Circumcision under the spotlight in medical ethics journal

The rights and wrongs of circumcision come under scrutiny in the July issue of the Journal of Medical Ethics. With a series of specially written essays by experts from around the world, this special issue of the journal represents the most detailed and comprehensive analysis of the ethical aspects of male circumcision that has yet appeared in print. The range and quality of the contributions show that the debate about routine circumcision has entered a new and more intense phase, confirming the prediction of several commentators that the argument is no longer over whether circumcision has “medical benefits”, but whether it is ethically permissible to perform the operation on non-consenting children. The answer given in the world’s leading bioethics journal would appear to be a resounding negative.

Argument is now over conflicting rights, not "health benefits"

The most striking feature of the contributions is that only one contributor sought to defend non-therapeutic circumcision of boys on medical or health grounds, and even then only half-heatedly. Even those who argued that parents should be allowed to have their boys circumcised if the operation was required by or customary in their religion or cultural traditions agreed that there was no valid medical or health argument for the practice. In fact, the near-unanimous sentiment was that the debate about the permissibility of circumcision was relevant only to parents from cultures and religions that traditionally circumcise boys; while they might be entitled to have their boys circumcised, the question did not even arise for parents from non-circumcising cultures. Nobody attempted to argue that all parents were entitled to have their boys circumcised simply by virtue of their parental authority, and one paper (by Robert Van Howe) subjected the very notion of “parental rights” to a searching and sceptical critique.

This near-consensus represents a forceful rejection of the position of the American Academy of Pediatrics, in its 2012 circumcision policy statement, that because the “benefits” of circumcision outweighed the “risks of complications”, parental choice on the question was appropriate. On the contrary, while parental preference might be justifiable in relation to circumcision for religious or cultural reasons, it could not possibly play a part in any decision based on medical arguments: parents lack the expertise to make an informed judgement on controversial medical questions, and it is not, in any case, their body that is being subjected to the surgery. In the absence of any consensus on the benefits of circumcision and wide agreement that they are either trivial or non-existent in childhood, the logical and ethically preferable position is to leave the decision up to the owner of the penis.

The sole contributor who did consider health benefits to be relevant, David Benatar, claimed that “new” evidence about the possible effect of circumcision in reducing the risk of infection with heterosexually transmitted HIV was a factor that parents ought to add to the “circumcision decision”. The principal objection to this suggestion is its lack of logic, for it is only sexually active heterosexual adults who engage in high-risk sex practices who are at risk of contracting HIV. Since children are not sexually active, the decision can be safely left – and is more appropriately left – until the boy is old enough to make the decision for himself. Such a manifestation of respect for the bodies and rights of others would satisfy the principle of the child’s right to an open future, as argued in this issue by Robert Darby, as well as recognising their human rights, as insisted upon by Steven Svoboda.

In other words, this special issue of the Journal of Medical Ethics amounts to a comprehensive rejection of the “American” point of view on circumcision, and an endorsement of the European-British position – that non-therapeutic circumcision of male minors is harmful to the child and is thus ethically impermissible and legally problematic.

A summary of each of the articles appears below.

1. Editorial: Bennett Foddy, Medical, religious and social reasons for and against an ancient rite

This month’s issue of the Journal of Medical Ethics is a special issue devoted entirely to the ethics of infant male circumcision—an elective surgical practice that is currently performed on around a third of the world’s male population. The last time the Journal ran a symposium on this issue was in 2004, and there has been relatively scant discussion of the practice in the ethical literature since then. Three events that took place in the past year have brought the ethics of infant male circumcision back into the global spotlight.

First, in April of 2012, controversy erupted after it was reported that a baby had died in New York City after contracting Herpes Simplex virus during the Orthodox Jewish variant of circumcision known as metzitzah b’peh, which involves the oral suction of blood from the infant’s penis following the circumcision procedure. Later that year, the American Academy of Pediatrics (AAP) released a policy statement which suggested that the health benefits of ordinary forms of male circumcision outweigh the risks and costs of the practice. A number of articles have since been published in support and in criticism of the AAP’s report, and the debate continues in these pages, as Steven Svoboda and Robert Van Howe write a critique of the evidentiary basis of the AAP’s report, and the AAP Task Force responds. Finally, the issue was also in the news in Europe, after a controversial German court decision ruled that the circumcision of male infants amounts to grievous bodily harm, and that the practice violates a child’s right to bodily integrity and to self-determination. As legal scholars Merkel and Putzke discuss in this issue, the ruling was later accompanied by a new law enshrining the right to perform circumcisions for religious reasons.

Much of the debate so far has focused on the medical benefits and risks of circumcision. Yet at least outside of the USA, the great majority of circumcisions are performed as religious rites in Muslim or Jewish families. For this reason, and in light of the German legal decisions, our call for papers asked authors to also consider the non-medical goods and harms associated with the practice, and its religious and cultural justifications. Joseph Mazor’s feature article takes up that challenge in these pages. While he argues that the risks and benefits of male circumcision are finely balanced in non-religious families, he argues that the practice is justified in religious families by its role in integrating the infant into the religious community. His arguments are challenged not chiefly on principled grounds but primarily on empirical grounds in two commissioned commentaries. David Benatar, one author of perhaps the best-known moral defence of circumcision argues that Mazor overstates the medical downsides of circumcision, while David Lang argues that Mazor understates these risks. Mazor, in his response, concludes that parental choices should prevail as long as reasonable disagreements persist over the balance of scientific evidence on benefits and risks.

Matthew Johnson also argues in favour of the idea that religious justifications of circumcision should be given some weight. However, he cautions that the use of such justifications can make religious bodies responsible for any ill-consequences that may result from the operation, and he argues that men who believe that they have been harmed by their circumcision should be able to seek damages against their religious community. On the other side of the aisle, several authors in this month’s issue argue more directly for the impermissibility of male infant circumcision. Medical historian Robert Darby argues that circumcision violates a child’s ‘right to an open future’, while paediatrician Robert Van Howe argues that we ought to abandon the idea that parents have a right to make decisions regarding their children’s welfare in cases where these decisions conflict with the rights and/or best interests of the child. Hanoch Ben-Yami takes a different approach to the evidence and to religious justifications in his brief article. Although he concludes that circumcision is on balance a ‘primitive’ and harmful practice, he argues in favour of a policy of harm minimisation rather than an outright ban. In Ben-Yami’s view, outlawing circumcision might engender racial and religious disharmony, and might also make the practice less safe, resulting in an overall greater level of harm to children and to society at large. Bioethicist Dena Davis also argues that harm reduction measures should be employed. But she points out, controversially, that similar measures might also make certain forms of female genital cutting ethically acceptable and justifiable on religious grounds, and she proposes that we re-open the discussion on female genital cutting.

It is our hope that by publishing a diverse range of views on controversial subjects such as these, the ethical debate can be driven forward — not only on the medical justifications of circumcision, but on the cultural, political and religious justifications of one of the most common, yet most contentious medical procedures.

2. Editorial: Julian Savulescu, Male circumcision and the enhancement debate: Harm reduction, not prohibition [Extract]

Around a third of men worldwide are circumcised. It is probably the most commonly performed surgical procedure. Circumcision is also one of the oldest forms of attempted human enhancement. It is and has been done for religious, social, aesthetic and health reasons. Circumcision has a variety of benefits and risks, many of which are discussed in this issue. There is some dispute about the magnitude and likelihood of these benefits and risks. Some argue that the risks outweigh the benefits and circumcision should not be performed on children who are not competent to make their own decisions. If the risks of circumcision clearly outweighed the benefits, great harm has been done and is being done globally through this procedure. Around a third of all men would have been harmed. This is an extraordinary public health injury. Presumably, many would be entitled to compensation.

The fact that relatively few people think that the situation is as bad as this indicates that most people implicitly believe that circumcision is not generally a significant harm, if a harm at all. (This is an example of the kind of argument called modus tollens. If p, then q. Not-q, therefore not-p.) One might thus conclude either that: (1) It is not clear from existing evidence whether the risks of properly performed circumcision outweigh the benefits, or vice versa. Or (2) If circumcision is against the interests of an infant or young child, it is only mildly so. In general, people should make their own decisions about body modification and human enhancement when this is possible. Such an approach speaks in favour of waiting until a child becomes an adult to make his or her own decision about circumcision. And procedures which are not clearly in a child’s interests should not be performed on that child.

3. Editorial: Brian Earp, The ethics of infant male circumcision [Extract]

With perspectives in this issue ranging from Joseph Mazor’s articulate defence of infant male circumcision as both morally and legally permissible to J Steven Svoboda’s contention that circumcision is an unambiguous affront to human rights, it is clear that the debate on this issue is far from over. Nevertheless, the overall balance of opinion may be shifting toward one of general scepticism concerning circumcision — even within religious communities. Increasingly, individual Muslim and Jewish thinkers are managing to persuade their fellow faith practitioners that the involuntary ablation of children’s foreskins is unnecessary for contemporary religious observance. This type of intra-religious influence can be traced at least to the famous 19th century debates within the German Jewish community concerning whether or not circumcision was to be performed in the modern era. It continues today with the founding of such groups as Jews Against Circumcision as well as with the establishment of symbolic alternatives to preputial amputation. One such alternative is the non-violent, non-sexist welcoming ceremony known as brit shalom officiated by a growing number of Jewish rabbis. As Dena Davis puts it in the title to her essay, we are dealing with a fundamental incompatibility between what she calls ‘ancient rites’ and ‘new laws.’ How this incompatibility will be addressed, and whether it can be dealt with in a way that ensures not only the coherence and proper functioning of religious communities, but also the well-being and basic rights of the children being raised within their care — only time will tell.

4. Joseph Mazor, The child’s interests and the case for the permissibility of male infant circumcision

ABSTRACT Circumcision of a male child was recently ruled illegal by a court in Germany on the grounds that it violates the child’s rights to bodily integrity and self-determination. This paper begins by challenging the applicability of these rights to the circumcision debate. It argues that, rather than a sweeping appeal to rights, a moral analysis of the practice of circumcision will require a careful examination of the interests of the child. I consider three of these interests in some detail. The first is the interest in avoiding a moderate decrease in expected future sexual pleasure. I argue that even if such a decrease were to occur, it is not wholly unreasonable to think that this might actually be a good thing for the child. Second, I consider the interest in self-determination. I argue that this interest is not as strong as it might appear because the adult’s circumcision decision is subject to a variety of biases and a significant lack of information. Finally, I consider the child’s interest in avoiding the future costs of adult circumcision. I argue that this interest becomes much stronger in the religious case because the child is quite likely to choose to become circumcised as an adult. The likelihood of the child choosing circumcision in the religious case also reduces the extent to which infant circumcision violates his interest in self-determination. I conclude that male infant circumcision falls within the prerogative of parental decision-making in the secular case and even more clearly so in the religious case. Finally, I distinguish male circumcision from female genital cutting in several important respects and argue that we can coherently hold that male circumcision is permissible without also endorsing all forms of female genital cutting.

5. Commentary on Mazor (1): David Lang, Circumcision, sexual dysfunction and the child’s best interests: Why the anatomical details matter

The author raises six objections to Mazor’s argument, the most important of which is that he glosses over the anatomy and physiology of the foreskin and thus ignores the damaging effect of circumcision of sexual function and erotic sensation. Two extracts follow:

The author insufficiently explores the profound implications of a serious equivocation in the term ‘circumcision’ that is common throughout the literature. He does superficially reference the article on ‘Circumcision’ in The Jewish Encyclopedia, which describes in detail the actual steps involved in brit milah versus brit periah. Despite this general allusion, though, he hardly discusses the matter further, as though the distinction were practically irrelevant. It does have fundamental import, however. Milah is merely a token clip of the very tip (the overhang flap or akroposthion) of the prepuce, which leaves most of the organ system (including all its essential functions) intact. This was evidently the version practiced in biblical times under the old Abrahamic–Mosaic covenant, before the Talmudic guardians of Judaic ethnic and religious identity proposed (around 150 AD) a means to prevent Hellinising Jewish men from attempting foreskin restoration by stretching their remaining preputial tissue forward. The rabbis mandated the replacement of milah with the more drastic procedure of periah, a radical surgery that cuts and tears from the penis its entire covering, leaving the glans irreversibly denuded. Unlike traditional milah, the innovation of periah necessarily has significant adverse consequences. …

Despite the distinctions throughout his paper between ‘rights’ and mere ‘interests’ that can be trumped by parental authority, Mazor cannot circumvent the hard reality of the integral role of the prepuce in normal sexual functioning. Speculative gestures at hazily-considered ‘levels’ of ‘expected pleasure’ (averaged across whole populations of men) fall flat in the face of what is actually known about the foreskin, including its protective, erogenous and functional-mechanical properties. Any parental decision to remove this structure in its healthy state risks numerous adverse consequences for the child—if not by organic harm as an infant, then as a man suffering from iatrogenic sexual dysfunction.

6. Commentary on Mazor (2): David Benatar, Evaluations of circumcision should be circumscribed by the evidence

Benatar objects to Mazor’s analysis and conclusions on the grounds that he exaggerates the harm of circumcision with respect to sexuality and sexual functioning, and underestimates the potential benefits, particularly the evidence from Africa that it may reduce the risk of contracting HIV during unprotected intercourse with an infected female partner. He concludes: “The new evidence does not warrant a stronger conclusion—that parents ought to circumcise their sons or that routine neonatal circumcision should be recommended—but it certainly provides parents with further evidence for counting protection against HIV as a benefit of circumcision. Dr Mazor is correct that we need to attend to such benefits and not dismiss them by appealing to the rights of a child. If circumcision is a net benefit to a child, parents do not violate his rights to bodily integrity or self-determination by circumcising him. Careful attention to (the evidence for) the costs and benefits of circumcision to the child himself is thus essential.”

7. J. Steven Svoboda and Robert Van Howe, Out of step: Fatal flaws in the latest AAP policy report on neonatal circumcision

ABSTRACT The American Academy of Pediatrics recently released a policy statement and technical report on circumcision, in both of which the organisation suggests that the health benefits conferred by the surgical removal of the foreskin in infancy definitively outweigh the risks and complications associated with the procedure. While these new documents do not positively recommend neonatal circumcision, they do paradoxically conclude that its purported benefits ‘justify access to this procedure for families who choose it,’ claiming that whenever and for whatever reason it is performed, it should be covered by government health insurance. The policy statement and technical report suffer from several troubling deficiencies, ultimately undermining their credibility. These deficiencies include the exclusion of important topics and discussions, an incomplete and apparently partisan excursion through the medical literature, improper analysis of the available information, poorly documented and often inaccurate presentation of relevant findings, and conclusions that are not supported by the evidence given.

8. Douglas Diekema, The AAP Task Force on Neonatal Circumcision: a call for respectful dialogue [Reply to Svoboda and Van Howe]

The AAP Task Force was invited to reply to this critique, but ignored the substantive criticisms raised here (as well in the letter from European, British and Canadian paediatricians), and confined itself to complaints about being misunderstood and demands for greater respect. To be fair, it must be said that the AAP’s 2010 policy statement does not recommend circumcision, and might well have been announced with the headline: “Circumcision not recommended: AAP policy statement”. A short extract from the full reply follows.

The American Academy of Pediatrics (AAP) Task Force on Circumcision published its policy statement and technical report on newborn circumcision in September 2012. Since that time, some individuals and groups have voiced objections to the work of the Task Force, while others have conveyed their support. The AAP task force is pleased that the policy statement and technical reports on circumcision have stimulated debate on this topic and welcomes respectful discussion and dialogue about the scientific and ethical issues that surround neonatal circumcision. We believe this is a complex issue that does not lend itself to simplistic solutions. The Task Force encourages those of all viewpoints to contribute to a vibrant, thoughtful and respectful evidence-based dialogue. We appreciate that the free exchange of competing ideas is a necessary component of scientific discovery. We also recognise that all clinical decisions carry ethical dimensions and that a respectful and thoughtful dialogue about these issues is important. However, the Task Force also feels strongly that this debate and the academic literature are demeaned when those with an ideological agenda disseminate inaccurate information, misapply scientific principles, make accusations that are unsupported, communicate in a vitriolic tone, and attempt to discredit and mischaracterise alternative views and those who hold them.

9. Reinhard Merkel and Holm Putzke, After Cologne: male circumcision and the law. Parental right, religious liberty or criminal assault?

ABSTRACT Non-therapeutic circumcision violates boys’ right to bodily integrity as well as to self-determination. There is neither any verifiable medical advantage connected with the intervention nor is it painless nor without significant risks. Possible negative consequences for the psychosexual development of circumcised boys (due to substantial loss of highly erogenous tissue) have not yet been sufficiently explored, but appear to ensue in a significant number of cases. According to standard legal criteria, these considerations would normally entail that the operation be deemed an ‘impermissible risk’ — neither justifiable on grounds of parental rights nor of religious liberty: as with any other freedom right, these end where another person’s body begins. Nevertheless, after a resounding decision by a Cologne district court that non-therapeutic circumcision constitutes bodily assault, the German legislature responded by enacting a new statute expressly designed to permit male circumcision even outside of medical settings. We first criticise the normative foundations upon which such a legal concession seems to rest, and then analyse two major flaws in the new German law which we consider emblematic of the difficulty that any legal attempt to protect medically irrelevant genital cutting is bound to face.

10. Matthew Johnson, Religious circumcision, invasive rites, neutrality and equality: Bearing the burdens and consequences of belief

ABSTRACT The decision of the German regional court in Cologne on 26 June 2012 to prohibit the circumcision of minors is important insofar as it recognises the qualitative similarities between the practice and other prohibited invasive rites, such as female genital cutting. However, recognition of similarity poses serious questions with regard to liberal public policy, specifically with regard to the exceptionalist treatment demanded by certain circumcising groups. In this paper, I seek to advance egalitarian means of dealing with invasive rites which take seriously cultural diversity, minimise harm and place responsibility for the burdens and consequences of beliefs upon those who promote practices.

11. Dena Davis, Ancient rites and new laws: how should we regulate religious circumcision of minors?

ABSTRACT The ancient practice of metzitzah b’peh, direct oral suction, is still practiced by ultra-Orthodox Jews as part of the religious rite of male newborn circumcision. Between 2000 and 2011, 11 children have died in New York and New Jersey, following infection by herpes simplex virus, presumably from infected practitioners. The City responded by requiring signed parental consent before oral suction, with parents being warned of the dangers of the practice. This essay argues that informed consent is not an appropriate response to this problem. An outright ban would a better response to a practice that is dangerous to children, but might prove unconstitutional under New York State law.

12. Hanoch Ben Yami, Circumcision: What should be done?

ABSTRACT I explain why I think that considerations regarding the opposing rights involved in the practice of circumcision—rights of the individual to bodily integrity and rights of the community to practice its religion—would not help us decide on the desirable policy towards this controversial practice. I then suggest a few measures that are not in conflict with either religious or community rights but that can both reduce the harm that circumcision as currently practiced involves and bring about a change in attitude towards the practice, thus further reducing its frequency. These measures are the compulsory administration of anaesthetics; the banning of the metzitzah b’peh; and having an upper age limit of a few months on non-therapeutic circumcision of minors. I conclude with general considerations on why the steps taken towards the reform of circumcision should be moderate.

13. Robert Darby, The child’s right to an open future: Is the principle applicable to non-therapeutic circumcision?

ABSTRACT The principle of the child’s right to an open future was first proposed by the legal philosopher Joel Feinberg and developed further by bioethicist Dena Davis. The principle holds that children possess a unique class of rights called rights in trust—rights that they cannot yet exercise, but which they will be able to exercise when they reach maturity. Parents should not, therefore, take actions that permanently foreclose on or pre-empt the future options of their children, but leave them the greatest possible scope for exercising personal life choices in adulthood. Davis particularly applies the principle to genetic counselling, arguing that parents should not take deliberate steps to create physically abnormal children, and to religion, arguing that while parents are entitled to bring their children up in accordance with their own values, they are not entitled to inflict physical or mental harm, neither by omission nor commission. In this paper, I aim to elucidate the open future principle, and consider whether it is applicable to non-therapeutic circumcision of boys, whether performed for cultural/religious or for prophylactic/health reasons. I argue that the principle is highly applicable to non-therapeutic circumcision, and conclude that non-therapeutic circumcision would be a violation of the child’s right to an open future, and thus objectionable from both an ethical and a human rights perspective.

14. J. Steven Svoboda, Circumcision of male infants as a human rights violation

ABSTRACT Every infant has a right to bodily integrity. Removing healthy tissue from an infant is only permissible if there is an immediate medical indication. In the case of infant male circumcision there is no evidence of an immediate need to perform the procedure. As a German court recently held, any benefit to circumcision can be obtained by delaying the procedure until the male is old enough to give his own fully informed consent. With the option of delaying circumcision providing all of the purported benefits, circumcising an infant is an unnecessary violation of his bodily integrity as well as an ethically invalid form of medical violence. Parental proxy ‘consent’ for newborn circumcision is invalid. Male circumcision also violates four core human rights documents—the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the Convention Against Torture. Social norm theory predicts that once the circumcision rate falls below a critical value, the social norms that currently distort our perception of the practice will dissolve and rates will quickly fall.

15. Robert S. Van Howe, Infant circumcision: The last stand for the dead dogma of parental (sovereignal) rights

ABSTRACT John Stuart Mill used the term ‘dead dogma’ to describe a belief that has gone unquestioned for so long and to such a degree that people have little idea why they accept it or why they continue to believe it. When wives and children were considered chattel, it made sense for the head of a household to have a ‘sovereignal right’ to do as he wished with his property. Now that women and children are considered to have the full complement of human rights and slavery has been abolished, it is no longer acceptable for someone to have a ‘right’ to completely control the life of another human being. Revealingly, parental rights tend to be invoked only when parents want to do something that is arguably not in their child’s best interest. Infant male circumcision is a case in point. Instead of parental rights, I claim that parents have an obligation to protect their children’s rights as well as to preserve the future options of those children so far as possible. In this essay, it is argued that the notion that parents have a right to make decisions concerning their children’s bodies and minds—irrespective of the child’s best interests—is a dead dogma. The ramifications of this argument for the circumcision debate are then spelled out and discussed.

Source: Journal of Medical Ethics, Vol 39 (7), July 2013

Abstracts available for free; full articles may be purchased or accessed through a subscribing library

See also:  Circumcision: A medical or a human rights question?

Is circumcision of male infants ethnically permissible? Further response to Mazor

Following the special issue of the Journal of Medical Ethics special issue on circumcision, the Jewish film maker Eliyahu Ungar-Sargon has published a detailed, courteous but hard-hitting critique of the arguments advanced by Joseph Mazor. His conclusion is as follows: “While Dr Mazor’s argument at first glance appears to be somewhat compelling, upon closer examination it really falls apart. As I’ve sought to demonstrate above, he doesn’t actually prove that bodily integrity and self-determination are mere interests in the case of infant circumcision. Moreover, there are serious problems with the manner in which he weighs the various conflicting interests to arrive at his conclusions. Parenting is an ethical minefield and I’m willing to concede that under certain circumstances the child’s rights to bodily integrity and self-determination can be overridden. But nothing in Mazor’s argument convinces me that being born male is a sufficiently compelling circumstance to justify infant circumcision."

ABSTRACT This is a response to Dr Joseph Mazor’s paper “The child’s interests and the case for the permissibility of male infant circumcision.” I argue that Dr Mazor fails to prove that bodily integrity and self-determination are mere interests as opposed to genuine rights in the case of infant male circumcision. Moreover, I cast doubt on the interest calculus that Dr Mazor employs to arrive at his conclusions about circumcision.

Source: Eliyahu Ungar-Sargon. On the impermissibility of infant male circumcision: A response to Mazor. Journal of Medical Ethics, on-line first, 6 September 2013

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