Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum

The Journal of Contemporary Health Law and Policy, Volume 17, Fall 2000.

Introduction

Neonatal circumcision is the surgery most commonly performed on children, yet reliable information regarding the surgery is not usually made available to parents when they are asked to consent to the procedure for their newborn sons. Often, parents are simply presented with a paper to sign permitting the physician to perform the surgery without any health risks or alternatives. Many medical professionals, medical ethicists and legal scholars now dispute the advisability, and even permissibility of circumcising newborn boys.¹ Margaret Somerville, a prominent Canadian medical ethicist, recently went so far as to assert that neonatal circumcision constitutes assault under the Canadian criminal code.² Numerous legal scholars have concluded that routine neonatal circumcision falls within the legal definition of child abuse and violates children's civil and human rights under national and international law.³ Consent to a procedure that is per se illegal is, of course, invalid regardless of the motives of the consenting party.⁴ But even if it were legally and ethically permissible for parents to authorize circumcision of their sons, empirical studies have shown that the manner in which doctors typically obtain "informed consent" for neonatal circumcision from parents falls far below the standard of care required of the medical profession.⁵

This article examines whether and when parental consent to circumcision should be legally effective. It begins by identifying the legal and ethical requirements for consent that apply when medical professionals treat competent adult patients; requirements such as full disclosure, adequate capacity to consent, and voluntariness. It then analyses how the rules and principles applicable in that context translate into legal and ethical requirements for consent to treatment of incompetent persons, and in particular, treatment of children. It shows that, under normal circumstances, medical professionals may not prophylactically remove healthy tissue from even consenting adult patients, and that as a general rule, parents, regardless of their religious convictions, may not authorize medically unnecessary procedures on their children. The article then assesses the implications of those requirements for the practice of "routine circumcision" - that is, circumcision of infant males born with normal genitalia. It concludes that, because routine circumcision causes significant harm while providing no appreciable medical benefits, parental consent to the procedure is invalid. If circumcision can ever ethically and legally be performed, it is only when the male reaches adulthood and is capable of deciding for himself to undergo the procedure.

References

See generally R.S. Van Howe, Consent for Circumcision, 156 CAN. MED ASS'N J. 17 (1997); Jeremy Klein, Circumcision and Consent, 27 FAM. PRAC. NEWS 13 (1997); M.A. Somerville and D.M. Alwin, Lidocaine-Prilocaine Cream for Pain during Circumcision, 337 NEW ENG. J. MED 568 (1997); S.L. Bond, State Laws Criminalizing Female Circumcision: a violation of the Equal Protection Clause of the Fourteenth Amendment, 32 J. MARSHALL L. REV 353 (1999); J. Smith, Male Circumcision and the Rights of the Child, in Netherlands Institute of Human Rights (SIM), in SIM SPECIAL No. 21 TO BAEHR IN OUR MINDS: ESSAYS ON HUMAN RIGHTS FROM THE HEART OF THE NETHERLANDS 475-97 (1999) at http://www.law.uu.nl/english/sim/specials/simsp21.asp (last visited Nov. 12, 2000).
See S. Kirkey, Circumcising Baby Boys 'Criminal Assault': Ethicist Says Society Must Consider Ban, THE OTTAWA CITIZEN, Oct. 17, 1997 at 1; see also Crim. Code, R.S.C. ch. C-46, §§ 45, 265(1)(a)(2000) (Can.) [hereinafter Criminal Code of Canada].
See Smith supra note 1, at http://www.law.uu.nl/english/sim/specials/simsp21.asp; see also C. Price, Male Circumcision: An Ethical and Legal Affront, 128 BULL. OF MED. ETHICS 13 (May 1997); J. Steven Svoboda, Routine Infant Male Circumcision: Examining the Human Rights and Constitutional Issues, in SEXUAL MUTILATIONS: A HUMAN TRAGEDY 205-15, (G.C. Denniston and M.F. Milos, eds. 1997); J.G. Dwyer, The Children We Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors, 74 N.C.L REV 1321 (1996); C.A. Bonner & M.J. Kinane, Circumcision: the Legal and Constitutional Issues, THE TRUTH SEEKER, at S1-S4 (July/Aug 1989); W.E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional Issues, 23 J. FAM LAW. 337 (1985).
See, e.g., K.M. Harrison, Law, Order, and the Consent Defense, 12 ST. LOUIS U. PUB. L. REV. 477, 497 (2000).
See generally C. Ciesielski-Carlucci et al., Determinant of Decision-Making for Circumcision, 5 CAMBRIDGE Q. HEALTHCARE ETHICS 228 (1996).

Cite as:

J. Steven Svoboda, Robert S. Van Howe, James C. Dwyer, Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum. 17 J Contemp Health Law and Policy 61 (2000).

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