Journal of Gender, Social Policy & the Law, Volume 7, Number 1, pages 122-123.
Currently, parents may consent to circumcision because the procedure is viewed as relatively trivial, with either a marginal benefit to the child, or at least with a negligible adverse impact. The medical and legal communities have heretofore viewed circumcision as falling well within the purview of parental discretion. Circumcision has not been viewed by the public as the amputation of an organ implicating constitutionally protected privacy rights of the child, even though a child's privacy right is widely recognized in the case of sterilization and under federal law for female children. However a fundamental shift in public perception and attitudes regarding circumcision is required.
The use of the substituted judgment standard of judicial review employed in other cases of proposed amputation on minors, including sterilization, would probably eliminate the routine practice of infant circumcision. It is highly unlikely that anyone would be able to convince a court by clear and convincing evidence that the procedure is medically necessary, is in the minor's best interest, or is one in which the patient would choose if competent to make a choice. The perspective of the minor required under the substituted judgment rule would constrain the court from granting too much consideration to parental discretion.
The arguments presented in this article for subordinating parental discretion in medical decisions affecting their children to the right of the infant to bodily integrity would not prevent parents from granting authority for medical treatment that is either necessary or demonstrably in the minor's best interest. Where medical consensus and parental consent are aligned on a course of treatment, the application of the substituted judgment rule is likely to yield concurring results. Legislative solutions could be found to deal with routine medical situations such as the extraction of a tooth for orthodontic purposes.246 In certain types of irretrievable decisions, such as circumcision and other discretionary amputations, judicial review may be warranted in every case.
Alternatively, the federal government and the states could enact legislation to prohibit routine male circumcision while leaving parental discretion in other areas intact. For example, child abuse laws in many states do not prohibit spanking, corporal punishment or discipline, but do prohibit permanent physical injury to children.247 A better approach, however is to amend the Anti-FGM act to include protection against circumcision. The authority of Congress to enact such a law under the commerce clause is not in serious doubt, and is predicated on the exact same arguments propounded in innumerable legal commentaries dealing with FGM.248
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