16-4000-4501 Del. Code Regs. § 10.2. Texas enacted 25 Tex. Admin. Code § 169.84(b)(4), which requires animal shelters to use “a quiet location” with sufficient lighting as the area to administer injections of sodium pentobarbital for euthanizing animals. Illinois requires animal shelters to apply for certification as euthanasia agencies and mandates such agencies to “[k]eep the conditions of the euthanasia area clean and sanitary.” (510 Ill. Comp. Stat. Ann. 72/25(a)(3)). Florida legislature explicitly sets standards for mobile veterinary practices for agricultural animals with Fla. Admin. Code Ann. 61G18-15.0025(1)(b)(6) where mobile unites have to be equipped with a chemical method of euthanasia that has been approved by the AVMA. The laws in Florida are silent with regard to mobile veterinary units for companion animals. Since animal shelters in several states are required by law to apply for a permit and to maintain records of performing euthanasia, those organizations seem to be limited to perform euthanasia only in their facilities. All in all, states are more interested in imposing stricter provisions on animal shelters than on veterinarians in regards to the use of sodium pentobarbital, leaving a loophole for veterinarians to perform in-home euthanasia of companion animals at the owner’s request.
C. My Last Will: Pet Euthanasia Requests
As with any other request, an animal owner can include a request in his or her will to have his or her companion animals killed upon the owner’s death. (Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals As Property, and the Presumed Primacy of Humans, 39 Rutgers L. J. 247 (2008)). The reason for such a directive could be based on the owner’s concern that the pets might be distressed after the owner’s death. He or she inserts a provision in his or her last will to request the executor of his estate to euthanize the companion animal. Whatever the reason, the legal issue goes to the enforceability of such a clause in a will. So far, judges have refused to grant such provision in the decedent’s last will. The courts reason that the invalidation of an unethical clause in a will supports public policy and that the clause may be nonenforcable. (Gerry W. Beyer, Pet Animals: What Happens When Their Humans Die?, 40 Santa Clara L. Rev. 617 (2000); Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964)).
The case of Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964) is used as an example where the owner, Mrs. Isa Caspers, directed the executor to have her two Irish setters “destroyed in a humane manner” (Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964)) because she was afraid that either one of the dogs would grieve for her or that no other person would be willing to take care of them the same way she did. The court decided that the euthanasia of the two Irish setters served no purpose and would be an act of cruelty. The court also held that even though an owner has a right to “’dispose’ of property in a will, the owner has no power to order the destruction of property, be it a pet animal or any other type of property.” After determining that it would be unethical to enforce the provision (Gerry W. Beyer, Pet Animals: What Happens When Their Humans Die?, 40 Santa Clara L. Rev. 617 (2000)), the court ruled that upholding this provision of the last will was against public policy. Therefore, Mrs. Caspers’s direction to the executor of the will to destroy her Irish setters was declared invalid. (Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964); In re Estate of Miller, NO. 1514-0948, Pa. Dist. & Cnty., Dec. LEXIS 565 (Pa. C.P. June 3, 2015)).
In 1980, another case dealing with a provision in a will to order a dog to be destroyed upon the owner’s death caught the public’s attention in California. In Smith v. Avanzino, No. 225698 (Super. Ct., San Francisco County, June 17, 1980), the San Francisco Society for the Prevention of Cruelty to Animals (SPCA) held the owner’s dog in custody after the owner’s death, while the executrix filed suit in order to reclaim possession of the dog to implement the decedent’s last will provision. Similar to the court in Capers Estate, 34 Pa. D. & C.2d 121 (C.P. 1964), the court in Avanzino held the provision of the last will invalid as well. (Francis Carlisle, Student, Destruction of Pets by Will Provision, 16(4) Real Property, Probate and Trust Journal 894 (1981); Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals As Property, and the Presumed Primacy of Humans, 39 Rutgers L. J. 247 (2008)). Since those cases had been decided, all fifty states have now passed pet trust laws. Animal owners’ concerns that there is no other option for their companion animals once the owner has passed are now untrue. Instead of going against public policy, a testator now can set up a trust to care for his or her pet after the testator’s death.
D. Animal Cruelty Versus Euthanasia
As mentioned in Section II, there is a difference between euthanasia (“the good death”) and the killing of an animal. Before anti-cruelty laws have been enacted, owners were able to kill their own animals as they saw fit. Now, society is more sensible to animal welfare and care, and with it the duty towards animals, diverging from seeing animals as mere property and conferring limited rights by enacting animal anti-cruelty statutes to protect animals from abuse or neglect. (Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrimonial L. 1 (2006)).
Commonwealth v. Kneller, 971 A.2d 495 (2009)
In 2008, the issue of determining whether a dog had been euthanized or killed according to the law came before the Superior Court of Pennsylvania. In Commonwealth v. Kneller, 971 A.2d 495 (2009), the court had to decide whether Ms. Kneller had violated 3 P.S. § 325, the anti-cruelty law when she asked her boyfriend to shot the family dog. 3 P.S. § 325 stated that only any police officer or constable was authorized to destroy any animal under his control if such animal was either “injured, disabled, diseased past recovery, or unfit for any useful purpose.”
The court had to take various other statutes into consideration including 18 Pa. C.S.A. § 5511(a)(2.1)(i), (iii) (repealed), which provided that “if one willfully and maliciously ‘kills, maims, mutilates, tortures or disfigures any dog or cat whether belonging to himself or otherwise’” he or she committed a misdemeanor of the first degree. (18 Pa. C.S.A. § 5511(a)(2.1)(i)). 18 Pa. C.S.A. § 5511(a)(2.1)(iii) added that ” [t]he killing of a dog or cat by the owner of that animal is not malicious if it is accomplished in accordance with the act of December 22, 1983 (P.L. 303, No. 83) referred to as the Animal Destruction Method Authorization Law.” (3 P.S. § 328.2 of the Animal Destruction Method Authorization Law has been restructured and can now be found at 3 P.S. § 328.302 with different wording.) 3 P.S. § 328.2(b) provided that "[n]othing in this act shall prevent a person or humane society organization from destroying a pet animal by means of firearms." The court held that while 3 P.S. § 325 places a restriction on animal owners to destroy their dogs or cats, one could also interpret that it was the legislature’s intent to permit “owners to destroy their unwanted cats and dogs as long as they are not cruel” since the law allowed owners to “destroy that dog or cat by means of an overdose of barbiturates or ‘by means of firearms.’” Based on the finding that the statutes can be interpreted differently, the court concluded that the statute was ambiguous and it could not uphold Kneller’s conviction.
The Commonwealth appealed and the Supreme Court of Pennsylvania went with the lower court’s dissenting opinion by vacating the Superior Court’s order and remanding the case to the Superior Court “for further proceedings pursuant to Judge Stevens' dissenting opinion.” (Commonwealth v. Kneller, 987 A.2d 716 (2009)). Judge Stevens questioned the validity of Kneller’s testimony that her child had been bitten by the dog since there had been no evidence of such incident been provided. He also took into consideration that the dog had been hit with a shovel several times before being shot, which the majority opinion did not consider at all. Such act does not constitute a humane act of destruction. Judge Stevens also argued that a perfectly healthy dog may only be humanely destroyed by gunshot when a person sees said dog “in the act of pursuing, wounding or attacking human beings.” (3 P. S. § 459-501(a)). Judge Stevens pointed out that the legislature did not intend to provide dog owners with “carte blanche authority to kill her dog for any reason or no reason.” (PA Appeals Court Says It’s OK To Shoot Your Dog, The Inquirer, (Updated February 2009), available at http://www.philly.com/philly/blogs/pets/PA_appeals_court_says_its_ok_to_shoot_your_dog__.html). Since no evidence had been provided, the Supreme Court of Pennsylvania and Judge Stevens made sure that the enacted statutes protecting animal rights were followed. Both made a point that a dog owner cannot just kill his or her dog in a cruel manner to then claim he or she had humanely destroyed said dog.
People v. Larson, 885 N.E.2d 363 (2008)
Similarly, in People v. Larson, 885 N.E.2d 363 (2008), the defendant challenged the aggravated-cruelty-to-an-animal law he was charged with as being unconstitutional. In particular, defendant claimed it was impossible for a reasonable person to be able to assess which acts or methods may be used as a permissible method “to euthanize one’s own companion animal.” Apparently, the statute did not provide any clarification of what “euthanasia and recognized methods approved by the Department of Agriculture” mean. In addition, defendant refers to 510 ILCS 70/3.02 as being “an abrogation of his common-law property right to dispose of his property.” The basis of the case was defendant’s shooting of the family dog. Unfortunately, the law does not explicitly ban a dog owner from shooting the family dog whereas the legislature specifically “ban[ned] breeders from shooting their dogs.” (PA Appeals Court Says It’s OK To Shoot Your Dog, The Inquirer, (Updated February 2009), available at http://www.philly.com/philly/blogs/pets/PA_appeals_court_says_its_ok_to_shoot_your_dog__.html).
The court in People v. Larson, 885 N.E.2d 363 (2008), concluded that the statute in question was not unconstitutional because it believed that a reasonable person understood the meaning of the aggravated-cruelty statute as to prohibit intentional conduct that results in injury or death of the companion animal and that the statute provided adequate notice of such prohibition. Further, the court stated that “a person of ordinary intelligence would reasonable know that . . . she or he may not simply grab a firearm, take the family dog outside, and shoot the dog in the head three times so as to kill it.” Defendant’s argument that euthanasia not being defined was also rejected by the court, pointing to 510 ILCS 70/2.09, which defines euthanasia and refers to the Report of the AVMA with regard to methods for euthanasia. The court acknowledges that reviewing the AVMA report involves more effort, but directly shuts down the argument that euthanasia is legally undefined counts as an excuse.
Both cases had to determine whether an owner of a dog violated the state’s cruelty to animal statutes when the owner shoots or gives orders to shoot the family dog, or if the owner was excused by one of the euthanasia statutes. After reviewing both cases, it becomes apparent that the owner of a companion animal cannot take the pet and cause its death directly by whatever method the owner thinks appropriate and available to him or her. However, the owner of a dog might be excused shooting his or her dog in certain situations, such as the dog being in the process of attacking or wounding another person, among a few other exceptions.
Animal euthanasia is a controversial topic. There are several factors involved in the reasoning behind the request for animal euthanasia. It is important to understand such factors in order to implement programs to reduce animal euthanasia. Each single person involved in animal euthanasia has to face moral concerns, guilt, and grief, from the person who is requesting euthanasia to the person performing the requested euthanasia.
The number of animals being euthanized has been drastically reduced over the past decades. This is due to implementation of laws protecting animals, spay/neuter and adoption programs, and the enhanced societal value of animals, from seeing animals as mere property to recognizing that animals should have some welfare rights.
The majority of states have enacted laws regulating the euthanasia of animals. Some state legislatures have enacted detailed provisions while others seem to provide the bare minimum. For the most part, there is scant data showing the exact numbers of animals euthanized privately at veterinary clinics or even at public animal shelters. Without exact numbers, it is difficult to implement methods and laws to reduce euthanasia of animals. Several states have implemented mandatory euthanasia record laws at public animal shelters to provided this needed transparency. However, those numbers derived from these laws will only disclose a small number of animals euthanized. While implementing more detailed laws, states should also be required to make information related to euthanasia of animals publicly available and refer to such sources for the public to review. It is only with such support that society will be able to provide the “good death” to which the Greeks once referred, meeting the ethical responsibilities owed to companion animals.