A long-running legal saga in the United States was finally resolved in late 2009, when courts in the state of Oregon ruled that a parent could not compel a child over which he had custody to get circumcised against the boy’s will. The case is of considerable interest in its potential to limit the power of parents to impose circumcision and similar physical alterations on children and in its implicit recognition that children have their own rights – to physical integrity and freedom of conscience and religion – independently of their parents’ belief.
The Boldt case was a custody battle, and like all custody battles, it was a complex story, but the basic facts are that the Boldts were adherents of the Russian Orthodox Church and had one child, Mikhail James, whom the mother called Misha and the father Jimmy. After a bitter divorce, custody of the boy was eventually given to the father. Some time after this the father decided to convert to Judaism and tried to take Misha (then aged 9) with him, a transition that necessarily entailed arranging for him to be circumcised. The boy’s mother obtained a temporary court injunction prohibiting the circumcision, and filed an application for custody. The father testified that Misha himself wished to convert and undergo the operation, but that even if he did not his wishes were irrelevant because the custodial parent had complete authority to make what he called “medical decisions” for a child. The mother testified that Misha did not want to be circumcised and was afraid to contradict his father.
After a lengthy series of hearings and appeals, by which time the boy was 12, the Oregon Supreme Court decided that “although circumcision is an invasive medical procedure that results in permanent alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents,” and it concluded that the custodial parent’s rights in this respect were not fettered by the views of the non-custodial parent. But because this was a custody, rather than a right to circumcise, case, the court ruled that forcing the boy to get circumcised would damage his relationship with his father, and sent the case back to the trial court to determine the boy’s own views. When Misha, by now aged 14, finally got the opportunity to express his own opinion (at a hearing in judges’ chambers in April 2009) he made it clear that he did not wish to convert to Judaism, and he most definitely did not want to get circumcised or to remain with his father. Accordingly, the court issued an order that he was not to be circumcised and returned him temporarily to his father while child custody officials worked out the details of how to return him to his mother.
Although the original trial court ruled that a decision to circumcise was a legitimate power of the custodial parent and refused to hold a hearing on the matter, it issued a stay pending the outcome of an appeal by the mother. The Court of Appeal agreed with the trial court and refused to order a hearing, at which point the mother appealed to the Oregon Supreme Court and requested the American human rights group, Doctors Opposing Circumcision, to intervene in the case as amicus curiae (friend of the court – a role performed by those with no personal interest or standing in a case, but who can assist the court through its expertise in the technical questions raised). DOC filed two briefs in the case, one in support of the petition for review, and then, following the Oregon Supreme Court grant of certiorari (the right to appeal), a second brief on the merits. Parental and child rights were considered under the constitutions of Oregon, Washington (the child’s state of residence), the United States, and even a Supreme Court of Canada decision on parental duties under the Canadian Charter of Rights and Freedoms.
DOC’s briefs were limited to arguments against circumcision on medical, legal, and human rights grounds, and did not take a position on the issue of custody. These were matched by three influential American Jewish organisations that submitted their own amicus curiae briefs in support of the father’s claim of an unfettered right to circumcise his son. At no point in their submission did they show the slightest sympathy for the plight of the child or show any interest in his preferences in the matter. They and the father claimed an absolute right to circumcise the boy under the “Free Exercise” clause of the First Amendment to the United States Constitution, which bars Congress from establishing any religion or prohibiting the free exercise thereof.
Although the Oregon Supreme Court, in obiter dicta (a passing observation, not related to the legal issues that decided the case), paid deference to a custodial parent’s right to make a decision about circumcision, it remanded the case back to the trial court with an order that it should determine the view of the child. The child was then twelve years of age.
The father then petitioned the United States Supreme Court for certiorari (right to appeal), which was denied, and the case returned to the Circuit Court of Jackson County, Oregon, where a hearing was held on 22 April 2009, before Judge Lisa Greif. At that time, Misha, now 14 years of age, testified in her chambers, on the record, that he did NOT want to be circumcised, he did NOT want to convert to Judaism, was afraid of his father and wanted to live with his mother.
The court then issued an oral order from the bench that the child NOT be circumcised. The court then followed that with a written order on 2 June 2009, in which the court found that a substantial change of circumstances had occurred and ordered an investigation by an independent child custody evaluator for a future evidentiary hearing. In the meantime, the boy remains in the custody of his father, but under protective orders against circumcision.
Despite the Oregon Supreme Court’s remark about the decision to circumcise a child being “commonly and historically made by parents”, the case remained a custody battle throughout, and no determination was ever made as to whether parents did in fact have the right to make such a decision, and if so with what qualifications. Since the question does not seem be as settled in law as the court’s confident words suggest, the observation may be regarded as no more than an obiter dictum. In a similar case, a divorced mother having custody of a nine-year-old son remarried, this time to a Jewish man, and sought to have the boy circumcised at the behest of her new husband. The father objected, and when the matter came to court the judge dismissed the mother’s claim of medical necessity and ordered that the boy be protected from circumcision until his 18th birthday, at which point he would be free to make his own decision. (Schmidt vs. Niznick, Cook County Illinois, 00D18272, cited in Doctors’ Opposing Circumcision, Amicus Curiae Brief on Boldt, 26) In denying that the non-custodial parent had no prerogatives with respect to medical decisions about a child, the Oregon Supreme Court certainly did not mean that the child had no say in the matter; indeed, in directing that the trial court discover Misha’s own views it implied quite the contrary.
The significance of the case is in establishing a precedent that a parent’s authority to circumcise a child is not unlimited and may not even exist. Although the court took account of the boy’s age (twelve), recognising that it might be difficult to get a boy of that age to lie down submissively in a doctor’s surgery, it is hard to see why the principle of physical integrity would not apply to a child of any age. There is no obvious reasons why a child has the right to physical integrity at 12, but not at 8 years, 4 years, 6 months or 2 weeks. By the age of 12 Misha certainly knew that he wanted to keep his foreskin and was confident enough to make his views heard, and (this being the case) we may reasonably infer that if an infant or young child too young to be capable of expressing an opinion on the matter were able to do so, he would say NO, or at least ask that the operation be delayed until he was old enough to inform himself as to the pros, cons and harms of circumcision and make his own decision. A recent study in the USA found that even if circumcision were proved to be effective insignificantly lowering the risk of HIV infection, only 0.7 per cent of adult men would be willing to get themselves circumcised. The clear implication is that if an infant or child were asked if he wanted to get circumcised, and he was capable of giving a rational answer, the answer would be “No way.” This alone is a sufficient reason why circumcision should not be imposed on minors.
Some commentators on the Boldt case have suggested that while a 12 or 14-year old might be mature and competent enough to reject circumcision, younger boys and especially babies must just accept whatever their parents think best for them. This position makes no sense at all, for reasons set out clearly in the Canada Medical Association Journal a long time ago:
The performance of unnecessary surgery on minors who have no say in the matter does not sit well with many people who consider circumcision a denial of basic human rights specifically an infant’s right to the respect and autonomy fundamental to Canadian law. … Removal of a normally function healthy body part without medical indication has also been viewed as a violation of the Hippocratic oath, falling under the United Nations’ definition of genital mutilation. As such, circumcision is seen as being against the Universal Declaration of Human Rights and the UN Convention on the Rights of the Child. … In BC [British Columbia], the Infants Act stipulates that a child should be accorded the same protection under law as adults: if an adult male cannot be forced to undergo circumcision in adulthood, it follows that he shouldn’t be forced to have it in infancy simply because he is too small to resist.
(Eleanor LeBourdais, Circumcision No Longer a “Routine” Surgical Procedure, 152 CANADIAN MED. ASS’N. J. 1873-4 (1995)
The fundamental problem with the idea that circumcision of an adult requires informed consent but circumcision of a minor can be accomplished at the wish of a parent is that childhood is a temporary condition but circumcision a permanent one. A person soon ceases to be a child, but no matter how old he gets he will not get back what has been taken away; as an adult the person has the same mark or absence that his parents were entitled to effect by the mere fact of his being a minor. There is thus no significant difference between forcible circumcision of an adult (which is illegal) and circumcision of a minor, since the result in adulthood, when the parts affected are most needed, is the same in each case. To make an adult’s right to physical integrity meaningful it must be respected in infancy and childhood, implying that irreversible bodily alterations should not be performed. By defining respect for autonomy as “requiring that persons with the mental capacity to make certain medical decisions have these decisions respected”, the parental authority school drastically reduces the scope of autonomy and effectively denies it to children and incompetent adults. This is a radical departure from accepted principles of bioethics [1] and a succession of legal judgements in the USA, Britain and Australia [2] that restrict the power of adults to make medical decisions on behalf of incompetent family members. Lack of mental capacity, neither in infancy nor in adulthood, does not negate a person’s right to physical integrity; if parents are determined to violate this right, the state is entitled to intervene in defence of those who lack the capacity to defend their own interests.
The following principles would also appear to have been endorsed by the outcome of this case.
(1) Parental rights are an extension of, and derivative from, parental responsibilities to the child. Parental rights exist as against outsiders or strangers to the family; they are not rights of the parent against or over the child, who is held in trust during his minority. Behind every assertion of a parental ‘right’ must be a discernible concern for the independent co-relative rights and well-being of the child as a separate person and individual in his own right.
(2) The child has an independent right to his own religious beliefs or non-beliefs. These rights are stated clearly in the foundation documents of the modern human rights framework: The Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child. These treaties give all people the right to freedom of religion and conscience and to physical integrity, irrespective of age or gender. To mark a child permanently and physically as a member of any religion deprives him of his own right to religious freedom and personal choice. To take an unfamiliar example, many Shiite Muslims believe they have the right to slit their children’s foreheads each year on the festival of Ashura, commemorating the death, by beheading, of their sainted Imam Hussein. [3] Even if performed by a doctor under sterile conditions, it is hard to believe that Western law or custom would accept this practice as an appropriate exercise of the religious freedom of the parent.
(3) In his paper “The Children We Abandon: Religious Exemption to Child Welfare and Education Laws as Denials of Equal Protection to Children,” [4] James Dwyer has argued that far too often Anglophone law has abridged the child’s more fundamental rights to health and even life itself, to accommodate mere beliefs, even whims, of the parent. It is to be hoped that the Boldt case marks the beginning of a more child-centred tradition.
(4) As argued by the late legal philosopher Joel Feinberg, children have a “right to an open future”, that is, one in which all options for the future development of the child as an adult-to-be are protected and retained. [5] This applies not only to affection, food, shelter, and education, but also to freedom from irrevocable parental choices of which circumcision is a permanent, palpable and entirely unnecessary example.
For these reasons and many others, we should make sure that we maintain a sharp focus on the rights of the child as an independent entity distinct from his parents, one whom they hold in trust and cannot treat as property, and who is entitled to human rights of his own, of which the right to a set of intact genitals is surely one of the most fundamental.
Doctors Opposing Circumcision, Brief of amicus curiae in support of the petition for review (PDF, 184 kb)
Doctors Opposing Circumcision, Brief on the merits of amicus curiae (PDF, 102 kb)
Summary of early phases of case at DOC website
Letter from Doctors Opposing Circumcision to Journal of Clinical Ethics
1. Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics (Oxford University Press, 1977) As set out in this basic text, the fundamental principles of bioethics are:
Beneficence — Does the proposed procedure provide a net therapeutic benefit to the patient, considering the risk, pain, and loss of normal function?
Non-maleficence — Does the procedure avoid permanently diminishing the patient in any way that could be avoided?
Proportionality — Will the final result provide a significant net benefit to the patient in proportion to the risk undertaken and the losses sustained?
Justice — Will the patient be treated as fairly as we would all wish to be treated?
Autonomy — Lacking life-threatening urgency, will the procedure honor the patient’s right to his or her own likely choice? Could it wait for the patient’s assent?
Medically unnecessary circumcision of male minors violates every one of these principles.
2. J.S. Svoboda et al, Informed consent for neonatal circumcision, esp. 80-81, 87, 89-90; Gregory Boyle et al, Circumcision of Healthy Boys: Criminal Assault?, 7 J Law Med 301 (2000); Frank Bates, Males, Medical Mutilation and the Law: Some recent Developments, 9 J Law Med 68 (2001)
3. The theory is that young men slash only their own foreheads, but there are plenty of pictures available on the web that show adults doing it to young children: see “Ashura observed with blood streams to mark Karbala tragedy” at Jafariya News and Atlas Shrugs.
4. James Dwyer, The Children we Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors, 74 N.C.L. Rev. 1321
5. Joel Feinberg, The Child’s Right to an Open Future, in Freedom and Fulfilment: Philosophical Essays (Princeton University Press, 1992). See also Dena Davis, Genetic Dilemmas: Reproductive Technology, Parental Choices and Children’s Futures (London and New York: Routledge, 2001), and idem, Genetic Dilemmas and the Child's Right to an Open Future, 28 Rutgers Law Journal 549 (1997)