Wednesday, July 18, 2012
The German Circumcision Decision
As those of us who lurk on constitutional law listservs well know, certain corners of the blogosphere were recently abuzz after a German court handed down a decision rejecting the appeal of a doctor who was charged with (basically) causing bodily harm to another person, as a result of circumcising a 4-year-old child at the request of the child's parents. An edited English translation can be found here.
This case--and perhaps more importantly, the more general legal issues surrounding it--raise a number of fascinating and difficult questions. Mike Dorf has an interesting post at Dorf on Law about the troubling symbolic meanings that a circumcision ban in Germany would have, given its anti-semitic and anti-Muslim overtones in that particular national context. (The particular case at issue here involved a Muslim family.)
Translated to the American context, many would view this case as raising questions about parental rights--that is, rights to religious free exercise and/or to make medical and other important decisions for their minor children. Putting religious issues to one side (since, in this country, the vast majority of circumcisions are not performed for religious reasons), I tend to view this case in the context of minors' rights to bodily integrity, because I have been working on and thinking about that particular issue a lot lately (see previous blog posts here and here). In thinking about minors' rights to bodily integrity, I think it's possible to connect the circumcision debate to the more general question of how much control parents legally possess over their children's bodies. This issue arises with respect both to therapeutic and other non-therapeutic interventions, including cosmetic surgeries, piercings (also sometimes performed for religious reasons), and tattooing.
More recently, it has occured to me that this debate also relates to the practice of vaccination. I take it that the evidence of the medical benefits of circumcision is disputed. However, my understanding is that the available evidence indicates that the primary benefit of the procedure is that it may ultimately protect somewhat against HIV and possibly HPV, which can lead to certain rare cancers in men and more common cancers in women. This makes the practice similar to the function of the HPV vaccine, which evoked a huge controversy when some states tried to make it mandatory (and perhaps also the Hepatitis B vaccine, which protects against a virus that is usually sexually transmitted).
Generally, legal issues arise around whether parents may refuse to vaccinate their child, when legally mandated to do so. With respect to circumcision, there is no legal mandate, but does a child have bodily integrity rights that should concern us here, since parents possess the legal authority to decide either way? What if an 11-year-old girl wished to resist immunization with the HPV vaccine? What if it were an 11-year-old boy, whose vaccination would be primarily for the benefit of any female sexual partners he may have in the future, and not for himself? In either case, are the public health concerns (regarding sexually transmitted diseases) powerful enough to justify the intrusion - of a needle, in one case, or of surgical removal of tissue in the other? Of course, the parental consent may make all the difference -- the simple answer may be that it is up to the parents to weight the public-health benefits against the harm to the child. But does it matter at all that the procedure is not immediately beneficial to the child in the way other medical interventions may be, and that the diseases at issue are themselves largely avoidable by practicing safe sex? To what extent should public-health interventions on children have to be justified, whether imposed by the state or the parent?
Posted by Jessie Hill on July 18, 2012 at 01:20 PM | Permalink
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I think as an initial matter, as far as whether it should the parent or the child who consents, we just consider whether it is a decision which has to be made at a time when the child would lack capacity to make it for himself, or if the decision can be put off until they obtain the capacity to decide for themselves. Here, I think there is an important distinction between HPV vaccines and circumcision on the one hand, and vaccines for childhood diseases on the other. Simply put, there would be a significant loss of public health value in requiring the consent of the kids themselves (rather than their parents) for measles etc. Thus, the justification for taking the decision away from the kid, and giving it to the parent seems to be at its apex in such cases. Contrast circumcision/HPV, these are things which only provide health benefits later in life (or at least the vast majority of the health benefits later in life.) Since circumcision at least has life long consequences, there seems to be no reason to give parents the right to make the decision for the kid. No public health reason anyway. None of this addresses the religious issues of course.
Posted by: Jesse | Jul 18, 2012 1:34:37 PM
In Germany (a country that must also answer to the European courts) and Europe, children are given more rights than in the U.S., where the best interests of the child prevail. Thus in the U.S., DSS takes child neglect/abuse matters case by case, and it's hard to dictate parenting standards more broadly. I think the U.S. approach is favorable to the extent that it is difficult to determine exactly which public-health interventions on children are justified or not.
Posted by: Margaret Ryznar | Jul 18, 2012 2:18:28 PM
"Since circumcision at least has life long consequences, there seems to be no reason to give parents the right to make the decision for the kid."
Wrong. It's clearly rather more painful and the pain is MUCH more memorable when you have this done as an adult than as an infant.
Posted by: David Bernstein | Jul 18, 2012 2:42:23 PM
P.S. I think if there was clear evidence that circumcision was harmful to a child, a government could justifiably ban it regardless of religious sensibilities. Given that there is no such medical consensus, and indeed my reading of the literature suggests that there are some clear if relatively minor health benefits, and no clear harm to sexual health, there is no justification for a ban.
Posted by: David Bernstein | Jul 18, 2012 2:44:43 PM
I think you are incorrect about the pain. As I understand it the pain is actually worse as an infant. Additionally, one can easily use an anesthetic with an adult (someone thing which I gather is harder to do with an infant, and which in any event is not done). Additionally, lack of memory is not really a justification for not being concerned about pain or a violation of person integrity. We generally do not regard crimes committed against Alzheimer's patients or women who are date raped via use of drugs like GBH as less serious or less deserving of governmental intervention. Lastly, I think there is some reason to think there are sexual function effects that are non-negligible, more to the point though, if there is no reason to do it early, why not let the person who will have to deal with both the up and the downside make the decision at the time when they have the requisite mental capacity?
Posted by: Jesse | Jul 18, 2012 3:10:30 PM
"I think you are incorrect about the pain. As I understand it the pain is actually worse as an infant." I don't know how you would measure that, but I've been to several brises--the baby usually cries for a few seconds, then goes to sleep, and acts normal later that day. I doubt that would be true for most adults. (Admittedly, the procedure may be much worse when not done by a mohel. My doctor relatives tell me that no one in hospitals wants to do circumcisions, so often they get done by the junior resident or intern who have little experience with the procedure.)
"If circumcision was a demonstrably 'harmless' procedure that provided non-trivial health benefits, uncircumcised men around the world -- the vast majority -- would presumably be lining up to get circumcised. Yet for some reason they're not." They are, in fact, in Africa, where heterosexual AIDS transmission is common. But it's also painful, and not risk free. Consider that lots of people don't get flu shots, a much clearer cost benefit analysis, because of "the needle."
But that's really besides the point, because I didn't claim that everyone should go out and get circumcized, or even circumcize their babies, I rather stated that there are some clear if relatively minor health benefits, and no clear harm to sexual health, so there is no justification for a ban.
"Isn't the permanent forcible removal of a properly-functioning body part per se 'harmful'?" No. If that were the case, it would be per se harmful to remove a perfectly functional sixth finger from a baby's hand.
Posted by: David Bernstein | Jul 18, 2012 5:24:05 PM
The inanity over the circumcision debate lies also in its ignorance of medical realities - some of which I also see being perpetuated here, unfortunately.
Every American urologist I happen to know (n = 22) had their son(s) circumcised shortly after birth. These urologists know that neonatal circumcision reduces the risk of urinary tract infection in the first year of life, eliminates the risk of penile cancer (for which the only cure is cutting off the penis), significantly reduces the risk of syphilis and HIV transmission, and that circumcision has been embraced by the World Health Organization.
This urologist's perspective sums up the relevant research succinctly:
Posted by: hush | Jul 18, 2012 5:31:04 PM
I agree there is evidence supporting medical benefits from circumcision. However, many (but not all) of those benefits can be obtained by adult circumcision when the kid could consent themselves. The UTI risk and the cancer seem to be the only benefits that cannot be obtained without doing in as an infant. I think that neither of those benefits justify allowing parents to consent to the procedure. I might be wrong about the relative import of these benefits, though given the rarity of penile cancer, (which is part of the reason why neither the American nor Canadian Pediatric societies recommend the procedure) and the ease of treatment of UTIs makes me think I am not wrong. But in any event, it is based on those health benefits alone which the decision on a ban should be made.
Posted by: Jesse | Jul 18, 2012 7:16:24 PM
If a state or country could prohibit parents from circumcising boys, then there would be a host of other mildly beneficial procedures they could be prohibited from performing until the child was grown. There are several medical conditions that come to mind that parents decide whether to require a child to undergo irrespective of the child's maturity, age, or desire. The presumption is that in these cases, as with male circumcision, the benefits significantly outweigh the risks and the procedures are done for the patients benefit rather than harm.
Specifically, I'm thinking of amputation of extra digits (which David already mentioned), fixing a cleft lip, immunizations of all types (although they clearly carry mild risk and can cause discomfort and pain), and treatment mild umbilical hernias. Then there are ear piercing, and other aesthetic hurtful procedures. As far as I know, no one is talking about making these procedures illegal, all of which leads me back to religion.
So far everyone who has written on this post has put that question to the side, but I think there is a direct correlation to this ban targeting a practice specific to Jews (since it is Jews who circumcise infants while Muslims wait until boys are 9 yrs of age). And the reality is that Christian societies have repeatedly barred Jews from practicing this part of their religion. So to me, this debate contains a layer beyond the medical context.
Female circumcision, on the other hand, is a horrible mutilation of genitalia that disfigures, degrades, and causes huge health problems. I don’t want to describe these gruesome procedures, but you can read on it on the World Health Organization’s website: http://www.who.int/mediacentre/factsheets/fs241/en/
Posted by: AnonProf | Jul 18, 2012 7:48:28 PM
I think you are correct that there are other medical procedures parents can presently authorize on behalf of their children which might also have to be re-evaluated. I think the intact digit or umbilical hernias present closer cases, and I think they should at least be closely examined. Vaccines are not close cases, I think, in part because they provide medical benefits to others (which is why we make it pretty difficult for parents to refuse to consent to them). But, absent a compelling reason, medical or other, it seems hard to justify making the decision for the kid when it can be deferred until the kid is old enough to decide for themselves. It is the kid after all who has to live with the consequences of the decision, it only makes sense to make it on their behalf if there is a real cost to waiting. In this case, I do not think that there is.
Posted by: Jesse | Jul 18, 2012 8:05:17 PM
Nothing wrong with anecdotal data, but a thorough treatment of the medical issues is indispensable. http://www.scirp.org/Journal/PaperInformation.aspx?paperID=17415
The link leads to an open-access paper that is the mother of all male circumcision studies. The authors evaluated no fewer than 199 sources and the results may come as a surprise to some of you.
Posted by: bitiu | Jul 18, 2012 8:09:39 PM
I want to second AnonProf's comments.
If you are a religious Jew, you really can't wait until the child is grown consistent with your religious beliefs. I don't see how you can discuss banning this practice without addressing the Jewish dimension. I'm not saying this is necessarily an easy question, or that the decision to circumcise is an easy decision, but if you ignore this you are just avoiding the difficult issues. And if you discuss the Jewish dimension, you can't ignore the historic oppression of Jews in the West.
My view is if you put aside the religious dimension, who cares? It become like the question of the cleft palate or the sixth finger.
Posted by: Alex | Jul 18, 2012 9:45:28 PM
From where I'm sitting, this is more than a medical issue. But even keeping it at that, the referenced article clearly says the authors are members of the Circumcision Foundation of Australia, so they're not hiding the ball on that. They don't indicate that they stand to gain financially. They simply seem to be people with a position. Their bios indicate they are academic physicians not kooks. I saw nothing indicating they are tolerant of female circumcision, I'm not sure if that's a slur or you have a basis for making that claim because I've never heard of the organization so don't know.
Perhaps this is more objective, "The medical benefits of male circumcision", JAMA. 2011 Oct 5;306(13):1479-80 (http://jama.jamanetwork.com/article.aspx?articleid=1104451). That's a journal of the AMA. This article primarily focuses on the preventative effect on the transmission of venereal diseases, which doesn't directly address Jesse's point, but it also contains the following, which is on point: "Neonatal male circumcision provides other potential benefits during childhood such as prevention of infant urinary tract infections, meatitis, balanitis, and phimosis,8 as well as protection from viral STIs. Approximately 50% of high school students report having sex prior to 18 years of age, so delaying male circumcision to age 18 years or older would deny children and adolescents these potential benefits." Footnote "8" cites: American Academy of Pediatrics Task Force on Circumcision. Circumcision policy statement. Pediatrics. 1999;103(3):686-693, which is a reputable journal too.
Here's another one: "Neonatal circumcision reduces the incidence of asymptomatic urinary tract infection: a large prospective study with long-term follow up using Plastibell." Simforoosh N, Tabibi A, Khalili SA, Soltani MH, Afjehi A, Aalami F, Bodoohi H., J Pediatr Urol. 2012 Jun;8(3):320-3. Epub 2010 Nov 5 (http://www.ncbi.nlm.nih.gov/pubmed/21115400). "CONCLUSION: Neonatal circumcision has few complications and reduces the incidence of asymptomatic urinary infection. It may be considered as a preventative health measure."
Posted by: AnonProf | Jul 18, 2012 11:45:43 PM
"I might be wrong about the relative import of these benefits, though given the rarity of penile cancer, (which is part of the reason why neither the American nor Canadian Pediatric societies recommend the procedure) and the ease of treatment of UTIs makes me think I am not wrong."
I don't agree that circumcision is the One True Way, non-parenting issue you've so presented here. The decision to circumcise an infant can absolutely be made by parents in their child's best interests. By the way, you're wrong about a key aspect of circumcision in the US - lidocaine or another comparable anesthetic is in fact used on infants and children per the standard of care both for MDs and mohels alike. While the generalists (pediatricians) may not recommend it, the specialists (urologists) overwhelmingly do - and, most tellingly, urologists elect it for their own boys.
As with vaccines, there actually is a health benefit to others vis-a-vis STI prevention when a male is circumcised. Also, penile cancer is so rare in the US due to the high prevalence (in the <80% range) of circumcision, which alone prevents penile cancer 100% of the time, along with decent access to first world healthcare. However, the penile cancer statistics will certainly change as the circumcision rate continues to decrease - we'll probably have a backlash in the exact opposite direction 20 years hence. We'll also have some extremely unfortunate, penis-ectomied men who will have to pay far too high a price for their well-intentioned parents' refusal to make the correct call for them when they were children.
Finally, let's put aside the unstated premise that male circumcision is always completely permanent. Jim Bigelow pioneered a method to reverse one's own circumcision - to in essence re-grow a foreskin over time using carefully applied weights that stretch the penile skin.
Posted by: hush | Jul 19, 2012 12:21:17 AM
I don't really think this lawprofs' blog is the place for a protracted technical debate over medical issues with competing citations to published literature etc. And I agree that the circumcision issue is more than just a medical one, although I suspect that few people would have a problem with, for example, prohibiting Satanists from discreetly tattooing their babies with the number of the beast for religious reasons.
As to Brian Morris and female circumcision:
"Anecdotally, true female circumcision (= removal of the clitoral hood) is said to increase sexual sensitivity and frequency of orgasm. This claim awaits research support, however."
From B.Morris, "Circumcision, Whose Responsibility?"
Posted by: Lois Turner | Jul 19, 2012 10:12:11 AM
"P.S. I think if there was clear evidence that circumcision was harmful to a child, ..." -- How is removing normal, healthy tissue and severing nerve endings not clear evidence that circumcision is harmful? Those are objective outcomes before getting to the further risks, such as those the child in the German case suffered. Citing removal of a functional sixth digit is hardly proof against that. That would also be harm. But even if we deem the harm from its removal justifiable, it's still distinguishable from circumcision because a functional sixth digit would be removed because it's not anatomically normal. That's a bit arbitrary, which is why I wouldn't justify non-therapeutic removal if the digit weren't threatening the child's health. The better comparison would be whether removing a healthy, functional first-through-fifth finger would constitute harm.
"... and no clear harm to sexual health..." -- But there is a clear change to form. The mechanics of the intact and circumcised penis differ. And who can best determine the acceptability of the potential harm to sexual health, the individual or his parents?
"But [adult circumcision is] also painful, and not risk free. Consider that lots of people don't get flu shots, a much clearer cost benefit analysis, because of 'the needle.'" -- This suggests the exact opposite of your position. Some people would choose differently, even if for what someone else deems an irrational reason, if given their choice. Well, yes. Individual choice for a non-therapeutic intervention (i.e. surgery) is precisely the point. So, it's therefore justified for parents to impose non-therapeutic circumcision even though the child may not want it and might not choose it if left his choice? That doesn't make sense.
Bigelow pioneered a method to re-grow a facsimile of the foreskin. The foreskin (and likely the removed frenulum), with its nerve endings, can't be regrown. There is no "in essence".
Posted by: Tony | Jul 19, 2012 1:24:31 PM
I do not see the quote that you posted as supporting your contention that Morris "believes that ... female circumcision isn't really all that bad."
Posted by: bitiu | Jul 19, 2012 1:56:20 PM
Every child is born an atheist.
Besides the physical mutilation, circumcision is a violation of the kid's religions rights, especially those of the kid with Jewish or Muslim parents.
Imagine branding or tattooing every child with a crucifix on his forehead!
Posted by: Jimbino | Jul 20, 2012 11:22:51 AM
I would not trust any research by Brian Morris:
Posted by: Angel | Oct 17, 2012 1:42:48 PM
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