Povenmire: Parental consent for circumcision (1/6)
Journal of Gender, Social Policy & the Law, Volume 7, Number 1, pages 87-90, 1998-1999.
There is no interest so vital and personal to the individual as that of controlling one's own body. This interest is a fundamental precept of the common law1 and an essential element of the right to privacy protected under the United States Constitution.2 The right to bodily integrity is also a "sacred"3 and "fundamental"4 right which derives its compelling indepensibility from the instinctual desire for self-preservation common to all sentient beings.5 The desire to protect oneself is papably present in an infant from the moment it emerges from the womb.6
The routine infant circumcision of males in the United States consists of surgically amputating healthy male tissue.7 In the overwhelming majority of cases, this procedure is performed at the parents' discretion, without any compelling medical or religious purpose.8 This article argues that routine infant circumcision implicates important constitutional rights which should supercede parental discretion, and that parental authorization for this procedure is legally insufficient to constitute effective consent.
For female infants, the right to the integrity of the genital organs is protected against surgical "mutilation"9 by federal law10 and United Nations resolutions.11 Under the law, the right of bodily integrity is deemed so fundamental that it displaces any consideration of the parents' cultural or religious beliefs.12 Unfortunately, no similar recognition has been extended to male infants in the United States. The failure of the law to provide equal protection to males can find no "exceedingly persuasive"13 justification, and is therefore unconstitutional.
Part II of this article reviews the historical background of routine infant circumcision in the United States and surveys the positions of various medical associations and medical researchers concerning the practice of male circumcision. Part III reviews the legal prerequisites for obtaining an effective consent to surgery, including circumcision. Part IV analyzes the parens patrie14 power of the state to intervene in parental decisions affecting minor children, while drawing parallels between circumcision and cases involving sterilization and amputation. Part V discusses the recently passed Criminalization of Female Genital Mutilation Act, emphasizes the inability of parents to consent to genital surgery on minor females under the Act, and exposes the Act's vulnerability to Fourteenth Amendment Equal Protection Challenges under the United States Constitution. Part VI concludes that a change in society attitudes is necessary in order to extend to males the same protection from intrusive amputation of genital tissue currently provided to females under the Criminalization of Female Circumcision Act.
See Planned Parenthood v. Casey, 505 U.S. 833, 915 (1992) (concurring that there exists a constitutionally protected liberty interest which includes the right to bodily integrity); see alsoEisenstadt v. Baird, 405 U.S. 438,453 (1972) (describing the right of privacy as "the right of the individuals ... to be free from unwarranted governmental intrusion" rather than the right of the family as an entity); Conservatorship of Valerie N., 707 P.2d 760, 785 (Cal 1985) (holding that prohibiting sterilization violated privacy and liberty interests). The court in Conservatorship of Valerie N stated [T]he great conceptual background for due process privacy law [is] bodily autonomy.... At present only the most powerless members of society appear to need to rely on the Constitution for such a basic right. The courts have ... recognized individual liberty in things of the body as a touchstone." see id. (quoting Note, Due Process Privacy and the Path of Progress, U. ILL. L. FORUM 469, 515 (1979)); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) discussing the right to determine what to do with one's own body)); Hondroulis v. Schuhmacher, 553 So. 2d 398, 414-15 (La. 1988) (stating that the decision of whether to undergo surgery or other medical treatment, no less than the decision to continue or terminate pregnancy is, to an extraordinary degree, an intrinsically personal decision.")
SeeCruzan, 497 U.S. at 278 (inferring from prior court decisions a constitutionally protected libery interest in declining medical treatments).
SeeThomas Aquinas, SUMMA THEOLOGICA 2 (Fathers of the English Dominican Province trast., Benzingers Bros. 1947) (1498) (communicating the significance of religious dogma); see also Steven M. Wise, Legal Rights for Nonhuman Animals: The Case for Chimpanzees and Bonobos, 2 Animal 179, 181 (1966) (discussing the chain of being ranging from the corporeal to the intellectual).
Ross Povenmire. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998-1999).
The Circumcision Information and Resource Pages are a not-for-profit educational resource and library. IntactiWiki hosts this website but is not responsible for the content of this site. CIRP makes documents available without charge, for informational purposes only. The contents of this site are not intended to replace the professional medical or legal advice of a licensed practitioner.