Povenmire: Parental consent for circumcision (1/6)

Journal of Gender, Social Policy & the Law, Volume 7, Number 1, pages 87-90, 1998-1999.

I. Introduction

There is no interest so vital and personal to the individual as that of controlling one's own body. This interest is a fundamental precept of the common law¹ and an essential element of the right to privacy protected under the United States Constitution.² The right to bodily integrity is also a "sacred"³ and "fundamental"⁴ right which derives its compelling indepensibility from the instinctual desire for self-preservation common to all sentient beings.⁵ The desire to protect oneself is papably present in an infant from the moment it emerges from the womb.⁶

The routine infant circumcision of males in the United States consists of surgically amputating healthy male tissue.⁷ In the overwhelming majority of cases, this procedure is performed at the parents' discretion, without any compelling medical or religious purpose.⁸ This article argues that routine infant circumcision implicates important constitutional rights which should supercede parental discretion, and that parental authorization for this procedure is legally insufficient to constitute effective consent.

For female infants, the right to the integrity of the genital organs is protected against surgical "mutilation"⁹ by federal law¹⁰ and United Nations resolutions.¹¹ Under the law, the right of bodily integrity is deemed so fundamental that it displaces any consideration of the parents' cultural or religious beliefs.¹² Unfortunately, no similar recognition has been extended to male infants in the United States. The failure of the law to provide equal protection to males can find no "exceedingly persuasive"¹³ justification, and is therefore unconstitutional.

Part II of this article reviews the historical background of routine infant circumcision in the United States and surveys the positions of various medical associations and medical researchers concerning the practice of male circumcision. Part III reviews the legal prerequisites for obtaining an effective consent to surgery, including circumcision. Part IV analyzes the parens patrie¹⁴ power of the state to intervene in parental decisions affecting minor children, while drawing parallels between circumcision and cases involving sterilization and amputation. Part V discusses the recently passed Criminalization of Female Genital Mutilation Act, emphasizes the inability of parents to consent to genital surgery on minor females under the Act, and exposes the Act's vulnerability to Fourteenth Amendment Equal Protection Challenges under the United States Constitution. Part VI concludes that a change in society attitudes is necessary in order to extend to males the same protection from intrusive amputation of genital tissue currently provided to females under the Criminalization of Female Circumcision Act.

See Union Pac. Ry. Co v Botsford, 141 U.S. 250, 251 (1890) (holding that the court has no right to order a surgical exam); see also Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 169 (1990) (permitting the state of Missouri to require evidence in order to withdraw life sustaining equipment); In re Gardner, 534 A.2d 947-956 (Me. 1987) (holding that a patient, who prior to an accident stated that he did not want to be kept alive in a vegetative state, had the right to refuse life support.); Schloendorff v. Society of New York Hosp., 105 N.E. 92,93 (N.Y. 1914) (stating that every adult has control over his or her own body).
See Planned Parenthood v. Casey, 505 U.S. 833, 915 (1992) (concurring that there exists a constitutionally protected liberty interest which includes the right to bodily integrity); see also Eisenstadt v. Baird, 405 U.S. 438,453 (1972) (describing the right of privacy as "the right of the individuals ... to be free from unwarranted governmental intrusion" rather than the right of the family as an entity); Conservatorship of Valerie N., 707 P.2d 760, 785 (Cal 1985) (holding that prohibiting sterilization violated privacy and liberty interests). The court in Conservatorship of Valerie N stated [T]he great conceptual background for due process privacy law [is] bodily autonomy.... At present only the most powerless members of society appear to need to rely on the Constitution for such a basic right. The courts have ... recognized individual liberty in things of the body as a touchstone." see id. (quoting Note, Due Process Privacy and the Path of Progress, U. ILL. L. FORUM 469, 515 (1979)); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) discussing the right to determine what to do with one's own body)); Hondroulis v. Schuhmacher, 553 So. 2d 398, 414-15 (La. 1988) (stating that the decision of whether to undergo surgery or other medical treatment, no less than the decision to continue or terminate pregnancy is, to an extraordinary degree, an intrinsically personal decision.")
See Union Pac. Ry. Co v. Botsford, 141 U.S. at 251 (stating that there is no right more sacred than the right to control one's own person).

See Cruzan, 497 U.S. at 278 (inferring from prior court decisions a constitutionally protected libery interest in declining medical treatments).
See Thomas Aquinas, SUMMA THEOLOGICA 2 (Fathers of the English Dominican Province trast., Benzingers Bros. 1947) (1498) (communicating the significance of religious dogma); see also Steven M. Wise, Legal Rights for Nonhuman Animals: The Case for Chimpanzees and Bonobos, 2 Animal 179, 181 (1966) (discussing the chain of being ranging from the corporeal to the intellectual).
See Wise, supra note 5, at 181.

See EDWARD WALLERSTEIN, CIRCUMCISION AN AMERICAN HEALTH FALLACY 1 (1980) (discussing the number of American males who undergo this type of surgery and the techniques used, even though no religious ritual or puberty rights are involved); see also infra note 14 and accompanying text.

See Randi Hutter Epstein, Circumcision Controversy: Doctors Debate the Benefits and Risks of This Common Procedure, but for Most Parents the Decision is Personal, WASH. POST, Oct. 7, 1997, at Z14 (describing circumcision and comments for and against it).

The term "female genital mutilation" has been the subject of considerable controversy. Some scholars argue for the use of the term "female genital surgery" in an effort to be more objectively descriptive and culturally neutral. See Hope Lewis, Between Irua and "Female Genital Mutilation": Feminist Human Rights Discourse and the Cultural Divide, 8 HARV. HUM. RTS. J. 1, 7 (1995) (nothing that there are objections to the word "mutilation" because it has a negative connotation and elicits a misunderstanding of its purpose). Most authors have dispensed with the term "female circumcision" on the premise that the surgical procedures gathered under the term are more abhorent than male "circumcision." Id. at 6.

Criminalization of Female Genital Mutilation Act, Pub. L. No. 104-208, § 645, 110 Stat 3009-708, (1966) (codified as amended at 18 U.S.C. § 116).
Convention on the Elimination of all forms of Discrimination against Women, G.A. Res. 180, U.N. GAOR, 34th session., U.N. Doc. A/34/180 (1980). More recently, the U.N. General Assembly passed the Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess., U.N. Doc. A/48/629 (1993). Article 2 of DEVAW includes FGM as an example of violence that is covered under the resolution.
See infra PART V. (outlining the possible legal implications for circumcision decisions in light of the Criminalization of Female Genital Mutilation Act).

See United States v. Virginia, 518 U.S. 515, 533 (1996) (holding that gender based classifications require an "exceedingly persuasive justification").
See HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY 769 (6th ed. 1991) (defining parens patrie as the "role of state as sovereign and protector of persons under legal disability, such as juveniles or the insane....").

Citation:

Ross Povenmire. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998-1999).

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