Non-therapeutic circumcision of minors: a legal and ethical minefield

An appeal court in Cologne, Germany, recently reached the perfectly obvious conclusion that a 4-year old boy who had nearly bled to death after having been circumcised at the request of his Muslim parents had suffered bodily harm. It further found that the doctor who performed the surgery had acted unlawfully and was liable to prosecution for assault. Although media coverage of the decision has focused on the reaction of Muslim and Jewish organisations, it has implications for any non-therapeutic (medically unnecessary) circumcision of male minors – whose voice and possible opinion on this question have so far been strangely absent from the debate. As the leading commentator on the case, Professor Holm Putzke, has argued, the court was required to weigh up two sets of conflicting rights: of adults to practise their religion, and of children to bodily integrity and their own religious freedom. As he stated in an interview,  "After the knee-jerk outrage has faded away, hopefully a discussion will begin about how much religiously motivated violence against children a society is ready to tolerate."

What is remarkable is not that the court delivered such a judgement, but that the law has hitherto shown so much indifference to the cruelties inflicted on children in the name of culture or tradition. There have been some straws in the wind. In 2007 a Frankfurt court found that circumcision of an unwilling 11-year old boy constituted unlawful personal injury and gave the victim leave to sue his father. In the wake of Australia's ratification of the United Nations Convention on the Rights of the Child, the Queensland Law Reform Commission  concluded that non-therapeutic circumcision (NTC) of minors breached the assault provisions of both the Criminal Code and the common law, but observed that since the practice was widely accepted and the victims too young to complain, there had never been any prosecutions. In 1992 the High Court ruled in "Marion's Case" that "special medical treatments" on children may not be performed unless authorized by the Family Court. These have so far been understood to mean only sterilization, but it has been argued that the term should cover NTC and other forms of genital cutting as well.

The position in civil law is little better. Although there have been cases where a circumciser who did grossly more damage than average has been successfully sued, nobody has yet won a case on the basis that he did not need and did not want to be circumcised, and thus that the surrogate consent given by his parents was invalid. Most recently a study of the murky legal status of NTC by Warwick Marshall  has deplored the prevailing open slather situation and recommended both tighter regulation of the practice and the outright prohibition of NTC in the case of incompetent minors, with limited exceptions for conscientious objection on religious grounds.

It is difficult to find a legal formula that will protect the majority of boys while allowing those with strong convictions to follow their traditions. Given the religious passions involved, a blanket ban is unlikely to be contemplated by politicians, and would not be accepted by the circumcising sub-cultures even if it were. A prohibition with exceptions for Jews, Muslims and certain Indigenous Australian communities would give rise to the paradox that their children enjoyed fewer human rights and legal protections than everybody else. A general law privileging the existing situation – unfettered parental choice – would be even worse, as it would allow any parents to circumcise their boys (and why not girls?) with no valid reason at all.

In Australia approximately 12% of boys are circumcised by age 6 months and a further 6% by age 18. Since the combined Jewish and Muslim population is less than 3%, it is clear that the vast majority of these operations are performed for no valid cultural reason, mostly because parents hold outdated ideas about the proverbial "medical benefits" or the popularity of the procedure, and too many doctors are willing to bow to their wishes. The incidence of circumcision in Australia could easily be lowered to a cumulative total of 8% by age 18, allowing for medically necessary procedures, and without interfering with religiously motivated practices. The medical profession could achieve this result without the need for any legislation simply by following the policy of the British Medical Association: welfare of the child the paramount consideration; written consent of BOTH parents; where parents disagree, circumcision not to be performed unless ordered by Family Court; operation performed by a fully trained and competent surgeon, with full anaesthesia and post-operative pain control; no rebate from Medicare unless the operation is clinically necessary.

Reform is needed. The prevailing "she'll be right" attitude that allows an estranged father to get away with kidnapping two boys and having them circumcised against both their own and their mother's wishes (as occurred in Bundaberg in 2004) contrasts with the severe penalties for any kind of female genital mutilation, even when an adult woman requests it. The most workable solution does seem to be a system of reasonable regulation along the lines proposed by Warwick Marshall, permitting circumcision where parents have a legitimate cultural claim and strong views, while deterring those with frivolous or misguided reasons. Jews, even in Israel,  are steadily abandoning circumcision as the implications of modernity – with its respect for the autonomy of the individual – are recognized. Muslims are likely to follow at their own pace as secularism spreads and the influence of patriarchy and tribalism recedes. To hasten this process, feeble attempts at heavy-handed coercion are likely to be less successful than appeals to the individual conscience and public education in the principles of bioethics and human rights.

In the world of Harry Potter one of the fundamental laws was a Decree for the Reasonable Restriction of Under-age Magic. What Australia needs is a set of regulations for the reasonable restriction of under-age circumcision.