Letter to Minister of Justice regarding criminality of male neonatal circumcision in Canada

Letter from Margaret A. Somerville to Pierre Blaise, Minister of Justice, January 28, 1993.

Margaret A. Somerville Director McGill Centre for Medicine, Ethics and Law 3690 Peel Street Montreal, Quebec, H3A 1W9 Canada January 28, 1993

The Honourable Pierre Blais Minister of Justice and Attorney General of Canada Ottawa, Ontario K1A 0H8

Dear Minister,

I am in receipt of a letter of December 15, 1992, from the former Minister of Justice, the Honourable A. Kim Campbell, regarding infant circumcision, a matter on which we have been in correspondence. With respect, this letter has not assisted me in finding a clear justification for male infant circumcision---in fact, it raises further difficulties. My comments in this letter are in response to statements in the Honourable Kim Campbell's letter.

Whether or not an act which "technically" offends the Criminal Code will be prosecuted under it, depends on whether, first, the act in question falls within what we would regard as a social exception. An act that is considered to be contrary to public policy cannot be justified pursuant to its being regarded as a social exception and any act that involves more than de minimis harm is likely to offend public policy, unless it is otherwise justified, for instance, a therapeutic aim is involved and there is informed consent. In short, social exception and de minimis harm are linked concepts.

The statement in the Minister's letter that "deliberately hitting someone is illegal but deliberately bumping into them on the bus is not illegal" can be queried. Usually, deliberately bumping into a person on the bus would prima facie be an assault (unintentionally doing so is almost certainly within a social exception). But whether or not such an assault would be prosecuted is a matter of whether the harm involved is so de minimis that it does not merit prosecution, which is often the case. Therefore, this example is not analogous to infant circumcision (and does not indicate whether or not this constitutes an offence, and if so, whether or not it should be prosecuted), if the latter involves more than de minimis harm.

The Minister refers in her letter to my article in the McGill Law Journal in which I suggest, in the conclusion, that some non-therapeutic interventions on competent adult persons, which in practice are not considered contrary to public policy (donations of organs for transplantation or cosmetic surgery), despite their involving more than de minimis harm, could be justified by regarding informed consent and therapeutic aim as alternative rather than cumulative justifications of them within the Criminal Code. Contrary to the way in which the Minister may, from her letter, have interpreted my proposal, this would mean that for those incompetent to consent for themselves, which necessarily includes all infants, a non-therapeutic intervention that involves more than de minimis harm would not fall within any exception justifying it within the Criminal Code. This, of course, is exactly the difficulty faced with respect to justification of male circumcision. In the vast majority of cases, this is not generally regarded as therapeutic, except possibly at a very tenuous level. Indeed, opponents of male circumcision regard it as the antithesis of therapy.

Further, with respect, I disagree that male circumcision involves only de minimis harm, as the Minister indicates in her letter. An analogous example may make this clear. let us suppose that there is a new group in Canada which decides that, shortly after birth, the right earlobe of all children born into the group will be removed in order to identify them as belonging to that group. I believe that this would be prohibited under our Criminal Code as it currently stands. It would involve more than de minimis harm and as such it would not fall within any social exception and would be regarded as contrary to public policy. It would be an assault with wounding which was not justified by any therapeutic aim, the only justification which would seem to be potentially relevant. And, yet, this procedure may well be less harmful to the children subjected to it than is male circumcision to the children subjected to that, which indicates that de minimis harm is not an appropriate justification of male circumcision.

There is and needs to be a great deal of sympathy for the maintenance of tradition and for freedom of religious belief (and clearly male circumcision is very strongly connected with both of these concerns). But we need to be very careful about our justification of it and, concurrently, our condemnation of female circumcision (with which condemnation I strongly agree), if we are not to run the risk of acting in an inherently inconsistent manner and simply on the basis that what we have always done is acceptable (because we have always done this) and that customs and traditions which are strange to us (but which may [be] no more harmful or less harmful than those we accept) are unacceptable.

Over the years, because of my work in medicine, ethics and law, I have been approached on numerous occasions about the issue of male infant circumcision. I am finding it more and more difficult to justify this. In particular, the allegation that it constitutes child abuse needs to be taken very seriously, and I do not find it easy to explain why this is not the case. Further, in this respect we need to be aware of recent research that shows that pain caused to infants (and this is true of all those unable to describe verbally their pain) is grossly under-rated. Moreover, under the analysis of the law which I propose in my article, and to which the Minister refers in her letter, male circumcision would not be totally banned. Rather circumcision of those persons unable to consent for themselves (which would, of course, include all infants) would not be allowed under the Criminal Code as it presently stands.

Yours sincerely, (signed) Margaret A. Somerville, AM, FRSC Gale Professor of Law, Professor Faculty of Medicine; Director McGill Centre for Medicine, Ethics and Law

Citation:

Margaret A. Somerville. Letter to Pierre Blais, Minister of Justice. January 28, 1993.

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