German Circumcision Act: Difference between revisions

Paragraph 1631d (2012) was adopted by the Bundestag after intervention into internal German matters by Israel.

Before adoption and continuing thereafter, [[intactivists]] fight against this "Circumcision Act" because, from many legal experts' view, it violates the Grundgesetz ''(German Constitution)'' and other legal norms.

The draft of the Federal Ministery of Justice had been almost identically adopted as a bill from the Cabinet. Exactly one statement was changed in the legal text:

By the phrase ''"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"'', the law withdraws on its own. The rules of medical art state that without a medical indication no healthy body part may be irreversibly removed, especially without effective pain suppression. Both apply to newborns and babies up to the sixth month (paragraph 2 - Mohel clause) without further ado. Moreover, the child's welfare is endangered in any case, as the loss of the foreskin is irreversible and thus in all cases harms the child.

| Text=The author examines the question of the legality of unindexed medical [[circumcision]]s of male minors at the behest of their parents. After a cultural historical overview and consideration of medical aspects he fully verifies whether the amendmenment § 1631d to the Civil Code by the federal legislature in reaction to the so-called circumcision judgment of Cologne is constitutional. He concludes that § 1631d BGB is unconstitutional in several aspects. Firstly, the fundamental right of minors to physical integrity predominates the parental education right and their fundamental right to freedom of religion, as far as scope and the irreversibility of the intervention are concerned. On the other hand, it is an unjustified discrimination against male minors because of their gender, because the operation on them should be allowed while even mild forms of [[FGM|female circumcision]] are under threat of punishment by § 226a Criminal Code.

The first section of the Basic Law essentially is a Bill of Rights that annunciates and guarantees basic rights. It has nineteen articles that enunciate various human rights of the inhabitants of Germany.

The second section of [[Art. 2 GG| Article Two]] provides a right to physical integrity.  Circumcision of male children violates the child's right to physical integrity because it amputates functional tissue from the penis without any medical necessity.

Parental rights are counterbalanced by the rights of the child under the ''Grundegesetz'', which are discussed above. Parents have a right and a duty to respect and protect their child's human rights.

Article 33 of the ''Grundegesetz'' gives the federal government of Germany full responsibility for foreign relations. Germany signed the ''[https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx International Covenant on Civil and Political Rights]'' (1966) on 9 October 1968. The ICCPR was ratified on 17 December 1973. It entered into force on 23 March 1976.  

By this treaty, Germany contracted "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."<ref>ICCPR, Article 9(1).</ref>

International human rights law is now laid over the human rights in the ''Grundgesetz''.

The treaty provides numerous [[human rights]] that prohibit non-therapeutic male circumcision. Moreover, it provides the right of state-parties impose 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."<ref>ICCPR, Article 18(3).</ref> Germany has a duty to impose such a limit to protect male children from medically-unnecessary, non-therapeutic circumcision. Germany, by enactment of the circumcision law, has failed its treaty obligations.  

The main task of the Federal Constitutional Court is judicial review, and it may declare legislation unconstitutional, thus rendering them ineffective. In this respect, it is similar to other supreme courts with judicial review powers, yet the court possesses a number of additional powers, and is regarded as among the most interventionist and powerful national courts in the world. Unlike other supreme courts, the constitutional court is not an integral stage of the judicial or appeals process (aside from cases concerning constitutional or public international law), and does not serve as a regular appellate court from lower courts or the Federal Supreme Courts on any violation of federal laws.

[[Category:Laws]]