"Indoctrination can harm the child, most notably by effectively closing off the alternatives for the adult the child will become. An individual can choose only among the options of which she is both aware and can consider seriously. If parents limit the child's exposure to religious and moral views identical to their own, the child will see only one option and choose it: she will likely hold the same beliefs when she becomes an adult."1
In this article, I will address the issue of male circumcision relating to the rights of the child. In most countries the issue is hardly discussed or even ignored. In the Netherlands, only rarely male circumcision is the subject of debate. The Netherlands Government worries more about the safety and hygiene of the circumcisions taking place, resulting, inter alia, in subsidising education for circumcisers.2 This is in sharp contrast to the intensive debate on genital mutilation of girls, which took place in 1992 and 1993.3 This discussion formed the direct reason for a study carried out by the Netherlands Institute of Human Rights (SIM).4 In the latter study, the only explicit mentioning of male circumcision concerned the fact that genital mutilation of girls frequently goes further than mere circumcision, a small incision or the removal of the prepuce of the clitoris. The only form of female genital mutilation which is anatomically comparable with the circumcision of boys is that form of circumcision in which the clitoral prepuce is cut away. This form, however, occurs very rarely.5
The choice to make a dissociation between the two practices was at that time a pragmatic, political decision, related to the vehemently discussion in the Netherlands,6 and because the fight against female genital mutilation would be more difficult if male circumcision were also to be challenged.7 The main conclusion of the study was that female genital mutilation is a harmful traditional practice in the sense of Article 24(3) of the UN Convention on the Rights of the Child and that the States Parties accordingly should take all effective and appropriate measures to abolish this practice.8
In discussing the results of the research with Peter Baehr, he asked me whether the conclusions drawn in the report would also apply to male circumcision. Although the issue of male circumcision was not dealt with in the research on female genital mutilation, it was frequently mentioned in the literature and other material studied at that time.9 I take this opportunity to address the issue of male circumcision, using mainly the material collected for the study on female genital mutilation. Studying additional literature on male circumcision, I learned that this custom has been as much the subject of extreme controversy as is the case with female genital mutilation and that the debate on routine neonatal male circumcision is intensifying, particularly, but not only in the USA.10
After a description of male circumcision in section 1, section 2 will give some examples of what authors on female genital mutilation have said about male circumcision. Sections 3 and 4 will deal with the human rights and legal aspects of male circumcision. Finally, some concluding observations will be made.
History and Prevalence
Male circumcision is probably one of the oldest of all surgical procedures.11 Male circumcision preceded female genital mutilation, both operations existed long before Judaism and Islam were introduced.12 In the absence of any historic, medically confirmed documentation, the origins of the practices have provided much room for speculation but have revealed very few facts. Although the origin of the practice is not entirely clear, it almost certainly began as a religious rite.13 In all societies where female genital mutilation is practised, male circumcision is also performed.14 But throughout history the male operation has existed in many more societies than operations on females.15 Currently, approximately one-fifth of the world's male population is circumcised, particularly on religious grounds. In Western society, mostly in the Anglo-Saxon countries like Australia, Canada, the United Kingdom and especially the USA, circumcision is usually performed for non-religious, "medical" reasons. There is, however, enormous variation between the circumcision rate in the UK (5-6 percent) and that in the USA (60 percent). In Britain neonatal circumcision declined from an incidence of around 30 percent in the 1940's to a very low level at present. Still, it remains a common operation, with over 30.000 procedures annually.16 To compare, it is estimated that there are between 85 and 115 million girls and women throughout the world whose genitals have been mutilated.17
One can distinguish several types of male circumcision of which the simple or routine infant circumcision, which is the removal of the foreskin or prepuce, is most commonly practised.18 In most cases, no anaesthesia is used. In general, the operation is perceived by the medical staff as a relatively minor procedure, with no or hardly any risks for the child.19 Regarding the risks of male circumcision, some authors have reported a complication rate as low as 0.06 percent, while at the other extreme rates of up to 55 percent have been quoted. This reflects the differing and varying diagnostic criteria employed. A realistic figure seems to be 2-10 percent.20 Although haemorrhage (bleeding) and sepsis (infection) are the main causes of morbidity, the variety of complications is enormous. The literature abounds with reports of morbidity and even mortality as a result of circumcision. Other complications mentioned in the literature are, inter alia, psychological and possible sexual complications.21
Religious Reasons for Male Circumcision
In the Jewish community circumcision (brit milah) is a religious ritual and is usually performed on the child's eight day22 of life by a Mohel. The rite of circumcision is one of the most ancient practices of Judaism. The commandment to circumcise male children was given to Abraham in the Torah (Genesis 17:7-14).23 Circumcision is (in general) a common denominator among movements: Reform, Conservative, Re-constructio-nist, Orthodox, all circumcise their male children and require male converts to undergo some form of circumcision.24 Anaesthetic is not used.
In the United States, the Jewish community has begun to question the practice, using arguments based on the religion. For instance, according to Jewish law, it is forbidden to hurt living things. Even the necessary causing of pain is considered cruel in Judaism. Also the fact that circumcision involves the surgical alteration of a perfectly natural God's given part of the body, which stems from Jewish thought plays a role. The opinions range from supporting the view that a carefully considered decision against circumcision can be reconciled within Jewish tradition to the statement that "the ritual of circumcision is one of the mistakes Judaism carries within it and should be considered not differently from the way they are considered by society in general, no matter how centrally important they seem to Jewish culture".25 Bringing a Jewish boy into the covenant symbolically in a ceremony officiated by a rabbi is an alternative proposed by some authors.26
Religious circumcision is also practised by Muslims: the procedure is performed between the ages of four and 13 years. Curiously, however, the Koran contains no specific ordinance on this subject.27 However, according to the Sunnah (sayings and practices of the Prophet) "circumcision is a sunnah for men and excision an honour for women".28 In the literature, also medical reasons are mentioned (removal of the prepuce under which impurities may gather and allow germs to spread and cause infection),29 and historic, pragmatic reasons.30 Also within the Islamic doctrine, arguments against circumcision can be found, either based on the Koran itself,31 or on the Sunnah. However, these arguments are, to my knowledge, only used against female genital mutilation.
Within Christianity, male circumcision has no religious significance.32 Other religions and cultures practice male circumcision especially as a requirement for "manhood" within certain puberty rites.33
Non-Religious Reasons for Circumcision
Male circumcision evolved from a religious ritual or puberty rite into routine surgery for health reasons in the Anglo-Saxon countries. During the existence of the non-religious circumcision different reasons have been adopted ranging from prevention from masturbation, which, it was believed, caused blindness and/or insanity (mid 19th Century), to most recently HIV prevention. Initially, it was also advocated as a cure to prevent alcoholism, asthma, hernia and, for instance, headaches. Since the turn of the century, other reasons have been given to perpetuate the practice: hygiene,34 avoidance of sexually transmitted diseases, prevention of penile cancer and of cervical cancer, protection against urinary tract infections in infancy, and decreasing the risk of AIDS. Until today, male circumcision remains in the medical literature a very controversial issue. Many advantages for circumcision have been claimed, but as one is disproved and discarded, others are found.
The medical debate centres around the controversy whether male circumcision can be regarded as harmless. With regard to whether or not routine neonatal circumcision has health benefits, the medical literature contains contradictions35 and also the professional groups find it difficult to reach a conclusion.36 A good example is the American Academy of Pediatrics (AAP) which issued several statements on routine neonatal circumcision, contradicting one another.37 Also, mainly in the United Kingdom, controversy exists on whether too many circumcisions are being performed to manage minor foreskin (phimosis) problems in childhood, which could be managed conservatively.38
Especially in the United States, where neonatal circumcision in 90 percent of the cases is performed as a routine medical procedure, numerous activist groups have emerged in the past decade, in response to the demand by parents for more accurate information in order to have the possibility of an informed choice on circumcision.40 The similarity with the grassroots level organisations in Africa, which are in the forefront in the fight against female genital mutilation, is striking.41 Most of the organisations are of the opinion that, whilst the consequences of the circumcision of boys and the circumcision of girls differ, the violence involved is the same.42
"As the clitoris is regarded as the masculine element in the [girl] child, it is believed that the foreskin on the penis which is regarded as the female element in a male should be removed."43 From a biological and health view the operations on girls are not the counterpart of male circumcision.44 However, although perhaps the extent and also the complications of the operation are different, the fact remains that healthy tissue is removed from a healthy person without his or her consent.
In addition, there are many parallels between female genital mutilation and male circumcision, especially with regard to the background (religious requirement or tribal tradition) and the reasons and justifications given to perform the operation. According to Lightfoot-Klein:
"[c]hildhood genital mutilations are anachronistic blood rituals inflicted on the helpless bodies of non-consenting children of both sexes. The reasons given for female circumcision in Africa and for routine male circumcision in the U.S. are essentially the same. Both falsely touch the positive health benefits of the procedures. Both promise cleanliness and the absence of "bad" genital odours, as well as greater attractiveness and acceptability of the sex organs. The affected individuals in both cultures have come to view these procedures as something that was done for them and not to them."45
Toubia wrote: "The unnecessary removal of a functioning body organ in the name of tradition, custom, or any other non-disease related cause should never be acceptable to the health profession. All childhood circumcisions are violations of human rights, and a breach of the fundamental code of medical ethics."46 Also Hosken states that:
"It is self-evident that any deliberate physical mutilation especially of the female genital organs is a violation of this person's integrity and her human right to health as much as the mutilation of male genital organs is. The excision of the penis which is equivalent of excision of the clitoris is instantly recognized as a severe physical genital mutilation with permanent consequences and is a criminal offense. The same is true of what is done to female children resulting in permanent health and psychological trauma. Both are human rights violations."47
From the literature, it becomes apparent that there are two opposite sides in the debate on routine male circumcision. One side advocates the practice, primarily on a preventative health basis or on religious grounds (see supra). The other side opposes the practice, primarily on human rights and preservation of bodily integrity grounds. In the remaining of this article, I will elaborate on the arguments presented by the latter group.48
A number of rights are raised in the legal discussion concerning the phenomenon male circumcision: the rights of the child in general, the right to health, wherein legal-ethical arguments with regard to the actions of the medical profession play a role, the right to physical integrity, the right of parents to bring up their children according to their own traditions and culture and, as the continuation of that, the right to cultural self-determination.
The Rights of the Child in General
Taking as a basis the Universal Declaration of Human Rights and the Declaration on the Rights of the Child, male circumcision can be conceived as being a breach of the universally accepted human rights and rights of the child.49 The Universal Declaration of Human Rights,50 which is nowadays generally accepted as customary international law, prohibits in Article 5 acts of torture and inhuman treatment. Article 12 provides for a right to privacy and Article 3 reads: "Everyone has the right to life, liberty and security of person."
The Convention on the Rights of the Child, in Article 19(1) provides that the States party to the Convention
"shall take all appropriate legislative, administrative, social and educational measures to protect the child against every form of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."
Article 37 provides that the States shall ensure that a child is not subjected to torture or other cruel, inhuman or degrading treatment or punishment. For present purposes, Article 24(3) of the Convention is the most important. This paragraph reads:
"States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children."
This part of Article 24 was extensively discussed during several meetings of the Working Group.51 During these discussions, it was proposed that the subject of female genital mutilation be included explicitly in the article, in order to clarify the content of the article and to indicate that it concerned practices "of a serious nature."52 However, also restraint with regard to subjects which imply differences in cultural values was advocated.53 Finally, agreement was reached on the condition that the term "traditional practices" would encompass all those practices that are included in the 1986 report of the Working Group on Traditional Practices Affecting the Health of Women and Children.54 A last attempt from the Netherlands to refer explicitly to female genital mutilation within this article failed.55
Veerman considers the Convention on the Rights of the Child to be innovative, for, among other things, "[I]t will be the first binding instrument that specifically states that "traditional practices" such as female circumcision (...) are harmful."56 It is, according to Veerman, generally known that the "traditional practices" named in Article 24(3) refer in the first place to female genital mutilation, and that these vague terms are used in order to avoid problems.57 The question is whether the article is also applicable to male circumcision. If one considers the latter procedure not "an infringement upon the health or rights of boys and young men as it implies no permanent damage to health,"58 then Article 24(3) is not relevant. However, given the fact that male circumcision is painful and can have harmful implications, one could also argue that this custom also falls under the definition, especially because of the vague terms used.
Regional human rights instruments,59 to which in this context reference can be made, are the African Charter on Human Rights and Peoples' Rights,60 and the Charter on the Rights and Welfare of the African Child.61 The latter Charter refers in Article 1(3) specifically to "[A]ny custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent to such inconsistency be null and void." Article 14 deals with physical, mental and spiritual health. There is no mention in this article of traditional practices; however Article 21(1) is dedicated wholly to traditional practices. The paragraph reads:
"States Parties to the present Charter shall take all appropriate measures to abolish customs and practices harmful to the welfare, normal growth and development of the child and in particular: a) those customs and practices prejudicial to the health or life of the child, and b) those customs and practices discriminatory to the child on the grounds of sex or other status."
The Right to Life
Male circumcision is also conceived by some authors as a threat of the right to life. The operation can lead to medical complications, which occasionally result in death.62
The Prohibition of Discrimination
One could also argue that male circumcision constitutes a violation of the International Convention on the Elimination of All Forms of Racial Discrimination.63 Article 5(b) contains an explicit reference to personal security, stating that:
"In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right to everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (...) (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution (...)."64
As circumcision is perceived as inflicting bodily harm, this article could be applicable.
The Prohibition of Torture
Male circumcision can be conceived as a form of cruel, inhuman or degrading treatment, in view of the way in which it often takes place and in view of the pain which accompanies it. In the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment65 it is stated that: "The States party to this Convention undertake to take all effective legislative, administrative, judicial or other measures for the prevention of and eventual punishment for torture." The States also may not deport or return a person to his native country if there are grounds to believe that that person shall run the risk of torture. In addition, Article 16(1) expressly provides that each State party undertakes: "to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity (...)"
The Right to Health
A number of the documents on international human rights, including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, contain provisions which lay down the right to health. If one adheres to the opinion that male circumcision is medically unnecessary, and that consequently the procedure carries an unnecessary danger of complications, certainly where this takes place under unhygienic conditions, it can be argued that the procedure forms a threat to the health of the child. Because of the procedure, without any necessity the natural anatomy and physiology of the child is changed, and this can lead to life-threatening health problems.66
From a legal perspective, parents carry the primary responsibility for the health of their child, and must take decisions in these matters on the basis of the fact that the child is not yet capable of doing so because of his "diminished capacity."67 Parental consent is required for all forms of medical treatment. However, there is also the parental right to refuse medical treatment, on religious grounds, for example. Just as in the case of male circumcision, the parents are, in refusing medical treatment of the child on religious grounds, convinced that their decision is in the interest of the child. In this latter case, it is argued that the decision to adhere to a religion and to accept the consequences thereof suggests a degree of intellectual adulthood. Children are not in a position to take this decision, so parents take this decision for them. When the health consequences of refusing medical treatment are, for instance, threatening the life of a child, in practice it can happen that parents are divested of their parental authority during the period of the medical procedure.68 One of the arguments for this action is that the child has no choice in a matter which concerns his health, welfare and physical existence. The child has no say in the matter. This argumentation is also employed by various authors in respect of male circumcision and female genital mutilation.69 According to them, the decision to undergo the operation can better be postponed until the individual is able to make its own choice, that is, when it has reached adulthood. The situation changes when an adult, after having been informed of the consequences, decides to follow tradition and undergo the operation.70 It is also advocated that parents should be fully informed about the functions of the foreskin,71 the pain, complications and possible disadvantages of the procedure, in order to be able to make a more carefully considered decision on whether or not to circumcise their child.72 When the necessary information is given, it is ultimately the responsibility of parents to knowingly put their children at risk.
The Right to Physical Integrity
The right to physical integrity has two components: protection against violation of and offenses against the body by others, thus from outside, and the right to determine over one's own body, the right to self-determination. The right to physical integrity is one of the fundamental civil rights. It is a right to "freedom." The government should therefore refrain from interference. However, the government also has a relevant duty of care, namely the stimulation of a climate in which civil rights can achieve a substantive form.
In activist literature in particular, male circumcision is seen as a violation of the right of self-determination of the child over its own body.
The Right of Parents to Bring Up their Children According to their Own Traditions and Culture
Parents have the right to bring up their children according to their own traditions and culture. Parents have the desire to give their children the best possible upbringing, an upbringing in "the best interests" of their child, independent of governmental interference. These interests can be in bringing the child up according to their own culture and traditions, or can be influenced by economic, social and cultural advantages, as well as by strong social and cultural pressures.73 One problem with genital mutilation is that the parents do not carry out the practice in order to hurt or abuse their child. Consequently, the parents do not see it as a form of child abuse. The procedure is carried out because it is judged to be in the "best interests of the child," socially or physically. The rights of the child can conflict with the right of parents to bring up their children according to their own traditions and culture. Most cultures are in agreement that it is not good to endanger the health or welfare of people who cannot make their own decisions. It is generally accepted that a harmful and disfiguring practice may not be carried out upon someone who has no capacity to consent. Children do not judge independently or expertly, there is no question of "permission."74 There is no question of free will. This last argument can be a reinforcement in respect of the contention that the operation can better be postponed until the individual is able to make his or her own choice, that is, when he or she has reached adulthood.
The Right to Cultural Self-Determination Versus Universally Accepted Human Rights
It would be going too far within the framework of this article to make an indepth examination of the possible controversy between the right to cultural self-determination and universally-accepted human rights. However, it is important to make a number of remarks about this subject, since this can clarify the dilemma facing some cultures.
The practice of male circumcision and female genital mutilation is part of an intricate and complex cultural system. The elimination of the practice could mean the disturbance of the cultural balance, and the attempts of outsiders to alter or eliminate the practice are often seen as an irresponsible interference in a people's culture and as moral imperialism. The question is, however, whether a community has the right to maintain a tradition, simply because it is a tradition.
When is the "tradition" a violation of human rights which justifies the pressures of others to end it? When is a practice sufficiently harmful or dangerous to warrant being called a violation of human rights? Does male circumcision fall within this description? All these questions are concerned with the controversy between cultural self-determination and human rights. One of the most important aspects in determining whether a cultural practice can be deemed to be a violation of human rights is the extent to which innocent people are wounded or killed as a result of that practice.75 At the same time, an important consideration is the extent to which the "victim" participates at his or her own free will.
The controversy can be brought back to that between tradition and children's rights: the right to maintain a tradition versus the right to physical integrity and the right of children to be protected from unnecessary pain, complications to their health, permanent disfigurement of their bodies, and even death. What should prevail and how would this be determined, and by whom?
This last question raises the issue as to whether the concept of human rights is a Western concept, and whether there are universal human rights, which could be applied without cultural value judgment? Here one can, in general terms, again distinguish two trends. Firstly, that of cultural relativism, in which it is said that there are many different cultures in the world and that it is impossible to apply one and the same set of values to them.76 The other conception demonstrates that a universal standard is not only possible, but indeed necessary, basing this on the idea that the concept of human rights is not just a western ideology, but that human rights are "inalienable, entitled to all human beings, and cannot be denied by a state or government."77 Countries cannot withhold these rights from their subjects or deprive them of these rights, and it is the duty of governments to implement and uphold these rights.
The demand for a legal prohibition of all forms of male circumcision as well as of female genital mutilation is a very tricky point of discussion. This is because a number of opponents of legal measures are of the opinion that such measures would only force the custom to go "underground," increasing the health risks. The problem with laws and regulations, particularly in the case of a deeply-rooted practice is that, without clear enforcement mechanisms and without the support of education, information and consciousness-raising, no clear effects can be expected from the law. Laws forbidding behaviour which is deeply rooted in a culture will neither receive extensive support nor bring about much change.78 If effective legislative action is to be achieved, the following prerequisites must be fulfilled. On one side there must be active, consistent support for the legislation, followed by governmental enforcement of the laws. On the other side, the laws must be concurrent with other activities, such as education and information.
In this context, it is interesting to note, that two countries in which non-religious routine neonatal male circumcision frequently takes place have adopted strict laws against female genital mutilation. Both laws explicitly, in almost the same wording, state that in order to determine whether an operation is necessary for the health of the person "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."79
At what point should a practice be deemed dangerous enough to be a violation of human rights, in this case the rights of the child, worthy of freedom from external interference? How is this determined and by whom? Comparing male circumcision and female genital mutilation, in my opinion, the severity of the operation should not be an issue.80 Fact is that in all cases healthy tissue from a person without the consent of that person is removed. The focus must be placed on the children who are forced to suffer without consent. Male circumcision is, like female genital mutilation, a "harmful traditional practice" and as such in violation with the rights of the child. It is necessary to advocate full respect for these human rights for all children, boys and girls alike. By condemning one practice and not the other, another basic human right, namely the right to freedom from discrimination, is at stake. Regardless whether a child is a boy or a girl, neither should be subject to a harmful traditional practice.
The attitude of Western societies to oppose to female genital mutilation, but not to condemn male circumcision (perhaps because they are afraid that they will be considered as anti-semitic81 ), suggests a double standard of the acceptance82 and implies (racial) discrimination of circumcised boys (Jewish and Moslem) by not trying to protect them against useless pain as is the case with girls and non-circumcised boys.
As was stated in the study on female genital mutilation, moral condemnation is not the best solution to the problem. International and domestic legislation are not enough to stop all forms of harmful traditional practice. The problem with laws and regulations, particularly in the case of a deeply-rooted practice, is that, without clear enforcement mechanisms and without the support of education and information, no clear effects can be expected. Laws forbidding behaviour which is deeply rooted in a culture will neither receive extensive support nor bring about much change. Laws can, however, play a supportive role, alongside information and education. These measures must be combined with efforts to raise the level of awareness.
It is questionable whether, in the majority of cases of routine neonatal circumcision, the parents are fully informed as to the function of the foreskin, and the pain, possible complications and risks and consequences of the operation. It is the responsibility of doctors and health care professionals involved as well as religious leaders and practitioners to inform the parents.
In my view, the best way to do justice to the rights of the child is to do no harm, to let it enjoy life in every aspect and to protect it against influences not asked for. Regardless of whether a child is a boy or a girl, neither should be subject to a tradition which is harmful. When the child is of consenting age, fully informed about all possibilities which lay ahead of him or her, it can make up his or her own mind and choose the way he or she thinks is best.
* Researcher at the Netherlands Institute of Human Rights (SIM), Utrecht.
This report was prepared under the auspices of the Netherlands Institute of Human Rights, University of Utrecht, Utrecht, The Netherlands.
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