Christopher Price to AAP: 17 Sept 1996

                                        Pembrokeshire
                                        Great Britain

                                        17 September 1996


Maurice E Keenan MD, FAAP
President of the Executive Committee
The American Academy of Pediatrics
16 Bristol Road
West Newton, MA 02165
USA


Dear Dr Keenan,

I write, both as a man circumcised at birth and as a lawyer, since
I understand that the Academy is now intending to re-consider the
issue of circumcision.  In particular, I consider it critical that
the members of the up-coming committee should include (given the
tenor of current studies) at least an equal number of those who
are not, from their published writings, parti pris in favour of
routine circumcision.

I write because the continuation by doctors in the United States
of America of this procedure as a routine (despite the compelling
medical evidence that it is both injurious and unnecessary) gives
a malign example to others elsewhere in the world who would perform
this mutilating, barbarous and unnecessary amputation.  Infant
routine circumcision is always painful (even if operative anaesthesia
is used, with all its risks), has a significant complication rate
and produces inevitable loss of full sensation and function.

I have little doubt that you will receive much material from others
pointing out the losses caused by circumcision at any age, drawn
from the wide range of published medical studies;  and I do not
here wish to go over that ground.  I would rather make two points:
first as to the discriminatory nature of routine circumcision;
the second as to the legal and ethical constraints of such a
procedure.

To circumcise, that is to say to alter and thus mutilate the genitals
of neonatal boys as a matter of routine and absent any pathology
requiring treatment, whilst (very properly) refusing to mutilate
the genitals of girls is to discriminate against those boys.  Both
the very circumcision and the discrimination itself are breaches
of the boy's human rights under international law (and also enshrined,
as I understand it, in the US Constitution, in the 14th Amendment).

I am also concerned that the Academy's helpful and thoughtful
guidance on ethics (in PEDIATRICS  Vol. 95 No. 2 February 1995)
has not been applied or, seemingly even considered, in relation to
routine male circumcision.  If the ethical stance set out in that
guidance (with which, if I may be permitted to say with great
respect, I largely agree) were to be properly applied then routine
circumcision could not take place.

Whilst the guidance properly makes the point that ``for many patients
and family members, personal values affect health care decisions,
and physicians have a duty to respect the autonomy, rights, and
preferences of their patients and their surrogates,'' there is, as
the guidance makes clear an over-riding duty on the doctor towards
the patient:  not only the general duty expressed in the maxim
Primum non nocere, but also the recognition that, for paediatricians,
children are particularly vulnerable and thus needing the highest
standards of protection.

The guidance says, impeccably, : ``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 ....... the paediatrician's responsibilities
to his or her patient exist independent of parental desires or
proxy consent.'' Further, ``Although physicians should seek parental
permission in most situations, they must focus on the goal of
providing appropriate care and be prepared to seek legal intervention
when parental refusal places the patient at clear and substantial
risk.'' (to which I would add, to that last remark, that the duty
enunciated is as equally applicable to cases of parental insistence
for an unnecessary intervention, particularly one with such proven
and inevitable harm and such illusory `benefits').

Further, routine circumcision is not `medical treatment';  indeed
it is, in the light of the medical evidence as to the lack of any
real benefits, not even properly to be described as prophylactic.
Black's Law Dictionary defines medical treatment as `a broad term
covering all steps taken to effect a cure of any injury or disease:
the word including examination and diagnosis as well as application
of remedies'. I am not aware of any court that has held that surgical
removal of any normal healthy, non-diseased, uninjured part of the
body is `treatment'.

The Academy clearly will already be aware of the line of cases
regarding parental assent to procedures on children.  These cases
include: Re Phillip B.[Cal App. 3d 796, 801.]; Little v Little
[576. S. W. 2d 493-5.];  Wisconsin v Yoder [(1972) 406. U.S. 205,
234.] (which subjects parental duty and right to limitations if it
appears that parental decisions will jeopardise the health or safety
of the child);  Kate's School v Department of Health [(1979) 155.
Cal. Rptr. 529.];  and Valerie N. v Valerie N.[(1985) 219. Cal.
Rptr. 387.].

There is also the over-arching principle, and the dictum, in Prince
v Massachusetts, [321. U.S. 158. (1944)] where the United States
Supreme Court ruled that ``parents may be free to become martyrs
themselves.  But it does not follow they are free ... to make
martyrs of their children before that have reached the age of full
and legal discretion when they can make that choice for themselves''.
The Academy should also note article in the California Law  Review
Vol 82, Dec 1994, No 6   ``Parents' Religion and Children's  Welfare:
Debunking the Doctrine of Parents' Rights'' by James G Dwyer.

The principle of the imperative to protect the child and to have
regard to the child's best interests is also to be seen in other
common law jurisdictions, such as England where the highest appellate
court (the House of Lords) so decided in Gillick v West Norfolk
and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC
112:  ``...parental rights to control a child do not exist for the
benefit of the parent. They exist for the benefit of the child and
they are justified only in so far as they enable the parent to
perform his duties towards the child, and towards other children
in the family. If necessary, this proposition can be supported by
reference to Blackstone's Commentaries (1 Bl Com (17th edn, 1830)
452), where he wrote: `The power of parents over their children is
derived from their duty.'...''.  Thus:  ``Once the rule of the
parents' absolute authority over minor children is abandoned, the
solution to the problem in this appeal can no longer be found by
referring to rigid parental rights at any particular age. The
solution depends on a judgment of what is best for the welfare of
the particular child.''

Further, the highest appellate court in Australia in Secretary,
Dept. of Health and Community Services v. JWB and SMB: 1992 175
CLR 218 [Marion's Case] said that: ``Modern case law makes it
impossible, therefore, to assert that parents have a natural right
of almost absolute control over the person, education, conduct and
property of their children.  Consequently, the power of parents to
consent to medical treatment and surgical procedures in respect of
their children can no longer be regarded as existing as an incident
or corollary of such a right.''

The court in Marion's case indicated that court approval was likely
to be required as a matter of law where the proposed procedure
involved or was likely to involve:

  # Invasive, irreversible and major surgery.

  # Significant risk of making the wrong decision either as to a
  child's present or future capacity to consent or about what are
  the best interests of a child who cannot consent.

  # Consequences of a wrong decision which are particularly grave.

and it is clear from that case that circumcision falls within what
the court would regard as a procedure involving the specified
criteria for court intervention.

That routine circumcision has taken place for so many decades since
the 19th century without thought as to its harmful consequences,
is not a respectable argument for its continuation into the 21st
century.  There have been many other ancient procedures which have
been readily abandoned once their harm and lack of efficacy have
been realised;  none of these had such a bizarre basis, as did
routine circumcision, of a 19th century anti-masturbatory hysteria
nor a continuation despite a lack of any rational basis and with
such desperate and increasingly doomed attempts (which leave one
to wonder at the motives of those who attempt this) to find some
shred of justification.

For the Academy now to take a responsible and wholly ethical stance
and to declare that, in the light of modern studies, it is now
clear and accepted that routine circumcision should not be performed,
would redound to the world-wide credit of the Academy.

It would also forestall those who, routinely circumcised today and
in the future, might wish later to litigate and rely on today's
current medical knowledge;  whilst it might have been possible to
avoid legal liability in the past by claiming that routine circumcision
was believed to be harmless and that there were benefits, that
stance is now no longer available given current medical knowledge.

                                Yours sincerely


                                Christopher P. Price MA (Oxon)

Copy to:
Stanley Zinberg MD,
American College of Obstetrics and Gynecology,
409 12th Street SW, Washington DC 20024-2188
USA
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