A New South Wales father was so distressed at the unauthorized circumcision of his baby boy, and by the bland indifference of the authorities to whom he appealed for justice, that he has set up a website to explain his case. The man, Peter – who wishes to remain anonymous to protect the identity of his son – told Circinfo.org that his 6-week old son was circumcised at his partner’s request while he was overseas on a business trip. But he does not blame his partner nearly as much as the doctor who performed the surgery. “She was a victim of the blatant untruths that are spread to justify circumcision – well-meaning but ignorant. She thought that because I was circumcised I would want the boy to be done, or that all boys were circumcised as a matter of routine. I blame the doctor for three unforgivable omissions: failing to tell my partner that circumcision is very much a minority practice these days; failing to give her a copy of the Royal Australasian College of Physicians policy, which states clearly that circumcision is not widely practiced here, and is certainly not recommended; and, most importantly, for failing to obtain my explicit, written, informed consent as the other parent.”
The doctor should also have been aware that the Australasian Association of Paediatric Surgeons recommends that if parents insist of circumcision, it should not be done until the boy is at least 6 months old.
The doctor’s failure to seek the consent of the other parent is the nub of Peter’s anger. The British Medical Association insists as a matter of policy that doctors who perform circumcision operations on minors must obtain written authorization from both parents. In Australia there is no such obligation, but an open slather situation that can easily give rise to tragic situations like Peter’s case, or the scandalous affair in Bundaberg in 2004. In that incident, an estranged father who did not even have legal custody of the children, then under the care of the mother, took advantage of a permitted access visit to race the boys (aged 5 and 9) off to a compliant surgeon, who circumcised them on the spot, no questions asked. There was a half-hearted attempt to prosecute the man for assault, but the case was dismissed when his barrister (generously provided by Legal Aid) assured the magistrate that he had acted out of sincere religious conviction. (He was of Turkish origin, and claimed to be a practising Muslim.) There was no attempt to prosecute or even discipline the surgeon for performing an unnecessary operation without valid consent.
The case attracted some publicity at the time, but apparently not enough to persuade the medical regulatory authorities that this rule-free situation was placing boys at risk of harm. Disappointingly, there was nothing about the need for a defined consent procedure in the RACP policies issued in 2004 and 2010. If there had been, both Peter and his son might have been spared their respective agonies.
“You can imagine my shock and despair when I got home and found what had happened: my beautiful boy with a mangled penis. I had been circumcised – as was the fashion back then – but I had always resented that it was done without MY consent. I hated it, and was determined that my son would not be deprived in the same way. I was looking forward to watching him grow up whole and unblemished. To put it mildly, I was pretty upset when these dreams were shattered.”
Peter’s mood was not improved by the indifference and hostility of the authorities to whom he appealed for help. Politicians thought it was none of their business; the Human Rights Commission did not feel that there had been any infringement of the boy’s human rights, nor of Peter’s rights as a parent; bureaucrats advised him that there was nothing they could do; legal authorities informed him – as though they were imparting great wisdom, known only to the select few – that while any form of female circumcision was illegal in most Australian states, circumcision of male minors was perfectly legal, commonly performed and, really, what was all the fuss about? Peter sent three letters to Senator Bob Brown, that doughty champion of the rights of rivers, whales, trees, refugees etc etc, who of all people might have been expected to have some sort of conscience on this issue. He eventually received a reply from a staffer, informing him that the Greens did not have policies on specific medical procedures.
Moral vacuity and intellectual inanity
“I was dismayed by the intellectually infantile level of the responses, and their moral vacuity. There was not a hint of sympathy, except perhaps from the NSW Commissioner for Children, who said that she did not agree with medically unnecessary circumcision of male minors. Elsewhere there was no suggestion that there were difficult ethical, moral and legal issues here, that required careful thought, not mere catchphrases.” Considering that fewer than 15% of Australian boys are circumcised these days, Peter thought there might have been a constituency that regarded uncircumcised as normal and circumcision as a misfortune, or at least an aberration. “It seems I was wrong”, he admitted. “All I got was apathy, indifference and a sort of mocking incredulity that I should be so concerned with such a trivial issue. The whole experience left me deeply shaken, with a complete loss of faith in the moral fibre of our guardians (politicians, bureaucrats and medical regulators), and even doubts as to their basic competence.”
Peter hopes that his website will alert other parents to the appalling loophole in the child protection safety net that would allow any stranger to kidnap a boy in the street, take him to one of the medical practitioners who perform circumcision operations without medical need, and have him done on the spot.
“I think that boys ought to have the same level of legal protection against circumcision as girls currently enjoy against mutilation of their genitals. I don’t expect this to happen any time soon, but while we are waiting for the law to catch up with medical ethics I don’t see why boys should have no protection at all. Even dogs have greater protection these days. At the very least, the rules and procedures for circumcision should be tightened up so that outrages like the one that I and my boy experienced cannot happen again.”
At a bare minimum, the rules covering non-therapeutic circumcision of male minors ought to include written consent of both parents; proof of identity and of responsibility for the child; where parents disagree, circumcision not to be performed unless ordered by Family Court; signed declaration by parents that they have read and understood the RACP policy statement and a full statement of all the risks and possible adverse consequences (both physical and psychological) of the operation; requirement to watch a video of (a) the circumcision procedure (b) instructions on after-care and handling of complications and (c) appearance and care of the normal (uncircumcised) penis; a cooling-off period of at least 48 hours; operation performed by a fully trained and competent surgeon, with full anaesthesia and post-operative pain control; no rebate from Medicare unless the operation is clinically necessary
Although the authorities to whom Peter appealed for help seemed confident that a single parent’s consent was sufficient to procure the legal circumcision of a child, there is actually some doubt on this question; their certainty may arise from ignorance of the law rather than knowledge of it. A relevant court decision is a judgement of the Family Court in Adelaide in 2003, in the matter of K and H. The case involved the child of a Tanzanian (Muslim) father and an Australian (Anglican) mother; the father wanted the boy circumcised, the mother did not. Their dispute came before the court because the paediatric surgeon consulted by the parents declined to proceed unless both parents agreed to the operation; the father then applied to the Family Court for an order that the circumcision go ahead, while the mother sought an injunction restraining the father from having the boy circumcised. In its judgement the court came down firmly on the mother’s side, and ruled that the child’s best interests required that he not be circumcised, and it issued orders accordingly.
An important aspect of the judgement is that it referred to the well-known High Court decision in “Marion’s case”, in which parents sought permission to have their handicapped daughter sterilised. The court held that if parents wanted to perform what it termed a “special medical procedure” on a child, they required permission from the Family Court. The judge in the Adelaide case did not go into the question of whether non-therapeutic circumcision of a minor was also a special medical procedure (some legal authorities have argued that it is), but he did observe in passing to make another point that “circumcision is a procedure which parents are able to consent to as an aspect of their responsibility.” Note that the reference is to parents (plural). Whether non-therapeutic circumcision of a minor is in fact a procedure to which parents may validly give surrogate consent was not the point being decided here, and the judge’s remark on this is more in the nature of a passing comment than a substantive legal ruling – or in legal terminology, an obiter dictum (thing said by the way) rather than a ratio decidendi (the reason for deciding).
What is of permanent legal significance, however, and relevant to Peter’s situation, is that the court went on to make this statement: “The child, of course, is too young to consent to the procedure and it involves an exercise of parental responsibility about which the parents cannot agree. The court must then make the decision.” These words establish a clear legal precedent that the (informed) consent of both parents is required for circumcision of a child for which they are responsible, and that if they disagree the matter must come before the Family Court for a decision. That being the case, any parent who acts unilaterally is potentially in contempt of court, and any doctor who fails to obtain the consent of both parents may be acting unlawfully.
Source: Family Court of Australia, Adelaide, 19 December 2003; in the matter of K (father) and H (mother), under Justice Strickland; 2003 FamCa 1364