Alternative law draft amendment to § 1631 BGB

In October, 2012 Ulf Dunkel wrote an alternative law amendmend to § 1631 Civil Code of Germany, which is up to now the largest known draft because it claims that physical interventions without medical indication on persons under age are inadmissible in general.

He introduced this draft as an application of urgence to the 34th Federal Delegates Conference (FDC) of the German Greens which took place in November, 2012 in Hannover. The application was expelled, like all other applications on the subject Circumcision, to a "religious-political committee" at the FDC.

Text of the draft

The circumcision debate has flared since the Cologne judgment of May 2012, and not only in Germany. Although the Federal Government already hoped to provide peace and "legal peace" by designing a special law which provides impunity for religious circumcision of boys, the fire of the debate won't suffocate.

Everywhere people discuss it. Abroad, many people are waiting for a clear decision for or against the right of circumcision of minors. However, after initially only the loud and very vigorous voices of the Orthodox religion speakers were heard, now the voices of those are heard more clearly, who basically no longer want to hurt their children even from a religious "forced" rule or who suffer themselves, being affected by their own circumcision until now.

The Federal Government of Germany asked the Federal Justice Department to quicly consider a legal context in which a Bill could be enshrined and how it might look like. The draft is available since a few weeks and - again somewhat nebulous rewritten - has been adopted by the (Conservatives) Government Cabinet. It should now go its usual way through the instances until the German Bundestag and the German Bundesrat - as soon as possible and without much discussion or even enlightenment in the matter - then rubber-stamp the Act. "To have legal peace again."

The target given by the Government, is clear: "A statutory provision that would allow the circumcision for relgious reasons, too, has to be designed in a way that this objective is achieved without a doubt." So to read in a Federal Council paper, pe se critically involving the draft:

• Recommendations of the committees on the "Draft of law on the scope of care for the person of the child on circumcision of the male child", German text

So, there will be a supplimentary Act to the § 1631 BGB (Civil Rights Code) which deals with "Contents and limits of care for the person of the child". § 1631 currently includes four paragraphs:

§ 1631 Contents and limits of care for the person of the child

§ 1631 a) Training and occupation

§ 1631 b) Accommodation associated with deprivation of liberty

§ 1631 c) Prohibition of sterilisation

To do this, a supplementary § 1631 d is planned, titled "Circumcision of the Male Child".

The "Circumcision Act" as it is called now everywhere, is in fact a "Special law for Jews", since in its second paragraph it clearly aims on the circumcision of male infants. Muslim religious representatives have been complaining about this paragraph because it would not treat them equally.

I am saying that this amendmend would be a rollback into the history of human rights and would absolutely harm the well-being of the child. It is important to look at the development of Section 1631 in its history. Its oldest version dates from the end of the 19th century.

At that time, it looked like this:

Jan 01, 1900:

§ 1631

(1) The care of the person of the child includes the right and the duty to care for and to supervice the child and to specify its abode.

(2) [1] Based on the education right, the father can use appropriate means of discipline against the child. [2] On his request, the family court is to support him by applicating appropreate means od discipline.

I emphasized paragraph 2 sentence 1, because it reflected the spirit of the time of the Kaiser era. Children were law objects and property of the father (we have to spend more words on the rights of mothers and women of that time elsewhere!). Even the family court could punish a child.

Only fifty-eight years later(!), the passage about means of discipline had been removed without replacement:

July 01, 1958:

§ 1631

(1) The care for the person of the child includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode.

(2) The family court is to support the parents, on application, in exercising care for the person of the child in suitable cases.

That was ultra-modern then, at a time when women were already allowed to vote, but not to have their own bank account or to choose their profession independently, when rape in marriage still was not punishable by law, etc.

In 1980, the success of 1958 to have removed the passage about means of discipline, has been strengthened:

Jan 01, 1980:

§ 1631

(1) The care for the person of the child includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode.

(2) Degrading measures are inadmissible.

(3) The family court is to support the parents, on application, in exercising care for the person of the child in suitable cases.

Children got their own dignity in Germany in 1980, wow!

Eighteen years later (but still in a Conservatives period), section 2 was specified in more detail, in order to prevent excesses:

July 01, 1998:

§ 1631

(1) The care for the person of the child includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode.

(2) Degrading measures, especialy physical punishments and psychological injuries. are inadmissible.

(3) The family court is to support the parents, on application, in exercising care for the person of the child in suitable cases.

The child now has a body and a soul, perceived by the law. Respect, we're proceeding!

After the Social-Democrats and the Greens introduced the Children's Right of completely non-violent upbringing in 2000, the section looked like this:

Nov 08, 2000, Jan 01, 2002:

§ 1631

(1) The care for the person of the child includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode.

(2) [1] Children have a right to non-violent upbringing. [2] Physical punishments, psychological injuries and other degrading measures are inadmissible.

(3) The family court is to support the parents, on application, in exercising care for the person of the child in suitable cases.

This is the state of things: Children are finally their own entities, have their own rights. The signing of the UN Children's Rights Convention some years earlier (1990, 1992) reflects in this change of the year 2000.

Currently, however, the debate provides a rolback to old times, actually back to the year 1900, because it aims at giving back the parents education right power over the child's body.

This rollback must be prevented by all means, if we do not want to set our development as a secular, enlightened, democratic society which orients towards human rights, at risk. ("Resist the Beginnings!")

The Civil Code Section 1931 "Contents and limits of care for the person of the child" should indeed remain as it is, however get a controversial supplement § 1631 d, according to the vociferous arguments of Orthodox religious spokesmen who have intimidated the Parliament, as follows:

Cabinet decision draft:

§ 1631d Circumcision of the Male Child

(1) Personal Care also includes the right to consent to the medically not intended circumcision of the male child who lacks competence and understanding, if it is to be performed according to proper medical standards. This does not apply when the circumcision, also considering the motivation, endangers the child's well-being.

(2) During the first 6 months of life of the child, persons appointed by a religious group may perform circumcisions according to paragraph 1, if they are specially trained and, without being a medical doctor, are similarly competent to perform circumcision.

One can see already formally, that this Cabinet decision is a patchwork which does not fit at all in the development of this Section, completely overruling it and thus making it ridiculous. In addition, Paragraph 2 is just that "Special Jews Law" which no one can condone.

(An interesting side ascpect of the Cabinet decision: The Federal Justice Department draft still said "[...] if it is performed according to proper medical standards." - The change itself changes the 'lege artis' request into a rubber law!)

If we add that many times before in the history until now adults were no longer able to have children after a botched circumcision in their childhood, the circumcision law almost directly comes into conflict with § 1631 c) "Prohibition of sterilisation". All the previously valid § 1631 breathes the spirit of responsible treatment of the child to his physical, mental and spiritual wellness, but is trampled underfoot by the current supplement draft § 1631 d.

My counter-proposal would be, to formulate § 1631 section (2), like always in its development, even clearer to curb excesses once more:

2012 Counter-proposal to the Cabinet decision: § 1631

(1) The care for the person of the child includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode.

(2) [1] Children have a right to non-violent upbringing. [2] Physical punishments, psychological injuries and other degrading measures are inadmissible. [3] Physical interventions without medical indication are not permitted.

(3) The family court is to support the parents, on application, in exercising care for the person of the child in suitable cases.

That would be it.

Thus circumcisions of persons under age without medical indication, but also ear hole stinging, piercings etc. would no longer be permitted. The 'punishment' would have to be directed against the 'clients', thus usually parents, as well as against the 'perpetrators', thus circumcisers, piercing studios, jewelry shops, etc. No special punishment law whould have to be newly invented, because everything hs already present in the StGB (Criminal Code).

This enhancement of § 1631 (2) would be another step towards more children's rights in German law, while the Cabinet decision lets children become law objects again, on the state of the 19th century.

External links

• Original draft on Ulf Dunkel's blog
• Original appeal on the website of the German Greens