A SMALL STEP TO ERADICATING INFANT CIRCUMCISION
Rebecca A. Ballard*
Circumcision was introduced as a medical procedure in the late 19th century, and
for more than half a century has strained to find a justification.1 Doctors endorsed routine
circumcision as a cure for masturbation which they believed to be the cause of paralysis,
hip trouble, sloth, moral laxity, spinal curvature, lameness, clumsiness, hysteria,
malnutrition, and epilepsy.2 Circumcision was advocated as a precautionary measure,
even in the absence of symptoms. Eventually circumcisions took on a more cultural role,
becoming a marker of the family’s wealth, sophistication or religious affiliation.3
I.
THE NON-THERAPEUTIC NATURE OF INFANT CIRCUMCISION
Recent medical studies have not only called into question the medical benefits
claimed by proponents of infant circumcision, but have also highlighted that adverse
effects may be graver than generally realized. Claims of hygiene, prevention of urinary
tract infections, genital cancer, and AIDS have been advanced as reasons for practicing
male circumcision.
*
J.D./M.A. Candidate, 2006, Indiana University School of Law – Indianapolis; B.S.,
1999, Southwest Texas State University, San Marcos, Texas.
1
Gregory J. Boyle, et al., Male Circumcision: Pain, Trauma and Psychosexual Sequelae,
7(3) J. OF HEALTH PSYCHOLOGY 329, 330 (2002).
2
Anonymous, Circumcision: A Serious Male Health Problem, 58 EVERYMAN (2000),
available at 2000 WLNR 7502316, page 2.
3
Sarah E. Waldeck, Using Male Circumcision to Understand Social Norms as
Multipliers, 72 U. CIN. L. REV. 455, 471 (2003).
1
A.
For the Prevention of Urinary Tract Infections
The foreskin can harbor bacteria, leading to the cause of diseases. Studies have
indicated an association between uncircumicision and the risk of a urinary tract
infection.4 However, urinary tract infections occur in only one or two percent of boys,
and are conservatively treated with antibiotics.5 Because the incidence is low, coupled
with the effective treatment by less invasive means, the prevention of urinary tract
infections is not a persuasive justification for subjecting a patient to surgery.
B.
For the Prevention of Genital Cancer
Penile cancer is a serious disease with a three-year mortality rate of 20 to 25
percent, with treatment options including penile amputation.6 Circumcised males,
missing one-third to one-half of their penile skin, have a reduced surface area on which
the cancer can develop.7 Such a conclusion resulted from the observation in 1932 that of
the 1,103 cases of penile cancer none were observed in Jews, who routinely perform
circumcision, with similar observations noted in Europe in Moslem populations.8
However, the American Cancer Society’s official website states: “The consensus among
studies…is that circumcision is not of value in preventing cancer of the penis. It is
important that the issue of circumcision not distract the public’s attention from avoiding
4
Waldeck, supra note 3, at 481.
5
Anonymous, supra note 2, at 2.
6
Edgar J. Schoen, The Relationship Between Circumcision and Cancer of the Penis, 41
CANCER J. FOR CLINICIANS 306, 308 (1991).
7
Waldeck, supra note 3, at 482.
8
Schoen, supra note 6, at 306.
2
known penile cancer risk factors – having unprotected sexual relations with multiple
partners (increasing the likelihood of human papilloma virus infection) and cigarette
smoking.”9 Even if circumcision has a protective effect in the prevention of penile
cancer, it is a rare medical occurrence that does not warrant the use of prophylactic
surgery.10
C.
For the Prevention of AIDS
Studies have linked non-circumcision with a risk for HIV infection.11 However,
the validity of this data has been challenged as suffering from severe methodological
defects because it utilized a high-risk subject pool from Sub-Saharan Africa and did not
adjust for factors (like sexual behavior) that strongly correlate with HIV risk.12 The fact
that the United States has both the highest rate of routine circumcision and also the
highest rate of AIDS in the developed world calls into question this proposed link
between circumcision and a reduction of HIV infection.13
D.
9
The Reality of the Procedure
American Cancer Society, ACS Penile Cancer Resource Center,
http://www.cancer.org/docroot/CRI/content/CRI_2_4_2X_What_are_the_risk_factors_fo
r_penile_cancer_35.asp?sitearea= (last visited March 31, 2005).
10
Penile cancer affects 1,000 males annually. Schoen, supra note 6, at 308.
11
R.S. Van Howe, Circumcision and HIV Infection: Review of the Literature and
Metanalysis, 10 INT’L J. STD & AIDS 8, 11 (1999).
12
Id. at 13 - 14.
13
Anonymous, supra note 2, at 2.
3
Circumcision of the male penis involves the insertion of forceps or other probes
into the foreskin, audibly crushing the baby’s sensitive foreskin, and removing fifty
percent (50%) of the penile skin containing thousands of specialized nerve endings aiding
in normal sexual response.14 The wound site then becomes dried and keratinized or
hardened, further desensitizing the penis leading to a progressive life-long loss of
sensation affecting sexual functioning.15
As with every surgery, there are risks involved. It is estimated that some form of
complication occurs in 1 of every 476 boys who are circumcised.16 A common problem
is bleeding during and after circumcision, as well as the risk of an infection.17 Surgical
error includes the removal of too much skin, lacerations to the penis, and, though
extraordinarily rare, the amputation of the penis.18
When justifying the procedure of circumcision in the past, doctors were operating
under the erroneous assumption that children were not yet sufficiently developed to feel
pain. However, newborns have both the anatomical and functional components
necessary for the perception of painful stimuli. Eight common expressions of extreme
14
Id. at 2 – 3.
15
Boyle, supra note 1, at 334 (reporting 84% of circumcised men surveyed reported
impaired sexual functioning).
16
Dimitri A. Christakis, et al., A Trade-off Analysis of Routine Newborn Circumcision,
105 PEDIATRICS 246, 248 (2000).
17
Waldeck, supra note 3, at 480.
18
Id.
4
distress were observed during the circumcision.19 The vigorous crying and the altered
behavioral states observed in infants post circumcision provide objective indicia of this
fact.20
The harm inflicted by the procedure of male circumcision is not limited to the
actual performance of the surgery, but has been shown to have prolonged effects. For
example, researches have shown circumcised infants show an increase in pain scores to
subsequent vaccinations than uncircumcised infants, leading to the theory that pain
experienced during circumcision may alter infant’s central neural processing of pain
stimuli.21
The development of post-traumatic stress disorder (PTSD) is also a speculated
consequence of circumcision.22 Despite not being able to have conscious recall, infants
do have the capacity to store information and experiences.23 Circumcision should not be
validated on the grounds that circumcised males cannot retell the sensation of pain itself,
but only the general experience.
Various national medical associations, having studied the therapeutic rationales
asserted on behalf of routine infant circumcision, urge against circumcision because it
19
Fay Warnock & Dilma Sandrin, Comprehensive Description of Newborn Distress
Behavior in Response to Acute Pain (Newborn Male Circumcision), 107 Pain 242, 253
(2004).
20
Id. at 253 – 254.
21
Waldeck, supra note 3, at 479.
22
Boyle, supra note 1, at 335.
23
Id.
5
lacks documented benefit.24 From a utilitarian perspective, the benefits claimed are either
so minuscule or non-existent that they do not ethically warrant the abrogation of the
child’s autonomy and self-determinism. Therefore, circumcision fails the bioethical test
of beneficence. In addition, great pain and psychological harm is inflicted, thereby
violating the test of non-malfeasance.
II.
AN ASSAULT ON THE INFANT’S LEGAL RIGHTS
The rudimentary legal principles governing the relationship of doctors to their
patients are grounded in the tort law of battery and negligence.25 Negligence is
committed when harm results from the doctor’s conduct falling below the accepted
standard of care, which is the same whether the patient is an adult or child.26
A battery is “an intentional contact with the plaintiff’s body and that contact
neither has been consented to nor is legally privileged.”27 Essential to the concept of an
offense to one’s personal dignity is the infringement of one’s body without full and valid
consent.28 This represents both the bioethical test of justice and the test of autonomy;
respectively, the patient’s right to bodily integrity, and the right to self-determination.
Both of these are violated in the practice of infant circumcision.
24
Id.
25
Robert H. Mnookin and D. Kelly Weisberg, CHILD, FAMILY, AND STATE: PROBLEMS
AND MATERIALS ON CHILDREN AND THE LAW
26
Id.
27
Id.
28
Id. at 601.
6
600 (4th ed., 2000).
Informed consent is justified by the ethical principles of self-determination and
aids in the maintenance of bodily integrity. True self determination, from a Kantian
account of autonomy, requires thoughtful and informed decisions, obligating the pursuit
of all relevant information needed to make those decisions.29 Informed consent
empowers the patient by granting control and access to information about one’s medical
condition to the patient, serving to protect patients against depersonalized, authoritarian
medical treatment.30 Respect for the power of a person to be a rational, self-determining,
morally autonomous individual is the most influential reason for supporting the informed
consent doctrine.
III.
A CHILD AS A PERSON
Because a child lacks the capacity to provide consent for purposes of avoiding a
battery, courts held that until children reach the age of majority, only a parent or legal
guardian could give effective consent to medical treatment.31 Requiring parental consent
for a minor’s medical treatment is consistent with the broad notion of family privacy,
parental autonomy, and respect for familial bonds.32 However, the common law rule was
justified under a narrower notion of parent’s being responsible for the care and support of
29
Rosamond Rhodes, Genetic Links, Family Ties and Social Bonds: Rights and
Responsibilities in the Face of Genetic Knowledge, 23(1) J. OF MED. & PHILOSOPHY 10,
18 (1998).
30
Mnookin, supra note 25, at 601.
31
Id.
32
Id. at 602.
7
their children to protect parents from the possible financial consequences of unwanted
medical treatment.33
A.
Children Recognized as Persons Under the Law
English common law treated children as “possessions,” and a father’s interest in
custody was a right of property.34 John Stuart Mill, who championed the notion of
individual rights, did not bestow this upon children. He believed limiting the freedom of
children was necessary to protect children against “their own actions as well as against
external injury” and “to protect society from the untutored.”35
The constitutionalization of a patriarchal notion of parental rights in both Meyer
and Pierce has reiterated this notion of dominion and parental possession over their
children.36 “The child is denied her own voice and identity and becomes a conduit for the
parents’ religious expression, cultural identity, and class aspirations.”37 Explicit language
in Meyer’s “right to control” and Pierce’s “high duty” of the parent to direct his child’s
33
See generally Lacey v. Laird, 139 N.E.2d 25, 30 (Ohio 1956) (stating that [the rule
that parents must consent for minors] is not based upon the capacity of a minor to
consent, so far as he is personally concerned… but is based upon the right of parents
whose liability for support and maintenance of their child may be greatly increased by an
unfavorable result from [a surgeon’s operation]).
34
Barry Nicholas, AN INTRODUCTION TO ROMAN LAW 65 – 68 (1969).
35
Mnookin, supra note 25, at 1.
36
See generally, Barbara Bennett Woodhouse, “Who Owns the Child?”: Meyer and
Pierce and The Child as Property, 33 WM. & MARY L. REV. 995 (1992).
37
Id. at 1114.
8
destiny has shown a disturbing willingness to deny the integration of the child’s voice
into an adult legal system.38
Mill did reject, however, the notion that parents have unfettered dominion over
their children; rather the law should limit parental liberty when necessary for the good of
the child or society.39 Progressive reforms through the women’s movement have been
used to challenge the legally imposed limitation on a child’s decision making power.40
However, the analogy of age to race or sex as a determinate of a person’s legal autonomy
ignores certain biological and economic reality of a child’s dependence on adults for
articulation, assertion and enforcement of rights.41
Though a child’s dependence necessarily bestows an element of dominion over
the child, it does not give an adult a license to ignore the moral dimension implicit in the
respect for autonomy. Justice Douglas further states that “[c]hildren are ‘persons’ within
the meaning of the Bill of Rights.”42 However broad the parental right to raise their
children might be, the Court has begun to assert that it does have its limitations. One
such limitation should be recognized in the context of non-therapeutic treatment. The
World Medical Association’s (1949) code of ethics does not permit “weaken[ing] the
physical or mental resistance of a human being except from strictly therapeutic or
38
Id. at 1116.
39
Mnookin, supra note 25, at 2.
40
Id. at 3.
41
Id.
42
Wisconsin v. Yoder, 406 U.S. 205, 243 (1972) (Justice Douglas, dissenting).
9
prophylactic indications imposed in the interest of the patient.”43 The broad parental
discretion to consent on the behalf of the child typically enjoyed by the parent is sharply
curtailed when a medical procedure has no benefit to the child.44
B.
A Child Cannot Be Regarded as a Means to An End
A core principle expressed by Immanuel Kant as the Formula of Respect for the
Dignity of Persons directs that an individual may not properly be regarded as merely a
means to an end, even if a legitimate end, but rather an individual must be regarded as an
end in itself.45 This intrinsic, objective value inherent in an individual requires us to treat
each other as “ends,” rather than merely as objects to be used solely to satisfy the desires
of others.46 Society inevitably depends on our relation with others, so that we must use
each other to a certain extent for our own ends, and in pursuit of our own happiness.
However, this conduct becomes unethical when the dignity and worth of the individual is
disregarded, such that the individual is reduced to a thing.47
43
Laine Friedman Ross, Children in Medical Research Balancing Protection and Access:
Has the Pendulum Swung Too Far?, 47(4) PERSPECTIVES IN BIOLOGY AND MED. 519, 521
(2004).
44
Waldeck, supra note 3, at 487.
45
Donald L. Beschel, Kant’s Categorical Imperative: An Unspoken Factor in
Constitutional Rights Balancing, 31 PEPP. L. REV. 949, 954 (2004).
46
Immanual Kant, Grounding For the Metaphysics of Morals 30, 35 (James W. Ellinton
trans., 3d ed. 1993).
47
Beschel, supra note 45, at 967.
10
Relying on Kant, it could be argued the parent is using the child as the means to
practice the parent’s culture. Parents subject their child to the painful ritual of
circumcision, not because of any demonstrable health benefits, but because parents desire
the boy to look like his peers and his father.48 Furthermore, religious considerations of
the parents should not justify the parents electing a non-therapeutic procedure for their
child. The Supreme Court has made it clear that while “parents are free to become
martyrs, it does not mean they are free to make martyrs of their children.”49 Thus,
infringement of the parent’s religious freedom is constitutional when there is clear and
present danger to the child.50
IV.
INFORMED ASSENT AS A MEASURED STEP TO ERADICATE MALE CIRCUMCISION
It is the responsibility of parents to demonstrate that a non-therapeutic surgery is
in the child’s best interest.51 Unless a medical procedure is necessary for the promotion
of life or health, it should be postponed until the child is sufficiently mature to participate
in the decision. “Where a child is mature enough to express potentially conflicting
desires, it would be an invasion of the child’s right to permit such an imposition without
canvassing his views.”52 In discussing its views on parents intentionally exposing a child
to non-therapeutic experimentations the Court stated, “parents … have no more right to
48
Waldeck, supra note 3, at 492.
49
Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
50
Id. at 167.
51
Debashis Singh, BMA says Non-therapeutic Circumcision Needs Consent of Both
Parents, 326 BRITISH MED. J. 782, 782 (2003).
52
Wisconsin v. Yoder, 406 U.S. 205, 243 (Justice Douglas, dissenting).
11
intentionally and unnecessarily place children in potentially hazardous non-therapeutic
research surrounding than do researchers. In such cases, parental consent, no matter how
informed, is insufficient.”53
An informed assent approach, representing a more self-determinalistic approach
rather than the nurturance approach, is perhaps best utilized for non-therapeutic
treatments.54 This falls in step with Kantian principles of not using the child as mere
means to effectuate the parent’s cultural and religious beliefs, in addition to respecting
the child as a rational, self-determining, morally autonomous individual.55
V.
CONCLUSION
A purely academic analysis leads to the conclusion that infant circumcisions
should be eradicated because it fails to satisfy the bioethical test of beneficence, nonmalfeasance, justice and autonomy. Others have suggested that circumcision is more
properly construed as a violation of human rights or child abuse.56 An Equal Protection
53
Grimes v. Kennedy Krieger Inst., 782 A.2d 807, 814 (Md. 2001).
54
Mnookin, supra note 25, at 602.
55
Louis P. Pojman, Ethical Theory: Classic and Contemporary Readings 287 (4th ed.
2002).
56
Abbie J. Chesler, Justifying the Unjustifiable: Rite v. Wrong, 45 BUFF. L. REV. 555
(1997); William E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional
Issues, 23 J. FAM. L. 337 (1984).
12
Clause violation has been argued by equating male circumcision to female circumcision,
which has long enjoyed a ban in the United States.57
Though commendable attempts have been made to highlight the inability to
reconcile the legal and ethic dilemmas with the practice of infant circumcision, the fact is
such attempts are out of step with popular sentiment. Today, an estimated of 650 million
males alive are circumcised, so chances are members of the legal community are either
circumcised themselves, have a partner who is, or have chosen to circumcise their own
sons.58 A real change must progress in steps, beginning with the strengthening of the
notion that a child is a person under the Constitution and continual affirmation of a
child’s right to self-determination. Though circumcision as a practice may not be
eradicated, at the very least, it should be postponed until the child can give informed
consent to a non-therapeutic procedure.
57
Dena S. Davis, Male and Female Genital Alteration: A Collision Course with the
Law?, 11 HEALTH MATRIX 487 (2001).
58
Boyle, supra note 1, at 330.
13