CIRCUMCISION OF MALE INFANTS RESEARCH PAPER,
Queensland Law Reform Commission, Brisbane.
December 1993.


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9. CONCLUSION The common law operating in Queensland appears to be that if the young person is unable, through lack of maturity or other disability, to give effective consent to a proposed procedure and if the nature of the proposed treatment is invasive, ir- reversible and major surgery and for non-therapeutic purposes, then court approval is required before such treatment can pro- ceed. The court will not approve the treatment unless it is necessary and in the young person's best interests.132 The basis of this attitude is the respect which must be paid to an individual's bodily integrity. Application can be made to the Family Court for approval of such treatment for young people. The extent of the Family Court's jurisdiction in this regard has not been fully explored. Types of treatment which are most likely within the Family Court's jurisdiction include sterilisation, the turning off of life support, transplantation of organs for the benefit of a sibling, and the like. Others are less clear. For example - an obstetrician seeking approval by the Court for a Caesarean section in cases where the young mother would not consent to the procedure, applications in relation to the performance of cardiac surgery on children where parental consent has been refused, and applications in relation to profoundly handicapped neonates. The Family Court has recently given its approval for a 14 year old child to undergo gender reassignment by the construction of male sexual organs.133 At birth, the child had been diagnosed as a female child with masculinisation of the genitalia. The child had undergone genital reconstruction to give her a feminine appearance but received inadequate hormone replacement treatment. Recurrent masculinisation of the child's physical structures had occurred with a charge in mental behaviour and attitude. The child wanted to undergo the reassignment procedure but in this case the Court held that the child was not mature enough to understand the nature and con- sequences of the procedure. As the procedure would require invasive, irreversible and major surgery, the child's parents could not consent - and Family Court approval was required. [CIRP Note: For a discussion of the legal issues in such a case see: Lynn E. Lebit, Compelled Medical Procedures Involving Minors and Incompetents and Misapplication of the Substituted Judgment Doctrine, 7 Journal of Law and Health 107 (1992).] If any surgical procedure to be performed on a child, whether `therapeutic' or `non-therapeutic' is not in the particular child's best interests, it cannot proceed. Further, if the procedure is performed in an unskilled manner the person performing the procedure may be criminally as well as civilly liable for the consequences, irrespective of the validity of the consent obtained prior to the procedure. Unless there are immediate health benefits to a particular child from circumcision, it is unlikely that the procedure itself could be considered as therapeutic. Whether the procedure is within the best interests of any particular child will depend upon the circumstances of the particular case. For example, adherence to the religious and cultural beliefs and practices of the child's community could be seen as being within the child's best interests. This view may vary according to he likelihood of the child wanting to continue to adhere to such beliefs and practices when of an age that he can decide for himself the type of life he wishes to lead. The circumcision procedure is invasive, irreversible and major. It involves the removal of an otherwise healthy organ part. It has serious attendant risks. As a prophylactic measure, circumcision of neonates does not appear to be the least restrictive alternative. For a number of the adverse health conditions which have been associated with non-circumcised penises, the least restrictive preventative measure would be education of children in genital hygiene and in responsible, safe sexual practices. Circumcision as a prophylactic procedure may be appropriate for older males who have the capacity to consent to the procedure. On a strict interpretation of the assault provisions of the Queensland Criminal Code, routine circumcision of a male infant could be regarded as a criminal act. Further, consent by parents to the procedure being performed may be invalid in light of the common law's restrictions on the ability of parents to consent to the non-therapeutic treatment of children. Although practices such as circumcision involve an infringement of the bodily integrity of the child, it is likely that the State will only intervene through criminal and child welfare laws when the harm of the infringement outweighs the benefit that the child would receive from acceptance within a cultural or religious group of which the child and the child's family are an integral part. Although male circumcision is not now generally encouraged for medical reasons in the light of modern medical and scientific knowledge,134 there is an argument that it should not be made unlawful because the harm to the child involved may be outweighed by the benefits to the child of being accepted into this cultural or religious group. Whether routine circumcision for non-religious reasons and non-cultural reasons is in the child's best interests may be unclear. However, because of the fairly widespread community acceptance of the procedure it is unlikely, at this time, that a prohibition on routine neonatal male circumcision would be universally supported. It is also unlikely at this time that a medical practitioner acting in good faith and with due care and skill would be prosecuted for assault for performing a circumcision on a male infant. It is less clear whether a child could sue the doctor for damages for assault under the civil law.135 The child's ability to sue would not be dependent upon the criminality of the doctor's actions. It would however be dependent upon the absence of real consent. It could be argued that because the circumcision of a particular child was not in that child's best interests, the parents could not have given real consent to it taking place. It could also be argued that, without adequate information being provided to the parents prior to the procedure taking place on the nature and possible consequences of the procedure, consent by the parents was not `real' consent. Notes: 132 See the High Court in Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218. 133 In Re A (1993) 16 Fm LR 715. 134 See pp. 18, 19 above. 135 The only lawsuit which to the Commission's knowledge, has been commenced on behalf of a male child against a doctor for performing a circumcision was begun by the mother, as guardian ad litem of Adam London, before the Superior Court of Marin County, then on appeal to the Court of Appeal in California. A petition to have the California Supreme Court review the rulings of the lower Courts was summarily rejected by the Supreme Court. See Morris RW. The First Circumcision Case. The Truth Seeker 1989 at p. 47.

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