Ch. 10: American Law and the Circumcision of Children (DOC Genital Integrity Statement)

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This is Chapter 10 of a statement available at http://www.doctorsopposingcircumcision.org/DOC/statement0.html

Click here to view/download the complete statement in PDF form: GenitalIntegrityStatement.pdf, also available at http://www.doctorsopposingcircumcision.org/pdf/GenitalIntegrityStatement.pdf

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Chapter Ten: American Law and the Circumcision of Children

In the absence of definitive legislation or court rulings regarding the lawfulness of non-therapeutic circumcision of male children within United States law, there is some latitude for different opinions regarding its lawfulness.

Introduction

Anglo-American law historically has been slow to recognize the natural legal rights of children. Partly this is due to an ancient but lingering religious notion that children were born tainted by sin and thus to ‘spare the rod’ is to spoil the child, physically and morally. Partly this is due to deference to the rights of parents who, for centuries, were deemed sole proprietors of their children, rather than trustees responsible for the care of a soon-to-be fellow citizen. Only slowly has Anglo-American law developed any recognition that the child, a member of the larger community and not a mere chattel of anyone, has rights independent from his or her parents, and, being vulnerable, deserves special protection.

It is not surprising, therefore, that with a long history of few identifiable legal rights, children have been subject to inhumane practices having more to do with social whims than with the actual day-to-day needs of the child.

It is true that we have evolved, haltingly, away from tolerating child labor, child soldiers, child sex objects, child prisoners, and child death-row inmates. But physical chastisement—withholding food, medicine, education, social interaction, and other basic human needs—is still tolerated, especially where religious beliefs of the parents are invoked.

Nowhere is the tension between ancient parental rights and the nascent rise of the child’s legal rights as a citizen more striking than in the instance of non-therapeutic, merely cultural, non-consensual modifications of a child’s genitalia. Subject to strict analysis under modern international law, and seen through the scrim of the developing rights of children, circumcision—a non-therapeutic procedure amputating a highly nerve-supplied portion of the child’s natural and healthy genitalia, often without the slightest anesthesia or analgesia—would seem difficult, if not impossible, to defend.

Traditional View

The medical community has argued that parents may grant surrogate consent to non-therapeutic circumcision of children based on the fiction that non-therapeutic circumcision is a therapeutic medical procedure and that parents have a “right to a circumcision.” 1 Circumcision of a child is considered to be lawful, provided that one parent signs a surrogate consent form after being fully informed of the alleged benefits and known risks.

This view was put forward by four medical doctors (apparently without legal counsel) who formed an “ad hoc committee” to write a circumcision policy for the American Academy of Pediatrics.2 These doctors mis-applied the rules for therapeutic procedures to non-therapeutic circumcision and failed to take into account the strict limits placed on surrogate power to consent. This is the view expressed by the American Academy of Pediatrics for the past three decades, 3,4 and it is the view that best fits the needs of the members of the AAP who profit enormously from carrying out non-therapeutic circumcisions. The AAP is a trade association of medical doctors that has no power to make law or establish social policy. The medical community, thus far, has been unwilling to accept changes in law and ethics as applied to circumcision.5

There are many reasons to believe that this view is incorrect.1 The AAP’s view treats the child as the property of the parents. In the view of the AAP, parents may do whatever they wish to the male child in regard to circumcision. The AAP does not recognize the child as a separate person, with legal and human rights of his own. The AAP position, first enunciated in 1975, is not in accord with contemporary international human rights law and international bioethics documents, nor is it in accord with other policies of the AAP.6

Contemporary View

Lack of valid consent. Parents do not own their children. Society merely entrusts parents with the care of their children until their children reach the age of majority. Although competent adults have very broad powers to consent, the power of a surrogate to grant consent is limited.7 Parents must act only in a child’s best interests.7 There is no reason to believe that parents have any right or power to authorize the excision of healthy functional tissue from a child.1 A child is a separate person from his parent and has his own set of rights. Parents have a duty to protect the child’s rights and person, which conflicts with any alleged power to circumcise.1

Newborn boys are not born with diseased foreskins and, consequently, no medical indication for circumcision exists in the newborn period. The prerequisites for surrogate consent to treatment or surgery are:

  1. a physical complaint, followed by
  2. a diagnosis by a medical doctor, followed by
  3. a medical recommendation for treatment,
  4. presentation of all relevant material information,7,8
  5. followed by granting of consent by the surrogate.

In the case of circumcision of a male child, the first three prerequisites are absent, so any consent for non-therapeutic circumcision would appear to be invalid.

Parents have duties to a child, which have been traditionally described as “their maintenance, their protection, and their education.”9 Parental “rights” are simply empowerment to carry out the duties owed to the child.1 According to Lord Scarman of the House of Lords:

“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.”10

If a child does not need a circumcision, then the parental power to seek a circumcision does not exist.1 A consent for an unnecessary circumcision would be vitiated and invalid, so any circumcision performed with such a consent would be medical battery or criminal assault.7,11

Moreover, consent for circumcision, which entails the excision of healthy, functional tissue,13 does not accord with the parental duty of protection of the child’s person from harm.1

Offense against general criminal law. Every jurisdiction makes battery a criminal offense. Genital cutting without valid consent would violate laws against battery.7

Offense against laws for the protection of children. Circumcision also fulfills the definition of child abuse13 and would be a crime of child abuse.1

Offense against the child’s right to bodily integrity. The common law right to bodily integrity was affirmed by the U. S. Supreme Court in 189114and in numerous later cases.1 Circumcision necessarily violates the child’s right to bodily integrity. Parents have a legal duty to protect their child from harm.1 There is no reason to believe that parents are empowered to violate a child’s right to bodily integrity in the absence of a clear and present compelling medical indication.

Denial of equal protection of the law. All citizens of the United States have a right to the equal protection of the law.15 Female children are granted the protection of their genital integrity by criminal law that prevents excision of healthy tissue from female genitals.16 Gender-based discrimination is subject to scrutiny. Parties who seek to defend gender-based distinctions must demonstrate an “exceedingly persuasive justification” for that action.117 Courts must provide “heightened scrutiny” of gender-based discrimination.16 Equal protection of the law is available to males just as much as it is to women.1 19

According to Povenmire:

“For female infants, the right to the integrity of the genital organs is protected against surgical “mutilation” by federal law and United Nations resolutions. Under the law, the right of bodily integrity is deemed so fundamental that it displaces any consideration of the parents’ cultural or religious beliefs. Unfortunately, no similar recognition has been extended to male infants in the United States. The failure of the law to provide equal protection to males can find no “exceedingly persuasive” justification, and is unconstitutional.”20

The genital integrity of males should receive the same protection accorded to the genital integrity of females.1

Protection from religion-based abuse. Some would argue that religious beliefs give a parent the right to violate a child’s right to bodily integrity, however, that is not the case. The law makes a very clear distinction between the right to believe, which is absolute, and the right to practice religion, which may be limited by laws of general application. According to the 1878 United States Supreme Court:

“Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”21

Children are entitled to protection from religiously inspired abuse. This matter was settled by the United States Supreme Court in the case of Prince v. Massachusetts. The court said:

“The right to practice religion freely does not include liberty to expose the community or the child [p167] to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. [n13] The catalogue need not be lengthened. It is sufficient to show … that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare, and that this includes, to some extent, matters of conscience and religious conviction.”22

and famously:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.22

Parents may believe that religion requires child circumcision’ but the right to practice religion is limited. Religious practice generally is subject to and limited by laws of general application.23 The International Covenant on Civil and Political Rights, which has been part of the supreme law of the United States since 1992, limits parental religious rights over their children to “religious and moral education of their children in conformity with their own convictions”.24

Circumcision of children is a human rights offense. Male circumcision under international human rights law is discussed in Chapter Nine. The Congress of the United States ratified the United Nations International Covenant on Civil and Political Rights (1966) (ICCPR)25 on June 22, 1992. The ICCPR is part of the supreme law of the United States in accordance with Article VI of the United States Constitution. The United States has undertaken to guarantee the human rights recognized by the ICCPR to all persons in its territory (Article 2.1). Children have the same general human rights as adults, but have a greater right of protection due to their vulnerable status as minors (Article 24.1).26

State and federal courts are required and empowered to enforce the rights provided by the ICCPR (Article 2.3).28 Rights pertinent to the circumcision of male children include the right to equal enjoyment of all rights (Article 3), the right to freedom from cruel, inhuman or degrading treatment (Article 7), right to security of the person, (Article 9.1), the right to protection during minority (Article 24.1). The circumcision of minor male children, who are legally incompetent, violates these rights. The ICCPR requires the United States and the several individual states to take action to protect the human rights of boys as well as girls.

Conclusion

The law of circumcision is in a transitional state.7 There is no clear reason to believe that non-therapeutic male circumcision of children is lawful7 and many reasons to believe that male circumcision is unlawful. Adler argues strongly that the non-therapeutic circumcision of children is unlawful.1

Non-therapeutic circumcision of male children already is a criminal act in Washington.1 28 Its continued practice depends upon the failure of public prosecutors to enforce criminal law. A law that more clearly expresses the unlawfulness of circumcision is needed for the protection of children.

A Chicago court concluded in 2006 that one boy is entitled to protection against circumcision and issued protective injunctions to the parents of the boy to protect him from circumcision until he reaches his majority and can decide for himself.29

Consent for non-therapeutic circumcision appears to exceed the powers granted to parents.1 A circumcision carried out without consent or with ineffective vitiated consent is an act of medical battery and may expose the perpetrator to possible civil and/or criminal penalties.

References

  1. Peter W. Adler. Is circumcision legal? 16(3) Richmond J. L. & Pub. Int 439-86 (2013). [Full Text]
  2. Thompson HC, King LR, Knox E, et al. Report of the ad hoc task force on circumcision. Pediatrics 1975;56(4):610–1. [Full Text]
  3. Task Force on Circumcision. Report of the Task Force of Circumcision. Pediatrics 1989;84(4):388–91. [Full Text]
  4. Task Force on Circumcision. Circumcision Policy Statement. Pediatrics 1999;103(3):686–93. [Full Text]
  5. Fox M, Thomson M. Short changed? The law and ethics of male circumcision. International Journal of Children’s Rights 2005;13:161–81. [Full Text]
  6. Denniston GC. Letter to Louis V. Cooper, M.D. et al., October 15, 2002. [Full Text]
  7. J. Steven Svoboda, Robert S. Van Howe, James C. Dwyer, Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum. 17 J Contemp Health Law & Policy 61 (2000). [Full Text]
  8. Seeking patients’ consent: the ethical considerations. London, General Medical Council, 1998. [Full Text]
  9. Sir William Blackstone. Commentary on the Laws of England, Book 1, Chapter 16, p. 434. (1765-1769). [Full Text] Available at: http://www.yale.edu/lawweb/avalon/blackstone/bk1ch16.htm
  10. Per Lord Scarman. Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 at 420, citing Blackstone’s Commentary. [Full Text]
  11. Gregory J Boyle, J Steven Svoboda, Christopher P Price, J Neville Turner. Circumcision of Healthy Boys: Criminal Assault? 7 J Law Med 301 (2000). [Full Text]
  12. Taylor JR, Lockwood AP, Taylor AJ. The prepuce: specialized mucosa of the penis and its loss to circumcision. Br J Urol 1996;77:291–5. [Full Text]
  13. William E. Brigman. Circumcision as Child Abuse: The Legal and Constitutional Issues.23 J Fam Law 337 (1985). [Full Text]
  14. Union Pacific Railway Company v. Botsford, 141 U.S. 250 (1891). [Full Text]
  15. U.S. Const. amend. 14, §1; International Covenant on Civil and Political Rights, Article 26.
  16. 18 U.S.C. §116 [Full Text]
  17. United States v. Virginia, 518 U.S. 515 (1996). [Full Text]
  18. Reed v. Reed, 404 U.S. 71 (1971). [Full Text]
  19. Mississippi University for Women v Hogan, 452 U.S. 718 (1982). [Full Text]
  20. 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). [Full Text]
  21. Reynolds v. United States, 98 U.S. 145 (1878). [Full Text]
  22. Prince v. Massachusetts, 321 U.S. 158 (1944). [Full Text]
  23. Employment Division of Oregon v. Smith. 494 U.S. 872 (1990). [Full Text]
  24. International Covenant on Civil and Political Rights, Article 18(4). [Full Text]
  25. International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49. [Full Text]
  26. Protecting and realizing children’s rights. UNICEF. [Full Text]
  27. International Covenant on Civil and Political Rights, Article 2(3). [Full Text]
  28. State v. Baxter. Washington Court of Appeals, Division 2, Case No. 32766-0-II. (2006). [Full Text]
  29. Schmidt vs. Niznik, Cook County Illinois, NO. 00 D 18272 (2006).

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