Circumcision and law

Laws restricting, regulating, or banning circumcision, some dating back to ancient times, have been enacted in many countries and communities. In a number of modern states, circumcision is presumed to be legal, but laws pertaining to assault or child custody have been applied in cases involving circumcision. In the case of non-therapeutic circumcision of children, proponents of laws in favor of the procedure often point to the rights of the parents or practitioners, namely the right of freedom to religion. Those against the procedure point to the boy's right of freedom from religion. In several court cases, judges have pointed to the irreversible nature of the act,^[1] the grievous harm to the boy's body,^[2] and the right to self-determination, and bodily integrity.^[3]

History of Circumcision in Judaism

There are ancient religious requirements for circumcision. The Hebrew Bible commands Jews to circumcise their male children on the eighth day of life, and to circumcise their male slaves (Genesis 17:11–12).

Laws banning circumcision are also ancient. The ancient Greeks prized the foreskin and disapproved of the Jewish custom of circumcision.^[4] 1 Maccabees, 1:60–61 states that King Antiochus IV of Syria, the occupying power of Judea in 170 BCE, outlawed circumcision on penalty of death.^[5] one of the grievances leading to the Maccabean Revolt.^[6]

According to the Historia Augusta, the Roman emperor Hadrian issued a decree banning circumcision in the empire,^[7] and some modern scholars argue that this was a main cause of the Jewish Bar Kokhba revolt of 132 CE.^[8] The Roman historian Cassius Dio, however, made no mention of such a law, and blamed the Jewish uprising instead on Hadrian's decision to rebuild Jerusalem as Aelia Capitolina, a city dedicated to Jupiter.

Antoninus Pius permitted Jews to circumcise their own sons. However, he forbade the circumcision of non-Jews that were either foreign-slaves or non-Jewish members of the household, contrary to Genesis 17:12 He also made it illegal for a man to convert to Judaism.^[9] Antoninus Pius exempted the Egyptian priesthood from the otherwise universal ban on circumcision.

Modern law

Australia

In 1993, a non-binding research paper of the Queensland Law Reform Commission (Circumcision of Male Infants) concluded that "On a strict interpretation of the assault provisions of the Queensland Criminal Code, routine circumcision of a male infant could be regarded as a criminal act", and that doctors who perform circumcision on male infants may be liable to civil claims by that child at a later date.^[10] No prosecutions have occurred in Queensland, and circumcisions continue to be performed.

In 1999, a Perth man won A$360,000 in damages after a doctor admitted he botched a circumcision operation at birth which left the man with a badly deformed penis.^[11]

In 2002, Queensland police charged a father with grievous bodily harm for having his two sons, then aged nine and five, circumcised without the knowledge and against the wishes of the mother. The mother and father were in a family court dispute. The charges were dropped when the police prosecutor revealed that he did not have all family court paperwork in court and the magistrate refused to grant an adjournment.^[12]

Cosmetic circumcision for newborn males is currently banned in all Australian public hospitals, South Australia being the last state to adopt the ban in 2007; the procedure was not forbidden from being performed in private hospitals.^[13][14] In the same year, the Tasmanian President of the Australian Medical Association, Haydn Walters, stated that they would support a call to ban circumcision for non-medical, non-religious reasons.^[15] In 2009, the Tasmanian Law Reform Institute released its Issues Paper investigating the law relating to male circumcision in Tasmania, it "highlights the uncertainty in relation to whether doctors can legally perform circumcision on infant males".^[16]

The Tasmania Law Reform Institute released its recommendations for reform of Tasmanian law relative to male circumcision on 21 August 2012.^[17] The report makes fourteen recommendations for reform of Tasmanian law relative to male circumcision.^[18]

Canada

According to the College of Physicians and Surgeons of British Columbia:

"To date, the legality of infant male circumcision has not been tested in the Courts. It is thus assumed to be legal if it is performed competently, in the child’s best interest, and after valid consent has been obtained."

"At all times the physician must perform the procedure with competence and at all times, the parent and physician must act in the best interests of the child. Signed parental consent for any treatment is assumed to be valid if the parent understands the nature of the procedure and its associated risks and benefits. However, proxy consent by parents is now being questioned. Many believe it should be limited to consent for diagnosis and treatment of medical conditions, and that it is not relevant for non-therapeutic procedures."^[19]

England and Wales

Male circumcision has traditionally been presumed to be legal under British law,^[20] however some authors have argued that there is no solid foundation for this view in English law.^[21][22]

The passage of the Human Rights Act 1998 has led to some speculation that the lawfulness of the circumcision of male children is unclear.^[23]

One 1999 case, Re "J" (child's religious upbringing and circumcision)^[24] said that circumcision in Britain required the consent of all those with parental responsibility, or the permission of the court, acting for the best interests of the child, and issued an order prohibiting the circumcision of a male child of a non-practicing Muslim father and non-practicing Christian mother with custody. The reasoning included evidence that circumcision carried some medical risk; that the operation would be likely to weaken the relationship of the child with his mother, who strongly objected to circumcision without medical necessity; that the child may be subject to ridicule by his peers as the odd one out and that the operation might irreversibly reduce sexual pleasure, by permanently removing some sensory nerves, even though cosmetic foreskin restoration might be possible. The court did not rule out circumcision against the consent of one parent. It cited a hypothetical case of a Jewish mother and an agnostic father with a number of sons, all of whom, by agreement, had been circumcised as infants in accordance with Jewish laws; the parents then have another son who is born after they have separated; the mother wishes him to be circumcised like his brothers; the father for no good reason, refuses his agreement. In such a case, a decision in favor of circumcision was said to be likely.

In 2001 the General Medical Council had found a doctor who had botched circumcision operations guilty of abusing his professional position and that he had acted "inappropriately and irresponsibly",^[25] and struck him off the register.^[26] A doctor who had referred patients to him, and who had pressured a mother into agreeing to the surgery, was also condemned.^[25] He was put on an 18-month period of review and retraining, and was allowed to resume unrestricted practice as a doctor in March 2003, after a committee found that he had complied with conditions it placed on him. According to the Northern Echo, he "told the committee he has now changed his approach to circumcision referrals, accepting that most cases can be treated without the need for surgery.".^[26]

Fox and Thomson (2005) argue that consent cannot be given for non-therapeutic circumcision.^[21] They say there is "no compelling legal authority for the common view that circumcision is lawful."

In 2005 a Muslim man had his son circumcised against the wishes of the child's mother who was the custodial parent.^[27]

In 2009 it was reported that a 20-year-old man whose father had him ritually circumcised as a baby is preparing to sue the doctor who circumcised him. This is believed to be the first time a person who was circumcised as an infant has made a claim in the UK. The case is expected to be heard in 2010.^[28]

Europe

On 1 October 2013, the Parliamentary Assembly of the Council of Europe adopted a resolution in which they state they are "particularly worried about a category of violation of the physical integrity of children," and include in this category "circumcision of young boys for religious reasons."^[29]

Finland

In August 2006, a Finnish court ruled that the circumcision of a four-year-old boy arranged by his mother, who is Muslim, to be an illegal assault. The boy's father, who had not been consulted, reported the incident to the police. A local prosecutor stated that the prohibition of circumcision is not gender-specific in Finnish law. A lawyer for the Ministry of Social Affairs and Health stated that there is neither legislation nor prohibition on male circumcision, and that "the operations have been performed on the basis of common law." The case was appealed^[30] and in October 2008 the Finnish Supreme Court ruled that the circumcision, " carried out for religious and social reasons and in a medical manner, did not have the earmarks of a criminal offence. It pointed out in its ruling that the circumcision of Muslim boys is an established tradition and an integral part of the identity of Muslim men".^[31] In 2008, the Finnish government was reported to be considering a new law to legalise circumcision if the practitioner is a doctor and if the child consents.^[32] In December 2011, Helsinki District Court said that the Supreme Court's decision does not mean that circumcision is legal for any non-medical reasons.^[33] The court referred to the Convention on Human rights and Biomedicine of the Council of Europe, which was ratified in Finland in 2010.^[33]

In February 2010, a Jewish couple were fined for causing bodily harm to their then infant son who was circumcised in 2008 by a mohel brought in from the UK. Normal procedure for persons of Jewish faith in Finland is to have a locally certified mohel who works in Finnish healthcare perform the operation. In the 2008 case, the infant was not anesthetized and developed complications that required immediate hospital care. The parents were ordered to pay 1500 euros in damages to their child.^[34]

Germany

In October 2006, a Turkish national who performed ritual circumcisions on seven boys was convicted of causing dangerous bodily harm by the state court in Düsseldorf.^[35]

In September 2007, a Frankfurt am Main appeals court found that the circumcision of an 11-year-old boy without his approval was an unlawful personal injury. The boy, whose parents were divorced, was visiting his Muslim father during a vacation when his father forced him to be ritually circumcised. The boy had planned to sue his father for €10,000.^[36][37]

In May 2012, the Cologne regional appellate court ruled that religious circumcision of male children amounts to bodily injury, and is a criminal offense in the area under its jurisdiction.^[2] The decision based on the article "Criminal Relevance of Circumcising Boys. A Contribution to the Limitation of Consent in Cases of Care for the Person of the Child"^[38] published by Holm Putzke, a German law professor at the University of Passau.^[39][40][41] The court arrived at its judgment by application of the human rights provisions of the Basic Law, a section of the Civil Code, and some sections of the Criminal Code to non-therapeutic circumcision of male children. Some observers said it could set a legal precedent that criminalizes the practice.^{[2][42][43][44]} Jewish and Muslim groups were outraged by the ruling, viewing it as trampling on freedom of religion.^[1][45][46]

The German ambassador to Israel, Andreas Michaelis, told Israeli lawmakers that Germany was working to resolve the issue and that it doesn't apply at a national level, but instead only to the local jurisdiction of the court in Cologne.^[47] The Council of the Coordination of Muslims in Germany condemned the ruling, stating that it is "a serious attack on religious freedom." Ali Kizilkaya, a spokesman of the council, stated that, "The ruling does not take everything into account, religious practice concerning circumcision of young Muslims and Jews has been carried out over the millenia on a global level." The Roman Catholic archbishop of Aachen, Heinrich Mussinghoff, said that the ruling was "very surprising", and the contradiction between "basic rights on freedom of religion and the well-being of the child brought up by the judges is not convincing in this very case." Hans Ulrich Anke, the head of the Protestant Church in Germany, said the ruling should be appealed since it didn't "sufficiently" consider the religious significance of the rite.^[48] A spokesman, Steffen Seibert, for German Chancellor Angela Merkel stated that Jewish and Muslim communities will be free to practice circumcision responsibly, and the government would find a way around the local ban in Cologne. The spokesman stated "For everyone in the government it is absolutely clear that we want to have Jewish and Muslim religious life in Germany. Circumcision carried out in a responsible manner must be possible in this country without punishment.".^[49][50]

In July, a group of rabbis, imams, and others said that they view the ruling against circumcision "an affront on our basic religious and human rights."^[51] The joint statement was signed by leaders of groups including Germany's Turkish-Islamic Union for Religious Affairs, the Islamic Center Brussels, the Rabbinical Centre of Europe, the European Jewish Parliament and the European Jewish Association, who met with members of European Parliament from Germany, Finland, Belgium, Italy, and Poland. European rabbis, who urged Jews to continue circumcision, planned further talks with Muslim and Christian leaders to determine how they can oppose the ban together.^[52] The Jewish Hospital of Berlin suspended the practice of male circumcision.^[53] On 19 July 2012, a joint resolution of the CDU/CSU, SPD and FDP factions in the Bundestag requesting the executive branch to draft a law permitting circumcision of boys to be performed without unnecessary pain in accordance with best medical practice^[54] carried with a broad majority.^[55]

The New York Times reported that the German Medical Association "condemned the ruling for potentially putting children at risk by taking the procedure out of the hands of doctors, but it also warned surgeons not to perform circumcisions for religious reasons until legal clarity was established."^[56] The ruling was supported by Deutsche Kinderhilfe, a German child rights organization, which asked for a two-year moratorium to discuss the issue and pointed out that religious circumcision may contravene the Convention on the Rights of the Child (Article 24.3: "States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.").^[57][58][59]

The German Academy for Pediatric and Adolescent Medicine (Deutsche Akademie für Kinder- und Jugendmedizin e.V., DAKJ),^[60][61] the German Association for Pediatric Surgery (Deutsche Gesellschaft für Kinderchirurgie, DGKCH)^[62] and the Professional Association of Pediatric and Adolescent Physicians (Berufsverband der Kinder- und Jugendärzte)^[63] took a firm stand against non-medical routine infant circumcision.

In July, in Berlin, a criminal complaint was lodged against Rabbi Yitshak Ehrenberg for "causing bodily harm" by performing religious circumcision, and for vocal support of the continuation of the practice. In September, the prosecutors dismissed the complaint, concluding that "there is no proof to establish that the rabbi's conduct met the 'condition of a criminal' violation."^[64]

In September, Reuters reported "Berlin's senate said doctors could legally circumcise infant boys for religious reasons in its region, given certain conditions."^[65]

On 12 December 2012, following a series of hearings and consultations, the Bundestag adopted the proposed law explicitly permitting non-therapeutic circumcision to be performed under certain conditions; it is now §1631(d) in the German Civil Code. The vote tally was 434 ayes, 100 noes, and 46 abstentions.^[66] Following approval by the Bundesrat and signing by the Bundespräsident, the new law became effective on 28 December 2012 a day after its publication in the Federal Gazette.^[67]

Ireland

In October 2005 a Nigerian man was cleared of a charge of reckless endangerment over the death of a baby from haemorrhage and shock after he had circumcised the child. The judge directed the jury not to "bring what he called their white western values to bear when they were deciding this case" and after deliberating for an hour and a half they found the defendant not guilty.^[68] dead l

Israel

In Israel, Jewish circumcision is entirely legal, as is posthumous circumcision. In 1999, the Israeli Supreme Court overruled an attempt to have after-death circumcision outlawed.^[69] Though illegal, female circumcision is still practiced among the Negev Bedouin, and tribal secrecy among the Bedouin makes it difficult for authorities to enforce the ban.^[70] In 2013, Rabbinical court in Israel ordered a mother, Elinor Daniel, to circumcise her son or pay a fine of 500 Israeli Shekel for every day that the child is not circumcised. She appealed against the Rabbinical court ruling and the High Court ruled in her favour stating, among other considerations, the basic right of freedom from religion.^[71]

Netherlands

When Ayaan Hirsi Ali was a Member of the Netherlands Parliament she asked it to consider making the circumcision of male children unlawful.^[72] In May 2008 a father who had his two sons, aged 3 and 6 circumcised against the will of their mother was found not guilty of abuse as the circumcision was performed by a physician and due to the court's restraint in setting a legal precedent instead he was given a 6-week suspended jail sentence for taking the boys away from their mother against her will.^[73][74]

Norway and Scandinavia

In 2012, the Senterpartiet proposed a ban on circumcision on males under eighteen.^[75]

In September 2013, the Children's ombudsmen in all Nordic countries issued a statement^[76] by which they called for a ban on circumcision of minors for non-medical reasons, stating that such circumcisions violate the rights of children after the Convention on the Rights of the Child to co-determination and protection from harmful traditions.^[77]

South Africa

The Children's Act 2005 makes the circumcision of male children under 16 unlawful except for religious or medical reasons. In the Eastern Cape province the Application of Health Standards in Traditional Circumcision Act, 2001, regulates traditional circumcision, which causes the death or mutilation of many youths by traditional surgeons each year.^[78] Among other provisions, the minimum age for circumcision is age 18.

In 2004, a 22-year-old Rastafarian convert was forcibly circumcised by a group of Xhosa tribal elders and relatives. When he first fled, two police returned him to those who had circumcised him.^[79] In another case, a medically circumcised Xhosa man was forcibly recircumcised by his father and community leaders. He laid a charge of unfair discrimination on the grounds of his religious beliefs, seeking an apology from his father and the Congress of Traditional Leaders of South Africa. According to South African newspapers, the subsequent trial became "a landmark case around forced circumcision."^[80] In October 2009, the Eastern Cape High Court at Bhisho (sitting as an Equality Court) clarified that circumcision is unlawful unless done with the full consent of the initiate.^[81]

Sweden

In 2001, the Parliament of Sweden enacted a law allowing only persons certified by the National Board of Health to circumcise infants. It requires a medical doctor or an anesthesia nurse to accompany the circumciser and for anaesthetic to be applied beforehand. After the first two months of life circumcisions can only be performed by a physician. The stated purpose of the law was to increase the safety of the procedure.^[82]

Swedish Jews and Muslims objected to the law,^[83] and in 2001, the World Jewish Congress called it "the first legal restriction on Jewish religious practice in Europe since the Nazi era."^[84] The requirement for an anaesthetic to be administered by a medical professional is a major issue,^[85] and the low degree of availability of certified professionals willing to conduct circumcision has also been subject to criticism.^[86] According to a survey, two out of three paediatric surgeons said they refuse to perform non-therapeutic circumcision, and less than half of all county councils offer it in their hospitals.^[87] However, in 2006, the U.S. State Department stated, in a report on Sweden, that most Jewish mohels had been certified under the law and 3000 Muslim and 40–50 Jewish boys were circumcised each year. An estimated 2000 of these are performed by persons who are neither physicians nor have officially recognised certification.^[88]

The Swedish National Board of Health and Welfare reviewed the law in 2005 and recommended that it be maintained,^[89] but found that the law had failed with regard to the intended consequence of increasing the safety of circumcisions.^[90] A later report by the Board criticised the low level of availability of legal circumcisions, partly due to reluctance among health professionals.^[90] To remedy this, the report suggested a new law obliging all county councils to offer non-therapeutic circumcision in their hospitals,^[90] but this was later abandoned in favour of a non-binding recommendation.^[88]

United States

Circumcision of adults who grant personal informed consent for the surgical operation is legal.

In the United States, non-therapeutic circumcision of male children has long been assumed to be lawful in every jurisdiction provided that one parent grants surrogate informed consent. Adler (2013) has recently challenged the validity of this assumption.^[91] As with every country, doctors who circumcise children must take care that all applicable rules regarding informed consent and safety are satisfied.^[92]

While anti-circumcision groups have occasionally proposed legislation banning non-therapeutic child circumcision, it has not been supported in any legislature.^[93] After a failed attempt to adopt a local ordinance banning circumcision on a San Francisco ballot, the state of California enacted in October 2011 a law protecting circumcision from local attempts to ban the practice.^[94]

In 2012, New York City required those performing metzitzah b'peh, a part of circumcision required by some Hasidim, to obey stringent consent requirements, including documentation.^[95] Agudath Israel of America and other Jewish groups have planned to sue the city in response.^[96]

Disputes between parents

Occasionally the courts are asked to make a ruling when parents cannot agree on whether or not to circumcise a child.

In January 2001 a dispute between divorcing parents in New Jersey was resolved when the mother, who sought to have the boy circumcised withdrew her request. The boy had experienced two instances of foreskin inflammation and she wanted to have him circumcised. The father, who had experienced a traumatic circumcision as a child objected and they turned to the courts for a decision. The Medical Society of New Jersey and the Urological Society of New Jersey both opposed any court ordered medical treatment. As the parties came to an agreement, no precedent was set.^[97] In June 2001 a Nevada court settled a dispute over circumcision between two parents but put a strict gag order on the terms of the settlement.^[98] In July 2001 a dispute between parents in Kansas over circumcision was resolved when the mother's request to have the infant circumcised was withdrawn. In this case the father opposed circumcision while the mother asserted that not circumcising the child was against her religious beliefs. (The woman's pastor had stated that circumcision was "important" but was not necessary for salvation.) On 24 July 2001 the parents reached agreement that the infant would not be circumcised.^[99][100]

On 14 July 2004 a mother appealed to the Missouri Supreme Court to prevent the circumcision of her son after a county court and the Court of Appeals had denied her a writ of prohibition.^[101] However, in early August 2004, before the Supreme Court had given its ruling, the father, who had custody of the boy, had him circumcised.^[102]

In October 2006 a judge in Chicago granted an injunction blocking the circumcision of a 9-year-old boy. In granting the injunction the judge stated that "the boy could decide for himself whether to be circumcised when he turns 18."^[3]

In November 2007, the Oregon Supreme Court heard arguments from a divorced Oregon couple over the circumcision of their son. The father wanted his son, who turned 13 on 2 March 2008, to be circumcised in accordance with the father's religious views; the child's mother opposes the procedure. The parents dispute whether the boy is in favor of the procedure. A group opposed to circumcision filed briefs in support of the mother's position, while some Jewish groups filed a brief in support of the father.^[103] On 25 January 2008, the Court returned the case to the trial court with instructions to determine whether the child agrees or objects to the proposed circumcision.^[104] The father appealed to the US Supreme Court to allow him to have his son circumcised^[105] but his appeal was rejected. The case then returned to the trial court.^[106] When the trial court interviewed the couple's son, now 14 years old, the boy stated that he did not want to be circumcised. This also provided the necessary circumstances to allow the boy to change residence to live with his mother. The boy was not circumcised.

Other disputes

In September 2004 the North Dakota Supreme Court rejected a mother's attempt to prosecute her doctor for circumcising her child without fully informing her of the consequences of the procedure. The judge and jury found that the defendants were adequately informed of possible complications, and the jury further found that it is not incumbent on the doctors to describe every "insignificant" risk.^[107]

In March 2009 a Fulton County, Ga., State Court jury awarded $2.3 million in damages to a 4-year-old boy and his mother for a botched circumcision in which too much tissue was removed causing permanent disfigurement.^[108]

In August 2010 an eight-day-old boy was circumcised in a Florida hospital against the stated wishes of the parents. The hospital admitted that the boy was circumcised by mistake; the mother has sued the hospital and the doctor involved in the case.^[109]

USSR

Before glasnost, according to an article in The Jewish Press, Jewish ritual circumcision was forbidden in the USSR.^[110] However, David E. Fishman, professor of Jewish History at the Jewish Theological Seminary of America, states that, whereas the heder and yeshiva, the organs of Jewish education, "were banned by virtue of the law separating church and school, and subjected to tough police and administrative actions," circumcision was not proscribed by law or suppressed by executive measures.^[111] Jehoshua A. Gilboa writes that while circumcision was not officially or explicitly banned, pressure was exerted to make it difficult. Mohels in particular were concerned that they could be punished for any health issue that might develop, even if it arose some time after the circumcision.^[112]

See also

• Forced circumcision

References

External links

• William E. Brigman. Circumcision as Child Abuse: The Legal and Constitutional Issues. 23 J Fam Law 337 (1985).
• Rich Winkel. Male Circumcision in the USA: A Human Rights Primer
• Ross Povenmire. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998–1999).
• Gregory J Boyle, J. Steven Svoboda, Christopher P Price, J Neville Turner. Circumcision of Healthy Boys: Criminal Assault? 7 Journal of Law and Medicine 301 (2000). The authors are leading anti-circumcision campaigners.
• Peter W. Adler. Is Circumcision Legal? 16(3) Richmond J. L. & Pub. Int. 439 (2013).
• Amicus curiae briefs filed in Oregon circumcision case:
  • Amicus Brief without attachments (Doctors Opposing Circumcision)
  • Amicus Brief on the Merits (Doctors Opposing Circumcision)
  • Amicus Brief on the Merits (American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America)