Circumcision and law

There exist laws restricting or regulating circumcision, some dating back to ancient times. In a number of modern states, circumcision of males is presumed to be legal, but under certain circumstances, more general laws, such as laws about assault or child custody, may sometimes be interpreted as applying to situations involving circumcision. Some countries have placed restrictions on circumcision.

Contents

History

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.[1] 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.[2] one of the grievances leading to the Maccabean Revolt.[3]

According to the Historia Augusta, the Roman emperor Hadrian issued a decree banning circumcision in the empire,[4] and some modern scholars argue that this was a main cause of the Jewish Bar Kokhba revolt of 132 CE.[5] 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.[6] 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.[7] No prosecutions have occurred in Queensland, and circumcisions continue to be performed.

In a case of sexual assault in Queensland, Australia (1997), a district court awarded a man damages for nervous shock after a botched attempt to circumcise him with a broken beer bottle in a drunken attack. Making Australian legal history, the award was made against the assailant for unlawful wounding.[8]

In 1999, a Perth man won $A360,000 in damages after a doctor admitted he botched a circumcision operation at birth which left the man with a badly deformed penis.[9]

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.[10]

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.[11] 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.[12] 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".[13]

Bulgaria

Male circumcision was very strongly discouraged in Bulgaria in the 1980s as part of attempts to pressure the country's Muslim minority but there was no actual legislation against the practice.[14]

England and Wales

Male circumcision has traditionally been presumed to be legal under British law,[15] however some authors have argued that there is no solid foundation for this view in English law.[16][17]

The passage of the Human Rights Act 1998 has led to some speculation that the lawfulness of the circumcision of male children is unclear.[18]

One 1999 case, Re "J" (child's religious upbringing and circumcision)[19] 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 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",[20] and struck him off the register.[21] A doctor who had referred patients to him, and who had pressured a mother into agreeing to the surgery, was also condemned.[20] 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.".[21]

Fox and Thomson (2005) argue that consent cannot be given for non-therapeutic circumcision.[16] 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. He was found not guilty of assault occasioning actual bodily harm by a majority verdict of the jury.[22][23]

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.[24]

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 genital mutilation 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 [25] 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".[26] 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.[27]

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 work 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.[28]

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.[29]

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. Reportedly, the boy, whose parents are divorced, was visiting his Muslim father during a vacation when his father forced him to be ritually circumcised. According to a report by the German ddp press agency, the boy, who lives with his mother, plans to sue his father for 10,000 Euro.[30]

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.[31]

Israel

In Israel, Jewish circumcision is entirely legal, as is after-death circumcision. In 1999, the Israeli Supreme Court overruled an attempt to have after-death circumcision outlawed.[32]

Netherlands

When Ayaan Hirsi Ali was a Member of the Netherlands Parliament she asked it to consider making the circumcision of male children unlawful.[33] 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 causing them serious physical harm but was given a 6 week suspended jail sentence for taking the boys away from their mother against her will.[34]

South Africa

The Children's Act 2007 makes the circumcision of male children under 16 unlawful except for religious or medical reasons. Eastern Cape Province passed a law (Application of Health Standards in Traditional Circumcision Act 2001) to regulate traditional circumcision, which causes the death or mutilation of many youths by traditional surgeons each year.[35][36] 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.[37] 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."[38] In October 2009, the Bhisho Equality Court (High Court) ruled that, in South Africa, circumcision is unlawful unless done with the full consent of the initiate.[39]

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.[40]

Swedish Jews and Muslims objected to the law,[41] and in 2001, the World Jewish Congress called it "the first legal restriction on Jewish religious practice in Europe since the Nazi era."[42] The requirement for an anaesthetic to be administered by a medical professional is a major issue,[43] and the low degree of availability of certified professionals willing to conduct circumcision has also been subject to criticism.[44] 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.[45] 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.[46]

The Swedish National Board of Health and Welfare reviewed the law in 2005 and recommended that it be maintained,[47] but found that the law had failed with regard to the intended consequence of increasing the safety of circumcisions.[48] A later report by the Board criticised the low level of availability of legal circumcisions, partly due to reluctance among health professionals.[48] To remedy this, the report suggested a new law obliging all county councils to offer non-therapeutic circumcision in their hospitals,[48] but this was later abandoned in favour of a non-binding recommendation.[46]

United States

In the United States, circumcision is not specifically unlawful. However, some believe that the circumcision of a child violates general laws enacted for the protection of children. Doctors who circumcise children must take care that all applicable rules regarding informed consent are satisfied. If consent is invalid, then a circumcision is a battery.[49]

CNN reported in 2005 that a California group has submitted to Congress a bill entitled the "Male Genital Mutilation Bill". The report stated that while it's unlikely the bill will go anywhere in the near future, it raises important questions about gender equality, religious freedom, and the protection of children.[50] After a failed attempt to add a similar bill to a San Francisco ballot, the state of California enacted in October 2011 a law protecting circumcision from local attempts to ban the practice.[51]

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.[52] 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.[53] 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.[54][55]

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.[56] However, in early August 2004, before the Supreme Court had given its ruling, the father, who had custody of the boy, had him circumcised.[57]

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."[58]

In November 2007, the Oregon Supreme Court heard arguments from a divorced Oregon couple over the circumcision of their son. The father wants his son, who turned 13 on 2 March 2008, to be circumcised; 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.[59] 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.[60] The father appealed to the US Supreme Court to allow him to have his son circumcised[61] but his appeal was rejected. The case now returns to the trial court.[62]

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.[63]

In February 2004 in California, a man argued that he was Hebrew and circumcised his son out of religious duty. The judge ruled "it is only illegal if one mutilates a female -- there is nothing in the penal code about a male child.".[64] However, in December 2004 in Vancouver, Washington, a man was convicted of second degree child assault after he attempted to circumcise his son with a hunting knife and was sentenced to serve three years in jail.[65]

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.[66]

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, but the mother has sued the hospital and the doctor involved in the case.[67]

USSR

Before glasnost, according to an article in The Jewish Press, Jewish ritual circumcision was forbidden in the USSR.[68] 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.[69] 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.[70]

See also

  • Forced circumcision

References

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  4. ^ The Ideal Prepuce in Ancient Greece and Rome
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  68. ^ Barbara Oka, "Soviet Jews Of All Ages Seek Circumcision", The Jewish Press, March 14, 1991.
  69. ^ David E. Fishman, "Judaism in the USSR, 1917-1930: The Fate of Religious Education," in: Yaacov Ro'i, ed., Jews and Jewish Life in Russia and the Soviet Union (Cummings Center Series; London: Cass, 1995), 251-262; pp. 251-252.
  70. ^ "There was no official prohibition of circumcision and, on the whole, even the propaganda attacks on it were relatively restrained, apparently out of consideration for the presence of many millions of Moslems [...] in the Soviet Union. But at the same time numerous pressures were exerted to make observance of this precept [i.e., circumcision] difficult. Needless to say, Jewish members of the Communist Party were in an embarrassing situation when they personally faced the question whether to circumcise their sons [...] And the uncertainty weighed heaviest on the mohalim themselves [...] Any health problem developing in the baby some time after circumcision could serve to incriminate the mohel. It is easy to imagine, for example, the impact of news items on the death of children because of [...] circumcision (and the punishments imposed on mohalim), even if there were no explicit legal bans on circumcision." Jehoshua A. Gilboa, A Language Silenced: The Suppression of Hebrew Literature and Culture in the Soviet Union (London: Associated University Press, 1982), pp. 34-35.

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