Personal freedom and religious tradition: German MP defends Cologne

circumcision judgement


German-Turkish Green MP defends Cologne circumcision judgement and criticises politicians for caving in to religious pressure

The following op-ed 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.

Freedom is more important than tradition

The Federal Government wants to legalise circumcision of boys in Germany. This Thursday the Bundestag debated the first reading of the Bill. The question is whether a secular State should align its laws with religious traditions?

by Memet Kilic

The discussion that began with the Cologne judgement on circumcision has ended with a cutting short (a circumcision) of the debate. The Federal Government wants to settle the matter quickly with a new law to be passed this year. Despite understanding the sensitivities regarding Jewish life and culture, it surprises me that the preoccupation with freedom of religion and parental responsibility have dominated the debate to such an extent. The child’s welfare, universally applicable human rights, and the relationship of the secular state to religious communities have not been given sufficient consideration.

Should it not be reasonable for religious communities in a modern, secular state to reconsider their traditions and, in given cases, to adapt them to our constitutional order? Is it not the case that basic rights and freedoms determine the rules for living together in our heterogeneous society, not the customs and traditions of particular sub-cultures?

Discussion of this issue is taking place more widely than Germany.

The Federal Government feels it is under pressure from the criticism that Germany is the only country that is questioning this Jewish tradition. The accusation is unfair. Intensive discussions about the permissibility of circumcision are taking place in many European and other countries. In only one European country – Sweden – is there legislation regulating circumcision of boys, a law passed in 2001. As we learn from Sweden, public debate has not been restrained by legal regulation of the practice. To give one instance, the Chairman of the Ethics Committee of the Swedish Paediatric Association has recommended a general ban on all forms of circumcision of boys that are not medically indicated.

In early 2012 the Finnish Minister of Justice lodged a bill to place circumcision under strict conditions. In Norway, political discussion of this topic was sparked after a two-week-old infant died following ritual circumcision in May 2012. Meanwhile, members of the Norwegian coalition party Senterpartiet have put forward a bill to ban religiously-motivated circumcisions. In Denmark circumcision may be performed only after information about the risks has been provided by a doctor or in the presence of a doctor. There is active discussion of these questions in the United Kingdom. Increasingly, the legal community views circumcision as a violation of the European Convention on Human Rights.

Circumcision is not the interests of the child

In Austria, circumcision falls under a reservation and may only be performed by a qualified medical practitioner. In Switzerland, although the law prohibits injuries to the female genitalia only, there is a lively discussion about the conditions under which male circumcision should also be prosecuted as a crime. Legal experts are not united on the question of whether parental consent can legitimize bodily injury to a child and whether the criterion of “vulnerability” or defenceless is met. A Dutch court was criticised in 2007 because it had failed to justify why circumcision should not be seen as a severe form of bodily injury (in violation of Article 3 of the European Convention on Human Rights). In the same year, a juvenile court judge in Zutphen held that circumcision was not in the interests of the child, because the procedure was irreversible and not medically necessary.

Customs that are harmful to health

With the ratification of the United Nations Convention on the Rights of the Child in 1992 the primacy of the child’s welfare was enshrined in a human rights treaty for the first time. The Convention obliges signatories to abolish traditional customs which are harmful to the health of children. On this basis, in 2000 the Federal Government enshrined the right to a violence-free upbringing in the German civil code. I fear that we are risking these achievements if we set aside the right to physical integrity in favor of parental responsibility and adult freedom of religious practice.

The Bill is not religion-neutral

If we justify infant circumcision on the basis of parental responsibility, on what basis will parents be restrained from forbidding their children to take swimming lessons at school? In that case, as well as with circumcision, parents are convinced that they are acting for the good of their children. The Bill is manifestly not religion-neutral. Infants under six months of age may be circumcised without anesthesia and without the presence of a physician, despite the fact that both are considered necessary in circumcision for non-religious reasons. In a secular state governed by rule of law, religions are not entitled to define or limit universally valid human rights. Freedom of religion is not an absolute right, but a part of a general freedom of belief. Article 2 of our Constitution gives every individual a right to physical integrity and to free personal development. These rights are not negotiable.

German original in Frankfurter Allgemeine Zeitung, 22 November 2011

Memet Kilic is a member of the Bundestag and spokesman on immigration and integration issues for the Greens fraction, Group 90.

Highlights from the Cologne judgement

The right of the parents to raise their child in their religious faith does not take precedence over the right of the child to bodily integrity and self-determination.

The act of the defendant was not justified by consent, either. Consent by the four-year-old was not given and could not be given due to a lack of intellectual maturity. The consent of the parents was given, but could not justify the infliction of bodily harm.

Circumcision of a boy unable to consent to the operation is not in accordance with the best interests of the child even for the purposes of avoiding a possible exclusion from their religious community and the parental right of education. The fundamental rights of the parents in Art. 4(1) and Art. 6(2) of the Basic Law (GG) are restricted by the fundamental right of the child to bodily integrity and self-determination

According to s 1627 1st sentence of the German Civil Code (BGB), the right of care covers only educational measures which are in the best interests of the child. According to the prevailing opinion within academic commentary … the circumcision of a boy unable to consent to the operation is not in accordance with the best interests of the child even for the purposes of avoiding a possible exclusion from their religious community and the parental right of education.

The principle of proportionality must be taken into account when striking the balance between these rights. The infringement of the bodily integrity caused by a circumcision for purposes of religious education is unreasonable in the sense of proportionality, even if necessary to that end, because of the value judgment expressed in s 1631(2) 1st sentence BGB. Moreover, the circumcision changes the child's body permanently and irreparably. This change runs contrary to the interests of the child in deciding his religious affiliation independently later in life.

Relevant provisions of German Civil Code

Section 1627 Exercise of parental custody:  The parents must exercise the parental custody on their own responsibility and in mutual agreement for the best interests of the child. In the case of differences of opinion, they must attempt to agree.

Section 1631 Contents and limits of care for the person of the child

(1) The care for the person of the child includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode.

(2) Children have a right to non-violent upbringing. Physical punishments, psychological injuries and other degrading measures are inadmissible.

(3) The family court is to support the parents, on application, in exercising care for the person of the child in suitable cases.

Landgericht Koln. 7 May 2012 Urteil 151 Ns 169/11. Available at URL: nrwe/lgs/koeln/lg_koeln/j2012/151_Ns_ 169_11_Urteil_20120507.html. English translation at resources/ilm/CircumcisionJudgment LGCologne7May20121.pdf

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