Surrogate consent
A surrogate is one who takes the place of another.[1]
Surrogate consent is consent for medical and/or surgical treatment that is granted by a substitute for the patient. Surrogate consent is used when the patient is mentally or legally incapable of granting consent.
Surrogate consent is regulated by law. In the United States, Surrogate consent is regulated by state law, which varies from state to state.[2] The surrogate has the duty to protect the rights of the patient.[3]
Contents
Significant United States Supreme Court decisions
The United States Supreme Court has made two decisions that protect the right to physical integrity.
The Union Pac. Ry. Co v Botsford, 141 U.S. 251 (1890) decision said:
No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.
The Prince v Massachusetts, 21 U.S. 158, 159-60 (1944) decision said:
Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.
Consent for circumcision of minors
If a boy is to be circumcised, then someone must grant effective consent. The boy may not do it for himself because of his minority status. Circumcision of boys is a medically-unnecessary, non-therapeutic, harmful excision of functional tissue that causes loss of various functions.
Ross Povenmire (1998-9) argued strongly that parents lack the authority to grant surrogate consent for circumcision where there is no medical indication.
The Supreme Court has sharply curtailed parental discretion, even in the exercise of First Amendment rights, when the exercise of such rights may adversely affect the health of a minor. Prince v. Massachusetts involved the prosecution of the guardian of a minor child under child labor laws. The Court held that "[p]arents may be free to become martyrs themselves. But it does not follow that they are free to, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Subsequent cases tested and sustained the Prince reasoning.[4]
Svoboda, Van Howe & Dwyer (2000) discussed the ethical and legal issues of consent for non-therapeutic circumcision.
Given the foregoing, one might wonder how parental permission for routine circumcision could ever be effective, even if physicians comply with the requirements of informed permission. Like all surgical procedures, circumcision should not be subject to authorization by a surrogate for an incompetent patient unless it is medically necessary. While there is some dispute in the American medical community today as to whether routine circumcision provides any medical benefit, absolutely no one in the medical community seriously maintains that it is medically necessary or that it corrects an existing injury, disease or malfunction.[5]
Boyle et al. (2000) argued strongly that non-therapeutic circumcision of boys is unlawful and constitutes "criminal assault".
Unless a medical procedure is necessary to preserve life or health, it should be postponed until the child is sufficiently mature to make a decision for himself or herself. If the child is incapable, because of intellectual disability, of making an informed decision, then under Marion's Case (involuntary hysterectomy of an intellectually handicapped 14-year-old girl), the consent of the Family Court or court exercising parens patriae jurisdiction, and in some cases a State or Territory statutory guardianship body, is necessary.61 Wherever proposed treatment is not unequivocally beneficial to the child, parental assent is insufficient.[6]
Hill (2002) raised the question of who can grant effective consent for such an injurious operation.
The question is not whether circumcision is "mutilation." The question is whether anyone, parents included, has the right to remove the extremely sensitive genital tissue from an infant for any reason other than unquestionably urgent medical necessity.[7]
Bioethicists Myers & Earp (2020) exhaustively reviewed the evidence for and against the alleged health benefits to a healthy person claimed for non-therapeutic circumcision of a neonate, infant or child. They balanced this against the pain, trauma, and loss of body tissue and function. They concluded the claimed health benefits are insufficient to support surrogate consent for non-therapeutic circumcision. Given this, only the subject can grant consent for a non-therapeutic circumcision, after he reaches the right age for circumcision, which does not occurs until a male reaches the age of consent in his jurisdiction which may vary from 16 to 18 years of age. The present practice in the United States and elsewhere of parental consent for non-therapeutic circumcision is entirely unethical.
On the other hand, human rights scholars have increasingly objected to the medically unnecessary genital cutting of any person—whether female, male, or intersex—who either does not or cannot consent to the cutting. Such objections were recently summarized in an international consensus statement published in the American Journal of Bioethics, in which the authors argued that under most conditions, “cutting any person’s genitals without their informed consent is a serious violation of their right to bodily integrity. As such, it is impermissible unless the person is non-autonomous (incapable of consent) and the cutting is medically necessary” and thus “cannot reasonably be deferred.”[8]
Professor Peter W. Adler, J.D., (2013) argues strongly that child circumcision is unlawful:
Legal scholars, foreign medical associations, intactivist organizations, and increasing numbers of menis claim the opposite, namely that circumcision is painful, risky, harmful, irreversible surgery that benefits few men, if any. These opponents of circumcision argue that, in any event, boys have a right to be left genitally intact, like girls under federal law, and to make the circumcision decision for themselves as adults.
These opponents of circumcision can point to a June 2012 decision by a court in Cologne, Germany, which held that non-therapeutic circumcision for religious reasons is criminal assault. The German court reasoned that circumcision causes grievous bodily harm, and that boys have a fundamental right to genital integrity that supersedes their parents' religious rights.[9]
Guidance from the Bioethics Committee of the American Academy of Pediatrics
The Bioethics Committee of the American Academy of Pediatrics has provided important guidance on adapting general principles to pediatric practice. The Committue published an important statement applicable to surrogate consent in February 1995. It contains many general principles for the guidance of pediatricians but avoided directly considering circumcision, the big moneymaker.[10]
The Bioethics Committee of the AAP revisited informed consent in August 2016 with a statement[11] and a companion technical report.[12]
The Committee on Bioethics seeks to modify surrogate consent in pediatric medicine to granting of "informed permission" with assent by the child when appropriate. These statements address consent for treatment of disease in pediatric patients, however they have relatively little to say about non-therapeutic procedures such as circumcision of the newborn. The 1995 statement did say:
Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses. Although impasses regarding the interests of minors and the expressed wishes of their parents or guardians are rare, the pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent.[10]
This statement would cover doctors who refuse to perform harmful non-therapeutic circumcision on boys, however it is not clear that it ever has been applied to refusal to perform injurious circumcision.
The 2016 statement identifies the harm principle and states:
The harm principle may be seen as a more realistic standard to apply in pediatric surrogate medical decision-making. The intent of the harm principle is not to identify a single course of action that is in the minor’s best interest or is the physician’s preferred approach, but to identify a harm threshold below which parental decisions will not be tolerated and outside intervention is indicated to protect the child.[11]
The harmful, injurious wounding of child circumcision brings harm, not only to the child, but also to a society filled with wounded males, however circumcision brings in huge amounts of money, so the Bioethics Committee is effectively muzzled with regard to circumcision.[13]
The desire to protect physician income derived from non-therapeutic circumcision induces an element of bias into the statements of the Bioethics Committee.
One should note that these guidances from the Bioethics Committee of the American Academy of Pediatrics apply to the granting of "informed permission" by surrogates for "diagnosis and treatment of children", and do NOT apply to non-therapeutic procedures such as medically non-indicated, non-therapeutic circumcision, which is neither diagnosis nor treatment.
Video
Circumcision — Your Legal Rights
Conclusion
Patient autonomy is an important principle of medical ethics.[14] Consent for a non-therapeutic operation offends the principle of autonomy, when granted by a surrogate.
A surrogate's powers to grant consent are more circumscribed than the powers granted to a competent individual acting on his own behalf.[5] A surrogate's power to grant consent for treatment is dependent upon the existence of a medical condition in need of diagnosis and/or treatment. In the absence of such a condition, the surrogate lacks the power to consent.
A surrogate must:
- Act in the best interests of the patient.
- Protect the rights of the patient under Constitutional law, statute law, common law, and international human rights law.
- Receive informed consent prior to granting consent.
A circumcision for religious reasons is not medical treatment, so a surrogate may not consent to a religious circumcision. Furthermore, consent for a religious circumcision would violate the boy's religious right to chose his religion when he is of age.
A non-therapeutic circumcision exposes the patient to the surgical risks of infection, bleeding, and surgical mishap without any health treatment or benefit, so it is not in the best interests of the patient. Furthermore, a surrogate may only consent to therapeutic procedures.
As explained above and we reiterate, bioethicists Myers & Earp (2020) exhaustively reviewed the evidence for and against the alleged health benefits to a healthy person claimed for non-therapeutic circumcision of a neonate, infant or child. They balanced this against the pain, trauma, and loss of body tissue and function. They concluded the claimed health benefits are insufficient to support surrogate consent for non-therapeutic circumcision. Given this, only the subject can grant consent for a non-therapeutic circumcision, after he reaches the right age for circumcision, which does not occurs until a male reaches the age of consent in his jurisdiction which may vary from 16 to 18 years of age.[8] The present practice in the United States and elsewhere of parental surrogate consent for non-therapeutic circumcision is entirely unethical[8] and may also be unlawful.[4] [9]
The only person who can ethically and legally grant consent for a non-therapeutic circumcision is the owner of the penis when he has reached the legal age for consent.
See also
External links
Alissa K (24 April 2025).
The World’s Oldest Cosmetic Surgery Is Still Performed on Newborns—Without Consent, Intact America. Retrieved 16 May 2025.References
- ↑
surrogate, Merriam-Webster. Retrieved 30 April 2025.- ↑
Decisions by Surrogates: An Overview of Surrogate Consent Laws in the United States, American Bar Association. Retrieved 30 April 2025.- ↑
Anonymous. The Nuremburg Code (1947). BMJ. 7 December 1996; 313(7070): 1448. Retrieved 3 May 2025.
- ↑ a b
- ↑ a b
. J Contemp Health Law Policy. 2000 (Winter); 17(1): 61-133. PMID. Retrieved 4 May 2025.
- ↑
- ↑
- ↑ a b c
Quote:Based on a careful consideration of the relevant evidence, arguments and counterarguments, we conclude that medically unnecessary penile circumcision-like other medically unnecessary genital procedures, such as 'cosmetic' labiaplasty-should not be performed on individuals who are too young (or otherwise unable) to provide meaningful consent to the procedure.- ↑ a b
- ↑ a b
Quote:Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses. Although impasses regarding the interests of minors and the expressed wishes of their parents or guardians are rare, the pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent.- ↑ a b
Quote:The law has evolved to require a full disclosure to the patient of the facts necessary to form the basis of a reasonable, informed consent. Informed consent incorporates 3 duties: disclosure of information to patients and their surrogates, assessment of patient and surrogate understanding of the information and their capacity for medical decision-making, and obtaining informed consent before treatments and interventions.- ↑
Quote:Autonomy (from the ancient Greek autos [self] and nomos [rule or law]) can be seen as derived from Kantian moral philosophy, with key elements of liberty, the capacity to live life according to your own reasons and motives, and agency, the rational capacity for intentional action. A formulation of Kant’s categorical imperative notes that we are obliged to act out of fundamental respect for other persons by virtue of their personal autonomy.- ↑
High Cost of Circumcision: $3.6 Billion Annually, https://www.academia.edu, Academia. Retrieved 2 May 2025.
Quote:As the saying goes, follow the money. Now you know why neither the American Academy of Pediatrics, American Medical Association, American Academy of Family Physicians, or the American College of Obstetricians and Gynecologists haven’t condemned this unnecessary surgery, and why their physician members are quick to recommend the procedure to expectant parents.- ↑
Beauchamp TL, Childress JF: Principles of Biomedical Ethics. New York: Oxford University Press.
