With the proclamation of the South African Children’s Act in April 2010, South African boys now have a significant level of legal protection against unwanted circumcision. The act gives children the right not to be subjected to social, cultural and religious practices detrimental to their well-being, and prohibits circumcision of male children under the age of sixteen except in cases where there is a valid religious reason, or if the operation is medically necessary for therapeutic purposes. Although these are significant loopholes, the act still gives South African boys considerably greater legal protection than is enjoyed by boys in Australia or most other countries.
The relevant sections of the act are printed below.
Best interests of child standard
7. (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely –
… (l) the need to protect the child from any physical or psychological harm that may be caused by (i) subjecting the child to maltreatment, abuse, neglect, exploitation* or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person.
Best interests of child paramount
9. In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.
Social, cultural and religious practices
12. (1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being.
(8) Circumcision of male children under the age of 16 is prohibited, except when –
(a) circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed; or
(b) circumcision is performed for medical reasons on the recommendation of a
medical practitioner.
(9) Circumcision of male children older than 16 may only be performed –
(a) if the child has given consent to the circumcision in the prescribed manner;
(b) after proper counselling of the child; and
(c) in the manner prescribed.
(10) Taking into consideration the child’s age, maturity and stage of development, every male child has the right to refuse circumcision.
* NOTE: The Act defines “exploitation”, in relation to a child, as “all forms of slavery or practices similar to slavery, including debt bondage or forced marriage; sexual exploitation; servitude; forced labour or services; child labour prohibited in terms of section 141; and the removal of body parts."
As you can see, although this is a great step forward, it is not without problems. For a start there is gross gender discrimination, in that girls are given blanket protection against any kind of harm, but boys have to make do with qualified and limited protection. The exception for “religious purposes” allows practising Jewish and Muslim parents to circumcise without constraint, but the failure to specify the religions accorded the exemption provides a loophole for anybody who wants to invent his own religion – as occurred in a recent Canadian case, where the father decided that the religion he had just invented allowed him to circumcise his four-year-old. Even more seriously, the reference to “medical reasons” fails to define what they are. If what is meant is a situation where circumcision is necessary to treat an injury, deformity or disease that has failed to respond to conservative treatment after reasonable efforts, that is one thing, and the provision will provide a significant level of protection.
If, on the other hand, what is meant is circumcision performed in the belief that it will reduce the risk of contracting diseases to which the child may be exposed at some later date (i.e. prophylactic or precautionary circumcision), that is quite another, and the provision will provide no protection at all against the circumcision promoters. Most non-religious circumcision is prophylactic circumcision, but it should not be confused with therapeutic circumcision (i.e. treatment for an existing problem). It is significant that in its paper on the legal status of circumcision of male minors the Tasmania Law Reform Institute is careful to explain that prophylactic circumcision is not therapeutic.
Still, South Africa is way ahead of Australia and most developed nations in making some attempt to crack this difficult nut.
In a letter dated 23 June 2011, the South African Medical Association has stated that it does not support the practice of circumcision of infants as a means of preventing HIv transmission and that it considers circumcision of infants to be both unethical and illegal. The letter was signed by Ms Ulundi Behrtel, Chairperson of the Human Rights, Law and Ethics Committee. The full text of the letter follows:
23 June 2011
Mr Dean Ferris, Co-Director
National Organisation of Circumcision Information Resource Centres
South Africa
Dear Mr Ferris
CIRCUMCISION OF BABIES FOR PROPOSED HIV PREVENTION
We refer to the above matter and your email correspondence of 16 February 2011. The matter was discussed by the members of the Human Rights, Law & Ethics Committee at their previous meeting and they agreed with the content of the letter by NOCIRC SA. The Committee stated that it was unethical and illegal to perform circumcision on infant boys in this instance. In particular, the Committee expressed serious concern that not enough scientifically-based evidence was available to confirm that circumcisions prevented HIV contraction and that the public at large was influenced by incorrect and misrepresented information. The Committee reiterated its view that it did not support circumcision to prevent HIV transmission. We trust that you will find this in order.
Yours faithfully
Ms Ulundi Behrtel
Head: Human Rights, Law & Ethics unit
Obo Chairperson: Human Rights, Law & Ethics Committee
SA Medical Association
A pdf of the letter is available on request through the contact form.