by Gerald Dworkin
In this country 58% of male infants are operated upon shortly after birth. A part of the body is cut off and the operation usually does not use an anaesthetic. There are three relevant features which prompt ethical reflection. The infants cannot consent to the operation. There is no convincing evidence that the operation promotes the health of the infant. The operation is usually motivated by cultural reasons–usually of a religious nature. The operation, of course, is circumcision.
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.