Journal of Law and Medicine, Volume 3, Issue 4: Pages 371-376, May 1996.
by David Richards, LLB (ANU), Grad Dip Leg Pract (ANU) (current)
Correspondence to: Mr. David Richards, Goldrick Farrell Mullan, GPO Box 1013, Canberra, ACT 2601, Australia.
This article discusses the history and reasoning behind male circumcision; identifies overwhelming medical evidence against the performance of non-medical (ritual) circumcision; and argues that the medical profession may be ignoring modern medical law through a combination of medical opinion, negligence, and vitiated consent. It also suggests that the legal distinction between male and female circumcision should be removed and that the Australian executive is indirectly authorising and encouraging ritual male circumcision.
Circumcision may be the oldest form of surgery, with records indicating that the Egyptians practised this ritual as early as 4000 years BC.1 Anthropologists, psychologists, and psychiatrists have offered various explanations for its practice, including enhanced or decreased sexual performance, societal prestige, sacrifice to fertility gods, tribal signs, tests for endurance, reincarnation, and the modern and commonly argued justification of hygiene.2 Brigman suggests that circumcision was primarily grounded in the anti-masturbation hysteria of the late 1800s when it was feared that a boy with a foreskin which had to be pulled back while cleaning would learn to masturbate.3 Masturbation at this time was believed to lead to insanity and numerous other illnesses.
Although physicians were the proponents of early neonatal circumcision, justified by hygiene, the preponderance of medical opinion today is opposed to the practice.4 The National Health and Medical Research Council of Australia has stated that there is no medical indication for undertaking routine circumcision of newborn male infants and that the hazards of the operation at this age outweigh any possible advantages.5 The British Medical Association has recommended that male circumcision should be performed only for medical reasons, indicating that complications, including rare deaths, may result from a generally unnecessary surgical procedure.6 Medical reports have suggested that the complication rate may be as high as 55 percent for hospital-performed, routine male circumcision, with approximately 10 percent of all circumcisions having to be repeated.7 These complications may include death, damage to the shaft, damage to the urethra, amputation, unsightly appearance, urethral fistulas, haemorrhage, infected incision line, phimosis, and infections of the meatus.8 An example of litigation resulting from a circumcision complication was an award of $275,000 by the Supreme Court of New South Wales to an infant plaintiff who had been negligently circumcised causing the loss of the glans of the penis.9
Brigman argues that ritual male circumcision is not medically warranted, has no significant physiological benefits, is painful because it is often performed without anaesthesia and leaves a wound in which urinary salts burn, carries significant risk of surgical complications, including death, and deforms the penis. He suggests that it would seem that as a non-accidental physical injury, it is properly included in the definition of child abuse.10
The Queensland Law Reform Commission, in a 1993 report on male circumcision, found that, unless there are immediate health benefits to a particular child from circumcision, it is unlikely that the procedure itself could be considered therapeutic. 11 The report concludes that the procedure of circumcision is invasive, irreversible, and major, and involves the removal of an otherwise health organ part.12
Research has suggested that there is a correlation between circumcision and sexually transmitted diseases such as HIV infection. However, a Queensland Law Reform Commission Report has identified a large body of medical evidence indicating strong arguments in favour,13 and against,14 a correlation between circumcision and infection.15 The report lists more than 35 international research papers which conflict in opinion and result. There is also a suggestion that circumcision may reduce a man's risk of developing cancer of the penis.16 However, research indicates that there are more factors involved than circumcision or non-circumcision, as personal hygiene seems to be the most consistently relevant factor in penile cancers.17
A distinction is wrongfully made at a medical and intellectual level between male circumcision, which is generally accepted, and female circumcision, which is not.18 The term female circumcision is often used to describe the procedure of either scraping or nicking of the clitoris and is a form of female genital mutilation.19 Male circumcision consists of total or partial excision of the foreskin.20 Under New South Wales legislation, female circumcision is now an offence punishable by up to seven years' imprisonment.21 Other legislation prohibiting female circumcision includes the Female Genital Mutilation Prohibition Act 1994 (Qld); the Prohibition of Female Circumcision Act 1985 (UK); and the Swedish Prohibiting the Circumcision of Women Act.22 As female circumcision is likely to be completely prohibited by legislation throughout Australia in the near future, it is illogical that male circumcision has not been considered with this prohibition. Surgical cutting and disfiguring of a healthy genital organ is consistent with both male and female circumcision. Female circumcision was founded on religious and cleanliness grounds, as was male circumcision. The loss of sexual stimulation can occur from forms of both male and female circumcision.23 However, there may be a distinction on this issue as female circumcision, unlike male circumcision, can cause a total loss of stimulation depending on the type of surgery performed.24 Evidence suggests that both male and female ritual circumcision is unnecessary, sometimes dangerous, painful and based not on medical grounds but purely on historical, societal values. Therefore, as the differences appear to be based largely on socially constructed ideals, and not on facts, it is suggested that there should be no distinction based purely on gender.
Every person, including infants, has a right to bodily integrity.25 Consent ordinarily has the effect of transforming what would otherwise be unlawful into acceptable conduct. The sources of parental and guardian power, including the power to consent to medical treatment of a child, are found in the Family Law Act 1975 (Cth)26 and the common law.
The majority of the High Court in Marion's Case,27 referring to an earlier decision,28 held that parental consent will not justify all kinds of medical treatment. The majority identified procedures such as clitoridectomy, a form of female circumcision, as not permitted by law regardless of parental consent.29 Brennan J held that the invasion of a child's personal integrity can be justified only if it can be shown that a non-therapeutic purpose possesses some higher value than the preservation of the child's physical integrity. He further held:
"[W]here there is a doubt about the therapeutic character of a proposed procedure, those who would be involved in the procedure may be at risk if they act merely upon a purported authorisation given by the parent or other guardian."30
Modern medical31 and legal32 opinion indicates that ritual male circumcision is non-therapeutic.
Dean J stated that there is a need to protect the weak and vulnerable from eugenic and utilitarian theories which discount the importance of human integrity and complete personality and which are "repugnant to the standards of our community".33 This need to protect the weak may extend to the vitiated consent of a parent or guardian if ritual male circumcision is found to be against public policy. In 1993 the House of Lords held that it was not in the public interest that a person should cause actual bodily harm to another for no good reason and, in the absence of such a reason, consent could be immaterial.34 Lord Lowry found that acts which inevitably involve the occasioning of at least actual bodily harm cannot be performed as of right under the law.35 Therefore, ritual male circumcision, which as a surgical procedure necessarily involves actual bodily harm, if performed for no good reason other than traditional societal values, may not be permitted by the law, irrespective of consent to the procedure.
McHugh J stated that a parent has no authority to consent to medical treatment unless it can be found objectively that the treatment is for the welfare of the child.36 The Family Court in Re Marion (No 2)37 found that the factors in determining the best interests of the child include the individual's particular condition; the nature of the procedure; alternatives to the procedure; the physical, psychological and social implications of the procedure; he nature of any risk involved in the procedure; and the views of parents or guardians with respect to the procedure. When comparing the benefits and risks associated with performing ritual male circumcision and not performing ritual male circumcision, the procedure would be unlikely to be found to be in the best interests of the child unless for specific medical reasons. Therefore parental consent for male circumcision is likely to be vitiated as not in the best interests of the child, unless the child has a special medical condition. McHugh J stated that if a parent purports to give consent to a treatment which is not for the welfare of the child, the consent is of no effect, and that a "person who acts on such 'consent' is guilty of assaulting the child if the treatment involves any physical interference with the child".38
The above interpretations by the courts of consent at common law indicate that a parent cannot consent to a medical procedure on a child which is non-therapeutic, unless there are clear benefits for the child. The authority also suggests that consent to a procedure which is against public policy or consent to a procedure which is not objectively in the best interests of the child may be vitiated. Male circumcision is generally now regarded as a non-therapeutic procedure39 with associated risks and little known benefits. Therefore Marion's Case is authority that there may be a risk involved to persons who perform non-medical ritual male circumcision. This leads to the conclusion that persons performing ritual male circumcision on purported consent, which is vitiated, may be liable in negligence.
Alternatively, a medical practitioner may be liable in negligence if adequate information is not given to the parent prior to conducting ritual circumcision. The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice as well as treatment.40 The standard of reasonable care and skill required by that duty is that of an ordinary skilled person exercising and professing to have that skill.41
A parent's consent to ritual male circumcision may be valid once he or she is informed in broad terms of the nature of the procedure, but this choice may be meaningless unless made on the basis of relevant information and advice.42 The question of whether the parent has been given all the relevant information to choose between circumcision performed on their child or not, does not depend entirely on medical standards or practices, as no special medical skill is involved in disclosing this information.43 A practitioner has a duty to warn a parent of the material risks involved in ritual circumcision and to inform a parent of the current medical classification of ritual circumcision as non-therapeutic surgery. This duty exists because a reasonable person in the parent's position would be likely to attach significance to this information.44 It can therefore be concluded that a medical practitioner who fails to give this information on the risks associated with circumcision, prior to surgery, may be liable in negligence.
As the Australian Constitution expressly protects freedom of religion,45 it may be argued that male circumcision, if part of a religious practice, would not be subject to criminal or civil law as it would be protected by the veil of the Constitution. However, freedoms, such as freedom of religion, cannot include acts or practices against public policy. The High Court, when considering the extent of the power of s 116 of the Constitution, held that it is for the court to determine whether a particular law is an infringement of religious freedom.46 As the courts have interpreted acts of assault occasioning battery to be against public policy and not vitiated by consent,47 it could be convincingly argued that such acts could not be substantiated by the freedom of religion provision, as expressed in s 116 of the Constitution. The High Court, when considering this issue in Adelaide Company of Jehovah's Witnesses,48 used United States "rights" interpretations in its consideration. Brigman, a United States legal jurist, has since argued that ritual male circumcision would not be protected from civil or criminal action by a right of freedom of religion as expressed in the United States Bill of Rights.49 It is unlikely that s 116 of the Constitution would authorise ritual male circumcision.
Ritual circumcision is covered, and therefore authorised, by Medicare, which includes this surgical procedure in the Medical Benefits Schedule.50 There are presently no requirements that medical reasons be given for the procedure prior to a payment being made to a surgeon. For a child under six months, Medicare will presently reimburse the surgeon at a fee schedule rate $A34.10 for each operation.51 This indicates that Medicare, and therefore the Australian executive, is continuing to endorse non-medical, ritual male circumcision. A 1992 report of the Australian Institute of Health ranks circumcision in the top 40 frequently performed surgical procedures, occurring in Australia more frequently than the surgical removal of a tooth.52 In 1992-1993, 14,604 neonatal circumcisions were performed in Australia at a cost to Medicare of more than $A380,000.53 Responsible government must be accountable for its allocation of resources. The continuation of Medicare-funded neonatal circumcision, now more frequently to be described as a cosmetic, unnecessary, and hazardous procedure, contradicts this accountability.
It has been established that where a health fund refuses to pay the cost of circumcision, the rate of circumcision falls dramatically.54 An insurance scheme in Canada which ceased to subsidise male circumcision drastically reduced the number of Canadian circumcisions by this decision.55 In 1948 the British National Health Service reclassified newborn circumcision as cosmetic surgery and ceased to pay for the procedure.56 As a result of this reclassification, the rate of circumcision has dropped in Britain to 0.5 percent.
In 1985 the Australian Federal Health Minister removed the rebate for newborn circumcision from the Medical Benefits Schedule as a direct result of the 1983 recommendations of the Australian National Health and Medical Research Council which found ritual circumcision was unnecessary and hazardous.57 The rebate was returned to the Medical Benefits Schedule after a community outcry. Medical evidence and opinion continues to grow in favour of the abolition of ritual circumcision and it could be argued that an informed public would now favour the ministerial removal of newborn ritual circumcision from the Medical Benefits Schedule.
Ritual male circumcision is non-therapeutic and is not warranted or justified by medical evidence. This form of mutilation should not be legally distinguished from female circumcision which is a form of female genital mutilation presently in the process of being prohibited throughout Australia and the Western world. As ritual male circumcision is non-therapeutic, may be against public policy, and clearly is not in the best interests of the child, a parent's consent may be vitiated, leaving persons involved in the procedure liable in negligence, notwithstanding parental religious beliefs. Alternatively, if a medical practitioner fails to give the parent reasonable information on the risks of and alternatives to ritual circumcision, the practitioner may also be liable in negligence.
Perhaps the best way to eliminate such an antiquated and unnecessary surgical procedure would be to remove it from the Medical Benefits Schedule. Evidence clearly indicates that the incidence of ritual male circumcision would reduce dramatically if not funded by Medicare. If this "soft approach" is not implemented, there is the likelihood of future litigation associated with ritual male circumcision which will lead to extra costs being imposed on the medical profession and on Australia's health systems.
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