Human rights

Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, security of the person, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.

The practice of non-therapeutic circumcision, which is rooted in antiquity, predates recorded history, and was re-instituted in the 19th century for alleged medical reasons, predates the inauguration of the human rights era in 1945. The advent of and recognition of human rights for all (including patients) has profoundly altered medical ethics and the acceptability of non-therapeutic child circumcision.

Children, unlike adults, possess two sets of human rights. UNICEF says:

Children and young people have the same general human rights as adults and also specific rights that recognize their special needs. Children are neither the property of their parents nor are they helpless objects of charity. They are human beings and are the subject of their own rights.

Children, unlike adults, are unable to grant consent for medical treatment, surgery, or violation of their human rights.

History

The era of human rights may be considered to have started with the formation of the United Nations at San Francisco in 1945 because the Charter of the United Nations requires that body to promote universal respect and observance of human rights for all — without distinction as to race, sex, language, or religion.

The General Assembly of the United Nations, acting to fulfill its obligations under the Charter, adopted the Universal Declaration of Human Rights (UDHR) in 1948. The UDHR recognizes the rights of all to security of the person (Article 3), to freedom from inhuman, cruel, or degrading treatment (Article 5), and the rights of motherhood and childhood to special protection (Article 25.2), all of which are applicable to circumcision.

The General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR) in 1967. That Covenant, which is international law, has several provisions, which are applicable to the circumcision of children.

The General Assembly adopted the Convention on the Rights of the Child (UN-CRC) in 1989 (Twenty-two years later). The UN-CRC does not include certain rights of children that were already protected by the ICCPR.

Application of the ICCPR to non-therapeutic circumcision of children

See ICCPR: Application of the ICCPR to non-therapeutic circumcision of children.

Specific children's rights applicable to non-therapeutic circumcision

The General Assembly of the United Nations adopted the Convention on the Rights of the Child (UN-CRC) on 20 November 1989. The UN-CRC does not replace the ICCPR, which had been previously adopted by the General Assembly. The ICCPR already provides certain rights to children. The UN-CRC adds additional rights that children need for protection due to their immaturity and vulnerability. The two documents must be read together to receive the complete picture. Unfortunately, many seem to believe that rights provided by the UN-CRC are the only human rights of children, but that view is incorrect.

Application of the CRC to non-therapeutic circumcision of children

Article two

Article two provides in part:

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

This means that all children, male and female, and regardless of parental religious views, shall enjoy the same human rights.

Article twelve

Article twelve provides:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

This means, with application to non-therapeutic circumcision, that the child, who is capable of expressing an opinion, shall have his views considered.

Article fourteen

Article fourteen provides:

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

This means that a child may express his or her religious views, even though those views may differ from those of his or her parents. This includes views related to male or female circumcision.

Article nineteen

Article nineteen provides:

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Non-therapeutic male circumcision of male children have both been shown to cause great physical harm in the loss of the foreskin and its many protective, immunological, sexual, and sensory physiological functions. We now know that male circumcision causes sexual, and mental harm to its victims. Furthermore, the sexual and mental harm of non-therapeutic male circumcision is now well documented.

States, which are parties to this Convention, have a duty to protect children from such harm.

Article twenty-four

Article twenty-four has several paragraphs. Paragraph three is of special importance to male circumcision which is a traditional practice that dates back to before the advent of recorded history.

Paragraph three provides:

3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

Male circumcision always results in the permanent and irreversible loss of the foreskin, a structure with protective, immunological, sexual, and sensory functions. The loss of the protective and immunological functions are harmful to physical health. The loss of the sensory and sexual functions are harmful to [sexual] and mental health. We have long known that non-therapeutic circumcision of children sometimes results in death. Douglas Gairdner (1949) reported circumcision caused nineteen deaths in England and Wales in 1946. Bollinger (2010) estimated the circumcision-related mortality rate of 0.9/100,000 circumcisions (more than 100 deaths) per year in the United States.

In addition to possible death, bleeding, infection, and surgical misadventure that may result in various injuries, including loss of the penis are more common occurences.

The question of religious rights

Some argue that parental religious views give that parent a right to circumcise a child, however that view is not correct. Article 18(3) very clearly states:

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

It is clear from the discussion above that non-therapeutic circumcision of a child is a violation of the fundamental rights and freedoms of that child.

The religious rights of the child are often overlooked. The religious rights of the child are enunciated by Article 18 of the ICCPR and also by the UN-CRC Article 14. The right to modify or not modify one's body in accordance with one's religious views is a human right. That right belongs to the individual and no one else. A decision by a parent to circumcise a child tramples on the child's religious rights, so no decision should be taken until the child is of age to decide for himself.

Acceptance of international human rights law in the United States of America

Article Six of the Constitution of the United States makes treaties part of the "supreme law of the land".

The Congress of the United States of America, therefore, historically has been protective of the sovereign rights of the United States and reluctant to surrender them by treaty. The ICCPR and the UN-CRC are multi-lateral treaties.

The United States Senate ratified the ICCPR in 1992, but it doing so, it took an extraordinary number of reservations, understandings, and declarations. With these reservations, the ICCPR does not provide a cause for action in United States courts. The effect is to render the ICCPR toothless in the United States.

Madeleine Albright, then ambassador to the United Nations, signed the UN-CRC on behalf of the United States on 16 February 1995. The UN-CRC, however, is at variance with United States law, so it has never been submitted to the Senate of the United States for ratification. The United States of America is the only country in the world that is not a state-party to the UN-CRC, so the UN-CRC has only moral authority in the United States.

Human Rights and non-therapeutic child circumcision

Several authorities have condemned the practice of non-therapeutic child circumcision.

Jacqueline Smith (1998) writing for the Netherlands Institute of Human Rights (SIM), concluded:

In my view, the best way to do justice to the rights of the child is to do no harm, to let it enjoy life in every aspect and to protect it against influences not asked for. Regardless of whether a child is a boy or a girl, neither should be subject to a tradition which is harmful. When the child is of consenting age, fully informed about all possibilities which lay ahead of him or her, it can make up his or her own mind and choose the way he or she thinks is best.

Let the child decide

The Declaration of Helsinki (2012) declared the right of genital autonomy, which derives from the right of every human being to security of person. Svoboda (2015) reports there now is an emerging consensus that a decision to perform a non-therapeutic circumcision should be deferred until the child is of age and can decide for himself about having an amputation of his foreskin.

When this practice is followed, the child's human rights are honored and respected.

Council of Europe

The Council of Europe is an international organization of 47 European member-states whose goal is to promote human rights in Europe.

The Council of Europe adopted the European Convention on Human Rights (ECHR) at Rome in 1950. The Convention has been amended or extended by several "protocols" since its original adoption. The ECHR also created the European Court of Human Rights which sits at Strasbourg. The 47 member-states of the ECHR are subect to the provisions of that treaty and to the decisions of the Court.

With regard to child genital cutting, the Parliamentary Assembly of the Council of Europe adopted a resolution on 1 October 2013.

Resolution 1952 called on member-states to:

7.1. examine the prevalence of different categories of non-medically justified operations and interventions impacting on the physical integrity of children in their respective countries, as well as the specific practices related to them, and to carefully consider them in light of the best interests of the child in order to define specific lines of action for each of them;

7.2. initiate focused awareness-raising measures for each of these categories of violation of the physical integrity of children, to be carried out in the specific contexts where information may best be conveyed to families, such as the medical sector (hospitals and individual practitioners), schools,religious communities or service providers;

7.3. provide specific training, including on the risks of and alternatives to certain procedures, as well as the medical reasons and minimum sanitary conditions that should be fulfilled when performing them, to various professionals involved, in particular medical and educational staff, but also, on a voluntary basis, religious representatives;

7.4. initiate a public debate, including intercultural and interreligious dialogue, aimed at reaching a large consensus on the rights of children to protection against violations of their physical integrity according to human rights standards;

7.5. take the following measures with regard to specific categories of violation of children’s physical integrity:

7.5.1. publicly condemn the most harmful practices, such as female genital mutilation, and pass legislation banning these, thus providing public authorities with the mechanisms to prevent and effectively fight these practices, including through the application of extraterritorial “legislative or other measures to establish jurisdiction” for cases where nationals are submitted to female genital mutilation abroad, as specified in Article 44 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No.210);

7.5.2. clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medicallyjustified circumcision of young boys;

7.5.3. undertake further research to increase knowledge about the specific situation of intersex people, ensure that no-one is subjected to unnecessary medical or surgical treatment that is cosmetic rather than vital for health during infancy or childhood, guarantee bodily integrity, autonomy and self-determination to persons concerned, and provide families with intersex children with adequate counselling and support;

7.6. promote interdisciplinary dialogue between representatives of various professions, including medical doctors and religious representatives, so as to overcome some of the prevailing traditional methods which do not take into consideration the best interest of the child and the latest medical techniques.

7.7. raise awareness about the need to ensure the participation of children in decisions concerning their physical integrity wherever appropriate and possible, and to adopt specific legal provisions to ensure that certain operations and practices will not be carried out before a child is old enough to be consulted.

Superiority of international treaty law

The ICCPR and the UN-CRC are multilateral international treaties and are a part of international law. Treaties are superior law to ordinary domestic law, because they contain various commitments made by each state-party. When there is a conflict between domestic law and international treaty law, the treaty law is supreme while the domestic law which is in conflict is without force or effect, or in other words, is nullified. Most nations are a state-party to the Vienna Convention on the Law of Treaties.

See also

• UN Convention on the Rights of the Child
• Declaration of the First International Symposium on Circumcision (1989)
• [The Oxford Declaration (1998)]
• Declaration of Helsinki (2012)
• Ethics of non-therapeutic child circumcision
• Children's Right to Physical Integrity (2013), Resolution 1952 of the Council of Europe.

Video

The late Paul Mason, former Tasmanian Commissioner for Children, discusses the human rights violations inherent in non-therapeutic circumcision of children.

External links

• (2008). International Human Rights Law and the Circumcision of Children (DOC Genital Integrity Statement), ResearchHub, Doctors Opposing Circumcision (D.O.C.). Retrieved 5 November 2019. The Royal Dutch Medical Association (KNMG) took a strong position against non-therapeutic child circumcision in 2010.
• Non-therapeutic circumcision of male minors , Royal Dutch Medical Association (KNMG). (27 May 2010). Retrieved 6 February 2020.
• Svoboda JS. Circumcision of male infants as a human rights violation. J Med Ethics. July 2013; 39(7): 469-74. PMID. DOI. Retrieved 6 February 2020.
• Resolution 1952: Children’s right to physical integrity
• Bernaerts, Jonathan Alfons J: The Cologne Judgment: a curiosity or the start sign for condemning circumcision of male children without their consent as a human rights violation? , European Commission. (2014). Retrieved 4 May 2020.
• McLaughlin Jr PJ. Legal and Medical Ethical Entanglements of Infant Male Circumcision and International Law. Journal of Medical Law and Ethics. April 2016; 4(1): 23-38. Retrieved 8 September 2020.
• Norgard, Saxon (27 March 2018). Child Rights and Religious Freedoms Collide in the Infant Male Circumcision Debate, Each Other. Retrieved 24 May 2022.
  Quote: No-one can seriously or rationally suggest that amputating a part of another person’s body who didn’t consent amounts to respect for the rights and health and safety of others.