Circumcision and law

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There is a dispute over whether this article relates to male circumcision only or to both male and female circumcision. Discussion is here.

There have been laws about circumcision dating back to ancient times. In a number of modern states, circumcision is presumed to be legal, but under certain circumstances, more general laws, such as laws about assault or child custody, may sometimes be interpreted as applying to situations involving circumcision. Some states have passed laws restricting the circumstances under which circumcisions can be performed.

Contents 1 History 2 Modern Law 2.1 England 2.2 Ireland 2.3 United States 2.3.1 Disputes between parents 2.4 Australia 2.5 South Africa 2.6 Israel 2.7 Netherlands 2.8 Sweden 2.9 USSR 2.10 Finland 2.11 Germany 2.12 Egypt 3 Forced circumcisions 4 References 5 External links

[edit] History

There are ancient religious laws about circumcision. The Hebrew Bible commands Jews to circumcise their male children on the eighth day of life and also to circumcise their male slaves (Genesis 17:11-12). See Brit milah (the Hebrew name for ritual circumcision).

Laws banning circumcision are also ancient. The ancient Greeks prized the foreskin and disapproved of the Jewish custom of circumcision.^[1] King Antiochus IV, of Syria, the occupying power of Judea in 170 BC, outlawed circumcision on penalty of death. This led to the Maccabean Revolt.

According to the Historia Augusta, the Roman emperor Hadrian issued a decree banning circumcision in the empire,[3] triggering the Jewish Bar Kokhba revolt of 132 AD. The Roman historian Cassius Dio, however, made no mention of such a law, and blamed the Jewish uprising instead on Hadrian's decision to rebuild Jerusalem as Aelia Capitolina, a city dedicated to Jupiter.

Antoninus Pius permitted Jews to circumcise their own sons. However it forbade the circumcision of non-Jews, contrary to Genesis 17:12 It also made it illegal for a man to convert to Judaism. [4] Antoninus Pius exempted the Egyptian priesthood from the otherwise universal ban on circumcision.

[edit] Modern Law

[edit] England

Male circumcision has traditionally been presumed to be legal under British law.^[2] One 1999 case, Re "J" (child's religious upbringing and circumcision)[5] said that circumcision in Britain required the consent of all those with parental responsibility, or the permission of the court, acting for the best interests of the child, and issued an order prohibiting the circumcision of a male child of a non-practicing Muslim father and non-practicing Christian mother with custody. The reasoning included evidence that circumcision carried some medical risk; that the operation would be likely to weaken the relationship of the child with his mother, who strongly objected to circumcision without medical necessity; that the child may be subject to ridicule by his peers as the odd one out and that the operation might irreversibly reduce sexual pleasure, by permanently removing some sensory nerves, even though cosmetic foreskin restoration might be possible. The court did not rule out circumcision against the consent of one parent. It cited a hypothetical case of a Jewish mother and an agnostic father with a number of sons, all of whom, by agreement, had been circumcised as infants in accordance with Jewish laws; the parents then have another son who is born after they have separated; the mother wishes him to be circumcised like his brothers; the father refuses his agreement. In such a case, a decision in favor of circumcision was said to be likely. The passage of the Human Rights Act 1998 has led to some speculation that the lawfulness of the circumcision of male children is unclear.[6]

In 2001 the General Medical Council had found a doctor who had botched circumcision operations guilty of abusing his professional position and that he had acted "inappropriately and irresponsibly",[7] and struck him off the register [8]. A doctor who had referred patients to him, and who had pressured a mother into agreeing to the surgery, was also condemned.[9] He was put on an 18 month period of review and retraining, and was allowed to resume unrestricted practice as a doctor in March 2003, after a committee found that he had complied with conditions it placed on him. According to the Northern Echo, he "told the committee he has now changed his approach to circumcision referrals, accepting that most cases can be treated without the need for surgery."[10].

In 2003, a man who did not have medical qualifications was charged with unlawful wounding and deception after two boys needed blood transfusions and corrective surgery after being circumcised by him [11]. He was cleared at the direction of the judge, who was told there were no formal rules concerning circumcision. It was also not regulated by the General Medical Council. [12].

In 2005 a Muslim man had his son circumcised against the wishes of the child's mother who was the custodial parent. He was found not guilty of assault occasioning actual bodily harm by a majority verdict of the jury [13].

Fox and Thomson (2005) argue that consent cannot be given for non-therapeutic circumcision.[14] They say there is "no compelling legal authority for the common view that circumcision is lawful."

[edit] Ireland

In October 2005 a Nigerian man was cleared of a charge of reckless endangerment over the death of a baby from haemorrhage and shock after he had circumcised the child. The judge directed the jury not to "bring what he called their white western values to bear when they were deciding this case" and after deliberating for an hour and a half they found the defendant not guilty. [15]

[edit] United States

In the United States, circumcision is not specifically unlawful. However, some believe that the circumcision of a child violates general laws enacted for the protection of children. Doctors who circumcise children must take care that all applicable rules regarding informed consent are satisfied. If consent is invalid, then a circumcision is a battery. [16] MGM Bill is currently lobbying to extend the ban on female circumcision to males, arguing that banning female circumcision but allowing male circumcision violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. [17]

[edit] Disputes between parents

Occasionally the courts are asked to make a ruling when parents cannot agree on whether or not to circumcise a child.

In January and July 2001 disputes between parents in New Jersey and Kansas over circumcision were resolved when requests to have the boys circumcised were withdrawn [18] [19]. In June 2001 a Nevada court settled a dispute over circumcision between two parents but put a strict gag order on the terms of the settlement [20].

On 14 July 2004 a mother appealed to the Missouri Supreme Court to prevent the circumcision of her son after a county court and the Court of Appeals had denied her a writ of prohibition [21]. However, in early August 2004, before the Supreme Court had given its ruling, the father, who had custody of the boy, had him circumcised [22].

In September 2004 the North Dakota Supreme Court rejected a mother's attempt to prosecute her doctor for circumcising her child with her permission.[23]

In February 2004 in California, a man argued that he was Hebrew and circumcised his son out of religious duty. The judge ruled "it is only illegal if one mutilates a female -- there is nothing in the penal code about a male child." [24]. However, in December 2004 in Vancouver, Washington, a man was convicted of second degree child assault after he attempted to circumcise his son with a hunting knife and was sentenced to serve three years in jail.[25]

In October 2006 a judge in Chicago granted an injunction blocking the circumcision of a 9 year old boy. "The judge said the boy could decide for himself whether to be circumcised when he turns 18." [26]

In November 2007, the Oregon Supreme Court heard arguments from a divorced Oregon couple over the circumcision of their son. The father wants his son, who is now 13, to be circumcised; the child's mother opposes the procedure. The parents dispute whether the boy is in favor of the procedure. A group opposed to circumcision filed briefs in support of the mother's position, while some Jewish groups filed a brief in support of the father.^[3] On 25 January 2008, the Court returned the case to the trial court with instructions to determine whether the child agrees or objects to the proposed circumcision.^[4] However, the father appealed to the US Supreme Court to allow him to have his son circumcised [27].

[edit] Australia

A non-binding research paper of the Queensland Law Reform Commission (Circumcision of Male Infants) concluded that "On a strict interpretation of the assault provisions of the Queensland Criminal Code, routine circumcision of a male infant could be regarded as a criminal act", and that doctors who perform circumcision on male infants may be liable to civil claims by that child at a later date.[28] No prosecutions have occurred in Queensland, and circumcisions continue to be performed.

In 1997 a man won $A10,000 for nervous shock after he was forcibly circumcised in a drunken attack.

In 1999, a Perth man won $A360,000 in damages after a doctor admitted he botched a circumcision operation at birth which left the man with a badly deformed penis [29].

In 2002, Queensland police charged a Moslem father with grievous bodily harm for having his two sons, then aged nine and five, circumcised without the knowledge and against the wishes of the mother. The mother and father were in a family court dispute. The charges were dropped when the police prosecutor revealed that he did not have all family court paperwork in court and the magistrate refused to grant an adjournment [30].

In 2007, the Tasmanian President of the Australian Medical Association, Haydn Walters, stated that the Association would support a call to ban circumcision for non-medical, non-religious reasons.^[5]

[edit] South Africa

The Children's Act 2007 makes the circumcision of male children under 16 unlawful except for religious or medical reasons. Eastern Cape Province passed a law (Application of Health Standards in Traditional Circumcision Act 2001) to regulate traditional circumcision, which causes the death or mutilation of many youths by traditional surgeons each year [31][32]. Among other provisions, the minimum age for circumcision is age 18.

In January 2008 a teenager sued his father and traditional leaders for forcibly circumcising him, demanding an apology. [33] In May 2008 the case was adjourned indefinitely because papers had not been served on Eastern Cape traditional leaders. [34]

[edit] Israel

In Israel, an attempt to have circumcision ruled illegal was rejected by the Israeli Supreme Court.[35]

[edit] Netherlands

When Ayaan Hirsi Ali was a Member of the Netherlands Parliament she asked it to consider making the circumcision of male children unlawful.[36]. In May 2008 a father who had his two sons, aged 3 and 6 circumcised against the will of their mother was found not guilty of causing them serious physical harm but was given a 6 week suspended jail sentence for taking the boys away from their mother against her will. [37]

[edit] Sweden

In 2001, Sweden allowed only persons certified by the National Board of Health to circumcise infants. It required a medical doctor or an anesthesia nurse to accompany the circumciser and for anaesthetic to be applied beforehand. After the first two months of life circumcisions could only be performed by a physician. Swedish Jews and Muslims objected to the law,^[6] and in 2001, the World Jewish Congress stated that it was “the first legal restriction on Jewish religious practice in Europe since the Nazi era.”^[7] However, in 2006, the United States State Department stated, in a report on Sweden, that most Jewish mohels had been certified under the law and 3000 Muslim and 40-50 Jewish boys were circumcised each year. The Swedish National Board of Health and Welfare reviewed the law in 2005 and recommended that it be maintained.^[8]

[edit] USSR

In the USSR, before glasnost, Jewish ritual circumcision was forbidden. [38]

[edit] Finland

In August 2006, a Finnish court ruled that the circumcision of a four-year-old boy arranged by his mother, who is Muslim, to be an illegal assault. The boy's father, who had not been consulted, reported the incident to the police. A local prosecutor stated that the prohibition of genital mutilation is not gender-specific in Finnish law. A lawyer for the Ministry of Social Affairs and Health stated that there is neither legislation nor prohibition on male circumcision, and that "the operations have been performed on the basis of common law." The case is being appealed to a higher court.^[9]

[edit] Germany

In October 2006, a Turkish national who performed ritual circumcisions on seven boys was convicted of causing dangerous bodily harm by the state court in Düsseldorf.[39]

In September 2007, a Frankfurt am Main appeals court found that the circumcision of an 11 year old boy without his approval was an unlawful personal injury. Reportedly, the boy, whose parents are divorced, was visiting his Muslim father during a vacation when his father forced him to be ritually circumcised . According to a report by the German ddp press agency, the boy, who lives with his mother, plans to sue his father for 10,000 Euro [40].

[edit] Egypt

In June 2007, Egypt banned all female circumcision. The practice, which affects both Muslim and Christian women in Egypt and goes back to the time of the pharoahs, was banned in 1997 but doctors were allowed to operate "in exceptional cases". Health Minister Hatem al-Gabali decided to ban every doctor and member of the medical profession, in public or private establishments, from carrying out a clitoridectomy.^[10]

[edit] Forced circumcisions

There have been incidents of forced circumcisions.^[11] In Africa, forced circumcisions have occurred in Kenya in 2002,^[12] 2006 ^[13] and in the ethnic conflicts that followed the election on 27 December 2007 ^[14], and also among the Bagishu people of Eastern Uganda (2007),^[15] and the Xhosa of South Africa (2004).^[16] Forced circumcisions also occurred in ethnic/religious conflicts in the Sudan (2003),^[17] during the Armenian Genocide (1915–1918),^[18] and also as part of forced religious conversions in both Pakistan (2004)^[19] and Indonesia (2001).^[20][21] There was a report of forced circumcisions during an anti-Greek pogrom in Turkey in 1955.^[22] In a case of sexual assault in Queensland, Australia (1997), a district court awarded a man damages for nervous shock after a botched attempt to circumcise him with a broken beer bottle in a drunken attack. Making Australian legal history, the award was made against the assailant for unlawful wounding.^[23]

[edit] References

[edit] External links

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• William E. Brigman. Circumcision as Child Abuse: The Legal and Constitutional Issues. 23 J Fam Law 337 (1985).

• Ross Povenmire. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998–1999).

• Gregory J Boyle, J. Steven Svoboda, Christopher P Price, J Neville Turner. Circumcision of Healthy Boys: Criminal Assault? 7 Journal of Law and Medicine 301 (2000). The authors are leading anti-circumcision campaigners.

• Peter W Edge, Male circumcision after the human rights act 1998. 5 J Civil Liberties [U.K.] 320 (2000).

• Peter Charles Remondino. History of Circumcision from the Earliest Times to the Present. Philadelphia and London; F. A. Davis; 1891.

• Proposed bills to ban male circumcision in the U.S.: MGMbill.org

• Amicus curiae briefs filed in Oregon circumcision case: [41] [42] [43]