Annotated Text of ISAR’s Model Mandatory Spay/Neuter Statute
In our blog of August 11, 2008, we wrote the following:
Ever since July 2008 when ISAR published its 125 page monograph Policy, Law and Morality of Mandatory Spay/Neuter, considerable interest has focused on the annotated text of our Model Mandatory Spay/Neuter Statute. For the convenience of ISAR’s supporters and others who share our zeal for true mandatory spay/neuter as a partial solution to the companion animal overpopulation problem, we are pleased to print that annotated text here.
ISAR PROPOSED MODEL MANDATORY SPAY/NEUTER STATUTE
THE LEGISLATURE FINDS THAT,
Whereas, there have been and there are within this state countless unwanted dogs and cats lacking permanent homes; and
Whereas, although many of these animals are healthy, many others are not; and
Whereas, the latter through no fault of their own have an adverse impact on the public health, safety, welfare, and environment; and
Whereas, the impact of these animals includes, but is not limited to, the transmission of disease, the injury and sometimes death of humans and other animals, the creation of hazards to vehicular travel, and the drain on public finances; and
Whereas, many of these animals are euthanized by shelters, humane societies, and similar organizations; and
Whereas, euthanizing dogs and cats except for bona fide medical reasons is inhumane and abhorrent to the people of this state; and
Whereas, euthanizing dogs and cats except for bona fide medical reasons is not an effective, economical, humane, or ethical solution to the problem of dog and cat overpopulation; and
Whereas, one of the most effective, economical, humane, and ethical solutions to the problem of dog and cat overpopulation is to substantially reduce, if not entirely eliminate, their breeding; and
Whereas, by such reduction or elimination the State seeks to promote the pubic health, safety, welfare, and environmental interests of its citizens;
Among the major faults of virtually all “mandatory” spay/neuter legislation is the failure to set forth explicitly the fundamental premises upon which the statutes are based. I have sought to remedy that omission by making it clear exactly what premises ISAR’s statute rests on.
NOW, THEREFORE, BE IT ENACTED AS FOLLOWS:
Section 1. Coverage of statute
(a) All dogs and cats present in this state shall be in compliance with this statute, unless specifically exempted.
This subsection makes clear that the rule is compliance with the statute, and that if there are to be exemptions they must be expressly stated.
(b) No exemption shall exist for dogs and cats present in this state which may fall under any federal statute or within the jurisdiction of the federal government or any agency thereof.
Since, as will be explained in Chapter VI, ISAR’s proposed Model Mandatory Spay/Neuter Statute is designed to be enacted by states pursuant to the Tenth Amendment to the Constitution of the United States, the purpose of this subsection is an attempt to prevent animals under control of the federal government, but located within a state, to be bred. As such, a legitimate question arises about federal versus state power—but, still, this section is worth incorporating on the chance it would survive challenge.
Section 2. Requirement of spaying and neutering
(a) Subject to the provisions of this statute, every dog and cat harbored in this state shall be spayed or neutered.
This subsection is a corollary of Section 1(a), and reiterates that spay/neuter is the rule. Any deviation must be explicitly stated, and thus the burden of obtaining exemptions is on the one seeking them.
(b) For purposes of this statute, “harbor” is defined to include: legal ownership or providing regular care, shelter, protection, refuge, nourishment, or medical treatment other than as a licensed veterinarian; provided, however, that a person or entity does not “harbor” by providing nourishment to a stray or feral dog or cat, and; provided further, however, that caretakers of feral cat colonies shall use their best efforts to have those animals sterilized.
Many “mandatory” spay/neuter statutes labor with considerable difficulty to define exactly to whom the statutes applies. For example, “owners” may not be in possession or control of the animal, or one who is in control may not be the “owner.” Thus, we have selected the word “harbor” and provided the definition appearing here. Excluded from “harboring” are those who feed feral dogs and cats, because in no sense can it be said that the caretakers own or have any control over those animals. However, recognizing that the most one can do with feral populations, especially cats, is feed-trap-neuter-release (other than trap and euthanize, a subject not within the scope of ISAR’s proposed Model Mandatory Spay/Neuter Statute), it is appropriate that those who voluntarily assume the feeding obligation make their best efforts to have the animals sterilized.
Section 3. Breeding licensees; rules and regulations
Caveat: Readers of this section’s title best not jump to conclusions. What follows is not the usual exception to “mandatory” spay/neuter statutes which effectively nullifies such laws by granting exemptions to breeders and those who “show” companion animals.
(a) Other than as expressly provided below, no dog or cat may be legally used for insemination or bred in this state except by an individual or entity holding a breeding license, which may be issued, in its absolute discretion, by the State Department of Animal Affairs or such other department as the governor shall designate.
This section begins with the absolute prohibition against breeding dogs and cats in this state, period. Express and limited exemptions are provided below.
Breeding licenses may, or may not, be issued by a government department. The exercise of “absolute” discretion, even if it results in the non-issuance of a breeding license, is very difficult to overturn in court.
(b) While a breeding license is valid, no subsequent breeding license shall be issued to any individual related to the first licensee by blood or marriage, to any entity related to the original licensee by common officers, directors, stockholders, or trustees, or to any entity controlled by the original licensee. Any license issued in violation of this subsection shall be void ab initio.
This section is aimed at preventing breeders from escaping the limitations contained in Section 4(i) below.
(c) The licensing authority shall promulgate such rules and regulations as may be necessary to implement its statutory duties, including but not limited to recordkeeping requirements.
Consistent with general principle of administrative law, the department charged with issuing breeder licenses has virtually unlimited discretion in establishing applicant qualifications and regulating the conduct of licensees.
(d) Such rules and regulations shall include, but need not be limited to, provisions assuring that the animals in the breeding licensee’s care there are provided: sufficient quantity of good and wholesome food and water consistent with its breed, size, and age; shelter that will allow the animals to be protected from the elements with room to stand up, turn around, and lie down without lying in its or another animal’s waste; confinement space that is clean and disinfected; an opportunity for adequate sunlight, fresh air, and exercise.
This subsection mandates minimum humane requirements that the license-issuing authority must impose on breeder licensees. It may, of course, impose additional and more stringent requirements.
(e) In addition, breeding licensees shall be required to comply with all other state statutes relating to the care and treatment of dogs and cats.
The purpose of this subsection is to make sure that breeding licensees do not argue that only the mandatory spay/neuter statute governs their conduct. Breeder licensees must comply with anti-cruelty and all other state laws regarding animals.
Section 4. Breeding limitations
(a) A breeding licensee may use a male dog or cat only twice to inseminate a female, which must occur within a twelve month period. No further insemination is allowed thereafter.
(b) A breeding licensee may breed a female cat only twice, which must occur within a twelve month period. No further breeding is allowed thereafter.
These two subsections are designed to end the abuse of animals used for breeding, who in most places today are treated no better than reproductive machines. Veterinarians believe that inseminating and giving birth twice in a twelve month period, with no further insemination or breeding thereafter, is not abusive to the animal.
The subsections, and others that appear below, deliberately and substantially reduce the size of breeder operations.
(c) The offspring of breeder licensee’s dogs and cats may be retained by the breeding licensee, but they shall be subject to the same restrictions as their sires and dams, as shall be succeeding generations.
This subsection allows breeder licensees to retain offspring, but similarly limits their breeding.
(d) The dogs and cats covered by this section regarding insemination and breeding shall be at least four months old, the dogs no older than eighteen months, and the cats no older than twelve months.
This subsection creates a two-month window for insemination and breeding, between ages four and six months. Neither may occur before or after those ages.
(e) Once-or twice-bred female dogs and cats shall be sterilized promptly after
delivery of the female animals’ final litters.
(f) Male dogs and cats shall be sterilized promptly after they have twice inseminated females.
The purpose of subsections (e) and (f) is to turn off the reproductive valve, at least as to those dogs and cats, and to further limit the scope of breeder activities.
(g) Promptly after a male dog or cat has twice inseminated a female, and promptly after a female dog or cat has delivered her final litter, the breeder licensee shall either:
(i) Relinquish such animal to a shelter, humane society, rescue group, or similar organization for adoption only, or
(ii) Directly arrange for adoption, pursuant to the rules and regulations of the nearest shelter, humane society, rescue group, or similar organization; provided, however, that the breeder licensee shall under no circumstances transfer custody of a dog or cat to any individual or entity as to whom the breeder licensee knows, or should know, that the animal will be used for scientific experimental purposes.
In addition to the limitations provided above, these sections will oblige breeder licensees to indirectly or directly find homes for their “breeding stock.” After they have been used this way, they deserve loving homes.
(h) No breeding licensee shall release from its custody any dog or cat that has not
been sterilized, except to provide temporary veterinary care.
This section will prevent breeding stock from going elsewhere to be put through the same reproductive cycle.
(i) No breeding licensee shall possess in any calendar year more than ten unneutered male dogs, ten unneutered male cats, ten unspayed female dogs, and ten unspayed female cats, except for newborn litters which may be kept for no more than three months at which time the provisions of this statute will apply to them.
This section deliberately and substantially limits the scope of breeder operations.
Section 5. Other source dogs and cats
(a) Every individual and entity harboring an unsterilized dog or cat shall immediately present the animal to a licensed veterinarian who shall sterilize it; provided, however, that the animal need not be sterilized if it is, or appears to be, less than three months old.
This section is aimed at the person or entity who is not a breeder licensee. For example, an individual or family who rescues a dog or cat, or who is given one as a gift. The burden is on them to have spay/neuter performed. It is also aimed at whoever receives dogs or cats from out-of-state, whether an individual animal or more than one.
(b) This section does not apply to breeder licensees.
They are covered by sections above.
Section 6. Sellers of dogs and cats
(a) Upon coming into the possession of an unsterilized dog or cat, every individual and entity in the business of selling such animals, including but not limited to pet stores, shall immediately present the animal to a licensed veterinarian who shall sterilize it; provided, however, that the animal need not be sterilized if it is, or appears to be, less than three months old.
This section applies to non-breeder licensee retail sellers of dog and cats. Whatever their source of these animals, as soon as a retail seller comes into possession of them there is a duty of immediate sterilization.
(b) This section shall not apply to breeder licensees.
They are covered by sections above.
Section 7. Medical exceptions to sterilization
(a) No dog or cat need be sterilized if a licensed veterinarian, exercising appropriate professional judgment, shall certify in writing and under oath that an animal is medically unfit for the spay/neuter procedure because of a physical condition which would be substantially aggravated by such procedure or would likely cause the animal’s death.
(b) The dog or cat’s age shall not per se constitute medical unfitness.
(c) As soon as the disqualifying medical condition ceases to exist, it shall be the duty of the person having custody or control of the dog or cat to promptly comply with all provisions of this statute.
(d) Possession of the certificate referred to in subsection (a) of this section shall constitute a defense to liability under the penalty provisions of this statute.
(e) If during the disqualification period the dog or cat breeds, the individual or entity in control of the animal shall be punished in accordance with Section 13 of this statute.
This section provides a safe harbor for those dogs and cats who have bona fide medical reasons not to be neutered. Obviously, this exemption, virtually the only one in ISAR’s Model Mandatory Spay Neuter Statute, is subject to abuse. We hope that veterinarians’ respect for the law generally and what this statute is trying to accomplish in particular, and the requirement that their certification be under oath, will suffice to have medical exemptions granted only when legitimately deserved.
Section 8. Shelters and similar organizations
(a) Shelters, pounds, humane societies, and similar organizations, whether public or private, whose principal purpose is securing the adoption of dogs and cats, shall not be exempt from the provisions of this statute.
(b) No shelter, pound, humane society, or similar organization, whether public or private, whose principal purpose is securing the adoption of dogs and cats, shall release custody of any such animal to its owner or an adopter unless the dog or cat has first been sterilized.
Essentially, this section applies to all companion animal intake and adoption. All dogs and cats taken into these facilities must promptly be neutered. All dogs and cats leaving the shelter will have been neutered, regardless of whether they belong to an identified person or entity.
Section 9. Duties of veterinarians
(a) Any licensed veterinarian who shall become aware that a dog or cat who should be sterilized is in violation of this statute shall promptly inform the person or entity harboring such animal, and further state that the veterinarian has a duty to report that information pursuant to subsection (b) hereof.
This section imposes no more of a burden on veterinarians than those already imposed by law and professional ethics, as for example the duty of informing an animal’s custodian of the risks of surgery or any course of treatment.
(b) If within five business days the person or entity harboring such animal has not shown to the veterinarian’s satisfaction that it has been sterilized, the veterinarian shall report to the enforcing authority the name and contact information of the person harboring such animal and its unsterilized condition.
This section is equivalent in principle to state statutes which require veterinarians to notify public authorities regarding the rabies vaccination of dogs. Moreover, veterinarians already have reporting responsibilities to government agencies, not the least of which pertain to taxes and insurance.
Section 10. Microchipping
Promptly after beginning to harbor a dog or cat, the individual or entity shall have the animal microchipped in accordance with current technology.
The value of this section is self-evident. In addition to public authorities, shelters, and similar organizations being better able to identify lost dogs and cats, mandatory microchipping will facilitate enforcement of the entire mandatory spay/neuter statute.
Section 11. Low-cost spay/neuter
(a) The state shall itself or by contract provide facilities where its citizens can have dogs and cats humanely spayed and neutered by a licensed veterinarian for a fee established by regulation.
(b) The spay/neuter fee to be established by regulation shall be based on ability to pay, and such regulations shall provide for the fee to be waived entirely because of financial hardship.
Virtually every thoughtful person who has seriously addressed the problem of companion animal overpopulation, and organizations like ISAR that propose tough mandatory spay/neuter requirements, realize that success will depend in large part on the ability of low-income custodians of dogs and cats to have their animals neutered. By any calculation—economic, health, humane, moral—state provision of low-cost spay/neuter is eminently necessary and justifiable. (Especially when considered in relation to all the much less worthy projects states support.)
Section 12. Enforcement
Enforcement of this statute shall fall within the jurisdiction of the Attorney General, the Department of Animal Affairs, or such other department as the governor shall designate.
This section expresses a preference for licensing and enforcement to be vested in a department of state government with legal muscle, rather than burying mandatory spay/neuter in some backwater like the Department of Agriculture where it would likely be entrusted to bureaucrats with little or no interest in enforcement.
Section 13. Penalties
(a) The first violation of this statute shall constitute an offense, punishable by a civil fine of $1,000.00.
(b) Each week during which the violation continues will constitute a separate offense for which an additional civil fine of $1,000.00 shall be imposed.
(c) Immediately following the third offense, subsequent violations will be punishable as the lowest grade misdemeanor. The $1,000.00 civil fine will also be imposed for each offense after the first.
Doubtless there will be complaints that this section’s penalties are harsh. They are, and they are meant to be. Once and for all, legislatures, governors, and the regulation/enforcement community must take seriously the problem of companion animal overpopulation—and that seriousness will best be conveyed to the public at large by this section’s harsh punishments for violation. More on this subject is discussed in Chapter X, “Morality and spay/neuter.”
Section 14. Transition
Within sixty days from the effective date of this statute it shall be the responsibility of all those who harbor dogs and cats to be in compliance with this statute.
Some transition time has to be provided, and sixty days seems reasonable.
Section 15. Effective date
This statute will be effective when it is enacted by the legislature and approved by the governor in accordance with state law.
The statute’s sponsors and advocates should resist attempts by its opponents to delay the effective date, during which time they might be able to mount an effective counterattack and perhaps repeal the law or at least gut it.
Section 16. Severability
If any provision of this statute shall be held unconstitutional, illegal, or unenforceable for any reason, the remaining provisions shall retain their full status as if the offending provision had not existed.
This section is important legally. If, for example, the veterinarian reporting requirement should be held by a court to be illegal, the balance of the statute would stand.
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