German Circumcision Act

In Germany, the so-called "Circumcision Act" usually means the new additional paragraph 1631d BGB which was adopted on December 12, 2012 by the German Bundestag. It legalizes the medically not indicated circumcision of underage boys for the time being under certain conditions.

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.

Contents

The Text of the Circumcision Act

The law was placed in the Civil Code in Book 4 (family law), in section 2 (relationship) and there placed in title 5 (custody).

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§ 1631d BGB 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.

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Remarkable

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:

The draft stated in paragraph 1, clause 1

"[...] if it is performed according to proper medical standards."

The passed bill, however, is

"[...]  if it is to be performed according to proper medical standards."

This reformulation removes the legal issue from the law to prove that operations are actually done in accordance with the rules of medical science. Now the law accepts if the doctor or clipper has stated their intention to want to perform circumcision according to the rules of medical science.

Law withdraws on its own

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.

Legal voices

• Andreas Manok, The medically not indicated circumcision of the male child – Legal situation before and after the adoption of § 1631d Civil Code with special consideration of fundamental rights, Berlin: Duncker & Humblot, 2015 (Writings on health law [SGR], vol. 34). 217 pages. ISBN 978-3-428-14584-3. 69,90 €.

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The author examines the question of the legality of unindexed medical circumcisions 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 female circumcision are under threat of punishment by § 226a Criminal Code. – Dr. Georg Neureither (religion-weltanschauung-recht.net)

• Matthias Franz (publisher), The circumcision of boys - A sad legacy, Vandenhoeck & Ruprecht, 2014. 448 pages with 11 figures, brochured. ISBN 978-3-525-40455-3. 29,99 €.

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The debate about the ritual, not medically justified genital cutting of small boys who are not able to consent, now also takes place in Germany, after the judgment of the Cologne Regional Court in May 2012. It moves in the tension of the fundamental rights to freedom of religion on the one hand and to physical integrity on the other. The intensity of the debate suggests profound anxieties and conflicts. It is about the question of whether it is in a secular democracy still appropriate to safeguard the group and religious identity of adults by inflicting little boys pain and fear, to expose them to significant health risks and irreversible injury of the genital area. Painful physical, sexual and psychological long-term consequences of circumcision are possible and documented. In this book, affected ones, doctors, lawyers, psychoanalysts, politicians and other professionals express criticism of the boy circumcision and are committed to the thought of protection of children. they promote a debate on scientific and legal basis. – Promotion text (Vandenhoeck & Ruprecht)

Apparent violations of the Basic Law

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.

Article One

Dignity is the quality of being worthy of respect. Article One provides that state authority shall be used to respect and protect human dignity. There are no age limits for human dignity, so even newborn babies are entitled to have their human dignity respected.

Article Two

The second section of 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.

Article Three

Paragraph Two of Article Three provides that "men and women shall have equal rights." However, the German circumcision law denies rights to males that are protected for females.

Paragraph Three of Article Three provides that "no person shall be favoured or disfavoured because of sex, …" however boys are disfavoured by the Circumcision Act while girls are favoured.

Article Four

Article Four guarantees religious rights. Even baby boys have religious rights that they may exercise when they are older. Some religions favor circumcision while some other religions disfavor circumcision. Circumcision of a small boy denies the boy his right to decide about his circumcision in accordance with his religious view.

Parental rights in the Federal Republic of Germany

Some have argued that Article Six when combined with Article 140 provides a right for parents to order the non-therapeutic circumcision of boys. Article Six, paragraph three, clearly indicates that parents have responsibilities and duties to their children. This would include protection of the rights of the child. Article 140 incorporates Section III: Religion and Religious Associations of the Weimar Constitution of 1919 into the Basic Law. There is nothing in it that suggests that parents have a right to violate the rights of their children.

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

Article 33 of the Grundgesetz gives the federal government of Germany full responsibility for foreign relations. Germany signed the 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."

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." 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.

Federal Constitutional Court

The Federal Constitutional Court (German: Bundesverfassungsgericht; abbreviated: BVerfG) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law (Grundgesetz) of Germany. Since its inception with the beginning of the post-World War II republic, the court has been located in the city of Karlsruhe, which is also the seat of the Federal Court of Justice.

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.

The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institutions with the constitution. Constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz defined by the eternity clause.

The BVerfG is the appropriate court and is fully empowered to adjudicate the constitutionality of the German Circumcision Act, however no suitable case for appeal to the BVerfG has appeared.

See also

• Cologne circumcision court judgment
• The Right To Bodily Integrity - J. Steven Svoboda

External links

• German Basic Law (1949) (Grundgesetz für die Bundesrepublik Deutschland)
• 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.