When a German court recently ruled that religious circumcision was a criminal act it flared an international outcry. Dr Robert Darby says Australia needs reasonable regulation and a change of attitude to bring more clarity to the issue.
The judgement of a district court in Cologne – that medically unnecessary circumcision of a four year old boy constituted bodily harm and was thus unlawful – has revolutionised the debate about male genital cutting and brought to a head the controversy that has been simmering since the passage of the United Nations Convention on the Rights of the Child (1989).
The argument is no longer about whether boys should be circumcised for so-called “health reasons”, but whether any non-therapeutic circumcision (NTC) of minors should be permitted.
The case has generated enormous comment worldwide, both from Muslim and Jewish organisations which (given that they are composed of adults) have naturally deplored the decision, and from bioethical and legal authorities who have largely welcomed it. These have included an Australian legal expert and a Jewish columnist in the journal World Affairs.
Such is the impact of the judgement that even the ultra-conservative New York Times felt obliged to include a critic of circumcision among the contributors to its debate.
I have argued that NTC of minors is morally wrong because it violates accepted principles of bioethics and human rights and there is no “compelling” health case to force the operation on normal children who cannot give informed consent.
Because NTC of minors violates all five of the principles of bioethics formulated by Beauchamp and Childress – non-maleficence, beneficence, proportionality, autonomy and justice – it should not be done. Since it is not the role of the law to enforce morals, this does not mean that the practice should necessarily be illegal. The law does, however, have an interest in preventing people from harming other people, and there can be little doubt that NTC is sufficiently harmful (both physically and morally) to warrant legal regulation.
The current situation in Australia is so unregulated that it would be perfectly possible for a stranger to grab a baby from a pram or a boy in the street, take him to a circumcision clinic or “specialist” and have him cut on the spot, no questions asked. This is not far removed from what happened in Bundaberg in 2004, when an estranged father got away with kidnapping two boys (aged 5 and 9) and having them circumcised by a compliant surgeon against both their own and their mother’s wishes.
The murky legal status of NTC has been exposed in a discussion paper by the Tasmanian Law Reform Institute, and Warwick Marshall has deplored the prevailing “open slather” and recommended both tighter regulation of the practice and prohibition of NTC in the case of incompetent minors, with exceptions for conscientious objection on religious grounds.
As I have already remarked, when it comes to religiously motivated circumcision we are dealing with two sets of conflicting rights: of adults to practise their religion, and of children to bodily integrity and their own religious freedom. It is thus very difficult to find a legal formula that will protect the majority of boys while allowing those with strong convictions to follow their traditions. In view of the religious passions involved, a blanket ban is unlikely to be contemplated by politicians, and would not be accepted by the circumcising sub-cultures even if it were. A prohibition with exceptions for Jews, Muslims and certain Indigenous Australian communities would give rise to the paradox that their children enjoyed fewer human rights and legal protections than everybody else. A general law privileging the existing situation – unfettered parental choice – would be even worse, as it would allow any parents to circumcise their boys (and why not girls?) with no valid reason at all.
Given that NTC is already of borderline legality, what is needed is not so much a law prohibiting it, but a change of attitude. The prevailing “she’ll be right” approach holds that circumcision is always OK unless something goes disastrously wrong. This is such a contrast with the ultra-protective attitude to girls (with fierce laws against female genital mutilation in all states) that we can reasonably see boys as victims of sexist discrimination. This attitude must change to the point where NTC of male minors is regarded as generally unacceptable but permitted in certain circumstances for valid, specified reasons.
Medically unnecessary circumcision of male infants and boys is morally wrong and sufficiently harmful to warrant intervention by the state. Since attempts to ban it outright are not likely to succeed, other means to discourage the practice must be found. The choice is not between open slather and total prohibition, but between unfettered parental power and reasonable regulation.
Dr Robert Darby is the author of A Surgical Temptation: The Demonization of the Foreskin and the Rise of Circumcision in Britain (University of Chicago Press, 2005) and numerous articles on the history and ethics of male and female circumcision. His websites are The History of Circumcision and CircInfo.