Journal of Law and Medicine (Australia), Volume 9, Issue 1: Pages 68-75, August 2001.
Frank Bates LLM (Sheff) MACE
Professor of Law, University of Newcastle, New South Wales
Correspondence to: Professor Frank Bates, Faculty of Law, University of Newcastle, Callahan, NSW 2308, Australia.
Two recent decisions of the English Court of Appeal - Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision)  1 FLR 571 and Re A (Male Sterilisation)  1 FLR 549 - raise serious issues relating to controversial matters involving law and medicine and deserve wider consideration than in their jurisdiction of origin. This article discusses the practical and policy implications of these cases and places them in the appropriate context.
The issue of circumcision of healthy male children has been raised in graphic form in Australia in an article by Boyle and others.1 They conclude2 that non-therapeutic circumcision of unconsenting minors is unethical, useless and traumatic, and that it causes lasting harm physically, sexually, and often, psychologically. Consequently, they suggest that it is "overdue for recognition by the legal community as sexual mutilation". The description of the procedure3 adopted by those writers is, if taken alone, certainly horrific enough. In the authors' words:
"During circumcision, the baby's sensitive foreskin is crushed audibly, and the raw flesh is cut with scissors. In all neonatal circumcisions, forceps or other probes are inserted into the delicate foreskin, scraping, tearing apart and destroying the normal erogenous tissues of the child's sex organ. This causes considerable pain and leaves the raw glans open to infections, with any resultant scar tissue on the glans further compromising sexual sensitivity. Tearing the normal protective adhesions between the glans and foreskin resembles ripping a fingernail from its quick. If a clamping device is used, the foreskin is crushed over a bell-shaped device to enable amputation."
Despite this more than graphic description, there has been relatively little in the way of case law pertaining to this procedure. The matter was referred to in obiter dicta in the notorious decision of the House of Lords in R v Brown,4 where Lord Templeman had said:5
"Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities."
This is with respect, a most curious statement: in the case of the latter instances, it is usually6 the participant who consents to the activity, whereas in the case of ritual circumcision, the object of the procedure will not be in a position to protest. This is particularly so in the case of a Jewish male child who is ritually circumcised on the eight day of his life.7
There can, of course, be not doubt that the issue has arisen in respect of negligent surgical procedures. This, in St Margaret's Hospital for Women (Sydney) v McKibbin,8 the 21-year-old plaintiff had had a negligently performed circumcision performed on him when he was six days old. This reduced the size of his penis by nearly one-third. He was able to urinate, but it sprayed his legs if he was standing: erection and seminal discharge was possible and he was able to father children. Sexual intercourse was also possible, although it would present greater difficulties than it would for other men. However, the cosmetic deformity could not be improved by surgery and it had resulted in a number of social and psychiatric problems for the plaintiff, who avoided women, was sexually frustrated and often depressed. He never formed a relationship with a woman and had never had sexual intercourse. Psychiatric evidence suggested that the psychological harm to the plaintiff was permanent and could, at a later stage, seriously interfere with his capacity to work.
At the trial of his action for damages, the jury returned a verdict for $500,000, a sum regarded as excessive by the New South Wales Court of Appeal, which ordered a new trial. The second jury subsequently returned a verdict for $275,000. The defendant hospital appealed again on the ground that the sum was manifestly excessive. By a majority, the New South Wales Court of Appeal dismissed the appeal.
McHugh JA, with whom Priestly, JA agreed, was of the view9 that the jury could reasonably conclude that the psychological condition of the plaintiff might deteriorate to the point where there was a reasonable prospect that he would withdraw from society and find difficulty in maintaining employment. The judge was further of the view that it was not to the point that the plaintiff's residual organ was adequate for its normal functions. He stated:
"Modern sexologists have punctured the myth that sexual adequacy depends upon the size of the penis. But the myth persists. It could hardly be otherwise. Throughout human history the phallus has been seen as a symbol of power."10
Although the jury's view of the evidence might, he considered,11 have been extreme, it was reasonably open to them. In his dissent, it is not without interest that Mahoney JA did rely12 on the writings of such modern sexologists in order to seek to find that the award was excessive.13
McKibbin is, of course, a straightforward decision on quantum of damages, the negligence having been admitted. However, the facts of the case do seem to bear out at least some of the comments made by Boyle and his colleagues regarding some of the actual and excessive risks of the process.14 However for the purposes of this commentary, that is not the major issue: the procedure in McKibbin must have been authorized and it is the issue of by whom and when it should, or might, be so authorized that was the issue in Re J.
In Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision)15 the father had applied for a specific issue order16 that his five-year-old son be circumcised. The father was a Muslim, though not especially observant. The mother was a non-practising Christian who was bringing up the child in an essentially secular household. The trial judge had accepted that the mother regarded circumcision as an important part of the child's identity as a Muslim, but rejected the application on the basis that the procedure would be not be in the child's best interests because the mother was opposed to the procedure and because only a small minority of the child's peers would be circumcised. The father appealed unsuccessfully to the English Court of Appeal.
First, Thorpe LJ described17 the trial judges's judgment, which he had summarized18 in some detail, as "impregnable" and noted that counsel for the appellant therefore faced an "uphill struggle". Nevertheless, the arguments which she had presented are of interest for the purposes of this article. The first referred to the issue of religion. It was argued that the trial judge had confused the child's religion with the child's religious upbringing in the sense, that during the first two years of his life, his parents were, to some degree at least, practicing Muslims and the parents' separation could not terminate his religion, particularly in the absence of any active step by his mother to do so. Thorpe LJ considered19 that, theoretically at any rate, that argument was correct, even though it weighed very light in the scale that the judge was required to balance as to whether the procedure was in the child's best interests. As the judge pointed out, there were differences in the ways in which children become part of religious communities. On the other hand, some regard their religion as being derived from their parental heritage; on the other hand, some recognize their religion as a result of some ceremonial induction or initiation. Nevertheless, in respect of newborn children, Thorpe LJ was of the opinion that such child did
"not share the perception of his parents or of the religious community to which the parents belong. A child's perception of his or her religion generally depends on involvement in worship and teaching within the family. From this develops the emotional, intellectual, psychological and spiritual sense of belonging to a religious faith."20
It followed in Thorpe LJ's view, that, for practical purposes, courts had correctly emphasised the child's religious upbringing rather than the child's religion, on which there had been no reported case law.
On that issue, Schiemann LJ considered21 that it "bristles with conceptual and philosophical issues". However, his Lordship did not attempt to deal with them, although he commented22 that it was apparent that adherents of the Islamic faith would regard the boy as being part of that faith, as did his father. At the same time, there was no reason to suppose that the child do so regard himself or, indeed, consider himself as belonging to any particular faith. Butler-Sloss P did not express23 any opinion on the matter.
The matter of religion has, necessarily, to be placed in context, especially in view of the opinions expressed by Boyle and his co-authors. The relationship between religious belief and practice has been a source of dispute for a considerable time, although it has been more directly addressed in the United States than in England or Australia. Thus, in Cleveland v United States,24 in the United States Supreme Court, Douglass J stated:
"It is also urged that the requisite criminal intent was lacking since petitioners were motivated by religious belief. That defense claims too much. If upheld, it would place beyond the law any act done under claim of religious sanction."25
More recently, in the well-known United States Supreme Court decision in Employment Division v Smith,26 Scalia J noted27 that exercise of religion
"often involves not only belief and profession, but the performance of (and abstention from) physical acts: as in being with others for a worship service, participating in a sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation".
Although Scalia J's analysis seemed to be concerned largely with Christian observances, he could have properly included ritual circumcision in connection with other religions. Scalia J continued by saying that a State within the United States would be prohibiting the free exercise of religion if it were to ban such acts or abstentions only when they were engaged in for religious reasons, or because of the religious belief that they display. He went on28 to say that the United States Supreme Court had never held that individuals' religious beliefs excuse them from adherence to otherwise valid law prohibiting conduct that the State is free to regulate. The question is quite plain, even though the answer is not: if Boyle and his co-authors are correct in their contention that male circumcision does (or should constitute a criminal assault, then the fact that it is carried out in the exercise of religion does not make it any less of an assault. As will be remembered, Lord Templeman in R v Brown29 specifically exempted ritual circumcision, though he did not justify the exemption and, contextually, the exemption is less than valid.
It had also been submitted on behalf of the father in Re J that any considerations against circumcision were "either transient or, if not transient, speculative". Thorpe LJ took the view30 that the submission disregarded the realities of child development. In the judge's own words:
"Fear, pain, despair or a sense of betrayal may all be transient in the temporal sense, but still inflict emotional and psychological trauma that will burden a child for life."31
The view shared by Boyle and his co-authors who have asserted32 that the procedure causes behavioural and neurological change, diminished self esteem and body image, sexual deficits and, often, lifelong related stress.
However, Thorpe LJ continued33 by saying that each case must turn on its own particular facts and he did not wish to be taken as laying down general guidance:
"The only certainty is that social attitudes to male circumcision will remain extremely fluid. The only generalization I would feel confident to express is that, in those communities where it is the practice to carry out the circumcision of a male child within days of birth, there is much less likelihood of a forensic dispute."
Indeed, Thorpe LJ concluded by saying that the only point of principle that the case decided was that the relevant legislation34 did not enable one parent to arrange circumcision without the consent of the other. The trial judge had accepted the argument that the operation was of considerable consequence and was irreversible. Hence Thorpe LJ was of the view that it must be regarded as falling into the category which , when there was disagreement between holders of parental responsibility, required submission to the court for determination. That point was taken up by Butler-Sloss P who commented:35
"The decision to circumcise a child on a ground other than medical necessity is a very important one; the operation is irreversible, and should only be carried out where the parents together approve of it, or in the absence of parental agreement, where a court decides that the operation is in the best interest of the child."
In the end, Thorpe LJ is surely correct when he stated that Re J really did not decide36 a great deal, but it has raised a number of issues which, when taken in context, suggest the possibility of further conflict. Both Thorpe LJ and Butler-Sloss P emphasized the irreversible nature of the procedure and seemed cautious about permitting it, certainly in the case of a child of the age in question, Thorpe LJ did comment specifically37 that many of the issues could have not have developed but for the practice of the father's community to delay the procedure until the child was about seven years old. One can only speculate about how an identically constituted court would have resolved a dispute, say, between a Jewish mother, who wished the procedure to be carried out, and a non-Jewish father who did not. In addition, the case does nothing to allay the concerns about the procedure itself which have been raised by Boyle and his colleagues regarding the legality of the procedure,38 although it must be of some satisfaction to them that the operation was not authorized.
One final point arises out of Re J and out of the article by Boyle and his co-authors: they point out39 that female genital mutilation, referred to as female circumcision, is illegal in two Australian jurisdictions40 and elsewhere. The nature of that practice has been clearly documented41 and attracts general, and proper, revulsion; however, given present practice, what court or, more especially, legislature would be prepared to clarify the law in the manner urged by these writers?
In Re J, Butler-Sloss P referred42 to sterilization which, in relation to young women with intellectual disabilities, has caused considerable problems in Australia in recent years.43 However, the issue of sterilization in relation to males has only arisen in one instance - in the recent case of Re A (Male Sterilisation),44 which was decided by an identically constituted Court of Appeal to that in Re J. The relevant facts in Re A were that the person who was the subject of the application was a 28-year-old male who had Down's Syndrome and was on the borderline between significant and severe intellectual impairment. He lives with his mother who was 63 years old. A major cause for her concern was that, as her health declined, she would be unable adequately to supervise her son and that he might make a woman pregnant. The mother, hence, sought a declaration45 that sterilization was in the son's best interests, but any such declaration was opposed by the Official Solicitor. The trial judge found that the son was sexually aware and active,46 but also had a high degree of care and supervision which substantially reduced any possibility of his indulging in a sexual relationship. Accordingly, although the mother's application was supported by expert medical evidence, the trial judge refused to grant the declaration on the grounds that the advantages to the son of his undergoing a vasectomy were not clear; that the risks of his entering into a casual sexual relationship were very low; and lastly, that the effect on him which might result from such a relationship would be minimal. The mother unsuccessfully appealed to the Court of Appeal.
The first issue raised by Butler-Sloss P related the nature of the object's best interests after having noted47 an earlier comment in Re MB (Medical Treatment)48 to the effect that best interests were not limited to best medical interests, she stated that in her view, the expression encompassed "medical, emotional and all other welfare issues". In the case of sterilization operations, Butler-Sloss P also emphasized that it was the courts, rather than medical practitioners, who were required to make the decision as to whether it was in the patient's best interests that the operation be performed. At the same time, she adopted the view of Lord Jaucey in Re F49 that [I]n the case of a long-term incompetent, convenience to those charged with his care should never be a justification for the decision to treat".
From a comparative standpoint, that view has not generally been accepted: in Australia, Warnick J of the Family Court of Australia in Re Katie50 specifically noted the benefits to the child's mother were a hysterectomy to be carried out. Although he emphasised that the welfare of the child to be regarded as the paramount consideration, it was necessary to look at her total circumstances. She had been raised as part of the family and it was intended that she continue to be so. In view of that, the abilities of the family, especially here mother, should be maximised so as to cope with the child's needs: "Thus the interests of Katie are inextricably linked with the ability of her parents to cope with the burdens of Katie's care."51 It should also be said, in that comparative context, that in only one case, Re Sarah,52 was the operation not authorised, and, in that case, the young woman did not live with her family. In the English context, as Butler-Sloss P noted,53 there have been case of women with intellectual disabilities where the procedure has been authorised54 and others where it has not.55 Butler-Sloss P commented56 that, in each case, the decision of the court was made in the best interests of the person concerned.
However, the learned President continued, an application on behalf of a man for sterilization was not the equivalent of an application with respect of woman and was not a matter of equality between the sexes, but a balancing exercise on a case-by-case basis:
"There are obvious biological difficulties and sexual intercourse for a woman carries a risk of pregnancy which patently it does not for a man. Indeed there is no direct consequence for a man of sexual intercourse other than the possibility of sexually transmitted diseases."57
However she went on to say that, in the case of a man who has an intellectual disability, neither the birth of a child nor disapproval of his conduct was likely to affect him to a significant degree except in exceptional circumstances. The exceptional circumstances to which Butler-Sloss referred included the subject's freedom of movement which, in turn, might lead to his quality of life being diminished. She also suggested, but did not specify, that there might be other disadvantages to the subject which might require a court to authorize the operation. Likewise, Butler-Sloss P expressed the view that it might be necessary to evaluate the nature and the degree of risk attached to the approval or disapproval of the operation. Again unfortunately, perhaps, these risks were not specified: the operation itself is relatively straightforward58 and there appear to be little risk of side-effects.59 Neither would be likely to be of any significance to a male person with an intellectual disability. Butler-Sloss P also commented that it might be necessary for a court to evaluate the nature and degree of risk which might be attached to approval or refusal of the operation.
In the instant case, Butler-Sloss considered60 that it was necessary to focus on the best interests of the son: it was clear from his mother's evidence that he would continue to be the object of close supervision. If the operation were not to be approved, it would inevitably affect the mother, but that would not affect the level of supervision. She also expressed the view that, "[I]f sterilization did take place, it would not save [him] from the possibility of exploitation nor help him cope with the emotional implications of any closer relationship he may form".61 It was also clear, she continued, that, from the evidence of carers in the day center which he attended, the level of supervision which was exercised did not depend upon his fertility. However, it is important to point out that Butler-Sloss P emphasized62 that, when the son was admitted to local authority care, the possibility that he might enter a sexual relationship with a woman63 might affect the degree of freedom he might otherwise enjoy and if his quality of life were to be diminished64 that would be a reason to seek, at that time, a declaration that sterilization would be in the son's best interests.
Thorpe LJ agreed with the President, though he admitted65 that on first reading, he had not been sure of his conclusion. As a general point, Thorpe LJ accepted66 expert evidence to the effect that the young man's fertility was a genuine disadvantage:
"In our society vasectomy has become the preferred method of contraception for many males who wish to separate their sexual and procreative functions. The obligation of society is to minimize the consequences of disability by vouchsafing the disabled wherever possible the rights and freedoms vouchsafed to the majority who have been spared disability."
Thorpe LJ then turned his attention67 to the way in which courts should proceed when dealing with such cases and considered that, in the absence of any statutory checklist or direction, the trial judge should "draw up a balance sheet".68 The first entry would consist of a factor or factors of actual benefit: in the present instance, the entry would refer to the benefits of "foolproof" contraception. On the other hand; a disadvantage would be the apprehension, risk and discomfort inherent in the operation.
"Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses."69
It followed, Thorpe LJ stated, that it was only if the account was in "relatively significant credit" that a trial judge would conclude that the application was likely to advance the best interest of the relevant person.70
However, as had Butler-Sloss P,71 Thorpe LJ emphasized that the failure of the appeal did not preclude a fresh application in the future were there to be fresh evidence available.72 Schiemann LJ agreed with both Butler-Sloss and Thorpe LJ.
What then do these cases tell us? At one level, it seems as though courts are less ready to order surgical procedures on male children. The alacrity with which procedures have been carried out in Australia on young women with intellectual disabilities has, in this writer's view, been somewhat alarming.73 In that context, the cautionary notes sounded in both cases seem to be desirable, but again, it is hard to ignore the fact that the objects of the procedures were male.
In both cases, too, there were significant factual matters which militated against the drawing of global conclusions, both of which related to considerations of time. In Re J, Thorpe LJ had referred74 to the practise of the Muslim community of delaying the procedure; in Re A, it is clear that the application had not been brought at the appropriate time. Re J does not attempt to deal with the concerns raised by Boyle and his colleagues75 and Re A does not really get to grips with the issue of sterilization of people with disabilities at large. At the same time, the issues which these two cases raise are important, even if they do not resolve them. For that reason, they are of interest and put courts and commentators on notice for the future.
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