THE CIRCUMCISION REFERENCE LIBRARY





INFANT MALE CIRCUMCISION
A Violation of the Canadian Charter of Rights and Freedoms
 
ARIF BHIMJI, MD

Toronto, January 2000

 

Acknowledgement

The author wishes to thank those who have helped in the writing of this paper: Dennis Harrison and John Antonopoulos for their suggestions and editorial work, and Christopher Price for his contributions both generally and on international law.
 

Table of Contents


 

Introduction

THE ORIGINS of circumcision lie in the dim past. The earliest Egyptian mummies (2300 B.C.) bear the marks of circumcision, and wall paintings to be seen in Egypt show that it was customary several thousand years earlier still. Many reasons for this practice have been proffered, ranging from obeying the law of God to promoting public health.

Understanding circumcision is a formidable task. Religious requirements, ethical arguments, legal rulings, human rights issues, and medical study upon medical study threaten to overwhelm all but the most diligent researcher. The unwary are soon bogged down in a quagmire of myth and misinformation. Controversy has swirled around this practice, it seems, from the earliest times.

Why all the fuss over a mere "piece of skin"?

The answer is that fundamental principles are at stake--principles that form the very foundation of ethics, law, and human rights. These basic precepts are not receiving due attention in the current debate over circumcision. Instead, circumcision is being looked at almost exclusively from the standpoints of public health and theology, as though these two frames of reference were the only ones that mattered. This paper, however, puts ethics, law, and human rights at the centre of the debate over circumcision.
 

Genital mutilation

Mutilation defined

Stedman's Medical Dictionary defines "mutilation" as "disfigurement or injury by removal or destruction of any conspicuous or essential part of the body." [1]

Classification of FGM

The American Academy of Pediatrics Committee on Bioethics recognizes four types of female genital mutilation: [2]

Since the penis and clitoris arise from the same embryonic tissue,[3] removal of the male prepuce is comparable to removal of the female prepuce. Therefore Type I female genital mutilation and male circumcision are comparable practices. The prepuce of a newborn adheres firmly to the glans--these two structures normally take several years to separate. Consequently circumcision of a newborn male requires tearing apart what is essentially still a single structure, and in that respect resembles a partial clitorectomy.
 

Circumcision: medical aspects

Anatomy of the penis and foreskin

Embryological development of the sex organs

The external sex organs of both sexes originate from the genital tubercle of the fetus. Structures having the same origin are said to be homologous. The male and female foreskin, or prepuce, are homologous structures that develop similarly.[4] Differentiation of these tissues occurs prior to birth, and is dependent on the sex of the fetus. The prepuce in the male fetus appears at eight weeks as a ring of thickened epidermis which grows forward over the base of the glans. By 16 weeks the prepuce has advanced to the tip of the glans.[5] By 16 weeks the prepuce has advanced to the tip of the glans. At this stage, the epidermis of the prepuce is contiguous with the epidermis of the glans--that is, these two structures are fused together. The process of separation then begins, but this process is rarely complete by the time the child is born. In some cases, the prepuce does not become fully retractable until puberty.
 

Gross anatomy of the penis

The penis consists of three main areas: the shaft, the glans and the prepuce. The penile shaft extends from the abdominal wall to the sulcus of the glans. The glans, or head of the penis, is attached to the shaft at the sulcus. The prepuce, or foreskin, is an extension of tissue that begins at the sulcus, proceeds forward to the level of the tip of the glans or beyond, then folds back on itself and becomes contiguous with the true skin of the penile shaft. Thus, the prepuce actually consists of two layers: an outer layer similar to the shaft skin, and an inner layer that is not skin at all, but mucosa similar to that found on the lips, female genital mucosa, and perianal mucosa.
 

Histology of the penis

The inner layer of the prepuce consists of mucosa, which differs histologically from true skin in several important respects. For instance, mucosa lacks the dense collagenous zone normally associated with true skin. It also lacks the hair follicles, sweat glands, and sebaceous glands often seen in histological preparations of true skin.[6] The mucosal surface of the prepuce is lined by variably keratinized squamous epithelium similar to that of the mouth, vagina, and esophagus.

The prepuce possesses a richer variety and a greater number of nerve endings than any other part of the penis.[7] The inner layer of the prepuce is made up of two distinct zones of mucosa. The first zone, situated nearest the tip of the penis, displays a prominent band of ridged mucosa ("ridged band"). This band merges with the frenulum of the penis and when the prepuce is fully retracted, it lies across the upper surface and sides of the shaft of the mid-third of the penis. Histologically, the ridged band has a tremendously rich vascular supply, explaining its deep red colour. It is densely packed with Meissner, Pacinian, and Ruffini corpuscles. Even the least damaging forms of circumcision remove nearly all of these specialized sensory receptors.

The second zone, located adjacent to the sulcus of the glans, is smooth mucosa, with no ridging and shallower papillae. It contains fewer end organs than the ridged mucosa.

Taylor et al. found that circumcision results in a mean loss of 3.4 cm of preputial skin and mucosa, or 51 percent of the length of the mean adult penile shaft. Taylor et al. also note that

Clearly, the penis is a complex organ with many different parts, each specialized for a specific function. The prepuce provides a large and important platform for several nerves and nerve endings. The innervation of the outer skin of the prepuce is impressive; its sensitivity to light touch and pain are similar to that of the skin of the penis as a whole. The glans, by contrast, is insensitive to light touch, heat, cold, and as far as the authors are aware, to pin-prick. Le Gros Clark noted that the glans penis is one of the few areas on the body that enjoys nothing beyond primitive sensory modalities.[8]


Functions of the penis

Though the penis and clitoris arise from the same embryonic tissue, they serve different purposes. In the female, the clitoris acts as a focal point for sexual stimulation. The penis, on the other hand, is primarily an organ of copulation and a conduit for urination. As noted previously, recent anatomical evidence suggests the prepuce in the male is structured for a specialized sexual function. The prepuce contains the densest concentrations of fine-touch neuroreceptors to be found on the penis.[9] The prepuce and glans are complementary structures designed to work together.

In most newborn males, the prepuce adheres tightly to the glans. Physical separation of these two tissues normally takes several years to complete. In 90 percent of cases, separation is complete by the age of three years.[10] In a small number of cases, total separation may not occur until puberty.
 

Medical arguments

The pros and cons of circumcision have been the subject of intense debate in the medical community for decades. Proponents have focused on marginal benefits, while opponents have focused on pain and surgical risk. It is interesting to note that the value of normal anatomy has been almost totally excluded from consideration. The consensus of medical opinion today is that neonatal circumcision cannot be justified as a routine procedure.
 

Statements of medical organizations

The Australian College of Paediatrics notes: "The possibility that routine circumcision may contravene human rights has been raised because circumcision is performed on a minor and is without proven medical benefit." [15]

In summary, medical organizations around the world are in agreement that there is no medical justification for removing the healthy prepuce.
 

Changes in sexual practice

Laumann et al. report that circumcised men tend to exhibit a "more elaborated set of sexual practices than do men who are not circumcised." [16] This finding has been interpreted by some to mean that circumcised men have more fun. Van Howe and Cold, however, suggest that circumcised men may require more intense stimulation to make up for the loss of fine-touch receptors in the prepuce.[17]
 

Legal concerns

Genital mutilation and Canadian criminal law

The purpose of criminal law

According to the Canadian Department of Justice, "laws are not only designed to govern our conduct: they are also intended to give effect to social policies... Another goal of the law is fairness. This means that the law should recognize and protect certain basic individual rights and freedoms, such as liberty and equality. The law also serves to ensure that strong groups and individuals do not use their powerful positions in society to take unfair advantage of weaker individuals... In a democratic society like Canada, laws are not carved in stone, but must reflect the changing needs of society. In a democracy, anyone who feels that a particular law is flawed has the right to speak out publicly and to seek to change the law by lawful means." [18]

Criminal law helps safeguard lives and property. We need criminal law to ensure a safe and peaceful society in which the rights of individuals are respected. The Canadian legal system guarantees the rights of each individual while, at the same time, ensuring that society functions in an orderly manner. We also believe in the Rule of Law, which means that the law applies to every person, including members of the police force and public officials.
 

Criminalization of FGM

In 1997 the Canadian Parliament passed an amendment to the Criminal Code of Canada expressly prohibiting all forms of female genital mutilation (FGM). This legislation was enacted in response to increasing flows of immigrants from countries where FGM is commonly practised. Genital mutilation is recognized as a human rights violation under the provisions of treaties and conventions to which Canada is a State party. There have been no prosecutions for FGM in Canada prior to or after the introduction of this amendment.

The prohibition against FGM was added to Section 268 of the Criminal Code,[19] which deals with aggravated assault. This section now reads as follows:
 

AGGRAVATED ASSAULT

268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Excision

(3) For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or

(b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent

(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.
 

Section 268 prohibits interference with genitalia for non-medical reasons, but only in the case of female genitalia. Male anatomy is not mentioned. While it has been argued that non-therapeutic male circumcision is covered under this section even though it is not specifically mentioned, the question arises as to why female body parts are expressly referred to and what degree of protection is afforded to males. Sections 15 and 28 of the Canadian Charter of Rights and Freedoms (Charter)[20] stipulate that rights are guaranteed equally to both sexes.
 

The Constitution and Canadian criminal law

The Charter of Rights and Freedoms identifies the many forms of protection Canadians enjoy under the law. Sections 7, 15, and 28 of the Charter are particularly germane to any discussion about genital mutilation, whether female or male:
 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
 

When performed without a specific medical indication, circumcision of newborns, infants and children clearly violates the right to physical integrity guaranteed under Section 7. Non-therapeutic circumcision of newborns and children is a superfluous, invasive surgical intervention performed without consent. It limits the future choices of the patient with respect to sexual behaviour, aesthetics, and perhaps even religious affiliation.

Section 268 of the Criminal Code prohibits genital mutilation of females, but by failing to extend the same protection to males, this section now contravenes Sections 15 and 28 of the Charter of Rights and Freedoms. Section 268 of the Criminal Code discriminates against males as a group solely on the basis of their sex. It is important to note that offering equal protection to men under the law would in no way diminish the protection offered to women.
 

Legal arguments against circumcision

The basic moral principles of justice require that all parents and caretakers be treated equally by legislation enacted to protect children.[21] This means that a uniform standard should be applied to those entrusted with the care of children.

Under Canadian law, the onus falls on physicians and parents to show that a child will benefit from a proposed surgical intervention. The consensus of medical opinion today is that neonatal circumcision confers no such benefit. Neonatal circumcision is a traumatic intervention that involves amputation of a normal body part without patient consent. It has a realistic complication rate of between 2 percent and 10 percent,[22] although published rates vary from 0.06 percent to 55 percent.[23] Scientific studies have shown that neonatal circumcision has long-term adverse effects on pain response,[24] and puts both males and their female partners at greater risk for disease.[25, 26, 27, 28, 29, 30, 31] Early work suggests that circumcision impacts adversely on female enjoyment as well.[32]

Those who perform neonatal circumcision for ritual, cultural, or social reasons must show justification for interfering with the normal development of a child's body. The onus of proof is upon the proponents of circumcision to furnish clear and convincing evidence that a child will benefit from circumcision. It is not upon those opposed to the practice to prove that harm results to the child. Dr. Margaret Somerville, one of Canada's leading ethicists and Founding Director of the McGill Centre for Medicine, Ethics and Law, has put it this way:

All wounding of one person by another person is prima facie criminal assault (indeed, aggravated criminal assault), but it can become justified--that is, not illegal, not a crime--on certain conditions. The most common and important situation in which wounding is not a criminal assault, is when it is indicated as medically required surgery and it is undertaken with the informed consent of the person on whom it is carried out or, if this person is incompetent, of their legal representative (in the case of children, the parents). The difficulty with infant male circumcision is that when it is not medically indicated--the Canadian Paediatric Society, for instance, has stated it is not medically indicated as a routine procedure--medical justification is not present and, although adults can consent to have a non-therapeutic intervention carried out on themselves provided the intervention is not considered to be contrary to public policy, in general, they may not consent to having such interventions carried out on their children. The exception to this is if the intervention is considered to be what the law calls de minimis, that is, a trifle of which the law will not take notice. Arguably, ear-piercing, especially as it is reversible, falls within this category. However, even the rabbis with whom I talked agreed that male infant circumcision is not de minimis.[33]

Dr. Somerville has also written:

All woundings are criminal assault unless they can be justified. The burden of proof of justification is on the person who causes the wounding. A therapeutic aim is the justification for almost all medical wounding and is an essential justification for those unable to consent to the wounding for themselves. Consequently, a physician would need to show that infant male circumcision was medically necessary before it would be justified. If there is equal doubt as to whether or not it is medically necessary (which seems to me to be the most favourable position that, at present, could be taken in favour of infant male circumcision), then the procedure must not be carried out.[34]
Insofar as both male circumcision and female circumcision are surgical interventions that remove normal erogenous tissue without therapeutic aim, they cannot fail to have the same legal status. Thus far, however, the legal system is protecting only females. Males are being discriminated against on account of their gender, and because of a perception that male genitals are somehow less worthy of protection. This is a clear violation of Sections 15 and 28 of the Charter.

 

Limitations on religious practice

A free and democratic society recognizes that there are limitations to the way in which religious beliefs can be exercised. Canadian case law includes many examples of these limitations. In Re D. (1982), the presiding judge held that legislation enacted to protect child welfare and public health does not violate the Charter Rights of Jehovah's Witnesses.

Many cases can be cited to illustrate the limits placed on the exercise of religious beliefs when those beliefs may result in harm to an individual. The Government of Canada has made FGM a crime, though millions of people around the world believe this practice has a religious basis. In Children's Aid Society of Metropolitan Toronto v. S.H. (1996), specific reference is made to the limits that a free and democratic society may impose on the freedom of religion enjoyed under the Charter.

In O'Sullivan v. The Queen (1991), the issue of religious freedom under the Charter is addressed in the context of taxation. The presiding judge, Muldoon J. speaks specifically to the limitations of Section 2 of the Charter.

Though freedom of religion is guaranteed under the Charter, this guarantee is by no means unconditional. At times, the right to practise religion comes into conflict with the need to protect children. The state's obligation to protect children is most evident when parental religious practices threaten minor children with possible risk of harm or potential loss of life. The constitutional guarantee of freedom of religion does not give parents the unfettered right to harm children through religious practices, nor can these constitutional guarantees be used to defend wilful neglect or wilful harm.[35] There is no room for harm in the Name of God, even in a country that grants freedom of religion.
 

Limitations on consent

The opportunity to grow and develop safe from physical harm is a fundamental right of every child in a free and democratic society. In Canada, respect for individual rights requires that children be involved in decisions regarding their own bodies whenever possible.

Informed consent requires that physicians provide all the relevant information patients need to exercise their decision-making rights,[36] including:

  1. Accurate information regarding the patient's condition, the nature of the investigations and treatment, and the probability of success; the risks and benefits of each intervention and the alternatives available (including the choice of no treatment or intervention).

  2.  
  3. Assessment of the patient's understanding of the information provided.

  4.  
  5. Assessment of the patient or surrogate's ability or authority to make the decision.

  6.  
  7. Assurance that the patient has the freedom to choose among the medical alternatives without coercion or manipulation.

Most parents seek to protect their children and to act in their children's best interests in matters of health care. Therefore the notion of proxy ("substitute") consent is appropriate, practical and necessary in the vast majority of circumstances. In a pluralistic society, one can find many religious, social, cultural, and philosophic positions on what constitutes acceptable child rearing and child welfare. The law generally provides parents with wide discretionary authority in raising their children. However, the existence of child protection and child neglect/abuse laws is testimony to the fact that, on occasion, parents fail to live up to their responsibilities toward their children. Hence proxy consent is limited in scope.

The courts have imposed limits on parental consent in respect of both medical treatment and religious practice. These limitations are clearly illustrated in Pentland v. Pentland et al. (1979).

In Re S.E.M. (1986), a case similar to the one above, the presiding judge took an even stronger position. The strength of this case lies in the fact that the decision was passed at the Queen's Bench level on appeal of a lower court decision.

What stands out in this last case is that the Section 7 rights of the child take precedence over the Section 2 rights of the parents. It is abundantly clear that the courts limit the rights of parents to provide or withhold consent when the safety or well being of the child is at stake. This holds true whether the parental motivation is religious or otherwise. If circumcision is of no net medical benefit to a child, and has the potential for causing serious harm, then the authority of the parents to consent to such a procedure is doubtful. Thus circumcision of a newborn for non-therapeutic purposes is a clear violation of the infant's rights even when religion is the motivating factor behind the procedure.

Proxy consent is problematic for physicians since they have a primary duty of care to their patients. The American Academy of Pediatrics Committee on Bioethics states:

In attempting to adapt the concept of informed consent to pediatrics, many believe that the child's parents or guardians have the authority or "right" to give consent by proxy. Most parents seek to safeguard the welfare and best interests of their children with regard to health care, and as a result proxy consent has seemed to work reasonably well. However, the concept encompasses many ambiguities. Consent embodies judgments about proposed interventions and, more importantly, consent (literally "to feel or sense with") expresses something for one's self: a person who consents responds based on unique personal beliefs, values, and goals. Thus "proxy consent" poses serious problems for pediatric health care providers. Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses. Although impasses regarding the interests of minors and the expressed wishes of their parents or guardians are rare, the pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent.[37]

This view of proxy consent is mirrored in Canadian case law. For example in K. v. K., Justice Craig J.A. states of Justice Wood's decision:

[para21] He commenced his discussion on this aspect of his judgement with a statement that "the history of the non-therapeutic sterilization of the mentally handicapped is chequered with evidence of much abuse." He stated that "generally speaking a parent's decision to give a substituted consent for the performance of a therapeutic medical or surgical procedure" on a child "would not be the subject of review" by a court in the exercise of its parens patriae jurisdiction and that probably a court would not interfere with a parent's substituted consent in the case of a non-therapeutic procedure where the benefits obviously far outweigh the risks. He then said: "But what of those cases where the risks and benefits are closely divided, or where the risks outweigh the benefits? In such cases, and I believe this to be one, the court, in my view, must exercise its inherent jurisdiction to review and regulate the decision of the parents in order to ensure that the best interests of the child are met with the decision which has been made.

Patients today have a strong desire to be involved in decision-making with respect to their health needs. This trend is evidenced by the introduction and legal recognition of "living wills," "advance directives," and "powers of attorney for personal care." The foregoing are forms of proxy that a patient leaves and fully expects to be followed in the event that he or she becomes severely incapacitated.

Parents do not have a right to surgically alter their children when there is no opportunity for the child to participate in the decision-making and the decision can reasonably be delayed. In the case of non-therapeutic circumcision, children should have the right to be involved in the decision. In Stephenson v. Florant (1925), the court recognized that minor children have the capacity to make decisions regarding their own lives.

In Fleming v. Reid (1991), it was held that physicians and others are not free to decide what is in the best interest of a patient when the patient has left advance directives. While the court recognized that the treatment had significant therapeutic value, it could not deny the patients' will to invoke Section 7 of the Charter and maintain the sanctity of their own persons. The judgment indicates that therapies which have side-effects and/or irreversible consequences are intrusive and violate patients' rights when performed without consent.

In Adan v. Davis, [1998] O.J. No. 3030, the issue was whether the plaintiff, Fahmo Adan, had consented to a tubal ligation performed by the defendant, Bernard Davis, on May 7, 1992. The court found that apart from emergency situations, undertaking a surgical procedure without consent clearly constitutes battery.

In Reibl v. Hughes, [1980] 2 S.C.R. 880, the issue under consideration was the scope of a physician's duty of disclosure. The court discussed the distinction between battery and negligence and defined the tort of battery at p. 890 as "...intentional...consisting of an unprivileged and unconsented to invasion of one's bodily security" and one which is "...confined to cases where there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent." The court concluded that, absent fraud or misrepresentation to secure consent to treatment, a failure to disclose the attendant risks goes to negligence and not battery.

As the Supreme Court of Canada observed in Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624 at 676-7:

The centrality of communication to the delivery of medical services is particularly evident in the context of negligence law. The duty of disclosure commands physicians to inform patients fully of the risks involved in treatment and answer their questions regarding such risks; see Reibl v. Hughes, [1980] 2 S.C.R. 880, at p. 884, and Hopp v. Lepp, [1980] 2 S.C.R. 192, at p. 210. Physicians cannot discharge this obligation without being able to communicate effectively with their patients. [para41]
 

Consent powers of the court

The courts have set limits to proxy decision-making, or "substitute consent." In Re "Eve", a mother applied for the legal authority to have her mentally disabled daughter sterilized. This case became a test of the degree to which the fundamental rights of an incompetent individual could be overriden by paternalistic instincts. The Supreme Court denied the mother's request, ruling that a procedure which the court saw as being both "a serious intrusion" and "irreversible" could not be authorized for non-therapeutic purposes under the parens patriae jurisdiction.

In Strong (Re) [1993], the court did allow an application for authorization of surgery on a mentally incompetent woman. Citing "Eve," the presiding justice emphasised that the parens patriae jurisdiction of the court must be exercised for the benefit of the protected person.

In K. v. K. (1985), the court allowed an appeal by a mother for the authority to have a hysterectomy carried out on her mentally disabled daughter. The judgment affirmed that the onus falls on parents to establish that a proposed surgical intervention is in the best interests of the child. The judgment also drew attention to the need to protect the basic human rights of incompetent persons.

Malette v. Shulman (1990) illustrates the importance attached by the courts to the principle of autonomy and respect for persons. Damages were awarded to a Jehovah's Witness who received a blood transfusion against her express wishes. The court held that the plaintiff's right to protection against unwanted infringement of her bodily integrity was more important than life itself.


 
 
 

International law

Canada has ratified numerous international instruments in the field of human rights. These agreements are binding on Canada even though they may not constitute Canadian law. Canadian courts are obliged to interpret cases with due respect to international law except in cases where an agreement has expressly been denied standing in Canada through legislation. This obligation is well-documented in Hogarth et al. v. Hall et al.

Perhaps the strongest statement of Canada's obligations with respect to international agreements is found in Re Corporation of the Canadian Civil Liberties Association et al. and Minister of Education et al. This case clearly illustrates the lengths to which governments must go to honour their international obligations. Clearly, Canadian law is subject to interpretation under the obligations agreed to under such international instruments. Canada is a signatory to the following international instruments:
 

UN Convention on the Rights of the Child

In December 1991, Canada ratified the United Nations Convention on the Rights of the Child (UNCRC)[38] The Preamble of the UNCRC recognizes that children are particularly vulnerable, and thus in need of extra protection:

Recognizing that the United Nations has, in the Universal declaration of Human Rights proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, recalling that in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance.

Within the UNCRC Art. 1 defines a child, Art. 2 prohibits discrimination, and Art. 3 requires States Parties to protect children and their rights and re-iterates the test of the child's best interests which is familiar in common law jurisdictions.

Preambular paragraph 12 of the UNCRC states:

Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child...

Some proponents of infant male circumcision have argued that paragraph 12 supports their perspective and cite the importance of the child's cultural background as supporting their view. However, cultural values, like religious beliefs, cannot be put into practice in such a way that they infringe on the rights of others. Thus FGM, though it is a cultural practice, is prohibited in Art. 24(3) UNCRC. Moreover, the female genital mutilation practised by some groups as a tradition or cultural value must have equal status to the mutilation involved in male circumcision. Paragraph 12 cannot be arbitrarily or prejudicially applied; it applies either to all forms of genital mutilation or to none at all.[39] It is clear from the structure of the UNCRC as a whole, as well as from the general body of the law, that cultural practices which harm children are not permitted.

Within the main text of the UNCRC Art. 1 defines a child, Art. 2 prohibits discrimination, and Art. 3 requires States Parties to protect children and their rights and re-iterates the test of the child's best interests which is familiar in common law jurisdictions.

Art. 14 contains provisions as to religion; however there is no provision within the article that endorses or permits the infliction of harm or disfiguring marks on a child. Religion has its limitations in any society and is not a shield behind which to hide. Just as we would not accept Art. 14 to apply in the case of a religion that demands we cut off a child's finger or ear, we cannot accept that it advocates genital mutilation.

Art. 19 requires the child to be protected from abuse at the hands of parents, and Art. 24(3) provides that "States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children." Insofar as non-therapeutic circumcision is a painful, invasive, irreversible surgical intervention to which the child has not given consent, and whose alleged benefits are uncertain and remote, it is clearly prejudicial to the health of children. Furthermore, it is not a recommended medical practice by any credible medical body in the world. The prohibition in Art. 24(3) UNCRC covers, in view of Art. 1., children of both sexes and thus genital mutilation of both sexes.

It is illogical to argue that the prohibition in Art. 24(3) applies only to FGM. First, if female circumcision were the only traditional practice to be prohibited then the provision could have been drafted accordingly and it was not. More importantly, by virtue of Article 31 of the Vienna Convention on the Law of Treaties 1969, the words of treaty provisions must be given their ordinary meaning; and by Article 32, recourse may not be had to the travaux préparatoires unless the meaning of the treaty provisions is on the face of it unclear, or possibly, where all the parties are in agreement so to refer. The wording of Article 24(3) is clear and unambiguous, and the parties have not agreed to have recourse to the travaux préparatoires to limit its ambit.

Further, the UNCRC cannot be viewed in isolation. It must be read and applied against the backdrop of other international law provisions as to the fundamental human rights of every person, be they man, woman or child. It is a moot point whether these general principles have attained the status of ius cogens, though it is difficult to argue that they are not now customary international law. What the UNCRC does is to focus on the particular issues that pertain to childhood; but, as Art. 41 expressly states, nothing in it can derogate from the more general protections offered by international law.


 
 
UN CONVENTION ON THE RIGHTS OF THE CHILD (1989)

Article 6(1)

States Parties recognize that every child has the inherent right to life.

Article 6(2)

States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 16(1)

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

Article 16(2)

The child has the right to the protection of the law against such interference or attacks.

Article 19(1)

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Article 19(2)

Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 24(3)

States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

Article 41

Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:

(a) The law of a State party; or

(b) International law in force for that State.

 


DECLARATION OF THE RIGHTS OF THE CHILD (1959)

Principle 2

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

Principle 8

The child shall in all circumstances be among the first to receive protection and relief.

Principle 9

The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.


 

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) prohibits discrimination (Arts. 2 and 7), cruel and inhuman treatment (Art. 5); and protects life, liberty and the security of person (Art. 3). Above all, it provides in Art. 30 that

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Regard must be given, but not exclusively to, the Universal Declaration on Human Rights, and, especially, the United Nations Convention on the Rights of the Child. These international instruments, and others, make it clear that circumcision for non-therapeutic reasons is a denial to the circumcised infant of his fundamental human rights.
 
 
UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

Article 2

Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as: race colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 3

Everyone has the right to life, liberty and security of person.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 25(2)

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.


 

International Covenant on Civil and Political Rights

The provisions within the UDHR find echo in the International Covenant on Civil and Political Rights (ICCPR) whose Art. 5 provides:

Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant;
and in relation to the freedom of religion Art. 18 provides that
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The effect of the general and oft-repeated provision of Arts. 30 UDHR and the ICCPR, and of Art. 18 in the ICCPR is that a sharp distinction is drawn between the right to freedom of thought and the right to manifest one's religion or beliefs.
 
 
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966)

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 9(1)

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Article 24(1)

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
 


 

Ethical considerations

Infant male circumcision is morally indefensible because it amputates a normal body part without patient consent. In general, medical ethics forbid treating any patient who has not provided informed consent. In rare circumstances, where life and limb are threatened and the patient is incapable of providing informed consent, physicians can proceed provided the anticipated benefits clearly outweigh the potential risks and harms. The problem with infant male circumcision is that the procedure is not medically required, and there is no clear benefit to the child.

Medical ethics also requires that extra protection be extended to vulnerable persons. That is, the range of procedures to which competent adults can consent on behalf of someone in their care or custody is narrower than the range of procedures to which competent adults can consent on their own behalf. In the former case, extreme caution must be exercised to ensure that vulnerable persons are not subject to unnecessary medical or surgical interventions.

The best interests of the individual child are of paramount importance when making decisions regarding that child's medical treatment. This principle is clearly articulated by the Canadian Paediatric Society:

The primary concern of physicians caring for children must be the best interests of the individual child. All infants and children have intrinsic value and deserve our respect and protection...No other interests can override those of the child, whether they be family stability or well-being, or the well-being of other caretakers.[40]

Clearly it is not in the best interest of a healthy child to undergo an intrusive surgical intervention whose alleged benefits are remote and uncertain.

Dr. Eike-Henner Kluge, Chair of the Philosophy Department at the University of Victoria and a former Director of Ethics and Legal Affairs at the Canadian Medical Association, prepared an ethical analysis of female circumcision published in the Canadian Medical Association Journal 1993. Dr. Kluge argues that circumcision of girls is unethical because it is potentially harmful, has no therapeutic value, and puts the interests of others ahead of the best interests of the child. Dr. Kluge adds:

With due alteration of detail, the same ethical reasoning holds for male circumcision. There rarely are medical reasons for performing the procedure; personal preference or religious values of the parents usually underlie the request. If these are insufficient to justify the circumcision of girls, they are also insufficient to justify circumcision of boys. To argue differently is to be guilty of discrimination on the basis of sex. The fact that female circumcision is a more serious intervention does not alter the situation. Both involve what in other contexts would be called non-consensual mutilation of a minor for non-medical reasons.[41]


Circumcision as an abuse of human rights

Human rights and the court

In Chan v. Canada (1995), the appellant sought refugee status in Canada because he feared he would be forcibly sterilized if he returned to China. Justice Mahoney characterized non-therapeutic sterilization without consent as a serious violation of a person's rights, citing "Eve." He found no distinction between the sexes that would alter this characterization. It should be noted that vasectomy can be reversed, whereas circumcision is permanent in its effects.
 

OHRC and genital mutilation

Koppelman[42] suggests four main reasons for the practice of FGM:

  1. Preservation of group identity.

  2.  
  3. Hygienic reasons including maintenance of cleanliness and health.

  4.  
  5. Preservation of virginity, family honour, and prevention of immorality.

  6.  
  7. Furtherance of social and economic security for women by assuring marriage goals are attained.

These reasons have been echoed in the Ontario Human Rights Commission (OHRC) policy on FGM. The OHRC policy also refers to the Ontario Female Genital Mutilation Prevention Task Force, which cited a number of reasons for FGM including preservation of virginity, control over women's sexuality, good appearance, class distinction, and cultural identity.

The OHRC identified several international agreements infringed on by the practice of FGM, including the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the African Charter of Human and People's Rights, and the International Covenant on Economic, Social and Cultural Rights (Art.12).

The OHRC specifically states that

International conventions and covenants to which Canada is a signatory recognize that human beings have the inherent right to life, equality, freedom and security, the right not to suffer discrimination, the right to the best possible state of physical and mental health, and a right not to be subjected to torture or to cruel and degrading punishment or treatment.

It is worthy of note that non-therapeutic circumcision of male infants and children is performed for the same reasons as FGM--namely, cleanliness, potential health benefits, good appearance, conformity to societal values, and preservation of cultural identity.

A desire to control sexuality figures prominently in the history of circumcision. Indeed, routine circumcision as a medical procedure owes its very existence to an anti-masturbation hysteria that swept English-speaking countries in the 19th century. As recently as 1935, a physician wrote as follows in the British Medical Journal:

I suggest that all male children should be circumcised. This is 'against nature,' but that is exactly the reason why it should be done. Nature intends that the adolescent male shall copulate as often and as promiscuously as possible, and to that end covers the sensitive glans so that it shall be ever ready to receive stimuli. Civilization, on the contrary, requires chastity, and the glans of the circumcised rapidly assumes a leathery texture less sensitive than skin. Thus the adolescent has his attention drawn to his penis much less often. I am convinced that masturbation is much less common in the circumcised. With these considerations in view it does not seem apt to argue that 'God knows best how to make little boys.' [43]

Dr. Thomas Szasz observes:

The significance of the idea of masturbatory insanity lies in the fact that sexual self stimulation was the first a long line of religious transgressions that were converted into medical diseases. The roots of both R.N.C. [routine neonatal circumcision] and anti-masturbatory measures lie in Jewish law, which recognizes the legitimacy of carotid pleasure associated with sexual intercourse, provided that the act is marital-genital congress between the Jewish man in the Jewish woman. Every other sexual act is strictly prohibited. Masturbation is condemned unequivocally both in the Talmud and in extra-Talmudic literature.

Recognizing the obvious connections between touching the penis and sexual arousal, Jewish law "definitely prohibits touching one's genitals--the unmarried man never, and the married man only in connection with urination" (Epstein, 1967, p.137). When an Orthodox Jewish father bladder trains his son, he admonishes him: "Without hands! Better a bad aim than a bad habit." [44]

Circumcision advocates cite the alleged health benefits of circumcision as justification for performing the procedure. Among these alleged benefits are reductions in the incidence of urinary tract infections (UTI) and cancer of the penis. Other purported advantages include improved cleanliness because there is no foreskin to care for and a reduced risk of cervical cancer for partners of circumcised males. These health benefits have repeatedly been proven to be overstated or non-existent. For example, a recent Ontario study[45] found that less than one percent of intact newborn boys were hospitalized for UTI in the first year of life, and that nearly 200 circumcisions would be required to prevent one infection. Moreover, urinary tract infections are treatable with antibiotics and have a very low morbidity. The Canadian Paediatric Society exhaustively reviewed this topic in 1975, 1982, and 1996. Each time it has concluded that circumcision of newborns should not be routinely performed.[46]

Circumcision also continues to serve as a group marker for both Moslems and Jews. It is so compelling as a group marker that during the Second World War, Jews throughout occupied Europe stopped circumcising male infants to conceal their Jewish identity. Circumcision also serves as a form of social control, for males cannot be considered for inclusion in the Moslem and Jewish faiths unless they comply with this requirement. Lastly, as clearly evidenced within a religious context, circumcision has and continues to be used as a form of sexual control of males.

Infant male circumcision clearly meets all the criteria set out by the Ontario Human Rights Commission (OHRC) as grounds for condemning FGM. Yet the policy on FGM legitimizes infant male circumcision by making reference to outdated information and ignoring the recommendations of Canadian authorities such as the Canadian Paediatric Society. Furthermore, the OHRC undermines its own credibility by quoting well-known circumcision advocates who defend circumcision on religious as well as medical grounds.

Circumcision of boys is gender-specific discrimination. Healthy, erogenous tissue that is functioning normally can, apparently, be removed from the genitals of boys without raising the eyebrows of human rights organizations or Canadian authorities. Such intrusions on girls, however, are expressly prohibited by the Criminal Code. Both FGM and MGM share the same irrational motives and myths, as Hanny Lightfoot-Klein[47] and others have shown. By failing to extend equal protection to males and females, the OHRC has committed the greatest transgression of human rights. The OHRC has protected females and summarily denied that same protection to males, even though protecting males would not diminish in any way the protection extended to females.
 

Conclusion

Circumcision of male infants is a clear violation of the rights guaranteed to all persons by the Canadian Charter of Rights and Freedoms. Furthermore, the practice contravenes human rights legislation on provincial and international levels.

It is a fundamental principle of international law, as well as the mark of every civilized community, that discrimination is unlawful. Interpretations of human rights law that recognize FGM but not MGM as violations infringe on equal protection principles enshrined in national and international law. Female circumcision is, rightly, a criminal offence in almost every country even when "religious duty" is claimed; there can be no justification for not extending the same protection to boys. All forms of sexual cutting of children are profoundly damaging, whether male or female. To suggest that only female circumcision be regarded as in breach of the various conventions on human rights denies the medical evidence as to the pain, risks and sexual dysfunction from infant male circumcision. It argues for the formalization of discrimination against these male children on the grounds of their sex, race and the religious beliefs of the family into which they are born. Human rights principles are absolute, not subject to balancing in the scales of international justice relative to other violations.

The presence of and tolerance for infant male circumcision in our societies harms us all. Male infants need our protection from unnecessary surgery. To contemplate a ban on non-ritual, non-therapeutic circumcision, while allowing ritual circumcision, would be a prohibited discrimination against a group of boys on the grounds of their parents' religion. These infants will always have the choice to be circumcised later in life, if they so choose to do as a sign of their faith. At that point, at least, it is their own decision and not one that has been imposed irreversibly upon them.

Male genital mutilation (MGM), including circumcision, is much more of an issue in Canada than FGM, whose proponents and victims are found mostly abroad. For that reason, MGM deserves at least as much attention as FGM from Canadian authorities. It is difficult to conceive that the amputation of healthy, fully functional erogenous tissue without consent does not violate the most basic of human rights.

Canadians proudly point to the Charter of Rights and Freedoms as the primary instrument for protecting their rights. The evidence is clear: infant male circumcision for anything other than real medical necessity violates both the Charter and the Criminal Code. As Canadians we have an obligation to rectify this injustice.
 

References

1 Stedman's Medical Dictionary (26th Edition). Baltimore: Williams & Wilkins; 1995.

2 Committee on Bioethics, American Academy of Pediatrics. Female Genital Mutilation. Pediatrics 1998;102(1):153-6.

3 Cold CJ, Taylor JR. The prepuce. Br J Urol 1999;83 Suppl 1:34-44.

4 Cold CJ, Taylor JR. The prepuce. Br J Urol 1999;83 Suppl 1:34-44.

5 Gairdner D. The fate of the foreskin. Br Med J 1949;2:1433-7.

6 Taylor JR, et al. The prepuce: specialized mucosa of the penis and its loss to circumcision. Br J Urol 1996;77:291-5.

7 Taylor JR, et al. The prepuce: specialized mucosa of the penis and its loss to circumcision. Br J Urol 1996;77:291-5.

8 Taylor JR, et al. The prepuce: specialized mucosa of the penis and its loss to circumcision. Br J Urol 1996;77:291-5.

9 Taylor JR, et al. The prepuce: specialized mucosa of the penis and its loss to circumcision. Br J Urol 1996;77:291-5.

10 Gairdner D. The fate of the foreskin. Br Med J 1949;2:1433-7.

11 Fetus and Newborn Committee, Canadian Paediatric Society. Neonatal Circumcision Revisited. CMAJ 1996;154(6):769-80.

12 Task Force on Circumcision, American Academy of Pediatrics. Circumcision Policy Statement. Pediatrics 1999;103(3):686-693.

13 British Medical Association. Circumcision of Male Infants. September, 1996.

14 Australasian Association of Paediatric Surgeons. Guidelines for Circumcision. Hersion, Queensland: 1996.

15 Australian College of Paediatrics. Position Statement: Routine Circumcision of Normal Male Infants and Boys. Parkville, Victoria: 1996.

16 Laumann EO, Masi CM, Zuckerman EW. Circumcision in the United States: prevalence, prophylactic effects, and sexual practice. JAMA 1997;277:1052-7.

17 Letters. JAMA 1997;278:201-203.

18 Department of Justice. What is the Law? December 9, 1997.

19 Chapter C-46 -- An Act Respecting the Criminal Law.

20 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

21 Committee on Bioethics, American Academy of Pediatrics. Religious exemptions from child abuse statutes. Pediatrics 1988;81(1):169-171.

22 Williams N, Kapila L. Complications of circumcision. Br J Surg 1993;80:1231-6.

23 Fetus and Newborn Committee, Canadian Paediatric Society. Neonatal Circumcision Revisited. CMAJ 1996;154(6):769-80.

24 Taddio A, Goldbach M, Ipp M, et al. Effect of neonatal circumcision on pain responses during vaccination in boys. Lancet 1995;345:291-2.

25 Smith GL, et al. Circumcision as a Risk Factor for Urethritis in Racial Groups. Amer J Pub Hlth 1987;77(4):452-4.

26 Cook LS, Koutsky LA, Holmes KK. Clinical presentation of genital warts among circumcised and uncircumcised heterosexual men attending an urban STD clinic. Genitourin Med 1993;69:262-4.

27 Van Howe RS. Variability in penile appearance and penile findings: a prospective study. Br J Urol 1997;80:776-82.

28 Laumann EO, Masi CM, Zuckerman EW. Circumcision in the United States: prevalence, prophylactic effects, and sexual practice. JAMA 1997;277:1052-7.

29 Donovan B, Bassett I, Bodsworth NJ. Male circumcision and common sexually transmissible diseases in a developed nation setting. Genitourin Med 1994;70:317-20.

30 Van Howe RS. Circumcision and HIV infection: review of the literature and meta-analysis. Int J STD & AIDS 1999;10:8-16.

31 Chao A, et al. Risk factors associated with prevalent HIV-1 infection among pregnant women in Rwanda. National University of Rwanda -- Johns Hopkins University AIDS Research Team. Int J Epidemiol 1994;23:371-80.

32 O'Hara K and O'Hara J. The effect of male circumcision on the sexual enjoyment of the female partner. Br J Urol 1999;83 Suppl 1:79-84.

33 Correspondence dated November 10, 1997 from Dr. Margaret A. Somerville to Dr. C. Robin Walker.

34 Correspondence dated January 28, 1998 from Dr. Margaret A. Somerville to Dr. C. Robin Walker.

35 Committee on Bioethics, American Academy of Pediatrics. Religious objections to medical care. Pediatrics 1997;99(2):279-81.

36 Appelbaum PS, Lidz CW, Meisel A. Informed Consent: Legal Theory and Clinical Practice. New York, NY: Oxford University Press; 1987.

37 Committee on Bioethics, American Academy of Pediatrics. Informed consent, parental permission, and assent in pediatric practice. Pediatrics 1995;95(2):314-317.

38 UN General Assembly. Convention on the Rights of the Child. December 12, 1989 Document A/res/44/25 with Annex.

39 Price C, There is an important distinction to be drawn between the language of most paragraphs and that of preambular paragraph 12: namely between paragraphs starting with "Recognizing..." and those with "Taking account...". The clear signal from the difference in language is that those matters in the "recognizing" paragraphs formed a basis or framework for the Articles which follow, whereas the "Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child" is seen as not overriding the protections and rights enunciated in the Convention.

40 Bioethics Committee, Canadian Paediatric Society. Treatment Decisions for Infants and Children. CPS Statement: B 86-01.

41 Kluge EH. Female circumcision: When medical ethics confronts cultural values. CMAJ 1993;148(2):288-9.

42 Koppelman LM, Female circumcision/genital mutilation and ethical relativism. Second Opinion 1994;20:5-71.

43 R.W. Cockshut. Circumcision. British Medical Journal 1935;2:764.

44 Szasz T. Routine circumcision: Symbol of the Birth of the Therapeutic State. Journal of Medicine and Philosophy 1996:21:137-48.

45 To T, Agha M, Dick PT, et al. Cohort study on circumcision of newborn boys and subsequent risk of urinary-tract infection. Lancet 1998;352:1813-16.

46 Fetus and Newborn Committee, Canadian Pediatric Society. Neonatal circumcision revisited. CMAJ 1996;154(6):769-80.

47 Lightfoot-Klein H. Erroneous Belief Systems Underlying Female Genital Mutilation in Sub-Saharan Africa and Male Neonatal Circumcision in the United States: a Brief Report Updated. (Presented at the Third International Symposium on Circumcision, University of Maryland, College Park, May 22-25, 1994.)


 
[Top of page]



Citation:
(File revised 30 September 2006)

Return to CIRP library

http://www.cirp.org/library/legal/Canada/court1/