The Journal of Contemporary Health Law and Policy, Volume 17: Pages 61-133, Fall 2000.
Infants do not have the capacity to give consent to any aspect of their medical care. Physicians may only obtain legally valid permission from parents to perform procedures on their incompetent children, provided full disclosure of all material information is made to parents who are able to understand that information and to appreciate the consequences of their decision, and provided that the parents are able to decide whether to grant their permission free from any manipulation or undue influence. Moreover, regardless of the motivations and desires of physicians and parents, the only interventions for which parents may grant their permission are those conferring benefits that clearly outweigh the short- and long-term costs for their infant patient.
Consent places physicians in a very delicate position, one that is appropriately governed by stringent ethical norms. Physicians should approach decision-making on behalf of a newborn with the greatest caution and a strong presumption against intrusive procedures. Amputating a highly sensitive and functional part of the body is extremely intrusive and should be undertaken only in situations of urgent necessity. Neonatal circumcision as it is routinely performed in this country clearly does not satisfy this criterion. It is therefore unethical and unlawful, no parental permission for the procedure should be effective. Moreover, even if it were permissible for physicians to give effect to parental permission for circumcision, physicians would be under a stringent obligation to their infants patients to ensure that any such permission is informed--voluntarily given based upon competent review of all relevant information. Available evidence suggests that physicians today routinely fail to fulfill this duty. In doing so, they discredit their profession and expose themselves to legal liability.
Consent to neonatal circumcision has not been directly considered by the courts; therefore, our analysis, out of necessity, relies on established legal precedents of cases that share common elements with neonatal circumcision. With near uniformity, these precedents indicate that neonatal circumcision would not be valid. Court decisions are in part influenced by the culture in which they occur.340 However, circumcision has gradually but steadily been falling out of favor in the past few decades. When the balance of public opinion shifts to opposing the practice, the legal system will likely become more accepting of lawsuits and lobbying for the protection of baby boys. Consequently, the legal system will no longer be able to ignore the conflict between this practice and the legal and ethical duties of medical professionals. In the meantime, the medical community ought to hold its members responsible, and every medical professional should personally reexamine the ethics of the practice.
The persistence of routine neonatal circumcision in this country may be explained partly as cultural blindness, a blindness that afflicts medical professionals as much as it does the general population. Part of the explanation also lies in a disregard for the distinct personhood and dignity of children. The analogy to sterilization of mentally retarded women is most telling; though once done routinely, primarily to avoid the social costs of creating wards of the state and of creating more disabled individuals, sterilization now requires court approval and a strong showing that it would be medically beneficial to the incompetent woman. Even in fairly compelling circumstances, courts have denied permission for sterilization of an incompetent patient. The change came when we as a society started to respect the mentally disabled as persons and accord them the dignity they are due as persons. We must now do the same for children, and that will mean ending the practice of routine infant male circumcision.
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