For many years the so-called “circumcision decision” was framed as a simple medical question: did the claimed “health benefits” outweigh the risk of complications – the old pros and cons calculus. Since any surgery in hygienic modern conditions has a pretty low complication rate, when the question was framed in such limited terms, it was not hard for the circumcision advocates to win the toss. Even in its own terms, however, this equation was inadequate, as it failed to take account of the value of the foreskin as a functional body part, the loss of which might be a physical harm even without complications. The risk/benefit trade-off was devised for therapeutic procedures, where there was a pathological condition that required treatment – e.g. a gangrenous finger, that might have to be amputated to prevent the infection spreading to the rest of the body; it was not relevant to non-therapeutic procedures on normal, healthy body parts. Even if it were a simple risk/benefit equation, it is not clear that the decision had to be taken by adults on behalf of infants and children, and not by the actual owner of the foreskin: why shouldn’t he be the one to decide whether the benefits outweighed the risks?
Although this medical discourse still dominates debates over whether non-therapeutic circumcision should be performed on non-consenting minors, it is no longer the only discourse. Ignoring the troglodytes in the American Academy of Pediatrics, who are still framing the question as a simplistic risk/benefit calculation, there are increasing calls from human rights, legal, bioethical and child health experts for the debate to reframed as a human rights issue. This perspective underpins policy statements on circumcision issued by the British Medical Association, the Royal Dutch Medical Association and, with rather less conviction, the Royal Australasian College of Physicians, and it has been given a powerful boost by the decision of an appeal court in Cologne, Germany, that medically unnecessary circumcision of a minor is unlawful because it constitutes bodily harm and violates his right to bodily integrity. Hot on the heels of this development is a comprehensive report on the legal status of circumcision by the Tasmania Law Reform Institute, which recommends that the practice be legally prohibited in most instances (with exceptions for recognized religious and ethnic sub-cultures) and strictly regulated.
As Dr Robert Darby argued in a post at Open Forum, “the judgement of a district court in Cologne – that medically unnecessary circumcision of a four year old boy constituted bodily harm and was thus unlawful – has revolutionised the debate about male genital cutting and brought to a head the controversy that has been simmering since the passage of the United Nations Convention on the Rights of the Child (1989). The argument is no longer about whether boys should be circumcised for so-called “health reasons”, but whether any non-therapeutic circumcision (NTC) of minors should be permitted.”
It is symptomatic of the limited reach of the medical discourse, and the tunnel vision of its spokesmen, that the Convention on the Rights of the Child has hardly figured in recent media debates on circumcision, despite the media’s claim to be presenting a “balanced view”. (“Balance” in the case of a recent SBS program meant a panel stacked with 4 pro-circumcision speakers vs 1 against, and an audience that continually heckled the latter.) Article 24 (3) of the convention states clearly: “States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” Although this clause refers to children and is not gender-specific it has usually been interpreted as applying only to female circumcision, not to male, despite the fact that Article 2 of the convention states that signatories shall respect: “the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” In other words, according to the Convention on the Rights of the Child, all children, male and female, have the right to be protected from genital cutting.
The backwardness of the media contrasts with the vigour of the human rights debate in independent forums and personal blogs:
Charli Carpenter attends a conference on genital integrity in Helsinki and considers why circumcision critics have had such difficulty convincing the “official” human rights bodies that circumcision of male minors is an issue with which they should be concerned. She notes although they have sought to shift the discussion away from “questions of health or gender equity and toward the tension between children’s bodily integrity rights and the rights of parents to religious freedom”, they have been at a disadvantage in the first two of these debates:
While there is no scientific consensus on the benefits and risks of infant circumcision (as indicated by the American Academy of Pediatrics’ report accompanying its recently revised policy statement on the issue), the absence of a consensus against circumcision for health reasons has made it easy for the mainstream human rights movement to avoid speaking out on the issue, particularly since the reconceptualization of circumcision as a preventive health measure by the World Health Organization. In political terms the “burden of proof” is on the intactivist movement rather than on the medical establishment so long as the issue is framed around questions of medical necessity or benefit, and frankly the movement is outmatched by the mainstream medical establishment in resources, professional access, and … “expert authority.”
In Holland, Gert van Dijk, bioethics adviser with the Royal Dutch Medical Association, argues that because circumcision infringes a child’s right to physical integrity and his own religious freedom, a powerful policy of deterrence should be established.
In Australia, Robert Darby replies to the argument of self-styled libertarian Brendan O’Neill that the state should not intervene between parents and their children, and hence that parents are entitled to decide whether their children should be circumcised. He argues that this position is inconsistent with both liberal and libertarian principles for the simple reason that if children lack rights, adults don’t have them either. Much as one hesitates to extend the reach of the state, the fact remains that no other force has the power or authority to protect children from abuse within the family. Children are both powerless and voiceless; it is no business of the state to enforce morality through legal sanctions, but even libertarian philosophers agree that the state has a legitimate interest in preventing people from harming other people. If the state is not allowed to intervene to restrain parents from harming their children, who or what else is going to undertake the responsibility?
The United Nations has been extremely reluctant to even discuss circumcision of male minors as a human rights issue. When Sami Aldeeb was researching male and female circumcision for a major scholarly study and sought information from the human rights section, he was told to get lost as soon as they realised he was critical of male circumcision. Such wilful blindness and blatant discrimination has been challenged by the International Humanist and Ethical Union, which has recently presented papers to the United Nations Human Rights Council naming non-therapeutic circumcision as a human rights issue that requires the council’s attention. As Circumstitions News reports:
At the session of September 17, IHEU representative Josephine Mackintosh told the Council: The recent German [Cologne district] court ruling outlawing non-therapeutic infant male circumcision correctly places the welfare, and the “fundamental rights and freedoms” of vulnerable children above the unrestrained expression of adult beliefs. The court correctly determined that: non-therapeutic cutting of a child’s body is an assault; that children are unable to give informed consent; that surrogate parental consent is not valid for an operation with no clinical indication and with the potential to cause serious harm; and that children have a right to be protected from bodily harm.
Such determinations cannot legitimately be overridden by adults convinced that children might be harmed by denying them this forced, irreversible surgery to their most intimate body parts. When the children become adult they can freely decide whether or not to undergo the procedure.
We understand, and have some sympathy with the sensitivities of certain religious groups which may feel threatened or even attacked by the judgment, particularly in the light of recent history. But it would be wrong to describe this judgment as religious persecution, or anti-Semitic; some Jewish voices are calling for an end to the practice and there is even an association called Jews Against Circumcision. Powerful groups must not be permitted to impose their views on the vulnerable on ideological or theological grounds in contravention of international law. The Royal Dutch Medical Association and seven other Dutch scientific associations concluded in 2010 that the procedure can be harmful and that it violates the boy’s human rights to autonomy and physical integrity. The German judgment is therefore both laudable and overdue. Reflecting as it does States’ obligations under the ICCPR, it should be followed by all member states.
Source: Humanists put circumcision ethics on UN agenda, Circumcision News, 17 September 2012
Writing in The Conversation, two human rights experts argue that even if the old arguments about health benefits were valid (which they are not), it would still not be permissible to perform amputative surgery on a non-consenting minor because such an action would be a blatant violation of his human rights. As they point out, “Circumcision without consent or any immediate medical necessity on a healthy adult male would clearly be in breach of his human rights. So how is infant male circumcision without consent any different?” Circumcision promoters refer monotonously to the right of parents to choose medical procedures for their children, forgetting that this right is confined to beneficial and recommended treatments that are unquestionably in the child’s best interests. Unnecessary surgical amputations, especially those on a boy’s best friend, are not in this category.
Claire Mahon and Alexandra Phelan, Infant male circumcision: stop violating boys' human rights, The Conversation, 9 August 2012
... it follows logically that male circumcision must violate the human rights of boys. If girls have a human right to genital integrity, it follows that boys must also enjoy that right. A human right is a right that applies to all humans, regardless of gender or age, simply by virtue of their humanity; it has nothing to do with the culture of their parents. Despite this, the policy statement on female genital mutilation released by the Royal Australasian College of Physicians takes a far stronger line in defence of female bodies than its policy on male circumcision. For the RACP’s position to be logically consistent there are only two possibilities here: either a girl’s right not to have any part of her genitals injured by FGM is a not a human right at all, but gender-specific right, applicable only to females; or boys are not human. Neither possibility seems very likely, and the shabby truth appears simply to be that the RACP is in the grip of the usual sexist double standard on genital mutilation, whereby the slightest nick to the female genitals is an outrage that must be abhorred and opposed, while the most ruthless and brutal circumcision of a boy is a harmless snip that must be allowed and may be applauded.
In an article at The Conversation, Brian Earp and Robert Darby argue that the debate about routine (non-therapeutic) circumcision of minors not about health, but about bioethics and human rights. While United States authorities are trying to turn the clock back by limiting their analysis to the pro-circumcision medical literature, the rest of he world has moved on. The issue is not whether the risk of complications outweighs the claim of future benefits, but whether any medically unnecessary circumcision of a minor is ethically permissible and indeed legal.
Brian Earp and Robert Darby, Tradition vs individual rights: the current debate on circumcision, The Conversation, 2 November 2012
An op-ed in support of the Cologne judgement in the Frankfurter Allgemeine Zeitung was written by Memet Kilic, Green member of the German parliament. Despite his Turkish-Muslim background, he supports the Cologne judgement that non-therapeutic circumcision of a non-consenting minor is unlawful under German law, and criticise the Merkel government for steam-rolling a bill to make circumcision of children legal whenever desired by their parents. He points out that the bill privileges certain religious groups by allowing them to have circumcisions performed without anaesthetic or the presence of a medical practitioner - conditions otherwise mandated under health regulations. As he argues, in a secular state laws that apply to everybody; they should not, therefore, be written to suit the requirements of particular sub-cultures.
A report by the International NGO Council on Violence against Children on harmful traditional practices has turned the spotlight on male circumcision and argues that non-therapeutic (medically unnecessary) circumcision of male minors constitutes a serious human rights violation. The organisation has not previously discussed circumcision of boys, but in its latest report (October 2012) it states that “a children’s rights analysis suggests that non-consensual, non-therapeutic circumcision of boys, whatever the circumstances, constitutes a gross violation of their rights, including the right to physical integrity, to freedom of thought and religion and to protection from physical and mental violence.” The relevant paragraphs are reproduced below.
Male circumcision has been largely neglected in mainstream debates on harmful practices because of its strong religious connections, particularly with Judaism and Islam, and its general acceptance in many societies. ... Until recently, male circumcision has generally been challenged only when carried out by non-medical personal in unhygienic settings without pain relief. But a children’s rights analysis suggests that non-consensual, non-therapeutic circumcision of boys, whatever the circumstances, constitutes a gross violation of their rights, including the right to physical integrity, to freedom of thought and religion and to protection from physical and mental violence. When extreme complications arise, it may violate the right to life. It is reported that male circumcision can result in numerous physical, psychological, and sexual health problems during the surgery, afterwards, and throughout adulthood, including haemorrhage, panic attacks, erectile dysfunction, infection (in severe forms leading to partial or complete loss of the penis), urinary infections, necrosis, permanent injury or loss of the glans, excessive penile skin loss, external deformity, and in some cases even death.
There are now substantial established campaigns against non-therapeutic, non-consensual circumcision of boys and growing support to end it, particularly within the medical community. For example, the Royal Dutch Medical Association (KNMG) has publicly taken a children’s rights position that: “children must not be subjected to medical proceedings that have no therapeutic or preventative value.” In addition, in 2011 the then Ombudsman for Children in Norway advocated that boys should not be circumcised for non-therapeutic reasons until they are old enough to give their informed consent and that parents should not be able to consent on behalf of their children. Most recently, in 2012 a German court ruled that male circumcision constitutes a violation of physical integrity as a child is “permanently and irreparably changed by the circumcision” and that the practice is also in conflict with the child’s right to religious freedom.
The WHO review quoted three randomized controlled trials suggesting that circumcision reduces the risk of acquiring HIV infection in males. But this potential health benefit does not override a child’s right to give [i.e. to withhold] informed consent to the practice. The decision to undertake circumcision for these reasons can be deferred to a time where the risk is relevant and the child is old enough to choose and consent for himself.
Source: Council on Violence against Children, Violating children’s rights: Harmful practices based on tradition, culture, religion or superstition, pp 21-22
The Children’s Rights International Network is an international non-government organisation that urges rights (rather than charity) for children.
Boys should be protected from circumcision and other permanent genital alterations until they are old enough decide the matter for themselves. This is the argument of Canadian legal expert Aniaka Oluchi, who suggests that legal reform and stricter regulation of circumcision is needed to secure the best interests of the child. Although the most obvious way for the law to proceed with enforcing circumcision prohibitions is through criminal prosecution under existing provisions of the Criminal Code which prohibit aggravated assault and conspiracy to assault, legal measures alone will probably not suffice to eliminate infant male circumcision, unless there is a desire for change on the part of those who undertake the practice and pressure from public opinion. Accordingly, Oluchi argues that the most fruitful way ahead is through respectful dialogue with leaders of circumcising communities and civil actions by those injured by circumcision against those responsible. Because there are no valid medical indications for routine circumcision in infancy or childhood, and parents cannot consent to a unnecessary medical operations that are not in a child’s best interests, any consent they give for circumcision is invalid in law, and the operator is committing an assault. He can therefore be sued for battery.
Abstract: It has been suggested that where circumcision is carried out for religious reasons as opposed to cultural, traditional and other reasons, it is not, and should not be unlawful. Viewed from the point of view of the child, it is argued, first, that circumcision has lost its religious significance and that it is sustained only by habit. Second, assuming that there is still some genuinely held religious belief behind the practice, such belief cannot and should not be used to legitimate what may otherwise be a crime. However, the challenge posed by the amorphous concept of the best interests of the child which may, after all, not be met by a legal prohibition of, or prosecution for infant circumcision is acknowledged. Nevertheless, several approaches exist which the law might adopt to protect the best interests of the child. Ultimately, the paper concludes that a child is better left to decide himself, upon attaining maturity, if he wants to be genitally altered, a conclusion which accords with a growing position in the literature.
Source: Aniaka Oluchi, In the Best Interest of the Child: Should Exception be Made for Infant Male Circumcision on Religious Grounds? Available at Social Science Research Network
Oluchi’s suggestion that the civil law should play a greater role in protecting boys from circumcision is supported by Dr Robert Darby, who argues in his submission to the Tasmania Law Reform Institute inquiry into male circumcision that the laws should be reformed to make it easier for men who believe they have been harmed by circumcision to sue those responsible and recover damages. This would involve extending the period in which a victim of circumcision is allowed to initiate a court action, and requiring him only to prove harm and not (as at present) also negligence on the part of the operator as well.
Abstract: Circumcision of minors, unless necessary to cure an injury, deformity or disease that cannot be treated in any other way, is already (technically) illegal under both the common law and numerous specific provisions of Tasmanian laws covering assault, injury, wounding, mistreatment etc. Since social custom (as the Queensland Law Reform Commission observed in 1993) tolerates and to some extent approves of the practice, however, we do not see prosecutions being launched, and there have been very few civil suits for damages. That being the case it is difficult to imagine that the government would ever contemplate legislation even half as strong as the sections of the criminal code prohibiting female genital mutilation, or at least not until circumcision of males is generally regarded with a similar degree of revulsion. It follows that the most promising way to protect boys from unnecessary and unwanted surgery is by tighter regulation of circumcision, public education and legal reform. These would take the form of (1) much stricter regulation of the procedure by the medical professional and regulatory bodies, backed up by specific legislation if necessary; (2) public education to counteract the scaremongering of alarmist circumcision promoters and opportunistic medical practitioners; and (3) making it easier (by reforms to legislation covering limitations and torts) for aggrieved men who feel harmed by circumcision in infancy or childhood to sue those responsible.
Source: Robert Darby, Medical, Ethical and Legal Aspects of Routine Circumcision: Submission to the Tasmania Law Reform Institute Inquiry into Non-Therapeutic Male Circumcision. Available at the Social Science Research Network
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