Justifying the Unjustifiable: Rite v. Wrong, Part I

I. TYPES OF MALE AND FEMALE CIRCUMCISION AND THE PHYSICAL
AND PSYCHOLOGICAL COMPLICATIONS

Male and female circumcisions are performed differently. Rarely, however, does either involve the use of anesthesia. Instead, the victim suffers tremendous pain from the invasive and inhuman act of pulling and slashing off his or her genitalia. The resulting complications differ between the two procedures, but both male and female circumcision have drastic physical and psychological consequences.

A. Female Circumcision (Infibulation, Clitoridectomy, Sunna):
The History, Procedures, and Complications

Female Circumcision is a practice dating back to antiquity.¹³ Several ancient cultures, including the Phoenicians, Hittites, and ancient Egyptians, practiced the act.¹⁴ Female circumcision was, and still is for some groups. a symbol of distinction. enslavement and even subjugation.¹⁵ Originating in Egypt, the practice of female circumcision migrated from the Red Sea coastal tribes to Arab traders and then to eastern Sudan.¹⁶

There are several traditional practices and techniques of female circumcision.¹⁷ Generally female circumcision entails the incision and removal of all or part of a woman's external genitalia.¹⁸ Female circumcision may be "minor" in form, a painful prick of the clitoris, or "major" in form, the cutting and removal of all genitalia.¹⁹ The act is frequently performed on infants, although it is most commonly performed on girls four to six years old, depending upon a community's cultural norm.²⁰ Other groups may wait until the girl reaches adolescence, or marrying age to perform the circumcision.²¹

Female circumcision can take three forms:²² infibulation,²³ clitoridectomy²⁴ and sunna.²⁵ Infibulation is considered the most severe form of female circumcision while sunna is generally viewed as the least severe form of excision.²⁶ The operations have usually been performed by traditional birth attendants and, in more recent years, by traditional surgeons and trained midwives.²⁷ The practitioner's medical training, however varies by community and region.²⁸ Procedures are performed with a variety of available instruments,²⁹ although most surgical instruments are crude and unsanitary.³⁰

Regardless of the patients age, the method used, or the type of practitioner, female circumcision results in physical and psychological complications.³¹ The procedures have both immediate and long-term effects. Common short-term complications³² include bleeding,³³ infection,³⁴ pain,³⁵ urine retention,³⁶ stress and shock,³⁷ damage to the urethra or anus,³⁸ and keloid scarring.³⁹ Long-term complications⁴⁰ include repeated urinary tract infections, urethra and bladder stones, keloid scarring and dermoid cysts.⁴¹ Infibulated women are often cut and restitched several times throughout their lives, resulting in additional physical complications and health risks.⁴² Besides these physical effects, women experience both sexual⁴³ and psychological effects from circumcision.⁴⁴ Some of the psychological complications include anxiety, melancholy, and depression, as well as frigidity and insatiability.⁴⁵ Often, however, psychological complications may not appear until years after the precipitating event.⁴⁶

B. Routine Infant Male Circumcision: The History, Procedures,
and Complications.

The Hebrew patriarch Abraham's covenant with God is said to be the first written account of male circumcision.⁴⁷ The Old Testament's account, however, is preceded by pictorial narratives on ancient Egyptian tombs and temples.⁴⁸ Even six thousand year old Egyptian mummies show evidence of circumcision.⁴⁹ Some historians speculate that the practice dates back 5,000 years to the native tribes of the African west coast, while others postulate that the practice evolved in the Stone Age.⁵⁰ Like female circumcision, however, there is no precise date as when the procedure of cutting the foreskin actually began.⁵¹

There are four types of male circumcision: (1) simple circumcision or routine infant circumcision⁵² which is the removal of the foreskin or prepuce; (2) subincision⁵³ which is simple circumcision followed by a slitting of the penis to expose the glans; (3) salkh⁵⁴ which entails the skin being flayed from just below the navel to the upper thigh; and superincision⁵⁵ "which involves longitudinally cutting the preputium from the upper surface and extending the cut to the pubic region."⁵⁶ Simple circumcision (routine infant circumcision) as practiced in most parts of the world differs from certain types of female circumcision in that it does involve the removal of all genitalia.⁵⁷

The penis, like a woman's genitalia is formed at birth without the need for alteration or "improvement." The male and female embryological structures," consisting of "similar cell and nerve tissues."⁵⁸ An uncircumcised penis consists of the shaft,⁵⁹ the glans or rounded head at the end, the sulcus,⁶⁰ the meatus,⁶¹ and the foreskin.⁶² Male circumcision is the removal of the entire foreskin, which consists of two layers of tissue covering the entire delicate glans.⁶³ The traditional method of removal can be performed in a number of ways. The two most common techniques are direct surgery⁶⁴ and the squeezing technique.⁶⁵

In both procedures, presurgery preparation involves restraining the infant and sterilizing the genitals.⁶⁶ In most cases no anesthesia is used.⁶⁷ The foreskin must be separated from the glans before the procedure; sometimes this is done forcibly.⁶⁸ In direct surgery, the foreskin is held in a clamp away from the glans while

[o]ne blade of a scissor (or a scapel) is inserted between the foreskin and glans and the foreskin is cut along its full length .... The incision is spread apart to expose the glans. Then using a scapel or scissors, the foreskin is completely cut off close to the groove.⁶⁹

If there is any bleeding, it is controlled by applying pressure to the area.⁷⁰ This procedure takes only about five minutes and is most often used or adolescent and adult circumcisions.⁷¹

The two methods used in the squeezing technique are the Gomco clamp⁷² and the plastic bell.⁷³ Both procedures involve the literal squeezing of the foreskin for its removal.⁷⁴ The Gomco clamp procedure usually lasts about ten minutes, while the plastic bell technique takes five or ten days.⁷⁵ The method chosen generally depends on the physician; all procedures are considered "satisfactory," but each has its complications.⁷⁶

In Judaism, neither of these procedures is used; the act is ceremonial, generally practiced outside of the hospital.⁷⁷ In a ritual circumcision, there are three phases: "meelah (the surgical removal of the foreskin), periah (the tearing of the genital membrane underneath the foreskin, back to the corona), and metizitzah (suction)."⁷⁸ Blood must be drawn in every circumcision and therefore the third phase is "usually of distinctive interest."⁷⁹ Originally, the mohel sucked the blood himself from the infant's penis; however alternative procedures were devised in response to the transmission of diseases in the latter part of the nineteenth century and the early part of the twentieth century.⁸⁰ More sanitary methods for suctioning now involve using a cotton swab or a small glass tube to draw out the blood.⁸¹ After the suctioning of blood, a sterile dressing is applied to the penis and the newborn is wiped in a diaper.⁸²

Some of the complications of male circumcision are meatal ulceration,⁸³ hemorrhaging,⁸⁴ infection,⁸⁵ retention of the plastic bell ring,⁸⁶ concealed penis,⁸⁷ urethral fistula,⁸⁸ urinary retention,⁸⁹ glans necrosis,⁹⁰ injury and loss of glans,⁹¹ excessive skin loss,⁹² skin bridge,⁹³ and preputial cysts.⁹⁴ Meatal ulceration occurs as a result of ammonia from urine burning an infants exposed glans.⁹⁵ An ulcer, covered by a crust, can be anywhere from 2 millimeters in depth to more than 5 millimeters wide.⁹⁶ When a plastic bell ring is used to remove the foreskin, the foreskin should dry and fall off with the ring.⁹⁷ Retention of the plastic ring is a result of the failure of the ring to fall off, becoming buried under the skin.⁹⁸ This is extremely painful and the cosmetic results are horrific.⁹⁹ Moreover, as a result of circumcision, a fistula, an abnormal opening of the body, may occur on the underside of the penis from "accidental crushing of the urethra by the circumcision clamp, an abnormality in the urethra, or from a stitch placed in the underside of the penis to control excessive bleeding at the site of the frenulum."¹⁰⁰ In addition, when too much skin is removed during circumcision, the result is devastating since the newborn's penis is very tiny and its future growth is indeterminable.¹⁰¹

Most complications that accompany male circumcision occur infrequently. The risks, however, are relatively great given that the procedures are considered easy to perform.¹⁰² There is a ninety to ninety-five percent chance that a circumcision will heal rapidly with little bleeding or infection.¹⁰³ Although most complications that occur are easy to resolve, many result in extreme or disastrous consequences such as pain, trauma, psychological ill effects, lifelong mutilation,¹⁰⁴ and death.¹⁰⁵

When viewed in terms of percentages--the fact that some of the complications occur in one out of several hundred or thousand infant circumcisions--the risks seen insignificant. But when viewed in terms of individuals and families involved in these tragic events--particularly when the operation is unnecessary--the risks seem quite significant.¹⁰⁶

Besides the physical complications, male circumcision, most often performed with no anesthesia, results in pain and psychological trauma. The theory that the procedure results in pain was questioned in the past, but there is no longer any doubt that newborns suffer great pain any psychological stress.¹⁰⁷ Many physicians support the use of local anesthesia because "[i]f neonatal circumcisions are . . . performed, the should be done as humanely as possible."¹⁰⁸ Dr. Greg Miller, a neonatologist, teaches residents from the Medical College of Wisconsin about circumcision anesthesia. Dr. Miller says that excuses for not using anesthesia "`drive me up the wall. You wouldn't do that to an adult. You wouldn't do it to an animal,' he said of performing the procedure without pain relief."¹⁰⁹ He further adds that "it doesn't take a medical study to prove that experiencing intense pain, even briefly, is something you never forget. And its certainly something you'd rather avoid."¹¹⁰

A recent study conducted by Canadian researchers further supports the use of anesthesia to reduce the pain of circumcision.¹¹¹ The study, published in the New England Journal of Medicine, concludes that newborns who had "an anti-pain cream applied to [their] penises . . . before their foreskins were sliced off . . . cried less and half as often as a comparable group of babies that weren't given an analgesic."¹¹² The newborns with the analgesic "also closed their eyes, furrowed their brows and pursed their lips less. And their heart rates didn't jump as nearly as high."¹¹³ Circumcision "is still all too often barbaric," wrote Dr. Thomas E. Wiswell of Thomas Jefferson University in an editorial accompanying the study.¹¹⁴ Wiswell added that painkillers should always be given, and parents and physicians should demand no less."¹¹⁵

These statements and study obviously suggest the nature of cir- cumcision is inhumane. A newborn's reaction is illustrative of the immense pain and trauma suffered.¹¹⁶

That newborn circumcision is a psychologically traumatic experience is obvious. The infant, after living in the protected uterine environment for [nine] months, goes through the birth trauma and usually is immediately separated from the mother . . . After [two] or [three] days of such separation, the infant is firmly restrained, placed under strong lights and subjected to a surgical procedure without anesthesia. The only question is whether the trauma is short-lived, as is generally believed, or of longer, possibly permanent, duration, as is suggested by some research.¹¹⁷

Infliction of male circumcision on a newborn may result in long-term psychological and developmental effects.¹¹⁸ Ample evidence demonstrates that the experience of a newborn affects his behavioral patterns throughout his lifetime.¹¹⁹ Opponents of circumcision argue that cutting an infant imprints violence on the babies brain. James Prescott, a psychologist, contends that circumcision "encodes the primitive immature, developing brain with pain when it was designed to be encoded with pleasure. This is one of the beginning stages in establishing the sadomasochistic personality."¹²⁰ Men, circumcised as newborns, have recently come forward in an attempt to document the harm they suffered as a result of circumcision.¹²¹ Although a relatively small group has participated in the documentation, the statistics clearly imply what men are feeling, but are too ashamed to express. Respondents report physical, sexual, emotional, and psychological harm due to removal of their foreskin.¹²² The highest percentage of respondents reported dissatisfaction with circumcision, resentment over the surgery, and feelings of mutilation and a lack of natural wholeness.¹²³ Moreover, a large percentage of these men suspect that circumcision has reduced their sexual pleasure.¹²⁴

The effect circumcision has on sexuality and sexual experience is a controversial area of study. As early as the thirteenth century, Rabbi Moses Maimonides recognized that the objective of circumcision was to limit sexual intercourse and curb sexual excitement:¹²⁵

The bodily injury caused to that organ is exactly that which is desired; it does not interrupt any vital function, nor does it destroy the power of generation. Circumcision simply counteracts excessive lust; for there is no doubt that circumcision weakens the power of sexual excitement, and sometimes lessens the natural enjoyment; the organ necessarily becomes weak when it loses blood and is deprived of its covering from the beginning.¹²⁶

Studies show that the foreskin is an erogenous zone consisting of "naked nerve endings" which are destroyed as as result of the procedure.¹²⁷ The removal of the foreskin also results in the loss of a "natural gliding mechanism helpful with [sexual intercourse];"¹²⁸ and in the development of thicker, drier tissue surrounding the glans which can necessitate the need for synthetic lubricants during sexual intercourse.¹²⁹ "Often, it is erroneously considered the woman's lack of lubrication that makes intercourse painful rather than lack of natural male lubrication, which is more likely the cause."¹³⁰ Therefore, an uncircumcised man probably has improved sexual experiences as opposed to the circumcised male.¹³¹

13. Lightfoot-Klein writes:

Excision practices can be assumed to date back thousands of years, conceivably to the early beginnings of mankind. Quite conceivable also, circumcisions at some early point in human history replaced human sacrifice as a way of placating hostile forces and spirits. At what period these practices came into conjunction with the obsessive preoccupation with virginity and chastity that today still characterizes Islamic-Arabic cultures is not known, but infibulation clearly appears to be the result of that meeting.

PRISONERS supra note 10, at 27; see also Steele, supra note 9, at 113-115.
       14. TOUBIA, supra note 2, at 21. In the fifth century B.C., Herodotus reported on female circumcision and thought its origin was Ethiopian or Egyptian. The custom is further reported in a Greek papyrus dated 163 B.C. and by a Greek geographer in 25 B.C.; both inplied that the procedure was a premarital rite for women of a high caste. Prisoners, supra note 10, at 27.
       15. Id. at 27-28.
       16. Id.; see also TOUBIA, supra note 2, at 21
       17. Id. at 9-11.
       18. Note, What's Culture got to do with it? Excising the Harmful Traditions of Female Circumcision. 106 HARV. L. REV. 1944, 1946 (1993) [hereinafter Culture]. A woman's external genitalia is composed of the clitoris, clitoral prepuce, the labia majora, and the labia minora. Id. The labia majora are the large lips of the vagina and the labia minora are the small lips of the vagina. Id.
       19. TOUBIA, supra note 2, at 9.
       20. Id.
       21. Id.
       22. FRAN P. HOSKEN, THE HOSKEN REPORT 33 (4th ed. 1994); see RAQUITYA HAJI DUALE ABHALLA, SISTERS IN AFFLICTION 8-10 (1982) [hereinafter SISTERS]; see generally Anna Funder, De Minimis Non Curat Lex: The Clitoris, Culture and the Law, 3 TRANNAT'L L. & CONTEMP PROBS. 417, 435-35 (1993).
       23. HOSKEN, supra note 22, at 33. Also referred to as pharonic, "[t]he term `infibulation' is derived from the name given to the Roman practice of fastening a `fibula' or `clasp' through the large lips of [women's] genitalia in order to prevent them from having illicit sexual intercourse." SISTERS, supra note 22, at 10. This type of circumcision involves the total removal of the clitoris, some or all of the labia minora, and all or most of the labia majora. See TOUBIA supra note 2 at 10; see generally Smith, supra note 9, at 2450; ASMA EL DAREER, WOMAN, WHY DO YOU WEEP": CIRCUMCISION AND ITS CONSEQUENCES 1-2 (1982) [hereinafter WOMAN]. Raw surfaces are created in the labia majora which are then stitched together to heal as a covering for the urethra and most of the vagina. The stitching of the skin may be done with silk or catgut sutures as in Sudan or by thorns as in Somalia. Sisters, supra note 22, at 10. "Catgut is obtained from animal (sheep) intestines. It is dried and used as strings or thread to suture the raw edges of the wound." Id at n.2. Only a small opening, the size of a matchstick or tip of the little finger remains both for the passage of urine and menstrual flow. TOUBIA, supra note 2, at 10. A physical barrier to intercourse is now constructed and it may take several months for a man to penetrate a woman's vagina. Sometimes a woman must be recut before intercourse can occur. Moreover, a woman is often recut for childbirth and then restitched to "recreate the illusion of vaginal tightness." Id. at 11. Fifteen percent of all women circumcised undergo infibulation. Id. at 10.
       24. Clitoridectomy is also, confusingly, referred to as sunna, the third type of circumcision. See TOUBIA, supra note 2, at 10. For purposes of this comment, clitoridectomy will be considered a separate grouping. This type of circumcision refers to the procedure wherein one or more parts of the female external genitalia are removed. In this procedure, the clitoris is either partially or fully removed. The labia majora is left entirely intact and the vulva is unsutured. Eighty-five percent of women who are circumcised undergo clitori- dectomies. TOUBIA, supra note 2, at 10.
       25. Sunna is the least severe and rarest of the three practices. "`Sunna' [tradition] refers to any practice regularly required of Muslims. Many religious scholars contend that belief that female circumcision is required of Muslims is a serious misunderstanding in the interpretation of Islam, and has contributed to the spead of the practice." See TOUBIA, supra note 2, at 10 n.1; FUNDER, supra note 22, at 434; see also infra notes 198-214 and accompanying text. This procedure involves the removal of the clitoral tip and/or prepuce. The reason this is so rarely performed is due to practitioners' lack of anatomical knowledge, crude tools, and environmental conditions. Hosken, supra note 22, at 33.
       26. HOSKEN, supra note 22, at 33. In countries like Sudan, Somalia, Djibouti, eighty to ninety percent of female circumcision is infibulation. It is also practiced, albeit to a lesser extent, in part of Mali, Ethiopia, Eritrea, Gambia, and Egypt. TOUBIA, supra note 2, at 11.
       27. SISTERS, supra note 22, at 20-21; see also TOUBIA, supra note 2, at 29; WOMAN supra note 23, at 6-8; HOSKEN, supra note 22 at 33.
       28. TOUBIA, supra note 2, at 29.
       29. WOMAN, supra note23 at 6-8; HOSKEN,supra note 22, at 33.
       30. In Sudan, for example, the main instrument used is a knife, followed by razors and then scissors. Generally, the knife is cleaned by only and old rag and is rarely if ever, sterilized. The instruments are often rusty or have been used in succession. Occasionally, sharp, dirty stones are used to cut the genitalia. After the operation, the incision may be cleaned and treated with kerosene, engine oil, palm oil, vaseline, or soap. Culture, supra note 18, at 1947.
       31. See OLAYANKEA KOSO-THOMAS, The Circumcision of Women: A Strategy For Eradication 25-28 (1987); TOUBIA, supra note 2, at 13-19; WOMAN, supra note 23, at 27-49; SISTERS, supra note 22, at 21-29.
       32. See TOUBIA, supra note 2, at 13-14; LEWIS, supra note 9, at 12; KOSO-THOMAS, supra note 31, at 25-29.
       33. The clitoral artery which is cut in the process has a strong flow of blood and may lead to hemorrhaging. The bleeding may also lead to anemia and if unstopped, death, TOUBIA, supra note 2, at 13.
       34. Infection is very likely to occur due to unsanitary conditions--if the girl cannot move she lays in her own urine and fecal matter. Infections such as pus, ulcerating wounds and the toxic infection, septicemia, are the most common. Due to unsterilized instruments, tetanus may also occur. Id.
       35. Anesthesia is rarely if ever used, and due to the sensitive nature of the vaginal area, pain is extreme.
       36. As a result of the pain and swelling, urine passage is extremely difficult in the days following the procedure and can lead to infection.
       37. There are documented instances of children who entered a state of shock due to the immense pain and swelling and subsequently died. Id.
       38. These complications, which can lead to long-term problems, may be the result of a practitioner's inexperience or the result of the child moving during the procedure. Id.
       39. KOSO-THOMAS, supra note 31, at 26. Keloid scarring is "[a] sharply elevated, irregularly shaped, progressively enlarging inelastic scar due to excessive collage formation in the skin during connective tissue repair, or, an overgrowth of scar tissue, which produces a contraction deformity." Id. at xiii.
       40. Other long-term complications are pelvic infection, infertility, painful intercourse, and prolonged labor during childbirth. Id.
       41. Id.
       42. PRISONERS, supra note 10, at 98-102. see also TOUBIA, supra note 2, at 15; Culture, supra note 18, at 1948.

Recircumcision or refibulation [is p]erformed on women who have given birth, are widowed, or divorced, to simulate a virginal vagina. It is called adla (tightening) and it is mostly per- formed on those women who have had previous pharonic or intermediate circumcision. The edges of the scar are pared and sewn together.

PRISONERS, supra note 10, at 35.
       43. KOSO-THOMAS, supra note 31, at 37-42; see also SISTERS, supra note 22, at 24-26. However, "[t]he assumption that all circumcised women have sexual problems or are unable to achieve orgasm has no scientific evidence to substantiate it." Nahid Toubia, Female Genital Mutilation and the Responsibility of Reproductive Health Professionals, 46 INT'L J OF GYNECOLOGY & OBSTETRICS 127, 131 (1994).
       44. TOUBIA, supra note 2, at 17-19; SISTERS, supra note 22, at 27-28.
       45. Complications range from trauma to psychoses. SISTERS, supra note 22, at 27. See also FUNDER, supra note 22, at 435-36.
       46. TOUBIA, supra note 2, at 19.
       47. ROMBERG, supra note 1 at 1. The event is said to have occurred in approximately 1713 B.C. Id.; see supra note 6 and accompanying text.
       48. The dating of these artifacts has been estimated anywhere from 2400 to 2600 B.C.,3503 to 3335 B.C., and 1300 to 1280 B.C. ROMBERG, supra note 1 at 1.
       49. Id.
       50. Id.
       51. See generally WALLERSTEIN, supra note 1, at 8-9 (providing an extensive historical analysis).
       52. WALLERSTEIN, supra note 1, at 7; see also William E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional Issues, 23 J. FAM. L. 337,338 (1984). The word circumcision is used throughout this comment to refer to simple (routine infant) circumcision.
       53. WALLERSTEIN, supra note 1, at 7. The application of the term circumcision. to this procedure stems from its use in anthropological studies. In subincision, the would remains open through adulthood. These procedures are usually performed by Australian aborigines or Bedouin communities. Id. The Aranda of Central Australia refer to the subincised penis with the same name as the female vulva, and [the] effusion of blood was regarded as serving the same function as menstruation, which in the female enabled her naturally to dispose of the evil humors that accumulate in the body." Ashley Montagu, Mutilated Humanity, 55 HUMANIST 12, July 1, 1995.
       54. WALLERSTEIN, supra note 1, at 7.
       55. Brigman, supra note 52, at 338. Superincision is performed in Polynesia. Id.
       56. Id.
       57. WALLERSTEIN, supra note 1 at 7. Simple circumcision or routine infant circumcision is most analogous to the sunna circumcision performed on women.
       58. Id. at 210.
       59. The shaft refers to the length of the organ. WALLERSTEIN, supra note 1, at 196.
       60. The sulcus separates the glans from the shaft. Id.
       61. The meatus is the opening at the tip of the penis. Id.
       62. The foreskin is also referred to as prepuce. "[It] can be visualized as cone-shaped with the base of the cone encircling the penile shaft, close to the groove." Id.
       63. ROMBERG, supra note 1, at 206.
       64. WALLERSTEIN, supra note 1, at 205.
       65. There are variations within these two major categories. Id. at 207.
       66. Id. at 205.
       67. See infra notes 107-117 and accompanying text.
       68. WALLERSTEIN, supra note 1, at 205.
       69. Id.
       70. Id.
       71. Id.
       72. The Gomco method begins with cutting the foreskin to expose the glans and placing a cap over the glans. The cap is then covered by the stretched foreskin which is tied to the cap handle.

The hole in the base plate is placed over the cap handle and the flange on the handle is fitted into a groove in the screw device. The foreskin is now firmly held between the metal cap and the rim of the hole in the metal plate. By turning the screw device, the handle and cap are raised, squeezing the foreskin tightly against the plate opening, While the clamp is squeezing the foreskin tightly against the plate opening, the bulk of the foreskin is cut off. The clamp remains in place for at least five minutes, and when it is released, the base of the foreskin usually can be easily separated from the penile shaft.

WALLERSTEIN, supra note 1, at 207.
       73. The device used in this procedure is called the Plastibell. This has a urine opening and deep groove and is made of plastic. In this procedure, the squeezing is done by a string, but the method is virtually identical to the Gomco clamp. Id.
       74. Id.
       75. Id.
       76. Id. at 210.
       77. See author's first hand account, supra notes 4-8 and accompanying text.
       78. Harvey Lutske. The Book of Jewish Customs 39 (1995)
       79. Id.
       80. Id.
       81. Id.
       82. Id.
       83. ROMBERG, supra note 1, at 200-03.
       84. There is an estimated eight to thirty-one percent change of hemorrhage development, but this statistic is probably depressed due to under reporting. Approximately two percent of all circumcisions result in excessive bleeding which can lead to death. Id. at 206-08.
       85. Infection is common, and since the circumcised penis has contact with wet and dirty diapers, there is increased danger of infection. The common symptoms are fever, pus, redness, and swelling. Id. at 208-210.
       86. Id. at 210-11.
       87. At times following circumcision, the penile shaft will retreat into the skin surrounding the area and cannot be seen at all. In order to produce a "normal" penis, surgery and skin grafting must occur. Id. at 211-214.
       88. Id. at 214-215.
       89. Occasionally infant will not urinate for several hours following the procedure. Id. at 217-218.
       90. Necrosis, the death of body tissue may occur on the glans as a result of a tight bandage or from the wrong size plastibell ring. Id. at 218.
       91. Permanent deformity results when the glans is injured or cut off entirely during the procedure. ROMBERG, supra note 1, at 219. One of the most notable circumcision mishaps was addressed in a landmark case "in the annals of sex research." Dick Thompson, A Boy Without a Penis: The Experts Had it All Wrong, Says the Beleaguered Survivor of a Landmark 1960s Sex-Change Operation, TIME, Mar. 24, 1997. at 83. In 1963, an infant twin boy's penis was "damaged beyond repair by a circumcision that went awry." Id. As a result doctors castrated the infant and constructed a "kind of vagina" with the remaining tissue. Id. Although a rare case, it is one too many, especially when there is no justification for the practice. There are many such cases that illustrate the physical complication of male circumcision. See, e.g. Felice v. Valleylab, 520 So.2d 920 (La. Ct. App. 1987) (child's penis burned off by electrosurgical unit during circumcision); Wilson v. Lockwood, 711 S.W.2d. 545 (Mo. Ct. App. 1986) (damages sought against physician, hospital, and manufacturer of the circumcision device for the injuries child suffered--the device which was supposed to fall off in eight days did not and instead had to be surgically removed); Valentine v. Kaiser Foundation, 194 Cal. App 2d 282 (1st Dist. 1961) (infant lost tip of his penis as a result of a circumcision through the negligent use of Gomco clamp); In Australia, a 21 year-old was awarded $195,000 for the loss of one-third of his penis after a botched circumcision following his birth. Man Who Lost Part of Penis Can Keep Damages Award, REUTERS, May 14, 1987.
       92. ROMBERG, supra note 1, at 219-220; see e.g., Circumcision suit Settled for $1.2 M, THE RECORD (Northern New Jersey), Nov. 30, 1995, at A4. A recent study by the Department of Pathology at the University of Manitoba looked at the amount of tissue missing from an adult circumcised penis. The results showed that "[s]kin and mucosa sufficient to cover the penile shaft was frequently missing from the circumcised penis." The study concluded that "[t]he amount of tissue loss estimated . . . is more than most parents envisage from pre-operative counseling. Circumcision also ablates junctional mucosa that appears to be an important component of the overall sensory mechanism of the human penis." J.R. Taylor et al., The prepuce: specialized mucosa of the penis and its loss to circumcision, 77 BRIT J. UROLOGY 291) (Feb. 1996). This lining of the foreskin also has specific function during masturbation or sexual relations. It provides nontraumatic sexual stimulation by its ability to roll back and forth. Human Sexuality: An Encyclopedia 120( Vern L. Bullough & Bonnie Bullough eds., 1994).
       93. This occurs as a complication to healing "by which a piece of skin from the shaft of the penis has become attached to the glans, or another point along the shaft, forming a "bridge" that must be surgically corrected." Romberg, supra note 1, at 221-22.
       94. A cyst, "an abnormal, closed pocket of body tissue which contains fluid or solid material," may form where the skin was cut and require surgery for removal. Id. at 223.; see also Johnson v. Hammond, 589 N.E.2d 65 (Ohio 1990) (Gomco circumcision clamp slipped when removed causing bleeding, a subsequent infection, and a cyst).
       95. ROMBERG, supra note 1, at 200-03.
       96. Id.
       97. Id. at 207-209; see e.g., Olson v. Bellins, 544 So.2d 449 (La. Ct. App. 1989.) (damages sought when plastibell did not fall off in four to five days, but eighteen days later, resulting in a slight blemish).
       98. ROMBERG, supra note 1, at 210-211.
       99. Id.
       100. Id. at 214-215.
       101. Id. at 219-20; see, e.g. Jorge Fitz-Gibbon & Jane Furse, Botched Bris Costs 1.2M, DAILY NEWS, Nov. 29, 1995, at 22.
       102. ROMBERG, supra note 1, at 198.
       103. Id.
       104. See Fitz-Gibbon & Furse, supra note 101, at 22.
       105. ROMBERG, supra note 1, at 198.
       106. Id. at 198-99.

Circumcision surgery has a complication rate of 1 in 500 and a reported death rate of 1 in 500,000. The potential for surg- ical complications to be tragic and irreparable is high. The infliction of such a high surgical risk for non-therapeutic amputative surgery is unethical since the individual who must live with the consequences of the operation has not consented to its performance.

Paul M. Fleiss, M.D. & Frederick Hodges, The Foreskin is Necessary, TOWNSEND LETTER FOR DOCTORS & PATIENTS 66 (Apr. 1996). (on file with the Buffalo Law Review).
107. Leonard W. Snellman, M.D. & Howard J. Stang. M.D., Prospective Evaluation of Complications of Dorsal Penile Nerve Block for Neonatal Circumcision, 95 PEDIATRICS 705-08 (1995); see e.g., Richard v. La., Dept. of Health and Human Resources, 526 So. 2d. 1237. (La. Ct. App. 1988) (three year-old child suffered tremendous pain and mental anguish from faulty incision made during circumcision and spent over two weeks in the hospital).
108. Snellman & Stang, supra note 107, at 705-08. The most commonly used form of anesthesia for circumcision are EMLA cream and the dorsal penile nerve block. Marilyn Marchone, Circumcision, Ancient Rite, New Debate, MILWAUKEE J. SENTINEL, Apr. 7, 1997, at 1. EMLA cream "contains a [five percent] mixture of the numbing medications lidocaine and prilocaine." Id. The dorsal penile nerve block is " an injection of lidocaine at the base of the penis." Id. Dorsal penile nerve block (DPNB) is a local anesthesia that may reduce the physiologic response, but there are inherent risks and concerns about its safety that have been expressed by the American Academy of Pediatrics. The procedure has not been widely adopted. Snellman and Stang, supra note 107, at 705-08. "Perhaps the most significant function of the dorsal penile nerve block is that it alleviates the consciences of the adults involved." Romberg, supra note 1, at 389. See also Nancy Wellington, M.D. & Michael J. Rieder, M.D., Attitudes and Practices Regarding Analgesia for Newborn Circumcision., 93 Pediatrics 541, 5412-43 (1993); C. Anthony Ryan and Neil N. Finer, Changing Attitudes and Practices Regarding Local Anesthesia for Newborn Circumcision, 94 PEDIATRICS 230, 230-233 (1994); Kathleen B. Weatherstone et al., Safety and Efficacy of a Topical Anesthetic for Neonatal Circumcision, 92 PEDIATRICS 710, 710-714 (1993).

Although the [EMLA] cream certainly is better from the patient's point of view, many doctors . . . do the nerve blocks mostly because the procedure is more convenient for them. The cream must be applied half an hour to an hour ahead, but the doctor's usually don't schedule circumcisions; they work them in around other duties.

Marchone, supra, at 1.
       109. Id. at 1. Dr. Miller analogizes the procedure, saying: "Imagine having a tooth pulled without anesthesia. Now imagine you're a 2-day-old boy, and instead of a tooth being removed, it's the foreskin of your penis being clamped and cut away for about two minutes." Id.
       110. Id.
       111. Larry Tye, Circumcisions Do Hurt Infants, Study Shows, TIMES UNION, Apr. 29, 1997 at D4.
       112. Id.
       113. Id.; see also Anesthetic Urged in Circumcision, ARIZ. REP., Apr. 27, 1997, at A28.
       114. Easing Circumcision Pain/Researchers Urge Use of Anesthetic Cream, HOUST CHRON, Apr 25, 1997, at 7 (quoting Dr. Thomas E. Wiswell).
       115. Id.
       116. WALLERSTEIN, supra note 1, at 136-141.
       117. Id. at 142.
       118. Id. ROMBERG, supra note 1, at 277-327.
       119. WALLERSTEIN, supra note 1, at 142-43. The studies discussed were based on skin, electric, touch, light, and taste stimuli. Animal experimentation was used for some tests, while others focused on gender behavioral differences between Europeans and between Americans. Id.
       120. Emily Benedek, Unkindest Cut? How Circumcision Came Full Circle, N. Y. TIMES, May 19, 1996 at E3. In an editorial in the Seattle Times, one man questioning the cultural practice and its effects, wrote:

I'll never know how the trauma of circumcision as an infant has affected me and wish that my own genitals hadn't been surgically "altered." I can't help but wonder how much male violence is simply passing that childhood wound to society; bound and helpless, the child's screams go unheeded as the doctor continues to rip and cut. . . .

U.S. Culture No Less Ignorant. SEATTLE TIMES, Sept. 17, 1994, at A11 (editorial).
       121. NOHARMM, Awakenings: A preliminary Poll of Circumcised Men (1994) [hereinafter Awakenings] (partial report on file with the Buffalo Law Review) This was a grassroots ongoing survey of 313 men complied in 1993. The questions were based upon the harm described by men who had previously contacted a circumcision organization in the past ten years. The vast percentage of men who submitted the questionnaire were Caucasian, Christian, between the ages of 40-49, and had been circumcised at infancy. Id.
       122. Id. Some of the adverse outcomes reported by survey respondents included: prominent scarring (29%), progressive glans insensitivity (55.3%), excess stimulation need to orgasm (38%); low self esteem or inferiority to intact men (47.3%), and anger over circumcision (54.3%). Id.
       123. Id.
       124. Id.
       125. Moses Maimonides. GUIDE FOR THE PERPLEXED 378 (M. Friedlander trans., Dover Publ. 2d ed. 1956).
       126. Id.
       127. ROMBERG, supra note 1, at 171-173. Masters and Johnson attempted a study of sexual sensation in circumcised and uncircumcised men and found no difference. Dr. Foley, however is just one of the doctors to have refuted this finding:

Normally the surface of the glans in composed of a smooth glistening membrane only a few cells in thickness. The surface cells are alive, and naked nerve endings are distributed among these cells. After circumcision when the glans is exposed to soiled diapers and rough clothing, this membrane becomes 10 times thicker, and the free nerve endings disappear.

John M. Foley, M.D., The Unkindest Cut of All, FACT MAG., July-Aug. 1966, at 3-9. Dr. William K. Morgan provides support for the theory that sexual pleasure is reduced and reports:

The subcutaneous tissue of the glans is provided with special sensory receptors that are concerned with appreciating pleasurable sensations occurring during coitus. They are stimulated normally only when the glans is exposed. In the circumcised subject these receptors are constantly stimulated and lose their sensitivity.

William K. Morgan, M.D., Penile Plunder, 1 MED J. AUSTL. 1102 (May 27, 1967); see also WALLERSTEIN, supra note 1, at 56.
       128. ROMBERG, supra note 1, at 56.
       129. HUMAN SEXUALITY: AN ENCYCLOPEDIA, supra note 92, at 121.
       130. Id.
       131. Id. at 120.

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BUFFALO LAW REVIEW, Volume 45, pages 560-573.

Justifying the Unjustifiable:
Rite v. Wrong

Abbie J. Chessler