The Journal of Contemporary Health Law and Policy, Volume 17: Pages 61-133, Fall 2000.
The foregoing discussion of medical consent in general and in the special case of parental permission for procedures on children yields a framework for analyzing circumcision. For simplicity, the analysis below is limited to the standard case of neonatal circumcision on newborn boys with normal genitalia. In 1999, history was made when a United Kingdom family court addressed on the merits a proposed circumcision of a five-year-old boy for religious reasons and unambiguously concluded that an order for circumcision would not be granted as circumcision did not satisfy the “paramountcy of welfare” standard, i.e., it was not in the best interests of the child.134 Due in part to the pervasive presence of neonatal circumcision in American society, no case addressing the validity of parental permission for a routine circumcision has ever been decided in a United States court. Instead, courts have repeatedly demonstrated their determination to avoid any confrontation with the legal issues raised by neonatal circumcision. In 1987, a lawsuit challenging the legal validity of parental permission for neonatal circumcision was denied by a California trial court and subsequently affirmed by the state appeals court.135 The California Supreme Court denied the petition for review.136 More recently, the Eighth Circuit Court of Appeals affirmed a trial court’s invocation of lack of standing as a justification for refusing to consider a mother’s claim on behalf of her son who was circumcised with his father’s consent, but without her consent.137
Currently, an ongoing contest in New Jersey is attracting national attention which - like Re J - involves two divorcing parents with opposite desires regarding circumcision of their male child, three-year old Matthew Price. The Price case, in which unlike the British case neither parent claims any religious motives for their desires regarding the circumcision of their son, may in the end become the first recorded case directly addressing the viability of parental consent to circumcision. Already, the New Jersey Supreme Court has ordered the trial court to hold a rehearing in the matter, and has appointed an experienced children’s rights attorney as guardian ad litem.138
Despite well-settled precedent supporting the viability of such a claim, which though technically moot is “capable of repetition, yet evading review,”139 the court ruled, based on the fact that the plaintiff had already had a circumcision performed, that no remedy existed for the plaintiff and the court could not protect him from being circumcised.
Because there is no possibility of obtaining consent from the patient, the issues then become whether parents can give effective permission for the procedure, and what legal and ethical obligations doctors may have in this situation. Doctors do have a strict obligation to ensure that parents receive all material information relating to the risks and benefits of circumcision in a manner that they can comprehend, that any parent giving permission is fully competent to evaluate the information provided and that the treatment’s potential consequences, and that parents are not in any way unduly influenced by the manner or timing of the disclosure.
The requirements for surrogates are in some respects more stringent than those affecting a patient’s own consent. While in certain circumstances, patients may themselves be able to provide legally valid consent to prophylactic removal of their own healthy tissue, parents can never grant permission for prophylactic removal of healthy tissue from their children. The benefits of the proposed procedure must clearly outweigh short - and long term disadvantages, and spiritual costs and benefits may not be incorporated into this analysis. The decision must be made solely for the patient’s own benefit; even potentially life-saving assistance for a close family member cannot justify violating a non-consenting patient’s right to be free of intrusive medical procedures.
Parents should thus be able to give effective permission for circumcision, and doctors should be permitted to perform a circumcision, only if the benefits clearly outweigh any attendant costs. As we shall see, the evidence does not support routine circumcision.
A. Does routine circumcision provide urgently needed medical benefits?
Circumcision does not correct an existing injury, disease or harmful malfunction. Thus, even if circumcision provides some medical benefit, there is no urgency to perform the procedure. General ethical and legal principles concerning surgery on children therefore dictate that the decision whether a male will be circumcised must be suspended until the male is capable of making the decision himself. This is even clearer if claimed medical benefits would not be realized until adulthood.
At most, some contend that circumcision is a prophylactic measure, to prevent urinary tract infection (UTI) in boys, penile cancer and sexually transmitted diseases (STDs) in adult males.140 Thus, the only claimed benefit that males would realize before adulthood is a reduced rate of UTI. It cannot plausibly be maintained that this is an urgently needed medical benefit. Moreover, even if urgency were not required, and even if the claimed prophylactic benefit were significant, that benefit would at a minimum, have to clearly outweigh any harm that circumcision might cause in order to overcome the general, well-established presumption against incursion on a non-consenting person’s physical integrity.
In addition, as explained below, the claims that circumcision has prophylactic value have been essentially refuted. These claims are the latest in a long history of claimed benefits from circumcision that have proven to be illusory. In 1896, for example, the medical profession contended that circumcision helps avoid “phimosis, paraphimosis, redundancy (where the prepuce more than covers the glans), adhesions, papillomate, eczema (acute and chronic), oedema, chancre, chancroid, cicatrices, inflammatory thickening, elephantiasis, naevus, epithelioma, gangrene, tuberculosis, preputial calculi, hip-joint disease, hernia, …[o]nanism, seminal emissions, enuresis, dysuria, retention, general nervousness, impotence, convulsions, hystero-epilepsy.”141 All of these claims were ultimately shown to lack scientific foundation. More recent justifications likewise have been shown to lack scientific merit.142 The evidence regarding the current claims is evaluated below.
1. Phimosis, balanitis, and hygiene concerns do not justify routine circumcision
Although commonly given as justifications for neonatal circumcision,143 there is no scientific evidence to support these claims. The incidence of phimosis following circumcision (0.3% to 1.0%)144 is approximately the same as far males never circumcised (0.6% to 0.9%).145 In comparative studies the incidence of phimosis and balanitis was not significantly different between those circumcised and those not circumcised.146
While it has likewise been asserted that a circumcised penis is more hygienic, no studies in the medical literature exist to support such a claim. To the contrary, circumcised boys under the age of three years have been found to have more problems associated with poor hygiene than intact boys.147
2. Urinary tract infections do not justify routine circumcision
Of the claimed benefits of circumcision, only one - reduction of UTI - would occur during childhood, before a male is able to decide for himself whether to undergo the procedure. Some studies have suggested a weak association between having a foreskin and developing a UTI148 a large proportion of UTIs are the result of anatomical defects of the urinary tract and kidney.149. The connection however, is extremely tenuous; one study calculates that roughly 195 boys would require circumcision to prevent one UTI occurrence.150 Even a study by a leading circumcision advocate estimated that circumcision prevents UTI is less than one percent of boys who undergo the procedure.151 Unfortunately, no one has yet made a viable attempt at producing data demonstrably free of influence from the numerous potential confounding variables. Until a study takes into account the influence of rooming in,152 breast feeding,153 level of parental education,154 prenatal maternal UTI,155 premature birth,156 history of UTI in a first degree relative,157 hygienic practices,158previous bacterial or viral infection,159 previous course of antibiotics,160race,161 urine collection method162 and diagnostic criteria,163 so definitive conclusions are possible regarding the protective effects of neonatal circumcision. This list of other possible variables suggests that even if circumcision did have an effect on UTI, a comparable or greater prophylactic effect could be accomplished by less drastic and less intrusive means - for example, by simply teaching parents and children proper hygiene and by encouraging mothers to breastfeed.
Moreover, most UTIs are minor are are easily treated with oral antibiotics. The foreskin has been linked to the more serious infections that reach the kidneys.164 The most common infection-related claim by defenders of circumcision is that males not circumcised will develop renal failure.165 However, that claim is unsupportable.166 There is no reliable data on the rate of renal failure on children in the United States.167 Two Swedish studies have yielded more reliable information.168 The first study showed that UTI was not responsible for any of the renal failures among children in Sweden.169 The second study showed that UTI was responsible for only five percent of renal failures among children.170 Using the highest recorded Swedish national rate of renal failure in children and assuming all cases of renal failure from boys could be prevented by neonatal circumcision, it would take 476,190 circumcisions to prevent one renal failure. Those 476,190 would, as a statistical matter, cause at least 952 life-threatening complications.171 Circumcising to prevent renal failure is thus clearly irrational.
In short, if circumcision does reduce UTI, it is a woefully ineffective method, especially when weighed against the very significant complications and other disadvantages which are discussed below in further detail. Contrary to the retrospective data gathered elsewhere, a prospective study of 603 Japanese boys, none of whom were circumcised, found that none had ever had a UTI.172 This result casts much doubt upon the American studies from which one would have predicted that between six and twenty-four of these boys (1-4%) would have a UTI. The Japanese study suggests that either Japanese hygiene is vastly superior or that the American studies are flawed.
3. Penile cancer does not justify circumcision
Accurate data on the rates of penile cancer in circumcised and intact men in the United States is not available. There have been no epidemiologic studies of the rate of penile cancer in circumcised males, nor has there been any studies that distinguished on the basis of circumcision status. Claims that routine circumcision has lowered penile cancer rates are therefore difficult to support. Countries such as Japan,173 Norway,174 Finland175 and Denmark,176 in which circumcision is rare, have penile cancer rates that are lower than the estimated rates in the United States.177 In any event, the rate of penile cancer in all western countries is extremely low; among all males in Japan, Finland, Norway, and Denmark, countries that employ national cancer registries, for example, the rate of cancer ranges form 0.5 to 0.8 per 100,000. In the United States, where the cancer incidences are based on estimates, the incidence of penile cancer is approximately 0.8 per 100,000. and accounts for only 0.16% of all cancers in American males.178
By way of comparison, the combined rate of ovarian and breast cancer in women is 264 times higher than the rate of penile cancer in men, and breast cancer is much more common in men than penile cancer.179 As noted above, clear incontrovertible evidence demonstrates that prophylactic removal of breast and/or ovarian tissue would reduce the likelihood of developing cancer enough to add months to the life expectancy of women with genetic markers for breast cancer.180 Yet as also noted above, the substantial potential benefit of an oophorectomy and/or mastectomy is universally regarded as inadequate to justify such prophylactic surgery, except in a woman at high-risk for ovarian or breast cancer.181 It would be unthinkable to perform the surgery on a young girl. If a female were ever to undergo such prophylactic surgery it could not occur until after she both reached adulthood and gave informed consent for the procedure. Even if it were correct that circumcision reduces the risk of penile cancer to a statistically significant degree, it would still be clearly unjustified to use circumcision as a prophylactic. Even if the highest estimates of reduced risk were accurate, it would take over 260,000 circumcisions to prevent a single case of penile cancer. It follows that in 260,000 circumcisions one would expect 520 life-threatening complications.182 Routinely amputating healthy tissue in quest of such remote and speculative benefits is irrational and violates both medical ethics and human rights.183
4. Sexually transmitted disease prevention does not justify routine circumcision
The role of circumcision in preventing STDs is even less clear. For each sexually transmitted infection, including HIV, there are contradictory medical studies.184 Because the epidemiology of STDs involves a mixture of biological, sociological and psychological factors, it is impossible to isolate the foreskin as a factor in the spread of STDs. The available medical literature suggests certain trends, but nothing definitive. Circumcised men actually appear more likely to contract urethritis (such as gonorrhea or chlamydia) or viral infections (such as herpes simplex or human papillomavirus). Intact men, on the other hand, appear slightly more prone to genital ulcers (such as chancroid).185 The role of circumcision in the transmission of HIV is far from decided.186
Although several African studies have suggested that circumcision reduces the risk of HIV infection, several others have failed to document any significant influence.187 A few population studies have found circumcision to increase the risk of HIV infection.188 Meta-analysis of the published studies has revealed a significant degree of between study heterogeneity. The one trend noted is that a foreskin may place an African man who engages in high-risk sexual behaviors at increased risk for HIV infection.189 For the general population, circumcision does not appear to have an impact.190 Even proponents of circumcision acknowledge that the African experience with HIV does not apply in first world countries.191 The most effective timing of circumcision is also under dispute. One African study documented that males circumcised before fifteen years of age were at increased risk of contracting HIV,192 while those circumcised after twelve years of age were at a lower risk.193 Because genital discharge is more prevalent than genital ulcers, the one consistent trend, from several recent population surveys, is that circumcised men are at greater risk for contracting a STD.194 It is therefore inappropriate to cite avoidance of STDs as a justification for circumcision.
B. Harm caused by male circumcision
1. Complications
On the cost side, retrospective studies show that rates of immediate complications associated with neonatal circumcision are somewhere between 2.0%195 and 6.8%.196 One prospective study, looking at only for evidence of hemorrhage, found the rate of hemorrhage was 9.9%197 These estimates all exceed the 1.0% to 1.7% rate for complications for circumcisions performed after the first month of life.198 Complications range from hemorrhage - sometimes to the point of death and frequently necessitating a transfustion;199 minor infections;200 life-threatening infections sus as sepsis,201 meningitis,202 gangrene,203 staphylococcal scalded skin syndrome,204 erysipelas205 and scrotal absess;206 acute urinary retention leading to renal failure;207 penile ischemia;208 necrosis;209 buried penis;210 partial or complete penile amputation;211 iatrogenic hypospadias,212 total denudation of the penis;213 abdominal distension;214 pneumothorax;215 plastibell retention;216 urethral fistula;217 meatal ulceration;218 ruptured bladder;219 gastric rupture;220 tachycardia and heart failure;221 myocardial injury;222 iatrogenic burns;223 pulmonary embolism;224 phimosis;225 unilateral leg cyanosis;226 meatitis and meatal stenosis;227 penile hair tourniquet;228 to death.229
2. Pain
An additional and generally under appreciated cost is trauma to the newborn. Research has determined that newborns experience more pain from a give noxious stimuli than do older children and adults.230 The procedure is extremely painful.231 During circumcision, forceps or other probes are inserted into the delicate foreskin, where they are used to scrape, tear apart, and destroy the normal erogenous tissues. The baby’s sensitive foreskin is crushed, and the raw flesh is cut with scissors. Circumcision is usually followed by al alternation in sleep pattern marked by prolonged rapid eye movement sleep.232 The procedure frequently causes the newborn to withdraw from his environment thus interfering with his process of bonding with his mother and nursing.233 General anesthesia is considered too risky for use in the neonatal period, so most neonatal circumcisions are performed without anesthesia.234 Topical and local anesthetics, which blunt some of the pain do not adequately protect the infants. Experimental evidence indicates that newborns experience marked pain during circumcision, even when these agents are employed.235 In, 1997, researchers altered the number of subjects enrolled in an infant circumcision pain study because they concluded that inflicting pain on unanesthetized control patients was unethical.236
Circumcision causes trauma to infants who are born with relatively few pain coping mechanisms.237 Pain causes irreversible changes in the infant’s developing brain, heightening his pain perception.238 These facts strongly support at least delaying circumcision until a male is older, when more can be done to avoid pain because the pain is more developed, thereby reducing the likelihood of permanent damage from the trauma. A prominent pediatric urologist has opined that postponing circumcision until after toilet training may also decrease the high rate of meatal stenosis in circumcised boys.239
3. Loss of Function
One recent study found that in circumcision approximately 50% of the penile skin sheath is removed, along with specialized nerves endings that are fundamental to normal sexual response.240 The sheath provides a natural lubricant and facilitates vaginal penetration during sexual intercourse.241 As a portion of the male reproductive apparatus, the foreskin clearly is not trivial.242
4. Loss of immunological Protection and Physical Protection
The human foreskin serves to protect the glans, an internal structure, from injury. The prepuce also serves valuable immunological functions by providing several defenses against infection.243 The infant’s prepuce has a pronounced tight tip with a sphincter, formed from the whorl of muscle tissue that stays closed to keep out foreign matter but opens to permit the outflow of urine.243 The sub-preputial wetness contains several secretions that act to destroy harmful microorganisms.245 The prepuce contains Langerhans cells, which provide the first line of mucosal immunity.246 Our understanding of mucosal immunity is still in its infancy.247
C. Medical Considerations Strongly Disfavor Routine Circumcision
Appropriate decision-making regarding the permissibility of infant circumcision requires balancing a neglible reduction of overall UTI and penile cancer rates against the significant disadvantages of the procedure - loss of functional and highly erogenous tissue, loss of immunological properties of the foreskin, risks of complications and the excruciating pain the newborn experiences. This balancing surely would yield the conclusion that the procedure is medically contra-indicated and not in the best interest of the infant patient.
Numerous medical bodies around the world have recognized that routine infant circumcision is not medically justifiable. For example, in 1996, the Australian Association of Pediatric Surgeons announced that it does not support routine infant circumcision, because it is “inappropriate and unnecessary.”248 In 1997, the Australian Medical Association stated that neonatal circumcision should be discouraged by the medical profession.249 In 1991, the Australian College of Pediatrics likewise discouraged the practice of neonatal circumcision.250 The National Health and Research Council of Australia has stated that neonatal circumcision has “no medical indication” and that “the hazards of the operation outweigh…any possible advantages.”251 The British Medical Association has recommended that male circumcision be done only when medically necessary, stating that complications, including death, may result from this generally unnecessary surgery.252 In 1996, the Canadian Pediatric Society recommended that “[c]ircumcision of newborns should not be routinely performed.”253 Significantly, even though circumcision is the most frequently performed operation on children in the United States, a recent review article in an American journal discussing optimal times for performing various urological procedures on children did not mention circumcision.254
The AAP has issued a series of statements regarding circumcision. Remarkably, even though the procedure is widespread in the United States and performed by many of the organization’s members, the AAP has never endorsed routine infant circumcision. In 1975, the AAP Task Force on Circumcision issued its first policy statement on circumcision, concluding that “[t]here is not absolute medical indication for routine circumcision of the newborn.”255 In 1999, the AAP admitted that scientific evidence does not support routine neonatal circumcision.256 Apparently unprepared, however, to accept the necessary conclusion that this prevalence practice should stop, the AAP merely stressed the importance of giving parents of male infants accurate and unbiased information and the opportunity to discuss the decision with a doctor.257 In 1991, the American Academy of Family Physicians took no position other than to state that it was a parental decision.258 Numerous medical bodies have stated their opposition to neonatal circumcision, or have at least acknowledged that the practice is not medically sound.259 Not a single national or international medical organization in the world recommends the procedure.
D. Can parental permission for circumcision be effective?
Given the foregoing, one might wonder how parental permission for routine circumcision could ever be effective, even if physicians comply with the requirements of informed permission. Like all surgical procedures, circumcision should not be subject to authorization by a surrogate for an incompetent person urless it is medically necessary. While there is some dispute in the American medical community today as whether routine circumcision provides any medical benefit, absolutely no one in the medical community seriously maintains that it is medically necessary or that it corrects an existing injury, disease, or malfunction.260 Accordingly, the Queensland Law Reform Commission in Australia recently stated that “consent by parents to [neonatal circumcision] being performed may be invalid in the light of the common law’s restrictions on the ability of parents to consent to the non-therapeutic circumcision of children.”261
Both a best interests and a substituted judgment approach support this conclusion. Recent cost-utility analyses for neonatal circumcision that take as a given the supposed benefits with respect to only UTIs, but also cancer and STDs’ have concluded that over the course of a lifetime, circumcision on the whole either impairs health262 or has virtually no medical benefit.263 The evidence presented by weighing the costs and benefits suggests that circumcision is, in terms of the physical well-being of a boy, not in his best interests and not something to which a rational and fully informed person would be expected to consent. The inference of what the infant male would choose for himself, if able, receives further support from the actual choice of intact adult males. If the ultimate goal of medical decision-making for an incompetent person is to determine what the person would decide for himself, if able, the best evidence may be what similarly situated competent persons actually decide for themselves. Of males circumcised in the United States, only 3 in 1,000 choose to have this surgery performed later in life, suggesting that the overwhelming majority believe that the risks and sequelae of becoming circumcised outweigh any supposed benefits.264 If doctors followed the AAP Committee’s recommendation to delay the decision until the child is old enough to grant consent,265 circumcisions would rarely be performed in this country, as is the case in most other nations.
One author has noted that parents may authorize overtreatment of a child, even though it provides no medical benefits to the child and may actually cause him harm, because it makes the parents feel better that they are purchasing some “care” for their child. The author opines that this is a form of child abuse-causing harm to a child in order to gratify parents-and, perhaps stating the obvious, contends that “the infant’s interests should absolutely supercede those of his or her parents.”266
E. Non-medical reasons including social concerns and religion cannot justify parental permission for circumcision
Many parents choose circumcision for their sons not because they mistakenly believe it is medically beneficial, but rather for non-medical reasons. Most common is a concern that their son may have social difficulties if his genitals do not look exactly like those of his father and those of the majority of his peers.267 This claimed social benefit for the child is both unsupported and insufficient to justify a non-consensual surgical intervention. It is unsupported because there is no evidence that intact boys undergo any greater social difficulties as a result of the difference between their genitals and those of their fathers or peers. If there were any such risk, any competent person could easily deal with this by explaining to their son that his genitals are natural and those of his father and some of his peers were surgically altered when they were babies. These “social concerns” are not sufficient enough to violate the physical integrity of a non-consenting person.
A small percentage of North American parents choose circumcision for religious reasons, and our society is uncomfortable in criticizing or countermanding parents who act for their children on the basis of deeply held convictions. As discussed supra in Part I.D., it is a mistake, however, for physicians to believe that parents have a right to make their religious beliefs controlling on the question of whether a child is to undergo a non-medically indicated surgical procedure. No court has ever held that parents have a first amendment right to have unnecessary medical procedures performed on their children. To give that power gratuitously to certain parents because they have particular religious beliefs would be to violate one of their children’s constitutional and moral rights-the right to equal protection. If the state and the medical profession protect some children against medically inappropriate practices, they must protect all children against all medically inappropriate practices unless they can demonstrate that denying that protection to some children would be better for those children (who themselves have no religious beliefs).268 As the Supreme Court has stated, parents are free to make martyrs of themselves, but they are not free to make martyrs of their children.269 In other words, parents are not free to force their children to undergo unnecessary and harmful surgery, however well intentioned they might be. A United Kingdom family court has recently endorsed the principle that at least where two parents of two different religions disagreed on whether to circumcise, and where a local authority exercising parental responsibility under a care order, a circumcision could not be ordered. The court noted that mainstream medical opinion in the United Kingdom requires both paternal and material consent to a circumcision.270
F. Informed Consent
Finally, even of non-medically indicated surgery is such as circumcision were legally and ethically permissible to perform on children, parental authorization for such surgery would still have to comport with the requirements of informed consent. As previously discussed, there are three basic requirements to informed consent: 1) disclosure of all relevant and material information; 2) verifying and fostering the capacity of the decision-maker; and 3) ensuring that the decision is voluntary.
1. Disclosure
Physicians are always under a legal and ethical duty to fully disclose to the decision-maker all available information regarding a proposed procedure. Because the duty requires all available information and not just the information a given physician happens to have acquired to be disclosed, physicians are under a duty to acquire all available information to as surgery that they perform. Physicians who perform circumcisions, therefore, have a legal and ethical duty to their infant patients to obtain and provide to the patients’ parents all available medical information regarding circumcision. This includes all pertinent available information about the nature of the foreskin, the pain that infants incur when it is removed, the risk of complications from the surgery, and any possible medical benefits and costs that may result from having it removed. A medical practitioner who fails to completely disclose the potential physical costs (and, presumably, other disadvantages is negligent.271
a. Nature and purpose of the foreskin
Recent articles in leading medical journals have documented the foreskin’s complex structure.272 Although the foreskin has been described as “the fold of skin covering the glans,”273 it is actually a complex, junctional tissue similar to the eyelids or the lips. It is designed to protect the glans of the penis, an internal structure, from trauma and infection.274 It also contains the highest concentration of fine-touch neuroreceptors in the penis. Only lips and fingertips have comparable neuroreceptors densities. By contrast, the glans is a neurologically dumb organ.275 Due to the foreskin’s rich abundance in neuroreceptors and its exquisite specialization as a producer of sexual pleasure, it may, in fact, be the most sensitive part of the infant male’s body.276
Parents also need to be aware that the anatomically complete penis' involuting structure allows for erection without tightening of the skin over the penile shaft. During coitus the complete skin system of the penis, including the foreskin, allows for non-traumatic intromission and penile movement within the vaginal vault without chafing.277 Physicians owe a duty to male patients to inform their parents of the functionality and sensitivity that their sons will lose for a lifetime if a circumcision is carried out.
b. Pain
Physicians have an obligation to be forthright with parents about the pain that infants endure when their foreskin is removed surgically. Evidence suggests that physicians rarely do so, and that this omission is clearly unethical. Mary physicians may neglect to discuss the pain with parents because they fear it will be disturbing for the parents. But it should be disturbing and physicians owe a duty to the infant patient to make his parents aware of this disquieting aspect of circumcision. Physicians have a further obligation to make parents aware that adequate and safe anesthesia is not available during the neonatal period. They owe no duty to parents to make them feel better about granting permission for an unnecessary surgery.
c. Risk of Complications
Because healthy, richly innervated, erogenous tissue is removed with every circumcision, the complication rate of circumcision-if “complication” means harmful effect is 100% because it denies the patient the use and function of this specialized tissue. As mentioned above, the risk of additional immediate complication is between 2% and 10%.278 The danger of a later complication, such as meatal stenosis, represents an additional 5% to 10% likelihood of a harmful complication.279 Many of the potential immediate and later complications can be quite severe. Physicians are clearly obligated to make parents aware of these complication rates and the nature of the harms that might befall their son.
d. No Significant Medical Benefits
No significant medical benefit clearly has been demonstrated to result from routine neonatal circumcision, ash physicians have a duty to inform parents of that fact. As discussed below, studies purporting to demonstrate prophylactic health benefits have fatal flaws in their design and/or focus on maladies that are extremely rare - much rarer than the complications that result from circumcision itself.280 At best, these studies demonstrate the truism that amputation of healthy tissue can have marginally reduce the rate of maladies afflicting the organ from which it was taken simply because less tissue is available to contract a condition. Naturally, routine prophylactic amputation in children has never been entertained as an ethically or scientifically viable medical procedure. When the proposed benefits and real costs are aggregated, as in a cost-utility analysis, the proposed benefits are insufficient to counter the real costs.281 A physician who states that neonatal circumcision helps those illnesses without stating that any potential benefits are far outweighed by the real harm perpetrated violates his or her duty to provide accurate, complete information.
e. Are physicians adequately disclosing this information?
Evidence of actual practice reveals that physicians who perform circumcisions themselves know next to nothing about the part of the body that they are removing. A 1975 survey revealed that 47% of physicians believed that a non-retractable foreskin in a newborn was an indication for circumcision, when it is perfectly normal and healthy for a newborn’s foreskin to be non-retractable and for the foreskin to become retractable only as a boy approaches adolescence.282 There is little evidence that physician knowledge has improved since then.283
The misinformation promulgated regarding the painlessness of circumcision is unconscionable. Parents who cringe when their baby’s heel is pricked for a blood sample are led to believe that their son feels little or no pain when a large part of his penis is cut off. This may be because parents typically believe that anesthesia is used even when it is not, or that if a local anesthesia is in fact used, the anesthesia is highly effective when it is not.
With respect to the risk of complications and the supposed medical benefits associated with circumcision, studies reveal that physicians underreport the risks and exaggerate the supposed benefits. A 1987 study found that physicians routinely inform parents about only a small minority of the medical complications associated with elective circumcisions.284 The common practice is to mention only pain, infection and bleeding as complications of newborn circumcision.285 This is far below the standard level of disclosure for other surgeries, whether medically indicated or cosmetic. The physician should disclose each of the many potential complications mentioned above, addressing the risks of serious bodily harm and even death, the probability of “success,” and the alternatives to circumcision, ad any risks associated with these alternatives. A study has shown, however, that physicians do not do this.286 When selecting which medical complications to mention to parents, physicians tend to use a subjective assessment of the frequency and seriousness of complications. The study revealed that the physicians’ probability of estimates were inaccurately low and their assessments of the seriousness of potential complications were consistently lower than those expressed by mothers of newborn sons.287
There are many reasons why physicians provide inadequate information. Many who discuss the surgery with the mother postpartum assume that the arguments for and against circumcision have already been discussed with a health care provider. Those who meet the parents well in advance of the birth may simply feel too busy to properly discuss the pros and cons with the parents, and may not have equipped themselves with the literature necessary to adequately present the facts to the parents. Compliance with the medical profession’s ethical requirement for obtaining true informed consent is a time-consuming, laborious process. Doubtless, wherever they can, many physicians will cut corners on such a task, especially where as with circumcision, they may believe than some parents would prefer not to learn the full truth regarding potential complications.288 The current perception that circumcision is “just a little snip” and the cultural prejudice that a child’s physical integrity is less important than an adult’s physical integrity makes it easier to justify bypassing a full disclosure.
In addition, physicians may simply feel uncomfortable full discussing with parents the risks of circumcision.. Furthermore, many parents choose circumcision for non-medical reasons. Likewise, many physicians see circumcision as a cultural, not a medical, practice. Physicians may believe that discussing the possible complications with parents is more likely to upset the parents than to influence the parent’s decision. Parental hostility following complete disclosure is not uncommon.289 The easiest path, in terms of the physician’s own comfort, is to provide sparse information because the parents will decide who will provide medical care for their child, and sometimes the fear of losing patients may override the duty to do what is in the best interest of the child.
Edward Etchells et al. suggest that physicians base the content of their discussions with the parents on the perceived motives of each set of parents:
If the parents’ decision is based on strong cultural beliefs and practices, a detailed impersonal account of all known risks and benefits would probably not be relevant or helpful. However, if the decision is based on personal experiences (e.g., the father was circumcised), a detailed discussion of the risks and benefits would be helpful in helping the parents to come to a decision.290
This approach is simply untenable. Obvious practical and ethical difficulties are created by an approach that requires physicians to determine parental motives and to provide widely diverging types and levels of information depending on this determination. More fundamentally, the authors fail to explain how parental motives alters the risk, the benefits, the treatment options, or the physician’s duty to the patient, i.e. the child, to give full disclosure. Tellingly, physicians’ positions regarding circumcision are inconsistent with their positions on therapeutic privilege291 and substitute consent for adult incompetent patients.292 This suggests a failure to accord proper respect to the interests and rights of children who are the patients and an improper focus on the interests and desires of the parents. The extent of information that parents actually want or feel comfortable receiving is legally and ethically irrelevant to the physician’s duty of disclosure.
The misleading presentation medical personnel typically give to parents may also result from a failure to seek out available information. Three years after the release of the 1975 AAP Task Force on Circumcision report, which stated that “[t]here is no absolute medical indication for routine circumcision of the newborn,”293 only 49% of Chicago area, pediatricians, obstetricians and family practitioners were aware of the AAP’s position.294 At that time, 41% recommended routine infant circumcision despite the AAP report, while only 15% recommended the infant forgo the practice.295 The frequency of routine circumcision in Chicago area hospitals (70% to 90% remained unchanged in the three years following the AAP’s statement.296 Another study in 1975 analyzed a random group of 92 primary care physicians and 103 parents of male infants.297 Despite the content of the 1975 AAP report, 65% of the physicians conveyed a positive attitude about routine neonatal circumcision to their patients.298 Although pediatricians were more likely to have a neutral attitude, both family and general practitioners were more likely to favor routine neonatal circumcision.299
A particular physician’s attitude toward circumcision may derive more from the results of personal experience and cultural background than from careful study of the medical literature. A physician’s gender and circumcision status, for example appear to affect whether he or she promotes or discourages circumcision. One study found that 100% of the health care providers surveyed who encouraged circumcision were male, while 81% of those discouraging the practice were female.300 Another survey found that circumcised physicians were more likely to favor circumcision than those not circumcised.301 Physicians asked to summarize their opinions regarding circumcision offered a wide variety of opinions, ranging from “personally I appreciated the cosmetic effect” to “barbaric ritual perpetuated for irrational reasons.”302
The Code of Ethics of the Canadian Medical Association instructs physicians to “inform [their] patient[s] when [their] personal morality would influence the recommendation or practice of any medical procedure the patient needs or wants’ and to indicate when their opinion is contrary to the generally held position of the profession.303 This is undoubtedly sound practice. It suggests that a physician who belongs to a religion that requires male circumcision should disclose this during any discussion with a patient or parent concerning circumcision. Likewise, a physician who recommends neonatal circumcision has an obligation to state, depending on what country he is practicing in, that his national medical organization does not recommend neonatal circumcision. As with any ineffective, outdated treatment, physicians have a sound basis for refusing to perform neonatal circumcision.304
Physicians’ failure to adequately inform themselves about circumcision and to pass on all acquired relevant information is reflected in the level of parental knowledge about circumcision when parents give permission for the surgery. A 1979 study surveyed two hundred mothers to determine their attitudes toward and knowledge of neonatal circumcision.305 Of those that were either doctors or other health care providers, 95% circumcised their sons. Although the mothers offered a wide variety of reasons for granting permission, few of these reasons had any medical validity (let alone sufficient weight to actually make their decision rational). Eighty-seven percent of mothers considered circumcision to be without risk or complications, and 80% of mothers stated that no physician ever explained the risks to them.306 A 1996 study revealed that 35% of mothers who gave permission for circumcision of their sons believed that neonatal circumcision had no risks involved.307 Twenty-five percent of the women in this study believed that they had not been given enough information.308
Finally, the physician is obligated to disclose all personal interests unrelated to the patient’s health that he or she may have when obtaining consent to medical treatment.309 The Supreme Count of California held that a cause of action for lack of informed consent exists where a physician fails to disclose, prior to obtaining the patient’s consent to remove his spleen, that the physician has made arrangements to use portions of the spleen for economically beneficial medical research purposes.310
In the circumcision context, there arises a particular egregious, if relatively rare, application of this principle that his drawn significant media attention in recent years - the harvesting of foreskins from living babies and the subsequent use of the foreskins for profit by the medical industry.311 Clearly such use of foreskins taken from living donors should be prohibited even with parental permission, because it is not related in any way to the circumcision itself and the affected infant cannot possibly consent to this use of his formerly, healthy functional tissue.312 In fact, two American Medical Association (AMA) policy statements appear to explicitly bar such a practice. AMA Policy E-2.08 on “Commercial Use of Human Tissue,” requires informed consent from patients for the use of organs or tissues in clinical research, mandates disclosure of potential commercial applications prior to realizing a profit on products developed from biological materials, prohibits the use of human tissue and its products for commercial purposes without the prior consent of the patient providing the original cellular material, and demands that diagnostic and therapeutic alternatives offered to patients conform to standards of good medical practice and be free of influence in any way be the commercial potential of a patient’s tissue.313 AMA policy E-2.167 on “The Use of Minors as Organ or Tissue Donors” requires that all such use have parental approval, that a “clear benefit” to the minor exist, that the minor be the only available source of the tissue, and that minors be allowed to serve as sources of tissue only for close family members.314 Medical applications of foreskins harvested from live donors are also forbidden under international law pursuant to the European Convention on Human Rights and Biomedicine.315 Even if such use of circumcised foreskins were ethical, physicians would certainly have an obligation to disclose that potential conflict of interests to parents.
2. Capacity
Medical personnel have a duty to the newborn child to ensure that parental surrogates have the capacity to make a rational, reflective decision about circumcision. They should fully disclose all relevant information about the procedure well in advance of the birth, and then evaluate whether the parents understood the information. If the parents do not appear to understand, the physician should attempt to convey the information in another way that is clearer to the parents. Some researchers have contended that parents are less rational in medical decisions concerning their children than they are in medical decisions concerning themselves.316 Medical personnel may therefore have a heightened duty when dealing with parental surrogates to ensure the surrogate is capable of making a rational decision on behalf of the infant patient.
Several studies have looked into different media for presenting information to parents about circumcision and what effect each would have on the likelihood of parents giving permission. A survey of obstetric clinic patients in a large urban hospital showed that oral communication of the risks involved would significantly reduce the rate of circumcision (72% in the study group versus 94.4% in the control group). The authors concluded that mothers in the population they studied requested circumcision for their sons because of inadequate medical information or strong social motives.317 Another study showed that videotape counseling modestly reduced parental permission for circumcision when compared with standard oral counseling (70.5% versus 75.9%, OR=0.76, 95%, CI=0.61-0.94). Prior to the study, the circumcision rate at that medical center was 90.4%.318
Parents may actually be resistant to receiving information about circumcision, and that would diminish their capacity to understand what is presented. One study of oral provision of information to mothers about risks had to be suspended when many mothers became upset and expressed their unwillingness to have the physician who provided the information care for their children in the future.319 The obstetrical nurses were also belligerent to the physician who provided the mother’s with oral information because the physician was upsetting their patients.321 Parents are often irritated by any discussion of circumcision because their minds are already made up.320 Told that circumcision carries the risk of penile amputation, serious life-threatening infection, and death, parents find that their self-esteem challenged by this information because they do not want to unnecessarily place their children at risk while at the same time often being unwilling to rethink a decision they have already made. In short, they do not want to be confused or unsettled by the facts. As noted previously, the physician’s obligation is to the child, not to the parent, and that obligation includes a duty to overcome parental resistance, and ensure that parents receive, understand, and take into account all of the facts.322 Otherwise, their permission for circumcision of the infant cannot be effective.
3. Voluntariness
The voluntariness requirement demands that physicians provide information regarding circumcision to parents in an unbiased fashion well in advance of the birth and that physicians do not themselves propose the procedure to parents. To ensure that any parents who are predisposed to request circumcision receive full information in advance of birth, the physician might tell parents that he or she will assume, unless the parents indicate otherwise, that the baby is not to be circumcised. If the subject first arises at birth, or if the parents do not receive the relevant information about the procedure until the time of birth, the physician should refuse to perform the procedure until such time as the parents have been able to review the information fully and demonstrate to the physician that they understand the information. One group of physicians has suggested simply waiting twelve hours after birth before asking parents about circumcision, in order to provide an opportunity to discuss the procedure’s advantages and disadvantages with the parents.323 However, given the tremendous psychological and physical impact of becoming a parent, this waiting period is inadequate to allow the parent sufficient opportunity to allow the parent sufficient opportunity to absorb and analyze information regarding the circumcision procedure before making a decision. Some writers have questioned whether, given the perinatal emotional upheaval, parental permission can ever be truly free and informed in the neonatal context.324 Indeed, one author (Svoboda) has accumulated a significant number of consent forms for neonatal circumcision, not a single one of which adequately discloses all significant risks to the procedure in a manner parallel to the disclosures which are commonly made for other surgeries.325
Unfortunately, current practice appears inconsistent with the voluntariness requirement as well. It is customary in the United States to ask a woman during one of the initial prenatal visits whether she desires circumcision for her baby if it is a boy.326 As noted above, offering a medically unnecessary surgery such as circumcision is unethical.327 It is also a subtle form of coercion; offering circumcision can easily be interpreted as a recommendation.328 Mothers are left with the impression that “it must be the thing to do, or our doctor would not have told us about it.”329
Even more troubling is the common occurrence of parents being presented with the circumcision question for the first time when a mother is in labor at a hospital. Surgeon George Kaplan notes that “all too often the consent to circumcise is included in a sheaf of papers that the mother signs hurriedly on her way to the delivery room. No discussion has been held regarding the merits of the procedure or of the inherent risks.”330 Kaplan characterizes this practice as “inexcusable.”331 Raising the circumcision issue for the first time upon the mother’s arrival at the hospital to give birth amounts to manipulation and coercion. Because the physician and the hospital benefit financially from the parent’s decision, such a practice raises grave concerns about unethical profiteering.
Effective consent to elective, cosmetic surgery cannot arise unless and until the patient himself is capable of giving it. Infant males are clearly incapable of providing voluntary consent (and in fact uniformly howl in protest of the procedure), and without medical necessity or urgency, there is no justification for looking to a surrogate to give permission. Unlike cases involving medical necessity for treatment of a child, in the circumcision context there is simply no predicate for departing from the general rule that the patient himself must give voluntary consent to any incursion on his physical integrity by medical professionals. The AAP Committee on Bioethics sensibly recommends delaying, elective, cosmetic surgery until a child is old enough to give consent., and this would apply to circumcision.332 As previously noted, the Australian Association of Paediatric Surgeons has taken this position specifically with respect to circumcision,333 as have scholars who have considered the issue.334 Because, as discussed above, no sufficient conditions exist for not deferring the procedure, ethically and legally it must be deferred, given the harm caused by the procedure and the probability that as an adult the patient will most likely not desire it.
With all compelling reasons to delay circumcision, it is necessary to examine why circumcision is performed at such a young age. For many years, two rationales supported the practice of circumcising right after birth. First, it was once thought that the newborn could not feel pain.335 Although this has been proven false,336 and the opposite - that newborns actually feel greater pain from the same trauma than do adults - has been proven true, some physicians still blindly adhere to the old myth.337 Second, it was once regarded as less costly to perform circumcision right after birth because general anesthesia is not used.338 That rationale might have some force if the first rationale, that babies feel less pain were true, but it is hard to imagine any medical professional seriously espousing this rationale today, when the babies-feel-no-pain myth has been disproved. One would expect that medical professionals would not use ineffective anesthesia on older children and adults simply because it would be cheaper, and that no parents would knowingly agree to subject their infant to excruciating pain when that could easily be avoided, simply to save money.
But old habits die hard in the medical profession. In the case of children, rationality runs up against an additional obstacle - a pervasive unconscious view of children as less than full persons and of childhood as simply a time to be gotten through, a prelude to adulthood, rather than a period of life having independent worth, which should be as happy a time as society can make it. Medical personnel possessing this attitude may decide that pain in infancy is less cause for concern than pain in later life; adult pain is serious, but infant pain will be gotten over. So it may well be a lack of respect for newborns as persons and a lack of concern for their experience rather than any genuine medical rationale that compel physicians to perform circumcision in the neonatal period.339
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