Rights situation on circumcision

Non-therapeutic circumcision of children is not only one of the most widespread surgical operations in the world, but also one of the oldest. It is probably due to this long tradition, that despite its violating the common basic rights to bodily integrity and medical ethics in the western world, it is still widely tolerated there, even though there are barely any legal exemptions in place. The few regulations, which mostly emerged in the recent past, usually only deal with the basic conditions. They regulate how and under what conditions the operation should be carried out, while the general compatibility with basic human rights is rarely questioned, let alone taken into consideration.

Examples of legal regulations

Austria

In Austria, bodily assault is, as in Germany, punishable, without any specific regulations regarding circumcision. There is, however – unlike in Germany - no specific basic right to an unharmed body in the constitution. It is regulated in §146a ABGB that "the application of bodily violence and the infliction of bodily or mental suffering" by the parents is unlawful. According to §90 (3) StGB it is impossible to consent to "a mutilation or other injuring of the genitals, that is able to inflict a lasting impairment of the sexual sensitivity" even for adults. On the other hand, the "Israelitengesetz" (Law for the Israelites) entitles the Jewish religious group and their members to "bring their children and juveniles, also outside of school, through all traditional rites and to educate them according to their religious commandments". Circumcision of boys for religious reasons is not considered punishable by the Austrian Ministry of Justice, and is justified by the parental rights.

Belgium

The Belgian federal government’s Committee for Bio-Ethics has ruled against the circumcision of infant boys for reasons other than medical necessity. Its ruling states that bodily integrity is more important than religious faith.

Germany

Generally, circumcision of children met the criteria of bodily assault until December 2012. Practically, however, it was not legally pursued, since it was considered unclear whether parents had the right to consent to the operation on behalf of their children (see §228 StGB).

In 2004, the Landgericht (regional court) of Frankenthal ruled in a case of a circumcision done by non-medical people, that parental consent was not legally valid.

In August 2007 the Oberlandesgericht (upper regional court) Frankfurt/Main found that the decision about a circumcision, because of the "bodily modifications that cannot be reversed [...] belongs to the core of a person's rights to decide upon for themselves".

The Landgericht (regional court) of Cologne, in a second trial, ruled on May 7th, 2012, that circumcision is a bodily assault, which is not justified by the religious motivation and wishes of the parents and is not in the interest of a child's well-being.

The ruling from May 2012 sparked fierce protests by representatives of religious groups, which were instantly answered by politicians with the assurance that religiously motivated circumcision of underage Muslim and Jewish boys in Germany would remain legal.

On August 23rd, 2012, the Deutscher Ethikrat (German Council of Ethics), during a publicly held plenary session, came to terms "despite profound differences" (!) upon four minimum requirements for legal regulation of circumcision:

• Fully informed consent by the legal guardians
• Qualified pain management
• The operation to be performed by a professional and
• Approval of a right of veto depending on the maturity of the affected boy

The explicitly mentioned profound differences point out the difficulty of legally regulating the circumcision of underaged boys. The legislative procedure led to a broad public debate over the legitimacy and legality of circumcision of minors in German society. Despite the fierce resistance of medical associations, jurists, constitution experts, child and human rights activists as well as 100 Members of Parliament, the following Act was adopted in December 2012:

§ 1631d BGB

Circumcision of the male child

(1) Personal Care also includes the right to consent to the 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, 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.

Therefore, a non-therapeutic circumcision of a male child lacking competence and understanding for whatever reason is generally legal. A right of veto for the affected boys was turned down in parliament, as well as a proposed change destined to introduce an evaluation of the regulations after five years. Giving the Ministry of Heath the right to determine more specific guidance - for example regarding pain management and the qualification and training of non-medical circumcisers - by issuing additional regulations was also rejected. A call for mandatory documentation of non-therapeutic circumcisions was ignored. Merely stating the intent to have the operation performed according to proper medical standards was considered sufficient.

In December 2012, a representative poll done by Infratest dimap revealed that only 24 percent of the interviewed citizens were in favour of the law, while 70 percent explicitly disapproved of it.

Finland

At the end of 1999, the Finnish parliament issued a declaration regarding ritual circumcision. Ombudsman Riita-Leena Paunio stated, that the operation could not be recommended without a medical indication, and that the affected children should be consulted and give consent. She said, the Finnish parliament had to weigh the religious rights of the parents against the responsibility of the society to protect their children from ritual operations that have no immediate benefit for them. Since then, the written consent of both parents is mandatory.

France

In France, there is no specific regulation for circumcision. The question of parental consent is neither debated under religious aspects nor by the parenting laws. Article 16.3 of the civil code states that "the integrity of the human body may not be harmed, other then in cases of medical necessity for those affected". However, there is a "silent toleration" of the circumcision of minors.

Italy

In Italy, there is a basic agreement between the State and the Jewish communities that was formulated in 1987 and secured in the law in 1989. It implies that the Jewish way of circumcision is in accord with the Italian system of laws. According to Article 19 of the Italian constitution, religious freedom is to be respected, as long as no acts are performed that contradict good manners.

In a ruling by the "High Court of Cassation" from Nov. 24th, 2011, a mother was found not guilty, whose son almost bled to death after being circumcised by a medically unqualified layman.

Sweden

In Sweden, non-therapeutic circumcision of boys under 18 years of age is regulated since 2001 by the "Lag (2001:499) om omskärelse av pojkar" (Law regarding circumcision of boys). According to it, such circumcisions are a surgical procedure and have to be carried out by a qualified doctor and under anaesthesia. For boys under 2 month of age, circumcision may also be carried out by another competent person with a government license. This applies to persons that have been nominated by religious groups in which circumcision is part of the religious tradition. Persons who perform a circumcision without the necessary qualification or license face a fine or prison sentence of up to six months. The circumcision requires the consent of the legal guardians. It may not be carried out against the child's will, if he has the age and level of maturity for such a statement.

USA

The USA have by far the highest rate of circumcision among the western nations. In many maternity wards the routine circumcision of newborn boys is common. The US paediatric society, AAP, is the only major medical society in the world still advocating the non-therapeutic circumcision of newborns and children.

In the autumn of 2010, Californian intactivists called for a ban of routine infant circumcision and thereby sparked a nation-wide discussion of the topic.

• • •

It is noteworthy that, despite the wide spread of non-therapeutic circumcision of children and the fact that it contradicts many national laws, there is barely a country that has issued explicit exemptions. The principle of "silent toleration" is, regardless of a possible illegality, common practice.