by Gerald Dworkin
Very recently the operation has come in for legal scrutiny by courts and legislatures in Germany. In 2010 a young Tunisian immigrant brought her four year old son to Cologne University Hospital. He was suffering from a postoperative hemorrhage after a circumcision had been performed by a surgeon two days before. Surgeons stopped the bleeding. The mother who appeared to be in shock mentioned a circumcision but was confusing about who performed it, and whether it was her decision or her husband's. The staff called the police who took testimony from the ER personnel. This lead to a trial charging the surgeon with criminal bodily harm.
The District Court judge acquitted on the grounds that there was no evidence of malpractice and circumcision was protected by parental consent and the parents religious freedom. A Court of Appeals overruled the District Court arguing that parental rights are limited by the best interests of the child, and rights of the child to bodily integrity. Nevertheless the court accepted the acquittal of the surgeon on the grounds that he had good reason to believe that what he was doing was legal.
The decision stirred up an enormous controversy in the media and the public. Clearly, the decision to make illegal a Jewish religious obligation by a German court was considered outrageous. Chancellor Merkel petitioned the Bundestag to take immediate action, and in an emergency session voted to draft legislation that would ensure the legality of circumcision.
( For more–much more– on the history and the nitty-gritty legal details see H. Pekarek, “Germany's Circumcision Indecision– Anti-Semitism or Legalism?“)
I
I am interested in the legal issues only as a special case of what the limits of the criminal law ought to be. The issue I want to discuss is does the state have the right to limit circumcision, and, if so, ought it to do so? Note that these are distinct issues. Not everything that one might think is within the legitimate scope of state interference ought to be legislated. One might think that many lies are both wrong and harmful, and so something that a state has the right to consider making illegal, without thinking that it would be a good idea to make all lying a criminal offense. This might be because one thought that it would be impractical to do so, or that it would be destructive of many relationships to do so, or that it would over-burden the court system, or that the effects on personal relationships would be worse than leaving people free to lie. But all of these reasons for not legislating are consistent with believing that the state would not be over-stepping its legitimate powers were it to make lying a crime.
II
It is clear that circumcision, unlike say my wearing ugly shoes, is something that raises questions about whether it might be regulated. It is something that is done to another living being. It is something that invades the body, and removes part of the body, of such a being. It is something that can, if precautions are not taken, cause pain. It is other affecting, and possibly harmful, behavior. Like any other surgical procedure it carries risks of infection, bleeding, and surgical error.
But other surgical procedures are legal, e.g. open-heart surgery. Why aren't they considered bodily harm? They are–unless they are consented to. What would otherwise be battery is made legal by the consent of the person on whom they are performed. Obviously, things are more complicated than this. Suppose the person is unconscious, or mentally incompetent, or a minor?
Then we have some version of substituted judgment, e.g. a relative who can consent. Or it is treated as an emergency situation and the idea is the person would consent if he were conscious.
So consent renders what would otherwise be a harmful assault a legitimate procedure. There are still more complications. What about another infamous German case– the so-called “cannibal” case. (What is it with the Germans anyway?) For the gruesome details, see Armen Meiwes's entry in Wikipedia.
Here the issue is whether as a matter of public policy we ought to allow people to volunteer to be consumed. Some objections are practical. How would we determine there was consent? How would we determine the consent was informed and the consenter competent? Some of them are theoretical. There are justified exceptions to the legal maxim volenti fit injuria (there is no harm to those who consent).
Let me digress back onto the subject at hand. It is clear that the infant cannot consent to circumcision. The issue then becomes should parents have the right to consent for the infant. Perhaps it would serve clarity to speak of “permission” rather than consent in the case where the authorizer is someone other than the person who is going to be affected. But since the standard term in the literature is “consent” I shall stay with the term.
Obviously, for many medical procedures which have the prospect of improving the welfare of the infant we should allow someone to have the ability to consent for the infant–perhaps in some cases not the parents but a guardian. But someone must be able to act for the benefit of the infant.
The issue now becomes is circumcision the kind of procedure that parents should have the right to consent to. There is actually a presupposition that has not been made explicit to this point. Is circumcision a medical procedure at all? If we think of a medical procedure as 1) performed by medically trained personnel and 2) having a medical purpose, then it is arguably not. For it can be performed by people who have no medical training and the purpose is not medical in nature–it is religious. Of course, if the law made circumcision illegal it could be framed so as to include anyone who performs the procedure or it could make it legal only if performed for a legitimate medical purpose. I ignore this complication in what follows.
Here is the argument against giving parents the right to consent to circumcision. First, it is an invasion of the infants body and the removal of a part of that body. Second, the procedure carries with it some risks–ranging from infection to ( in very rare cases) the need to amputate the penis.
Third, there are long-range bad health consequences of circumcision ranging from loss of penile sensitivity to erectile disfunction. Third, the operation is irreversible making it impossible for the later adult to decide for himself what state of his penis he would prefer. Fourth, the empirical evidence is inconclusive as to whether medical benefits outweigh medical harms. The American Academy of Pediatrics has gone back and forth on this issue in a number of reports. In the 1980's they found there were no medical benefits to the procedure. In the 90's they revised their positio saying there were potential benefits. The most recent report in 1999 asserts that medical benefits outweigh medical harms but that they are not sufficient to justify routine circumcision. The most recent statistics on circumcision show a decline in 2010 to 58% from 64% in 1979. 70% of all circumcisions worldwide are in Muslim children. For what it's worth the rate in Finland is zero!
For the recent report of the American Academy of Pediatrics, and responses to it, see http://pediatrics.aappublications.org/content/130/3/585/reply#pediatrics_el_54341
As is the case with almost all such arguments there are two issues. First, whether the premises are true–or true enough– to support an argument. Second, whether the conclusion follows –or is supported by–the premises. I want to assume, for the sake of argument, that the premises are true. Even so, the conclusion that circumcision is within the scope of possible state coercion does not follow. For all of the premises might be true and yet the parents have a right to have the procedure performed.
How can that be? First, there might be some value that is promoted by circumcision that is so important that we should give parents the liberty to consent to the procedure. Note that the range of consequences considered in the argument all have to do with health in a broad sense of that term. There is no reference to values such as the attachment of the child to his family and religious community, the right of the parents to exercise the rituals of their religion, the right of parents to determine for themselves how to raise their children ( including what risks the child should be exposed to).
Given the importance of such values and rights the issue becomes one of determining how these should be traded off , or ranked, or given weights. How should the value for the child of attachment to his religious community being impaired weigh against the value to the child of his not being able to determine for himself at a later point how his body should be? How should the right to make decisions about the health care of one's child be limited? Think, for example, of the fact that we do not allow Jehovah's Witnesses to deny their infants blood transfusions. We let parents impose other risks on infants, e.g. bringing them along when driving to the supermarket. Where do we draw the line?
Does it matter what the motivations of the parents are? Typically they have been assumed to be religious or cultural. Suppose that the motivation for some parent is to reduce the amount of infant masturbation? Suppose it is aesthetic? Would we allow Chinese parents to bind the feet of their children? Suppose it is to make sex less important for the future adult by reducing pleasure?
Is the normal right of any person to be free of bodily invasion and the removal of part of his body, — given the irreversible nature of the removal, and that such a person is not capable of giving consent to the procedure– outweighed by religious or cultural concerns of the infant's parents?
A clear case where we believe that the answer to the above question is “no” is clitoredectomy. Here we believe that the harms to the female child are by no means de minimus. Indeed we think them grave.
A clear case where we believe it is permissible–or at least not worth regulating– is the right of a parent to have their infants ears pierced. In addition to being de minimis the missing tissue grows back soon.
Suppose we think that there is no conclusive evidence for medical benefit or harm and the only reason is religious. Consider a Christian sect which had as part of its ritual infant flagellation. By making the child suffer it bring hims into harmony with Christ on the cross. Only one stroke a week and not hard enough to cause the child more than a few painful moments. Should we allow this? If not, how does it differ from the circumcision procedure?
One way of thinking about the issue is to assume that adults have the right to consent to the procedure. Since infants will become adults why allow parents to have the operation performed on a person who cannot consent? The claimed loss to the growing child of exclusion from the religious community to which he belongs may, as a matter of contingent fact, also be mainly at the time when the child can consent. It is quite unclear to me whether there is evidence that children not circumcised until they are, say, 13 would be regarded as “strangers” to their community. Are children of Jehovah's Witnesses who receive blood transfusions against the will of their parents regarded in this way?
Shelly Kagan has suggested to me the following counter-argument to the above. Suppose that parents believe– and are justified in believing– that their child will want to be circumcised when he is of an age to consent. And assume that having the operation then will be more painful, will involve a more traumatic anticipation, and a more difficult recovery period. Parents can avoid these harms by performing the operation now even though the infant cannot consent. So the procedure should be legally available.
The problematic premise is the assumption that parents can know what their child will want 13 years later.. First, there is the difficulty of having sufficient evidence. Can one know that the child will want to be a member of the religious community? Or have an interest in looking like his father in one respect? Second, if one can know is it because of pressures that the child cannot easily resist. One knows because one ensures that the outcome is what one wants. If so, the basis for the knowledge is inconsistent with the spirit of the original argument.
My tentative view is that, subject to the usual questions about how effective such a ban will be –will we have “speakeasies” for circumcision?– we should not allow either medical personnel or individuals to perform the procedure absent clear medical reasons.
If I am wrong and the most reasonable solution is to allow the procedure then I believe that measures of harm reduction should be encouraged. For example, requiring that all persons who perform the procedure have relevant medical training. That certain ritual procedures, e.g. the sucking of the blood from the wound, a procedure used by some Orthodox Jews, which have produced cases of herpes, be forbidden. Pain reduction should be required. If the operation does reduce sexual sensitivity –the evidence on this is mixed– and there are procedures such as so-called “loose” circumcisions which preserve some of the sensitivity, these should be required.