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.

Contents

Examples of legislation in male genital mutilation

The following information is partly taken from the German Wikipedia:

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 months 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

In 2007, the Oregon Supreme Court, ruled, in the case of Boldt v. Boldt, that the 12-year-old boy must be consulted to determine if he wants to be circumcised.

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.

The USA have by far the highest rate of circumcision among the western nations. In many maternity wards non-therapeutic circumcision of newborn boys is common. Circumcision is considered a profit center for many U.S. hospitals. The US paediatric society, AAP, is the only major medical society in the world still advocating the non-therapeutic circumcision of newborns and children, however it must be noted that the AAP's 2012 circumcision position statement expired in 2017 and has not been reaffirmed, so the present position of the AAP is unclear.

• • •

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.

Examples of legislation in female genital mutilation

Germany

In Germany, the mutilation of female genitalia has been banned since 2013 in § 226a StGB, regardless of the age of the female person.

Kenya

The Prohibition of Female Genital Mutilation Act (No. 32 of 2011) protects women and girls in Kenya by law against genital mutilation.

Switzerland

In Switzerland, the mutilation of female genitalia is legally prohibited by Art. 124 of the Swiss Penal Code.

Legal and ethical issues

Considering the severity of the intrusion into the body of the affected person, the question arises, whether it is both legally and morally acceptable to leave the decision about a non-therapeutic operation on a child too young to understand or give valid consent, to the parents alone. In Germany, several basic rights are concerned:

• the right to bodily integrity
• the right to sexual self-determination
• the right to equal treatment of genders (circumcision/FGM of females is illegal)
• the right to religious freedom (where the circumcision has a religious motive)

These four basic rights are relevant from the legal as well as the ethical point of view.

Let us begin with the most obvious intrusion - the one into the bodily integrity. Under German law, children enjoy far-reaching protection, that limits the parental rights and the powers delegated to third persons overseeing the upbringing (such as kindergarten staff or teachers). Methods of upbringing that may cause physical or mental harm are prohibited. This is not only corporal punishment, which was common in families, schools and vocational training for ages, which may cause direct (and sometimes severe) bodily harm - it also covers spanking, which is included under degrading treatment. It is assumed that not only does the immediate injury harm the child, but also the feeling of helplessness and of being at someone's mercy at the time of punishment by an authority figure. This also applies to other treatment that harms the dignity of a child - for example being forced to publicly change clothes in front of the kindergarten group after wetting his pants.

If you take a look at the list of possible bodily and mental harms and late-effects listed in "Risks and late effects", the imbalance becomes apparent. Spanking is already unlawful, but the irreversible amputation of an important, healthy part of the genital organ is not. The inevitable and possible consequences of this operation are ignored to a degree that is in harsh contrast to the established protection of children. Legalization, therefore, represents a considerable limitation of the male child's right to bodily integrity and protection from potentially harmful methods of upbringing.

There are also ethical problems. Can a child be denied the right to determine the visible appearance and degree of functionality of his body? Should a circumcised boy later in life decide that he would prefer to have an intact penis, he has no means of reversing the decision his parents made. Other people's ideas about his body‘s appearance and functionality are imposed upon him irreversibly. He is denied the possibility of deciding upon that according to his own preferences, which can lead to inferiority complexes and depression - regardless of the parents‘ reasons or their idea of what would be best for their child. So great a level of paternalism regarding such a severe intrusion, especially in the most intimate area of the child, cannot be justified by the parents‘ will.

It is not much different with the right to sexual self-determination. Here, the consequences that circumcision has and can have for the body, play a significant role. Normally, a man has free choice as to how he wants to experience his sexuality. It is solely up to him to decide in which way he wants to be stimulated, and he can - if he so desires - limit his sexual experience without a problem. A circumcised man does not have these options. The full range of his sexual experience and sensation is not available to him due the to bodily modification.

An intact penis enables many men to reach orgasm just by manipulation of the foreskin. During masturbation, the man can choose whether he wants to stimulate the glans directly or indirectly through the movement of the foreskin. Since he has the full, naturally given potential of sensitivity at his disposal, he can use it to according to his own preferences. The circumcised man, however, does not have that freedom of choice. He has neither the opportunity to include the foreskin into the stimulation, nor can he utilize its nerves and touch receptors. He also only has access to 15-50% of the potential sensitivity of an intact man, depending on the amount and kind of tissue that was removed, and the degree of keratinization of the glans. In some cases, the limitation can be even more severe. On a heavily desensitized penis, condoms can limit the sexual stimulation to the point where not enough arousal can be built up to reach an orgasm - which means that fulfilling safer sex is not possible.

In particular, the tight styles of circumcision bear the risk, that the loss of the friction-reducing gliding effect leads to unpleasant feelings or even pain for both partners during intercourse. The ability to masturbate without aid - for example, from lubricants - can be significantly reduced or even be lost in such a case. In a study, 63% of the men interviewed reported problems with masturbation after being circumcised. If a boy or man is circumcised, without him making that decision for himself after thorough consideration and in full knowledge and understanding of all possible consequences, he is denied his constitutionally guaranteed freedom to experience his sexuality according to his own preferences. This is much like parental interference to promote a prohibition of masturbation, or to inhibit a homosexual relationship - with the key difference that the parental intervention in form of a circumcision, unlike prohibitions during childhood, will have an irreversible, lifelong effect. Both do not comply with modern views of children's well-being and accepting the child as an autonomous individual, and are, therefore, not ethically justifiable.

The basic right to equal treatment of the sexes is also breached, since girls are legally protected from violations of their genital integrity, while boys are not. This not only contradicts the constitution, but also is contrary to all efforts of equal treatment. Because in this case, decisions are made during childhood that will affect the entire later life, it equals the attempt to have certain educational grades open to one gender unconditionally, while giving parents the right to deny them to the other gender for life. That such an unequal treatment of genders is not justifiable, neither legally nor morally, is obvious.

Last not least, religious freedom is impaired. If a boy is circumcised for religious reasons as a child before he reaches the age of competence, he will carry the sign of that religion on his body for his entire life - even if he decides to abjure that religion in the course of his life.

While his condition will not keep him from changing his religion, or to renounce it entirely, he has no way to discard the symbol of his old religion. This could be compared to a tattoo in the form of a religious symbol, with the difference that such a tattoo could still be removed by laser or covered with a new tattoo, if need be.

Therefore a circumcision does not impair the ability to change religion, but it makes it impossible to discard one's old religion entirely. This is not only a violation of the basic law, it is also ethically unjustifiable to force someone to carry a religious symbol for his entire life - especially in his most private body area.

So why is circumcision tolerated as a means of upbringing, and even explicitly legalized? In Germany, this stems from - although it is not stated in the law for legal reasons - the belief that a ban would impair the religious freedom of the parents. Even though it is stated in Art.140 GG (German basic law):

(1) Civic rights and duties are neither dependant on, nor impaired by, the exercise of religious freedom.

[...]

(4) No one may be forced to take part in a religious act or ceremony, or to participation in religious rites or to the use of a religious oath.

Still, it was considered intolerable for the parents to be unable to perform a religious rite that involved interference with the body of another person - in the case of that person being their son. While normally the religious freedom ends "at someone else‘s nose", an exemption was legalized to enable parents to comply with their own, personal, religious duties, even if that means that several of their son's basic rights are impaired. This does, however, not apply for other religious traditions, so that a ritual beating - no matter how religiously important it may be to the parents - is still considered child abuse and would likely result in the loss of child custody here.

Business interests

Only very few will supposedly know that circumcision has become a lucrative business. Not only the operation itself, but also the potentially needed aftercare, bring profits. But while this is still obvious, there are also other trades that make money from it.

Baby foreskins are a coveted resource. Under the name "Apligraf" an artificial skin product is marketed worldwide, which is used - among other uses - as an alternative to skin grafts using the patient’s own skin. It is grown from the foreskins of children as young as possible. Since they are also mostly free of pathogenic organisms, they are also used as the basis for collagen, which is, among other purposes, used for anti wrinkle therapy and for lip augmentation. The manufacturer of the British product "Vavelta" advertised with the use of "freshly harvested (!) foreskins". It is inter alia used as a replacement for animal experiments testing the compatibility of cosmetic products. In the face of the falling numbers of routine infant circumcisions in the USA, manufacturers have already expressed concerns that they might not "bring in enough harvest" more than 10 years ago. The parents of the circumcised boys, however, very rarely know of the "secondary use" of their son's "donated" body parts. While preimplantation genetic diagnosis, stem cell research and genetic engineering are time and again critically questioned and discussed, the lifelong, significant modification of infant bodies for the good of the cosmetic industry is still common practice - supposedly partly because many women do not know what their augmented lips and wrinkle-free cheeks are made of - baby foreskin. An ethical justification cannot be valid here.

See also

• Human rights
• Jurisprudence