In Male and Female Circumcision, Medical, Legal, and Ethical Considerations in Pediatric Practice (Denniston GC, Hodges FM and Milos MF eds.) Kluwer Academic/Plenum Publishers, 1999, New York; 425-454
By Christopher Price
[For this Web version, I have taken the opportunity to make corrections of certain small typographical and other errors which, because of technical problems, are in the printed version]
The word “therapeutic” has been well described in Marion's case, in the Australian Supreme Court:
A treatment is therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychological disorder, provided that the treatment is appropriate for and proportionate to the purpose for which it is administered.1
Therefore, any medical procedure that falls outside that definition of "therapeutic" is non-therapeutic. There is also a helpful discussion of the differences between therapeutic and non-therapeutic procedures by Somerville.2
While its advocates claim that male circumcision---particularly routine and/or ritual circumcision of male infants---is a ``therapeutic'' intervention, by the above definition, it clearly falls under the definition of non-therapeutic. Still, the legal and ethical position of circumcision is not well understood. Circumcision is a very complex issue, a been said of it, "Mothers demand it, doctors profit by it and babies cannot complain about it."3 It is estimated that, with more than one million circumcisions a year at a cost of the order of $200 each, doctors in the United States earn in excess of $200 million per annum, from circumcisions. Such a major financial incentive to continue routine neonatal circumcision helps cloud the legal and ethical issues inherent in this activity.
Nahid Toubia has said that the fundamental question here is whether the child or society has the right to decide to alter the child's genitals.4 For a lawyer from a common law tradition, the legal and ethical principles on which non-therapeutic circumcision should be judged are neither complex nor novel; and the answer to that question is simple: in the United States Supreme Court case of Union Pacific Railroad v. Botsford (1891), it was said:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley ``the right to one's person may be said by a right of complete immunity: to be left alone.''5
Circumcision involves the amputation of a body part. Whether done for ritual, cultural, "routine," or social reasons, the part amputated is healthy flesh from the healthy organ of a healthy male. Those who say that it is proper to circumcise another, and would do it to another without that other's consent, are required to justify the alleged propriety and to justify this interference with the bodily integrity and functioning of that other.
If people choose, as adults and of their own free will, to have their genitals mutilated, by circumcision or by genital piercing—for whatever reasons—then so be it; but the infliction of this on innocent children, as this paper will show, is wholly unacceptable under the law.
It is not for those who argue that children have a right to remain intact and to be protected from circumcision to demonstrate that circumcision is damaging and, unless required for legitimate therapeutic reasons, unjustifiable. Even if it were wrongly suggested that the burden were so laid on the protectors of children, there is more than sufficient evidence available for that purpose. Rather, it is clearly for the circumcisers, not least in the light of mainstream medical knowledge and current legal concepts, to make good their general and specific assertions, by careful and rigorous evidence, that circumcision is in all cases painless, risk-free, harmless, beneficent, and in the best interests of the child.
I have concentrated my remarks on the American medical profession's practice of routine neonatal circumcision and on ritual circumcision because these have had a malign influence on medical and legal thinking in Britain. In Britain each year, far too many "medical" circumcisions are performed in the absence of compelling therapeutic need.6 It seems likely that the continuing acceptance of British medical school thinking of the 1920s to the late 1950s and early 1960s (despite Gairdner's landmark paper)7 coupled with an unwillingness to question the ritual claims, results in something approaching 60,000 circumcisions each year, almost all without any legitimate medical justification, and some one-half for purely ritual reasons.8 Ritual and medical misfeasance interact and each supports the other in a form of danse macabre.
The circumcisions performed in Britain fall broadly into 4 groups. First, there are those small number---of the order of 1% or perhaps fewer---where less invasive treatments (such as antibiotics, simple stretching of the prepuce, steroid creams, or preputioplasty) for a problem with the foreskin is of no avail: these almost invariably involve the presence of Balanitis Xerotica Obliterans.9
Second, are those circumcisions where the doctor, for reasons of idleness, supposed ease (at least for himself) of treatment, ignorance of the anatomy, function, and value of the foreskin, ignorance of the literature and so on, refers every slight or imaginary problem of the foreskin for amputation.
Third, there are the ritual circumcisions, which are wholly non-therapeutic and wilful, whether performed by lay circumcisers (mohels, in the case of Judaism), some of whom may possess medical qualifications, or by complaisant family doctors.
Fourth, there are those ritual circumcisions performed in hospitals by hospital doctors acting in that capacity.
In the United States, doctors, in order to be paid, must fit treatments into the health insurers' reimbursement codes, hence the unjustifiable diagnosis in neonates of "congenital phimosis," "redundant foreskin," or some other illegitimate excuse for routine circumcision. These fictions both ensure reimbursement from insurance companies and allow the doctor to cajole the parents into this procedure under the pretext that the child's penis is abnormal. Anecdotes are legion in the United States of the improper solicitation of this procedure. Hospital staff have bullied parents, recited to them the litany of bogus medical reasons without any mention of the contraindications, or have told parents that it is either mandatory, hospital policy, or state law that every boy must be circumcised.
British doctors, however, do not have to pretend that these circumcisions are anything other than pure religious ritual (vide the circumcision clinic at the Bradford Royal Infirmary where nurses circumcise, at a modest cost, for ritual reasons). Instead, they excuse and attempt to justify their actions by stating that, if a boy is going to be circumcised anyway, he should be circumcised within the National Health Service for reasons of safety. This, however, not only betrays the child, who is as entitled as any other patient to ethical and responsible care from a doctor, but also lends a spurious air of medical acceptability to a pre-historic blood ritual.
The British medical profession's failure to examine the physical, psychological, and sexological consequences of circumcision itself may stem from unjustified fears of breaching codes of religious tolerance, fears of provoking the politically dangerous charges of "anti-Semitism" as well as charges of misconduct both by the individual doctor and by the profession as a whole.
Finally, it should be acknowledged that a medical degree is not an liberating force. The failure of the medical profession, or of many elements within the medical profession, to examine circumcision objectively may stem from personal motivations of individual doctors. Many doctors involved in the endless "invention" of medicalised excuses for circumcision do so as a consequence of pre-existing biases of religious, psychosexual, or financial origin.
Certainly, there are doctors in both Britain and the United States who argue strongly for routine circumcision, though in the teeth of the objective medical evidence, and usually by omitting any reference to the corpus of literature. In Britain, these tend to be doctors of Jewish or Muslim belief.10 Unlike American doctors, these men do not go as far as to urge universal infant circumcision on the whole population, but they do present a dishonest, distorted, and religiously-motivated view of the alleged "medical benefits" of circumcision. This appears to be motivated by a conscious or even unconscious desire to have the general public believe that ritual circumcision is an acceptable practice. The effectiveness of these tactics is shown both by the general lack of criticism of ritual/routine circumcision in Britain, and by the advice invariably given by advice columnists and "agony aunts" in the British popular press and on television that circumcision is a minor procedure causing no harm or loss.
In the United States, however, the campaign by a few doctors with religious biases, as well as Gentile doctors, to push mass circumcision on the entire population, at any cost, is unremitting. The long, shameful, and discreditable history of medicalised propaganda for mass circumcision in the United States is a roster of such extremists as Drs. J. M. Moses, Abraham L. Wolbarst, and Abraham Ravich in the nineteenth and twentieth centuries to the current propagandists Drs. Edgar J. Schoen and Gerald N. Weiss (discussed more fully below). They are joined by Gentile doctors, the most vocal of whom is Dr. Thomas E. Wiswell.
One can only speculate on the motivations of those Christian, Jewish, and Muslim doctors, particularly those in the United States, who misrepresent the consequences of circumcision on bodily and functional integrity. One must also wonder what the motivation could be for those doctors, such as Schoen, who not only agitate for an entirely circumcised United States, but unceasingly work to push circumcision on Europe, and probably elsewhere as well. It is one thing to try to rationalise ritual circumcision and no more, although the dishonesty employed is unacceptable. It is entirely another thing to strive for the circumcision of the entire world.
The motives of doctors without evident pre-existing religious biases are unlikely to be any less disturbing. One deep anxiety at work here may be that unbiased scientific investigation and documentation of the harm of circumcision and the corresponding value of intact genitalia may place certain religions in a bad light. Furthermore, the seeming reluctance of the medical profession to admit to themselves (let alone to the public) that they have been guilty of having harmed millions of boys over the years by circumcising them for bogus medical reasons may also be behind this silence. These anxieties certainly appear, as discussed below, to have motivated the stances that the General Medical Council and the British Medical Association have taken in respect to circumcision.
Such anxieties, however, whilst understandable, are obstacles in the path of scientific advancement and community safety and have led to professional misconduct on a wide scale, and as such are wholly unacceptable from a legal and ethical standpoint. Injustices cannot be ignored simply because the naming of an injustice implies the naming of a guilty party. This sort of sophistry was best summed by Szasz:
Why is RNC [routine neonatal circumcision] legal? Because it is defined as preventive medicine. Why is it defined as preventive medicine? To avoid having to ban it as genital mutilation.11
In order to explain why circumcision has traditionally existed in a legal and ethical muddle, it is helpful to examine some of the deeply-felt irrationalities that motivate it.
Behind the religious sanitation, the motives for circumcision are pre-historic, primitive, barbaric, and cruel. Circumcision sprang from sacrificial impulses, from the desire to control individuals and to mark them with tribal identifiers, to initiate the youths into the tribe, and, through the infliction of an excruciatingly painful procedure, gain proof of the youths' fortitude and courage.12
It is likely also that mutilating the genitals of others has a deep sexual motive. This motive combined with the urge to control people when, in the nineteenth century, doctors first introduced "medicalised" circumcision in the vain attempt to prevent masturbation.13-14
For those who can stomach it, the comments and behaviours of proponents of circumcision would make a fruitful area of psychological study.15 They fully bear out Woodmansey's comment that "Something must be done to help the parents who show such an irrational need...."16 It would seem wholly plausible that inflicting circumcision on a boy provides some circumcisers and onlookers with a sexual thrill. Groups such as the Acorn Society, the Gilgal Society, and the Cutting Club openly admit to a morbid fascination with circumcision to the point of sado-masochistic fetish. These groups advertise that doctors are among their members. There are those on the Internet who discuss the erotic stimulation they experience by watching other males being circumcised, swap fiction and about it, and trade in videotapes of actual circumcisions. Furthermore, there are anecdotal accounts of doctors becoming sexually aroused when circumcising boys.17 Circumcision certainly provides an opportunity not only to handle boys' penises without the condemnation that a sexual assault (in the sense that phrase is normally used) would attract, but also the opportunity to exercise power over another human being, to alter the penis and to control it and the boy's future sexual life.18
Conversely, there is also a strong undercurrent of sexual repression flowing through the traditions of peoples who practice ritual circumcision. Szasz writes:
The roots of both RNC (``Routine Neonatal Circumcision'') and anti-masturbatory measures lie in Jewish law, which recognises the legitimacy of erotic pleasure associated with sexual intercourse, provided that the act is marital-genital congress between a Jewish man and a Jewish woman. Every other sexual act is strictly prohibited. Masturbation is condemned unequivocally both in the Talmud and in extra-Talmudic literature. The Zohar (an authoritative commentary on the Pentateuch) calls masturbation ``a sin more serious than all the sins of the Torah.''19 Recognising the obvious connections between touching the penis and sexual arousal, Jewish law ``definitely prohibits touching one's genitals---the unmarried man never, and the married man only in connection with urination.''20 When an Orthodox Jewish father bladder trains his son, he admonishes him: ``Without hands! Better a bad aim than a bad habit.''21
This hostility towards sexual expression is illustrated today by the remark of Lord Jakobovits, the former Chief Rabbi, in the debate over the age of consent for homosexuals:
A tiny dissident minority of under 5 per cent.---perhaps under 1 per cent. according to the latest studies---cannot demand that the other 95 per cent. or 99 per cent. must accept and treat as equal violations of the moral code which, after all, has distinguished civilised life for millennia.22
Although it would be encouraging to imagine that Lord Jakobovits would apply the same reasoning to circumcision, which since the days of the Greeks and Romans has indeed been considered a violation of the moral code by the majority,23 apart from anything else, as Lord Lester of Herne Hill aptly indicated:
Speaking as one Jew to another, I say with great respect to the noble Lord, Lord Jakobovits, that it is extremely dangerous for any minority to speak in the language of majoritarianism. In particular the Jewish Members of this House should perhaps remember that Hitler and the Nazis persecuted not only the Jews and gypsies but also homosexuals. No doubt the Nazis who did so represented a strong majority in Nazi Germany.24
Jakobovits' hostility towards sexual fulfilment, however, may simply echo not only the motives described by Szasz, but also Moses Maimonides (1135-1204 AD.), a noted Jewish rabbi, sage, and doctor who wrote:
As regards circumcision, I think that one of its objects is to limit sexual intercourse, and to weaken the organ of generation as far as possible, and thus cause man to be moderate The bodily injury caused to that organ is exactly that which is desired; it does not interrupt any vital function, nor does it destroy the power of generation. Circumcision simply counteracts excessive lust.25
Although today it is usually rationalised on the grounds of hygiene or disease prevention, circumcision is also put forward as a deeply religious and/or cultural expression. Frequently stated are comfortable claims such as "It's part of being Jewish/Muslim to be circumcised," or "It's the All-American way to be circumcised, to be a regular guy." Thus, behind the window-dressing of medical excuses lurk barely concealed irrationalities that have marked this amputation from its earliest days.
The medical literature itself, while giving the illusion of integrity and scientific impartiality, is equally vulnerable to contamination from the pre-existing biases of doctors. Dr. Edgar J. Schoen, although a well-known advocate of universal neonatal circumcision, was still, despite his documentable lack of impartiality, appointed the chairman of the 1989 American Academy of Pediatrics (AAP) Task Force on Circumcision. In a recent paper, Schoen attempted to promote neonatal circumcision in Europe with the irrational "medical" argument that "evidence indicates that women in Middle America have a sexual preference for circumcised men."26-27
Similarly, another American advocate of mass circumcision on supposedly "medical grounds," Dr. Martin L. Dresner, wrote in the pages of a leading American urological journal: "The strong preference that a majority of men and women have for the circumcised phallus is enough for me to want to offer it to those parents and patients who desire it."28 Dresner concludes his argument on the alleged "medical" justifications for subjecting all new-born boys to foreskin amputation by playing on the irrational American middle-class anxiety over conformity, stating:
When asked, "What do you think?" by those that are still undecided despite hearing both sides of the question, I simply admit that my two sons are both circumcised.29
More evidence of the pervasiveness of irrational, non-scientific anxieties in American medicine is found in a paper published by Dr. Jerry Byrum, in which he claims to evaluate, in an unbiased fashion, all the medical literature pertaining to circumcision. Leaving aside the fact that he only presents the literature published by advocates of mass circumcision and ignores all the literature documenting the rich sensory innervation of the prepuce, Byrum, like Dresner, concludes his allegedly unbiased and thoroughly scientific argument with an even stronger appeal to a falsified and carefully manipulated middle-class American conformism, stating:
For what it is worth, I would have my newborn son circumcised. For me, it's still the American thing to do.30
Dr. Gerald N. Weiss, another vocal American advocate of mass circumcision, wrote:
For millennia the male's preputial cavity has acted as a cesspool for infectious agents transmitting diseases, although amenable to prophylactic surgery...More than half the people on this globe live in fear of plagues, often unaware of means of prevention.31
Even by the "snake-oil" claims of circumcisers, the assertion that the foreskin is a "cesspool of infection" and the primary cause of plagues is not, and indeed could not be, substantiated by Weiss. Later, Weiss's unhealthy obsession with foreskin amputation is shown by his repetition: "The very anatomy, gross and microscopic, of the preputial sac speaks of the nature of a cesspool." That any soi-disant responsible medical journal (even one in the United States) saw fit to publish this piece is stunning.
Dr. Terry Russell,32 an Australian general practitioner, and an advocate of mass circumcision for ``hygiene'' reasons offers: "What man after a night of passion is going to perform penile hygiene before rolling over and snoring the night away (with pathogenic organisms multiplying in the warm moist environment under the prepuce)"; to which one can only say that there is no evidence educed of "pathogenic organisms" and that the woman, who is just as likely to "roll over and snore the night away" will have her much more convoluted, internal, and thus retentive, genitals bathed in her and her partner's fluids. Furthermore, the argument for the ease of cleaning claimed for male circumcision has not led to demands in any civilised country for excision of the clitoral hood and the labia in infant girls (who, despite also producing smegma) are relied upon to wash.
In Britain, supporters of universal non-therapeutic circumcision also typically, and untrammelled by evidence, twist the realities. While most supporters of Jewish and Muslim circumcision claim both a religious and scientific mandate, it is interesting to note that one never observes them claiming solidarity with the other cultures or religions who circumcise, presumably because a link to African tribesmen, Australian aborigines, New Guinea head hunters, or Filipino villagers would betray the uncomfortable superstitious reality behind the religious smokescreen.
A more chillingly honest account of the reality behind circumcision advocacy can be seen in an article by Flusfelder, a Jewish man, who wrote:
My wife is not Jewish. Our child---regardless of the condition of his penis---is not Jewish, if you pay attention to the Orthodox authorities. All the same, it was important to me to have Julius circumcised.... ``You know, it still won't make him Jewish,'' said Dr Cohen....I held Julius's legs down and apart. Whenever I felt a tremor from him, I pushed down slightly harder on the knees. The action seemed to comfort him. He stopped crying. He became calm. It was almost as if he trusted us....Dr Cohen gathered Julius's foreskin between his fingers, pulled it away, and his sad little glans was exposed....I heard the sound of Dr Cohen's breathing, and then I heard the sound of scissors tearing through skin. And then, a moment later, the horrible scream that Julius made of utter, excruciating pain....Supposedly, circumcised penises have 30 per cent less sensitivity than uncircumcised ones....God is perfect, man cannot be, so let us blemish our synagogue floors and mutilate our sons to prove it. I still don't believe in God. And if I have another son I am sure that he will be circumcised too.33
One can only ask "why?" Why this mutilation, of his son, by a man who does not believe in God, and thus for whom the "religious duty" can have no meaning; when the child cannot become Jewish by so doing it (or less Jewish by not doing it) and thus "cultural identity" seems meaningless; when he does not claim any medical benefits for doing it; and he accepts that it is painful, and damaging to penile sensitivity?
Neither should we seek a rational basis for the remark made by Rabbi Julia Neuberger of the King's Fund and a member of the General Medical Council's committee on circumcision:
I don't think the World Health Organisation saying ``stop'' is a reason for stopping it. You would have to have very strong arguments against it, as one does with female circumcision.34
Dawud O. Noibi of IQRA Trust London has advised solicitors acting for a Muslim father.35 He writes, inter alia: "Under Islamic Law, the circumcision of boys is very essential and required. Indeed, most of the schools of Islamic Law argue strongly that it is obligatory to circumcise boys and that it is sinful on the part of their parents not to do so." Dr. Sami Aldeeb's research has conclusively demonstrated that the claim that Islam requires circumcision is illegitimate because there is no mention of circumcision in the Koran.36 It is noteworthy that Muslims claim, as do Jewish religious authorities, that the failure to circumcise the child is a sin by the parents. A belief-system that holds that salvation and/or avoidance of sin depends on the sacrifice of another, rather than a sacrifice of oneself requires careful analysis.
Noibi also alleges: "The earlier the circumcision is done the more convenient and less painful it would be for the child."37 He merely echoes here what is often said by ritual circumcisers about pain, the medical evidence notwithstanding; but the phrase "more convenient" is a chilling one. How is it more convenient? For whom is it more convenient? One suspects that the ``convenience'' is not that of the child: Maimonides gives convincing if wholly unattractive reasons for circumcision in the early days:
In the first place, if one waited until the boy grew up he might not then let himself be circumcised; in the second place, because the child experiences less pain than the adult on account of the tenderness of its skin and the weakness of its imagination, the adult fearing something before it has happened, seeing its arrival; in the third place, because the parents to not as yet love their child with fervent tenderness. That emotion has not yet been formed in the parents of which love for the child is born. For this emotion grows constantly with the sight of the child and increases in strength in the same measure as the child increases in years. Consequently, if circumcision were postponed to the second or third year, it would often be omitted entirely, due to the tender affection of the father for his child. But at its birth the love of the father, who is bound to this commandment, is still very imperfect.38
Victor Schonfeld's 1995 film It's A Boy, aired in Britain on Channel 4 TV as part of the War Cries series in the autumn of that year, contained telling quotations.
Dr. Morris Sifman, medical officer of the Initiation Society, an organisation that trains mohalim, stated:
[W]e are up against, all the time, the possibility of this kind of thing happening which would damage the attitude of some parents who might be uncertain of what they want to do....If it would be found that circumcision is positively harmful, perhaps we would think again. But I have no doubt---I have not the slightest, slightest doubt---that this will never happen, because a commandment given by God is a good commandment.39
Dr. Majid Katme, President of the Islamic Medical Association, stated:
Is she, the mother or the father, are they really listening and submitting to the teaching of their religion or are they using their mind and questioning things?40
Rabbi David Singer, a mohel, appeared in the film circumcising an 8-day-old infant whose mother was Jewish but whose father was not. The infant finished up in the intensive care unit in hospital. Singer commented:
It is incumbent on the father of the boy to have the circumcision performed. If for any reason he does not have that done, then the Beth Din, the Jewish court, should see to it that the circumcision takes place. Today, seeing that the father is not Jewish, I am acting on behalf of the Beth Din, the Jewish rabbinical court.41
Singer's assertion are helpful in understanding the dynamics in the question of force and consent in infant circumcision. Equally illuminating, though somewhat difficult to comprehend, is the assertion that Rabbi Dr. Daniel Sinclair, the Ethical Adviser to the Chief Rabbi, made in reference to this question on BBC2's Newsnight:
[N]obody, finally, is forcing anybody to be circumcised.42
The 8-day-old boy at a bris milah, the American boys in the first hours of life, the young children of Muslim parents, or African, Australian, South Pacific boys at puberty, Samoan boys in New Zealand frogmarched between male relatives: their legs pinioned, arms restrained, their views never sought and their cries never heeded, their foreskin is ripped from their glans, and then clamped, and sliced off with scalpel or razor blade, or trimmed away with scissors or shredded with sharpened fingernails: and all this usually without any anaesthesia. In light of the facts of the matter, it is difficult to accept the line that "nobody, finally, is forcing anybody to be circumcised."
These illuminating comments must be born in mind if one is to begin to understand the vast and complex psychological motivations that today hide behind the recently erected façade of medical justifications for circumcision. They also help to explain why the legal profession, like the medical profession, with few exceptions, has had difficulty in addressing the legality of circumcision.
The Law Commission for England and Wales examined the whole issue of consent in the criminal law. It concluded, after a perfunctory and inadequate examination:
The leading cases refer only to tattooing, ear-piercing and ritual circumcision as exceptions to the general rule.....and because the law is clear, statute has introduced some controls designed to ensure that most of these practices are carried out safely and hygienically.43
This is a wholly and mischievously misleading statement, made the more so by the failure of the Law Commission to cite any case whatsoever in support of its assertion. There is no statute and there are no controls in respect of the performance of ritual circumcision, let alone any to control the safety and hygiene of the procedure. The only leading case in which there is a passing reference to ritual circumcision is R v. Brown.44 The only other case in which non-therapeutic circumcision receives a mention is R v. Adesayna (finding that the ritual scarification of the cheeks of young boys was criminal). Adesayna can hardly be described as a ``leading case.''45 The Law Commission say that Judge King-Hamilton QC considered that the potential for serious injury, as part of the ritual scarification of the cheeks of two boys by their mother was great because of the danger that the slightest move of the head might lead to injury to the eye, in distinction, he considered, from the accepted practices of ear-piercing and ritual circumcision.46 Such a comment, however, is clearly obiter.
The Commission's assertion that, "male circumcision is lawful under English common law," is undermined by the Consultation Paper itself. If the law were indeed as clear as the Commission would have us believe, then it is curious that the Association of Chief Police Officers are quoted as seeing a need to "make the position entirely clear;" it is also of note that the Commission makes reference to "formulating rules as to the nature of the consent given by the victim and the limits and the circumstances in which consent is legally effective."47
If the law were "clear," as alleged by the Commission, and ritual circumcisions were lawful at common law, it would not be necessary to "put the lawfulness of ritual male circumcision beyond any doubt," as the Law Commission propose.48
The general rule in English criminal law, and reflected in other common law jurisdictions, is that any application of force, no matter how slight, is prima facie an assault, but that consent will serve as a defence to assaults that do not inflict actual bodily harm. There are certain exceptions to this general rule as to the defence of consensual violence, the most important of which is that medical treatment is lawful even when grave bodily injury is inflicted in the course of it, provided consent is present or an emergency makes it appropriate to dispense with consent. Thus Lord Lane in Attorney-General's Reference (No 6 of 80) said:
So, in our judgment, it is immaterial whether the act occurs in private or public; it is an assault if actual bodily harm is intended and/or is caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.49
The broad reason given, and expressly approved by the House of Lords in R v. Brown, for certain exceptions to the general prohibition on assaults inflicting bodily harm (even with consent) was one of public policy, even though, as Lord Templeman himself said, public policy is not static, and behaviour that once was tolerated is now criminalised---he gives the example of duelling.50 Second, in the context of non-therapeutic circumcision, it is helpful to examine critically what is implied by the claim of public policy (a claim clearly made obiter and not amplified or explained by Lord Templeman nor given any support by the other Law Lords) to justify routine or ritual circumcision. Lord Templeman, in a passage that has been heavily relied upon by ritual circumcisers, stated:
In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with the consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.51
There are instances where society may be entitled to legitimise the infliction of harm on another without that other's consent, such as the punishment of crimes. Yet, to describe and consider the infliction of harm on another without that other's consent as part of the legal framework of consensual injuries is to inflict a grave and profoundly unhelpful distortion to language and legal thinking.
The failure to analyse the various situations involving assaults, injuries, and consent was a major factor in the flaws in the House of Lords judgment of R v. Brown and the Law Commission's Consultation Paper Consent in the Criminal Law.52-53
So seemingly obsessed were their Lordships by their repugnance towards homosexual sado-masochistic behaviour (but not seemingly towards the heterosexual sado-masochistic practices advertised, promoted, and offered by the dominatrix Miss Whiplashes of Britain) that they, and in turn the Law Commission, lost sight of the essential difference between consent given by oneself to an injury to oneself, and assent given by one qua parent or guardian for an injury to a child.
Consequently, Lord Templeman's language in the quoted passage needs to be examined critically, since this examination reveals the lack of logic or even precision of thought that has so bedevilled the legality of non-therapeutic circumcision. He states:
When violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating.54
As a general comment it may pass muster, though it seems to suffer from a degree of circularity. Its applicability to non-therapeutic circumcision, however, is more doubtful Non-therapeutic circumcision certainly requires the application of force, and in legal terms violence to the person being circumcised; that violence is inflicted deliberately, with intention, and is not an accidental application of violence. It inflicts, within the definitions of the Offences Against the Person Act of 1861, a wounding (which is any injury where the full thickness of the skin is breached), and in the light of the medical evidence, causes serious (or as the 1861 Act describes it, grievous) bodily harm. The injury was ex hypothesi a ``foreseeable incident'' of the amputation of the foreskin. Two elements thus remain.
First, one must determine whether the child can be properly described as ``participating.'' He certainly is physically present; but no one has asked, or indeed---given his age in most cases---could ask for his views. He certainly has violence inflicted upon him; but the need to restrain him, the clear medical evidence of the pain he suffers (although that pain has traditionally been denied by circumcisers), and his lack of any input into what is being inflicted upon him makes a nonsense of any suggestion of his participating actively in his circumcision. The self-serving claim that such a child ``participates'' in his circumcision is reminiscent of Humpty Dumpty's argument:
"When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I chose it to mean---neither more or less."55
Such is the case in bris milah, where it is often asserted that the infant derives some sort of "spiritual benefit" from his ``participation.''
Second, one must determine whether circumcision is lawful; and here Templeman's obiter dictum seems to say no more than: force is lawful when it is lawful, and unlawful when it is unlawful. His words are bereft of anything that assist in defining whether an act might or might not be lawful. In as much as one can make any sense of his comment, it appears that he is suggesting (as shown by his phrase "Other activities carried on with the consent by or on behalf of the injured person have been accepted as lawful...") that consent might appropriately be given by someone other than the assaulted person. One is left, however, in difficulties as to what the word "Other" refers to. Is it in contrast, as grammar and its position would suggest, referring to "surgery," which is the subject of the preceding sentence? Or is it supposed to refer back to, and contrast with, "lawful activity in which the person injured was participating"? No matter how one construes the remark, one must observe that ritual circumcision is, for a Jewish boy, commanded to be inflicted when he is a neonate, and for a Muslim boy, to be is inflicted during childhood. Consequently, these assaults are never, and never intended to be, performed on a fully consenting and legally competent adult and are thus in sharp factual, ethical, and legal distinction to the other activities set out by Templeman.
Templeman prays in aid that an exemption for non-therapeutic circumcision from the ordinary rules dealing with assaults under the common law is a matter of public policy, and in so suggesting, seems to indicate that it is not to be seen as being merely an example of a surgical procedure, but rather is an exemption in its own right. Has it been clearly established that the common law, as Templeman alleges, has created a special exemption for non-therapeutic circumcision; a procedure which for centuries in Britain was practised solely by Jews and the few Muslims? To assert this is to postulate a policy of religious toleration of Jews and their religion in Britain over the centuries. Much as we may regret it, there is no evidence to support this: indeed, in mediaeval times, Britain demonstrated the same religious intolerance as other countries in the deplorable pan-European hostility towards Jews. Given that England expelled the Jews in 1290 and given a general hostility towards other religions and even Christian sects, it is hard to imagine that the common law developed a special dispensation for Jewish ritual circumcision.
A more plausible explanation for the toleration of ritual non-therapeutic circumcision by Jews and Muslims springs from the English legal principle that surgery may be performed by any person, and not solely by a medically qualified doctor. That explanation fits the pattern of non-therapeutic circumcision in Britain more easily than some late twentieth-century political correctness about religious toleration; it explains the toleration of circumcision in Britain of Christian circumcision in the latter part of the nineteenth century until the mid-twentieth century as a prevention of, and punishment for, masturbation and other medicalised excuses.56
If non-therapeutic circumcision be merely an example of a surgery, albeit often performed by the medically unqualified, then it can be put into the framework, as any other medical procedure, where legal guidelines operate for example as to consent, rationale, benefit, and the protection of operator and the person operated upon.
If, however, despite the lack of any authority to support that and despite the theoretical problems inherent in that concept, non-therapeutic circumcision is an exception in its own right (rather than simply an example of a surgical procedure) then it needs to be re-examined in the light of current medical knowledge as to its severely adverse effects in terms of pain, risks, and, above all, the considerable damage to function. Such academic writings as there have been in the past that have indicated a toleration of non-therapeutic circumcision were explicitly on the false premise of there being lack of physical harm to the child.57-58
Mr Sebastian Poulter comes closest to a proper analysis of male circumcision in earlier academic writing, albeit that his writing is flawed by a misunderstanding of the effect of the medical studies on pain, risks, and inevitable losses and damage. Poulter writes:
The basic right to bodily integrity which everyone possesses under the English common law means that any interference with this right amounts to an assault or battery....The question raised in cases of circumcision, excision or infibulation is whether the operation can be justified as constituting lawful as opposed to unlawful interference with this right.59
Pausing there, it is noteworthy that Poulter groups male circumcision with various forms of female genital mutilation.
Although there are no precedents in this field to rely on there would appear to be three possible grounds upon which a defence of lawfulness might succeed at common law. The first is that the procedure is therapeutic. If this can be established a parent can validly consent to it on behalf of a child who is too young to understand what is being done. It would appear unlikely that this line of defence could generally succeed other than in comparatively rare instances of physical defect or abnormality. Second, although the matter is not entirely free from doubt, it seems that a parent may equally validly authorise a non-therapeutic operation, provided it is not actively against his child's interests. This would appear to have been the basis upon which the vast majority of male infants have been circumcised in this country with impunity from time immemorial. There is no need under this heading for the parent to establish that the operation is positively beneficial for the child, merely that he was acting reasonably in authorising it. Third, it has been tentatively suggested that a parent may even authorise something that is against his child's interests if it is compensated by sufficient advantage to others and is not seriously detrimental to the child. This exception is particularly apposite for establishing the legitimacy of transplant operations which directly benefit patients in pressing need (e.g. a brother or sister). It seems extremely unlikely that it could justify the more remote and controversial benefit of satisfying a deeply-felt community attachment to traditional customs. Moreover, to the extent that female circumcision, excision and infibulation are in fact mutilations and hence seriously detrimental to the child the defence would be ruled out in any case.60
Poulter concludes that male circumcision is lawful; but this can only be so if he is correct both in his analysis of the legal right of a parent to assent to an assault to the bodily integrity of his child for non-therapeutic grounds (i.e., his grounds 2 and 3) and in the correctness of his view that male circumcision is harmless and is not, in medical terms and its consequences to the victim, to be equated with female circumcision. The correctness of his view of parental consent seems open to doubt in view of Gillick v. West Norfolk and Wisbech Area Health Authority.61 Even if he were correct, the medical evidence of harm defeats his conclusion for his ``ground'' 2, and the more so for ``ground'' 3, given his comment on the unavailability of the defence for the performance of "traditional customs."
It is noteworthy that lawyers have increasingly examined the legality of medical procedures, yet Somerville's helpful early article has not received the general attention it deserves.62 More recently, lawyers in four common law jurisdictions (England, the United States, Canada, and Australia) have expressed the view that, by considering both medical research and legal norms, non-therapeutic circumcision is, or at the very least is prima facie, a criminal assault.63-68 Although a criminal prosecution has yet to take place, there has been no rebuttal of that view.
It ought not to be necessary to make the point that the duty owed by the doctor is to, and solely to, his patient; and that where a child is involved, that child, and not the parents or anyone else, is the patient.
The Declaration of Geneva (1948) requires a doctor to put the health of the patient as the first consideration, and not to allow race, religion, or nationality, to intervene between his duty and his patient, nor shall a doctor use his "medical knowledge contrary to the laws of humanity."69
In February 1995, the American Academy of Pediatrics (AAP) Committee on Bioethics released a statement on ""Informed Consent, Parental Permission, an Assent in Pediatric Practice"." This document states in part:
In attempting to adapt the concept of informed consent to pediatrics, many believe that the child's parents or guardians have the authority or ``right'' to give consent by proxy. Most parents seek to safeguard the welfare and best interests of their children with regard to health care, and as a result proxy consent has seemed to work reasonably well.
However, the concept encompasses many ambiguities. Consent embodies judgements about proposed interventions and, more importantly, consent (literally ``to feel or sense with'') expresses something for one's self: a person who consents responds based on unique personal beliefs, values, and goals.
Thus ``proxy consent'' poses serious problems for pediatric health care providers. Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses. Although impasses regarding the interests of minors and the expressed wishes of their parents or guardians are rare, the pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent.70
The American Academy of Pediatrics Committee concluded that, for a child-patient, the concepts of informed consent and of patient assent cannot apply. The concept of informed parental permission cannot apply because informed parental permission, they suggest, allows for medical interventions only in situations of clear and immediate medical necessity, such as disease, trauma, or deformity. Thus, they suggest that, in non-essential treatments that could be deferred without substantial risk, the physician and family wait until the child's consent can be obtained.
It is extraordinary that the same body's 1989 Task Force on Circumcision, whose chairman, Edgar J. Schoen, was and remains a crusader for universal involuntary neonatal circumcision, proceeded in a totally opposite direction to these guidelines. This is not surprising given the Task Force's one-sided and biased selection from the medical literature and its omission of any reference to medical literature that undermines the propriety or alleged medical need for non-therapeutic circumcision.71
The same bias, selectivity, evasion of the ethical issues, and misrepresentation of the medical literature, is also to be seen in the recent offerings from the British Medical Association (BMA) and the General Medical Council (GMC).
The BMA wrote in 1996:
With all procedures, professionals have an ethical obligation to weigh the potential benefits and harms of the procedure and explain these in an appropriate manner to the patient or person consenting on the patient's behalf....The BMA does not have a policy on the ethics of male circumcision for religious or cultural purposes but issues this guidance in response to doctors for all relevant factors to be taken into account.72
In 1997, the General Medical Council, not surprisingly, followed a similar line to the BMA:
[O]ur published guidance does not specifically address the rights of children ....However, many of the principles set forth in our booklet Good Medical Practice are of broad application and should be followed by doctors when they are asked to perform circumcisions.73
It is difficult to see how they, or indeed any circumciser, square their position with the Nuffield Committee's report, which states:
Gratuitous injury, that is injury that is not undertaken in order to avoid destruction, damage or degradation, remains unacceptable. This point is sometimes blurred by an assumption that it is the therapeutic context which licenses what would otherwise be injury. In fact it is more precisely the therapeutic intent rather than the therapeutic context that justifies action that otherwise would be seen as injury....Gratuitous and in particular malicious injury of human beings, and specifically human tissue, will always be unacceptable, especially when inflicted in a therapeutic context....Treatment given by those who are medical practitioners will be acceptable only if guided by a therapeutic intention....74
It is equally difficult to see how they even square it with their general views on proper and ethical practice. The GMC's guide to proper practice included such statements as:
Patients must be able to trust doctors with their lives and wellbeing. To justify that trust, we as a profession have a duty to maintain a good standard of practice and care and to show respect for human life. In particular as a doctor you must:
make the care of your patient your first concern;
respect patients' dignity and privacy;
listen to patients and respect their views;
give patients information in a way they can understand;
respect the rights of patients to be fully involved in decisions about their care;
keep your professional knowledge and skills up to date;
recognise the limits of your professional competence;
be honest and trustworthy;
make sure that your personal beliefs do not prejudice your patients' care;
act quickly to protect patients from risk reason to believe that you or a colleague to practise;
avoid abusing your position as a doctor.75
The BMA and the GMC seem unable or unwilling to recognise that their refusal to discuss the ethical difficulties in performing medically unnecessary and medically harmful surgery on a child was itself a declaration of their position in ethical terms. Being prepared not only to participate in these non-therapeutic circumcisions, but also to lend support to and not condemn such procedures, itself sends a signal that performing such surgery is not seen by these bodies as unethical.
On 8 August 1998, the BMA News Review published a news item about the Fifth International Symposium on Sexual Mutilations. In this article, the BMA medical ethics committee chairman Michael Wilks is quoted as saying, "We don't have a position on this because there is no clear evidence of either the benefits or the harm of circumcision, although there is an issue of consent."76 This is a remarkably glib and inaccurate comment, which both misstates the corpus of the medical literature and also fudges the vital issue of assent for non-therapeutic circumcision on a child.
In the same issue, the BMA News Review also published a ``debate'' between Dr. Janet Menage, and Dr. Nigel Zoltie.77 Zoltie is credited only as being an accident and emergency consultant in Leeds, but in truth he is also a ritual Jewish circumciser, as well as a member of the Initiation Society (headed by Dr. Morris Sifman)---a crucial fact he revealed in a published letter to the editor of the BMJ.78 This presents an obvious conflict of interest. Since Zoltie has a pre-existing bias in favour of circumcision, complicated by a presumed financial incentive in promoting circumcision, his "medical" opinion on circumcision is difficult to distinguish from a marketing campaign. In this light, Zoltie's arguments are illuminating and bear closer study if we are to understand how pre-existing biases can corrupt and distort not only the practice of medicine, but medical ethics as well. Zoltie writes:
Those who criticise the actual operation use emotive words like mutilation, and ascribe a wide variety of complications to the surgery. However, mutilation is in the eye of the beholder. What is mutilation to one observer may be beautiful to another pierced body parts, for example.79
A glance at any standard dictionary, however, reveals that mutilation is independent of, and not defined by or solely by, notions of aesthetics.
Mutilate: 1. To deprive (a person or animal) of a limb or some principal organ of the body; to cut off or otherwise destroy the use of (a limb or organ); 2. To render (a thing, esp. a record, book etc.) imperfect by cutting off or destroying a part.80
Do parents who have their children's ears pierced face the same onslaught as those who allow their sons to be circumcised?81
Clearly not: if only because ear-piercing does not cause loss of bodily function. To equate this with the amputation of a sensitive and highly functional body part is illogical and dishonest.
Zoltie also claims:
Essentially, circumcision can be regarded as cosmetic surgery. Surely society does not have the right to stop people having cosmetic operations.82
This is an example of rhetorical obfuscation. Society is not seeking to stop cosmetic surgery per se; rather, as Somerville made clear, the considerations for such surgery on a child differ from those for adults:
It is necessary for the law to recognize and accommodate three realities in the context of medical interventions. First, medical interventions are not regarded in practice as prima facie illegal. Second, some non therapeutic interventions are accepted by our society. Third, those unable to consent for themselves need increased protection. It is proposed that the most satisfactory approach to such an accommodation is to regard therapeutic interventions as prima facie legal and to retain the present criteria of prima facie illegality with respect to non-therapeutic medical procedures.(31) Then, at a second stage of the analysis of the legality of any particular medical intervention, therapeutic benefit and personal "informed" consent should be treated as necessary, but not always sufficient, alternative validating requirements within the limits set by public policy.
Under such a scheme, the prima facie presumption of illegality of any non-therapeutic intervention on those incapable of consent could not be rebutted without statutory authorization of that procedure. In comparison, the personal "informed" consent of at least a competent adult would rebut this presumption where to do so was not contrary to public policy. In the therapeutic situation, the use of therapeutic benefit and consent as alternative validating criteria must be subject to the proviso that where the person is capable of consenting, his consent must be obtained if the intervention is not to constitute a criminal offence. That is, the prima facie presumption of the legality of therapeutic interventions would be rebutted in such circumstances by the absence of consent.83
Furthermore, the infliction of such devastatingly destructive surgery on an unconsenting child, solely for (as Zoltie puts it) "cosmetic" reasons, imposes the parents' notions of aesthetics on the child. Tattooing, described by Lord Templeman as one of the lawful exceptions to the general rule, is regulated by statute.84 The clear reason why tattooing is prohibited for a person under the age of 18 is, as Poulter puts it:
[T]hey may occasionally be dangerous when performed by an unqualified person, possibly resulting in serious injury... or leading to an infection. The second is that where the marks are designed to be permanent, they may later come to be resented by the child when he has grown up..... and if their original purpose later seems to him to be misguided or irrelevant.85
Zoltie further remarks:
Another issue is that of parental consent. Parents often decide on difficult issues for their children.86
Indeed; but the decision is a discharge of parental duties, regulated by the law. Zoltie continues:
It is a matter of opinion, not fact, whether a procedure is better carried out early, with parental consent, or later, with potential difficulties...87
This remark is scarcely capable of logical reading; but to the extent that it suggests complications for the adult that are non-existent when an infant is circumcised is medical nonsense. Further:
...simply because the child may not have appreciated the benefits while still young.88
It is difficult to understand how Zoltie can say this, when he has clearly said that the procedure is, as he puts it, to "be regarded as cosmetic surgery." What "benefits" is the infant supposed to have received, albeit he "may not have appreciated"?
Zoltie then tellingly states:
The followers of two of the world's religions Jews and Muslims perform circumcision. Unless there is clear evidence that the procedure is detrimental, it could be considered religious persecution to prevent a group fulfilling its religious tenets.89
We note here the misrepresentation and (perhaps) wilful ignorance of the medical literature commonly found in the writings of advocates or apologists for mass circumcision, and a further misrepresentation of the provisions of international law as to the limits on the exercise of beliefs. As was tellingly put by Dr. Keith Wollard, the chairman of the Australian Medical Association's ethics committee, the debate about non-therapeutic circumcision "mustn't degenerate into some sort of criticism of Jewish and Muslim communities."90 Wollard is correct, but Zoltie himself is here attempting to make legitimate criticism of circumcision appear to be criticism of the "Jewish and Muslim communities." Advocates of mass circumcision commonly use this tactic to stifle legitimate debate, silence proper criticism, and deflect attention from the evidence by the offensively inaccurate, thinly-veiled charge of anti-Semitism and religious persecution. It seems that the tactic is to smear any and every criticism of non-therapeutic circumcision as anti-Semitic so as to suppress by intimidation and/or to discredit those who report the facts of circumcision. As we have seen above, there seems to be an implicit fear among circumcisers that allowing parents the facts about circumcision runs the risk that parents will decide that the health and welfare of their son is more important than any alleged religious duty. The Queensland Law Reform Commission, however, observes:
A parent has no authority to consent to the medical treatment of his or her child unless it is in the best interests of the child. This is because implicit in parental consent is understood to be the determination of what is best for the welfare of the child.91
Zoltie then descends to the abuse and the ad hominem attack on circumcised males:
For all but a minority of people who consider themselves scarred physically and mentally by the procedure, it is a minor blip in the normal rough and tumble we call life. Why should it provoke such emotion, and when it does, what does it say about the people in whom it is provoked?92
This revealing passage demonstrates an indefensible contempt for patients' feelings and, as such is incompatible with the ethical practice of medicine.
In truth, it takes moral courage and honesty to stand up for patients when to do so will be likely to cause offence to many members of the profession whose religious beliefs will be challenged. It requires honesty to tell parents and the public of the harms of this procedure; and, after all, it would be easier and more comfortable simply to brush the whole thing aside.
The reluctance of members of the medical profession to allow themselves to be held accountable for their individual and collective actions is telling. The Daily Telegraph of London reported that the Australian government admitted that more than 200 girls had been illegally sterilised.
Dr. John Yu, a paediatrician and former chief executive of the New Children's Hospital in Sydney, said that the ethical implications were "extremely complicated" but he believed that the courts should have no role in deciding if mentally handicapped girls should be sterilised. I think it is almost impossible for the law to make a reasonable judgment.93
If doctors want to go down the route of expediency and bow to the demands of those who seek, for their own personal and selfish ends, to manipulate children, then it must be pointed out that this is a route travelled in the past by many doctors, most notably by doctors in Nazi Germany and by psychiatrists in the Soviet Union. If doctors choose to be party to a systematic programme of involuntary social and sexual engineering of children to their physical detriment, then this lends powerful support to the argument that the medical profession has forfeited whatever slight justification it might once have had to be self-regulating. Furthermore, it is clear that questions of ethical medical practice now need to be resolved in every case by the courts, where there are clear rules for the protection of the patients, especially children, where all the parties including the child will be represented and have a voice, and where the issues will be publicly aired.
Some doctors might fondly think that, if non-therapeutic circumcision were to come to court, they could rely on the case of Bolam v Friern Hospital Management Committee where the jury were directed that:
"[A] doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view"
that this would provide a defence that many other doctors were also performing non-therapeutic circumcision.94
The House of Lords, however, has recently held that:
A doctor could be liable for negligence in respect of diagnosis and treatment despite a body of professional opinion sanctioning his conduct where it had not been demonstrated to the judge's satisfaction that the body of opinion relied on was reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field were of a particular opinion would demonstrate the reasonableness of that opinion. However, in a rare case, if it could be demonstrated that the professional opinion was not capable of withstanding logical analysis, the judge would be entitled to hold that the body of opinion was not reasonable or responsible.95
In an earlier case, applied by the House of Lords in Bolitho, it was said:
The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.96
In Ireland too, it has been held that a doctor who follows a practice approved by colleagues of similar specialties could nevertheless be challenged if it can be established that the practice has inherent defects that ought to be obvious to any person who gives the matter due consideration.97 In Australia, the Bolam approach was specifically rejected in a case on the nature of informed consent.98
Central to the consideration of non-therapeutic circumcision are the issues of consent and the validity of the proxy assent given by a parent for the non-therapeutic circumcision of a child. Whatever sense, if any, might be extracted from Templeman's quoted obiter dictum, consent is, even on his terms, a central ingredient of the lawfulness of the violence inflicted. Therefore, the effectiveness and legal validity of that assent is vital. It is a legal truism that a child, especially one of tender years, is legally incapable of giving effective consent, and that consent (or more properly assent) can be given by parents in appropriate situations. The question then arises as to what those situations might be, and, in particular, whether those situations include circumcision for non-therapeutic reasons. It is important to be clear that, contrary to popular beliefs (particularly in the United States) parents do not possess rights over their children, but rather have duties towards them, which give them certain defined powers to discharge those duties. This concept has a long history springing from the notion that the Crown/State is the parens patriae and exercises a jurisdiction protective of children. In its modern guise, it might be summarised in the adage that in questions concerning the upbringing of a child that a child's best interests are paramount.99
Even if a circumciser might escape criminal conviction as a result of a non-therapeutic circumcision, there still remains the much more probable chance of civil action by the child for the performance of a procedure that is agreed to have no clearly demonstrable medical justification. Whilst the heavy burden of proof in a criminal trial might result in the acquittal of a circumciser, the need only for the plaintiff in a civil trial to prove his case on a balance of probabilities puts the circumciser at risk.
This centrality of consent springs from the fundamental principle of respect for autonomy: every autonomous person has the right---the absolute right in law---to decide what may, or may not, be done to him. In the field of medicine, it is trite law that any treatment or investigation involving a touching, carried out without consent is a battery, which could result in an action for damages or even criminal proceedings. Time and time again, the courts have supported an individual's right to autonomy of his or her body. Thus, a competent adult has the absolute and unfettered right to refuse treatment even if that refusal will lead to a certain and hastened death. As was recently shown in a case in Britain, an adult may refuse treatment even if doctors sincerely believe that she is misguided and that her refusal will put the life of her unborn child in jeopardy. So well established is this principle that no useful purpose would be served by exploring this concept in any detail.
The lawfulness of the consent, however, depends on a number of factors: the competence of the consent giver; the freeness of the consent from duress and/or fraud; and the awareness of the nature of the risk and/or injury to be experienced by the patient, since a person cannot either in law or in logic be properly regarded as voluntarily assuming the risks of an assault if he is not in a position to be aware of the nature and extent of the risks. The phrase "the competence of the consent giver" relates not solely to whether the consent-giver is of legal age and mentally competent, but also to whether the consent is within his power to give.
Although there is an increasing acceptance of the desirability to involve children in the consent process involving their medical treatment, a child under the age of 16 is not, generally, in a position to give valid consent. It is necessary in most cases for the final decision---the formal act of consent---to be given by a competent parent or appropriate adult on behalf of the child. That ability to give permission for the infliction of medical treatment on a child is not a right as popularly believed; but rather the discharge by the parent of the duty to care for the child. As Lord Scarman has said:
The principle of the law...is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child....Giving consent to medical treatment of a child is a clear incident of parental responsibility arising from the duty to protect the child.100
The Queensland Law Reform Commission (QLRC) has examined both the general question of treatment of young people, and male non-therapeutic circumcision.101-102 Despite certain flaws springing from an incomplete understanding of the full effect of the corpus of the medical literature, and an understatement of the grounds for opposing non-therapeutic circumcisions, both studies are, if one might say so with the deepest of respect, admirable and worthy of wide dissemination and study.
They considered the effect of the ruling in Marion's case where it was said by Brennan J:
The responsibilities and powers of parents extend to the physical, mental, moral, educational and general welfare of the child....No doubt in most cases of medical treatment or surgery, no conflict will arise between the interests of the parents and those of the child. In other cases, the risk of conflict may be so slight or theoretical that it can be disregarded. but in some cases---and claims that an abortion or sterilisation is in the best interests of a child are likely to be among them---a conflict between the interests of the parents and the child may arise. In such a case, the application of established and fundamental principle will deny the right of the parents to consent to the operation or treatment. If an operation or treatment is to be performed or carried out in such a case, only a court of general jurisdiction exercising the parens patriae jurisdiction....can authorise the operation or treatment.103
The QLRC in turn stated:
A parent has no authority to consent to the medical treatment of his or her child unless it is in the best interests of the child. This is because implicit in parental consent is understood to be the determination of what is best for the welfare of the child [citing Marion's case at p. 315]. If a parent purports to consent to a treatment which is not in the best interests of the child, the consent is of no effect and any person acting on such consent would be guilty of assault if any physical interference is involved. Notably, what is in the best interests of a child is a matter to be determined objectively.104
As the QLRC properly says:
It might be asserted that what is in the parents' or family's best interests would automatically be in the child's best interests. This does not always follow---in all cases the best interests of the young person must be considered and not merely assumed.105
The QLRC made no claim for the legality at common law for male infant circumcision, despite the majority of Australian males' being circumcised by the 1960s (and a current rate of male circumcision of between 25% and 35%). Indeed they say:
In the absence of ``real'' consent, circumcision of male infants would fall within the definition of assault under section 245 of the Queensland Criminal Code. It might also be an offence endangering life or health. A number of criminal offences may be committed depending on the circumstances of the case.106
After a discussion of the offences, ranging from causing grievous bodily harm to unlawful wounding, the commission adds:
The common law operating in Queensland appears to be that if a young person is unable, through lack of maturity or other disability, to give effective consent to a proposed procedure and if the nature of the proposed treatment is invasive, irreversible and major surgery and for non-therapeutic purposes, then court approval is required before such treatment can proceed. The court will not approve the treatment unless it is necessary and in the young person's best interests. The basis of this attitude is the respect which must be paid to an individual's bodily integrity.107
They comment that:
Unless there are immediate health benefits to a particular child from circumcision, it is unlikely that the procedure itself could be considered as therapeutic.108
Of equal importance, the commission notes that:
The circumcision procedure is invasive, irreversible and major. It involves the removal of an otherwise healthy organ part. It has serious attendant risks.109
The QLRC conclude that:
Whether or not circumcision would be for the benefit of the particular child and whether or not it would be reasonable having regard to the child's state at the time and to all the circumstances of the case would need to be assessed on a case-by-case basis.110
How does Templeman, or indeed the supporters of non-therapeutic circumcision, fit the notions of consent that they recognise, no matter how perfunctorily as a necessary pre-condition, into the general rules for consent, and more importantly into the specific rules governing child welfare and proxy assent on behalf of the child for surgical procedures? He and they are silent. He and they ignore the body of domestic and international legal norms protecting fundamental human rights and the vulnerable position of children. It is for them to come up with a satisfactory and legally compelling answer and again the onus is on them to justify this invasive, irreversible, and major intervention.
Case law and the Children Act 1989 (the current statute) make it clear that the guiding principle, the paramount consideration, in decisions regarding the child's upbringing is the child's best interest. Section 1(3) of the Children Act provides the factors to be considered in forming such a view, namely that regard should in particular be had to:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents is of meeting his needs.
The approaches to medical interventions involving children have been discussed by Linda Delany.111 As she observes, there are two possible approaches. The first, wholly consistent with the line of the Children Act 1989 and of the House of Lords in Gillick, is that a medical procedure is permitted only if it serves the best interests of the child who undergoes it.112 The second possible approach is that parents can give valid consent to treatments which are not "against the interests of the child."113
It is beyond the confines of this paper to analyse the flaws in the popular, and populist, espousal of cultural relativism implicit in the reluctance to take a stand against culturally-motivated breaches of human rights; and of course, criticism of behaviours, such as circumcision, takes moral courage. Such criticism risks the offensively inaccurate and deliberately intimidating charge of racism, and specifically of "anti-Semitism"; it risks being accused of insensitivity to the culture of others, and of "Western imperialism."
In answer to these charges, it is proper to point out that criticism of certain behaviours is not, and can never of itself be, racist in the correct sense of that word, since racism implies a hatred of the group qua group, and goes far beyond criticism of behaviour based on human rights founded on customary international law. Thus, few would argue that criticism of Chinese foot-binding was an expression of an ``anti-Chinese'' and racist stance. Similarly, few would argue that criticism of Sati (the forced immolation of widows) is an expression of an ``anti-Hindu'' stance. So too criticism of circumcision for the inevitable harm that it inflicts is not racism or anti-Semitism---though such a charge often has the effect desired by those who make it of stifling legitimate criticism.
Those who would deny the universality of fundamental and protected human rights, and those who would argue that any and every criticism of a culture is ipso facto improper, need to address the inherent problems in their position. Authoritarian regimes are quick to use the excuse of ``culture'' when their tyranny is criticised. The United Nations World Conference on Women, held in Beijing in 1995, denounced culture as a principal source of gender-based violence and exploitation.114 Roslyn Higgins has remarked that the non-universal, relativist view of human rights is state-centred and "rarely advanced by the oppressed, who are only too anxious to benefit from the perceived universal standards."115
The reasons typically advanced are that non-therapeutic circumcision is justified because it satisfies some religious or cultural need or societal demand. That there is no medical justification for routine circumcision is clear from a review of the medical literature on the subject and from statements by medical associations in the common law countries over some 30 years. These associations, being subject to individual biases of their members, however, also say that circumcision is performed for religious, cultural or societal reasons, and they make no objection to its performance on these grounds. Do these provide a satisfactory answer?
If some Jews and Muslims claim some religious reason for circumcision, and if the Australia Aborigines, African tribes, and South Pacific islanders claim a centuries-old cultural tradition, the American circumcisers lack even that. Their bogus, medicalised excuses are grounded in a history of medical quackery, rigid middle-class conformism, sexual repression, and irrational, market-driven phobias regarding hygiene. These are the origins of such excuses as "It's cleaner," or "It's less trouble for the mother to look after," or the ``locker room claim,'' which in reality is an expression of the circumcised father's anxiety about being reminded of his own loss.
There are also worrying undertones in the attitudes, common in the United States, and espoused by Schoen, but also to be seen elsewhere, that it is acceptable to circumcise infants in order to meet the mother's notions of aesthetics. In reality, these are no more than social conditioning and ignorance of the normal. There is also present the mother's wish to control her sons through the functioning of his genitals, and, from that, one might deduce an urge to control men as a whole as well.116 It is usually the mother who takes the final decision to circumcise.117 What lies behind the oft-expressed remark by pro-circumcision American women that they prefer a circumcised man because "he lasts longer", and that they will have their sons circumcised so as to give his future partners more pleasure? The questions posed by these stances seem to demand study; they certainly do not seem to be the healthy thoughts of a normal mother.
It cannot be denied, in the light of international instruments and domestic law, that the expression of culture and religion are legally protected and an important factor in a child's upbringing.118-119 It is equally wrong to claim, as so often is done, that where this arises it is the deciding factor. Certainly, all other things being equal, it is likely to represent the factor that tips the decision in favour of a particular course of action.
Dwyer has written persuasively on the issue of alleged parental rights and children. He argues that it is the children who hold the rights rather than the current notion that it is parents who protect the child's rights, since this view provides no, or no adequate, sanctions against abusive parents.120
Usually, however, it is argued by ritual circumcisers that it is sufficient to claim that one's religion or culture or societal norms demand circumcision and that such claims are conclusive. This error springs from a misreading of the provisions for the protection of religious expression in human rights documents. Thus, Article 9 European Convention on Human Rights provides that everyone has the right to freedom of thought, conscience, and religion but this freedom is subject to limitations on its exercise where necessary for the protection of the rights and freedom of others.
For the protection of children, the same point is also made generally by the 1989 United Nations Convention on the Rights of the Child in Article 14.3. In addition, Article 19.1 specifically provides that "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child." Article 19.2 provides for effective programmes to prevent the abuses detailed in sub-paragraph 1, including education, reporting, referral, and "judicial involvement." It is unarguable that circumcision involves an injury to the child as well as the other forms of ills described by Article 19.1. Thus, ritual circumcision is clearly not only a prohibited activity under the Convention, but also States Parties are under the obligation to take measures to provide protection. Ritual circumcisers, whilst happy to call attention to the protection of religion in international law, studiously ignore this vital provision designed to protect the most vulnerable, since it provides an unanswerable prohibition of their activities.
The basic point, here and elsewhere in international law, is that none of the freedoms granted by human rights legislation may be exercised so as to deprive another of, or to interfere with another's, equally protected freedoms.
In dealing with the difficult issues raised when a child's welfare and upbringing are involved, the English courts have made it clear, time and time again, that the sole question is the welfare of the child, and that the courts can and will come to a differing conclusion to that of the parents. The House of Lords in Re B (a minor) held that a court was concerned with only one primary and paramount consideration, the welfare of the child.121
In Re E (an infant), it was held that:
In wardship proceedings the paramount consideration was the welfare of the infant, and in considering this the element of religious upbringing was of great importance and the wishes of the mother of an illegitimate child must be very seriously regarded by the court, but the court was not bound to give effect to them if satisfied that the infant's welfare required otherwise.122
The Court of Appeal in Re J (a minor) (wardship:medical treatment) considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson of Lymington MR said:
[I]t is sensible to define the relationship between the court, the doctors, the child and its parents. The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion (see Bolam v Friern Hospital Management Committee  2 All ER 118,  1 WLR 582). This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment. The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests. The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.123
In Re Z (a minor) (freedom of publication), Bingham MR said:
I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.124
Waite LJ said:
An appraisal of parental reasonableness may be appropriate in other areas of family law (in adoption, for example, where it is enjoined by statute), but when it comes to an assessment of the demands of the child patient's welfare, the starting point---and the finishing point too---must always be the judge's own independent assessment of the balance of advantage or disadvantage of the particular medical step under consideration.125
It is suggested that where the court has been asked to rule on whether or not a child should be subjected to non-therapeutic circumcision, the general principles and the limits of the actions of parents are clear. Once the features inherent in non-therapeutic circumcision, as touched on in this paper, are before the court, it should not be difficult to see behind the usual assertions that it is not in the child's best interests to undergo this procedure. Particularly likely to be unconvincing is the common assertion that treats the child as merely a ``group-object'' rather than as an individual. Thus, it is not acceptable, and would not satisfy a court, to assert (usually with no real evidence) that ``boys'' of this class are damaged by non-performance on circumcision: it is necessary to consider each boy as an individual, to look at his needs and not to subsume them to the alleged needs of the group/society/tribe.
Furthermore, since it is clear that for Muslims there is no Koranic verse stating that a boy must be circumcised as an infant or even by any particular age, it would be entirely appropriate to defer circumcision until the boy can decide for himself as an adult (as with tattooing). Even for Jews, it is clear that the failure to circumcise does not deprive the boy of his Jewish identity (which rests solely on his having a Jewish mother) and that the ``sin,'' if such it be, in not circumcising is that of the father rather than the son. Whilst not circumcising the infant might distress the parents, that distress is not, and should never be allowed to become, a factor in determining the child's welfare. So again, it would be proper to allow the boy himself to chose whether or not to be circumcised when he is an adult.
Most would agree that discrimination is never acceptable, yet all genital mutilations are a form of discrimination as well as a deprivation of the child's legally protected human rights. Non-therapeutic circumcision of boys is therefore discrimination. To inflict the inevitably damaging genital mutilation of boys, whilst enacting legislation to declare as criminal the similar procedure when done to girls, is an additional form of discrimination. To allow ritual or cultural circumcision for boys further discriminates between those boys who, because of an accident of birth, are at risk of non-therapeutic circumcision and those more fortunate boys who are not.
Moreover, to circumcise a child on the basis of the shabby tactics, the distortions, the emotional blackmail, and the irrationalities of circumcisers is merely to increase the insult. To allow the psychosexual pathology or the impulse to sacrifice another for one's own alleged needs to hold sway is not only a breach of the common law and international norms, but also a profound rejection of notions of human decency and humanity.
Furthermore, the attempts by advocates of ritual Jewish or Muslim circumcision to claim the religious high ground as the justification for the imposition of the ritual sacrifice of a child's bodily and functional integrity is unacceptable. Since the legal and ethical principles are clear, and since the medical evidence of the effects of genital circumcision are clear, it is unacceptable to deny any child every effort to protect him from circumcision simply because he happens to be born of a gender, or in a country, or to parents where such practices take place.
On April 18, 1791, William Wilberforce addressed the House of Commons. On that date, Wilberforce argued for the abolition of slavery, but his words, forgiving their typically nineteenth-century Christian religious imagery, are equally suited to the abolition of circumcision.
Already we have gained one victory; we have obtained, for these poor creatures the recognition of their human nature, which for a while, was most shamefully denied. This is the first fruits of our efforts; let us persevere, and our triumph will be complete. Never, never will we desist till we have wiped away this scandal from the Christian name, released ourselves from the load of guilt, under which we at present labour, and extinguished every trace of this bloody traffic, of which our posterity, looking back to the history of these enlightened times, will scarce believe that it has been suffered to exist so long a disgrace and dishonour to this country.126
The law now recognises the human nature of infants and children, but in the sphere of genital mutilation, it fails to protect the human rights of infants and children from violations perpetrated by the medical profession, religions, profiteers, or misinformed parents. Although British doctors have been guilty of participating in the circumcision mania that has tarnished the image of medicine over the last 150 years, Britain should now fearlessly and vigorously lead the way in the abolition of circumcision---as it did with the abolition of slavery---and in the establishment of legal protections of the bodily and functional integrity of every child, male and female. The child's screams have no nationality, religion, or cultural allegiance.
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