Non-therapeutic male circumcision should be unlawful in Canada

McGill June 10, 1992

The Honourable A. Kim Campbell Minister of Justice and Attorney General of Canada Ottawa, Ontario K1A OH8

Dear Minister,

I have been sent a copy of your letter, dated May 6, 1992, to Dr. Tom Anderson concerning the legality of both male and female circumcision.

This is a matter which has been brought to my attention on several occasions and with much greater frequency of late. I have, also, in the past, adopted the position taken in your letter--that male circumcision should be regarded as legal and female circumcision as illegal, in particular, under the Criminal Code--but, I have some difficulty in explaining this position and do not find that this difficulty is resolved by your letter. Your letter states that "there are no federal or provincial laws dealing expressly with the legality of male circumcision," and, at least implies that, therefore, this procedure is legal. But the same is true for female circumcision and, yet, as your letter, rightly states, this would be considered illegal under the Criminal Code.

May I suggest that any wounding, and clearly circumcision involves this, is "prima facie" illegal, unless it can be justified. Initially, a therapeutic aim was the sole justification for such an intervention. More recently, it has been argued an alternative justification is possible, in that, some non-therapeutic interventions (those that are not contrary to public policy) are legal with the informed consent of an adult (for the record, I have written on this elsewhere, see Somerville, "Medical Interventions and the Criminal Law: Lawful or Excusable Wounding?" (1980) 26 McGill Law Journal, (1) 82-96).

In the case of a male infant such consent is not a possibility, and neither, in the vast majority of cases, could the intervention be considered therapeutic. This means that one would have to find other justification for the intervention. The only possibility, which comes to mind, would be that the harm involved is de minimis and, therefore, should not to be taken into account by the law. I am not sure, however that we can any longer claim this with regard to male circumcision. Possibly, an argument along the lines of respect for religious and cultural freedom of the parents provided that the intervention is, indeed, of minimal harm, could be considered. But again, I am uncertain that this would justify wounding that involves irreversible consequences, and the issue remains of whether only minimal harm is involved.

There are also some forms of female circumcision, which would be no more harmful than male circumcision, and, possibly, less harmful. However, I agree with you that these, also, should be prohibited. But in this case, it makes it even more difficult to determine why we would continue to regard male circumcision as legal and allow it.

As I have many inquiries on this matter and because I have also, been receiving a great deal of literature from groups who are opposed to male circumcision, I would be grateful for any help that your Department were able to provide me with, regarding this matter.

Yours sincerely, [signed] Margaret A. Somerville, AM FRSC Gale Professor of Law, Professor Faculty of Medicine: Director McGill Centre for Medicine, Ethics and Law [Montreal, Quebec]

Citation:

Margaret A. Somerville. Letter to A. Kim Campbell, MP, Minister of Justice. June 10, 1992.

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