Newborn Male
Circumcision
Is It Ethical; Is It Legal?
J. Steven Svoboda, J.D., M.A.
Attorneys for the Rights of the Child
(with Peter W. Adler, J.D., M.A. &
Robert Van Howe, MD, M.S.)
Pitts Lectureship in Medical Ethics
Medical University of South Carolina
Charleston, South Carolina
October 18, 2013
The Norm
 Normal genitalia
• Every boy and girl born genitally intact
 Circumcision is the exception
• 70% of men worldwide intact
• Circumcision rare in the Western world
• Men don’t choose it for selves
• U.S. is the exception in the developed
world
American Academy of
Pediatrics (2012)
 Although health benefits not great enough to
recommend circumcision for all male newborns,
benefits are sufficient to justify access for families
choosing it and to warrant third-party payment
(Medicaid)
 Do other medical associations agree that benefits
justify circumcision? Let’s see…
Australia / NZ
(RACP) 2010
United Kingdom
(BMA) 2006
Benefits do not exceed losses
x
x
x
Ethical problems acknowledged
x
x
x
Legal problems acknowledged
x
x
x
Comparison to FGM
x
x
USA
(AAP) 2012
Netherlands
(KNMG) 2010
Ethics in Position
Statements by Medical
Organizations
AAP 2012: Many Problems (1)
 “Health benefits > risks” (AAP 2012)
• Contradicted by AAP 2012: “incidence of complications
unknown”
 “Circumcision helps prevent HIV” (AAP 2012)
• Contradicted by AAP 2012: Numbers from African men
not shown to apply to American newborns: “key studies
were performed in poverty-stricken African populations
with HIV burdens that are epidemiologically different from
HIV [burdens] in the United States.”
 Two years out of date when issued
 Very selective review of data (e.g., no case reports)
 Not recommending procedure, yet supporting Medicaid
funding. Why the balancing act ?
AAP 2012: Many Problems (2)
 Omits the anatomy or function of the foreskin and the
losses caused by its removal (lost tissue, sexuality)
 Ethics absent —no mention of foundational ethical
principles (autonomy, beneficence, non-maleficence,
justice) and how they bear on permissibility of procedure.
 No meaningful discussion of the law. Parents not granted
wide latitude in decisions re children. Except in
emergencies, parents’ actions with regard to children
limited--Prince v. Massachusetts (1944).
 No discussion of human rights—”supreme law of land”
(Paquete Habana 1900)
AAP 2012 Contradicts AAP
Bioethics Committee (1995)
 The child is the patient, not the parent
 Not “reasonable” (Brady 2013) for physicians to
operate on healthy boys for religious, cultural,
or personal reasons regardless of parental
wishes
 All decisions that can be deferred, must be
deferred
First, Do No Harm (1)
 Cannot harm the healthy
• The cardinal rule, “First, Do No Harm”
• Must respect human rights and medical ethics.
• “If health benefits including lower complication rates
were not lost by deferring [procedure] to a later age,
the decision would clearly be to defer” (Brady 2013)
• Does circumcision have enough benefits? Let’s see.
Potential Medical Benefits?
1. Urinary Tract Infections
 Only argument for infant male circumcision with any possible
relevance to children (Frisch 2013)
 Circumcise at least 100 boys to benefit one (Frisch 2013)
 The 100 circumcisions cause two cases of hemorrhage, infection,
or even more serious complications such as death (Frisch 2013)
 Treatment/prophylaxis with antibiotics
•
Safe
•
Inexpensive
•
Non-invasive
•
Widely available
 CONCLUSION: NO (Frisch 2013)
Potential Medical Benefits?
2. Penile Cancer
 Penile cancer occurs in old age, so boys are not at risk
of it. Washing, not smoking help greatly reduce.
(American Cancer Society 2009; Shabbir 2013)
 One of rarest forms of cancer in the Western world.
 American men as likely to be struck by lightning as by
penile cancer. (Adekoya 2005)
 Rates of penile cancer in the United States exceed
rates in Denmark (Iversen 1997), Norway (Frisch
1995), Finland (Maiche 1992), and Japan (Swafford
1985), where circumcision rare.
 CONCLUSION: NO. (Frisch 2013)
Potential Medical Benefits?
3. Reduce Risk of STDs Including HIV?
Infants of course not at risk of sexually transmitted HIV or other STDs.
Africa is not the United States
•
Absolute risk reduction only 1.3% in very high risk African population (Boyle 2011)
•
Numbers from African men not shown to apply to American newborns (AAP
2012)
Recent evidence suggests no protective effect among American men,
“challenge[s] common beliefs regarding protective nature of circumcision.”
(Gonzalez 2013, Van Howe 2013 agrees)
Protection “negligible or nil” (Garenne 2013)
Condom still required and suffices w/o circ so what is gained? (Garenne 2013)
CONCLUSION: NO. (Frisch 2013)
EVEN IF YES, PUBLIC HEALTH ARGUMENTS CAN’T TRUMP ETHICS.
Because: "Cardinal medical question not whether circumcision can prevent
disease, but how disease can best be prevented.” (Frisch 2013)
First, Do No Harm (2)
 Irreversible, unnecessary, non-therapeutic, invasive
 Not recommended by any national medical association
in the world
 Performed without a diagnosis on healthy boys
 Regret as adults (Hennen 2013, Johnson 2013)
 Loss of function
• Circumcision ablates the most sensitive parts of the penis
(Sorrells 2007)
• Orgasm difficulties in men and frequent sexual difficulties
in women (Frisch 2011)
MEN’S VOICES
“When you do it to a
baby, there's no way
back. I’ll never know
what sex would be like
with a foreskin. It
makes me angry that
somebody else
decided for me,
to do something that
I probably would
not have done if
I was deciding
for myself.”
MEN’S VOICES
“I have never
been able to
accept the fact
that someone cut
part of my penis
off when I was a
baby. The sheer
monstrousness of
it haunts every
waking moment
of my life.”
First, Do No Harm (3)
Angelo Ofori-Mintah died June 2012 blood loss; David
Reimer suicide May 2004; Brayden Tyler Frazier died March 2013 blood loss
Circumcision Analogies (1)
 Let’s examine other procedures that are analogous to
male circumcision.
 We’ll start by listing all the other procedures that share
the following characteristics:
• Not medically necessary
• Done in absence of problem or emergency
• Irreversibly removes functional tissue
• Non-consenting child
Circumcision Analogies (2)
 Here is the list of analogous procedures:
Two Questions Re Ethical
Principles
 Is it ethically acceptable to surgically alter the natural
genitals of a child, when no compelling therapeutic
reason exists?
 Who is the appropriate person to give permission for
elective, non-therapeutic cutting of anyone’s genitals?
Ethical Concerns Mounting
 “If we view a child's foreskin as having a valid function, we are no
more justified in amputating it than any other part of the child's
body unless the operation is medically required treatment and
the least harmful way to provide that treatment.”*
•
Margaret Somerville, MD, The Ethical Canary: Science, Society, and the Human Spirit. Toronto, 2000.
 “Child circumcisions are in conflict with medical ethics.”*
*
Finnish Medical Association, 2012
Neonatal Circumcision:
Core statement of the
ethical problem
 Circumcision is a
• non-therapeutic
• medically unnecessary
• irreversible amputation
• of a normal, healthy, functional body part
• from a non-consenting person.
The Easy Ethical Solution:
Wait
 “minors may only be exposed to medical treatments if
illness or abnormalities are present”
 “Non-therapeutic circumcision of male minors conflicts
with the child’s right to autonomy and physical
integrity.”
 “put off circumcision until…the boy himself can decide”
— Royal Dutch Medical Association (KNMG), 2010.
Non-therapeutic Circumcision of Male Minors.
Disadvantages if We Don’t
Wait— Dangerous
 Acknowledgement of “untoward events” (AMA 1999)
• 2%-10% (Williams 1993), 20%+ (Joudi), unknown (AAP 2012)
• Denudation, concealed penis, skin bridges, chordee, cysts,
lymphedema, hypospadias, epispadias, urinary retention, and
rare but severe events including scalded skin syndrome,
necrotizing fasciitis, sepsis and meningitis, urethrocutanous
fistulas, necrosis, and partial amputation of the glans penis
(AMA 1999)
 Many “botched” circumcisions
• High rates of surgical repairs
• Loss of the entire glans or penis does occur
• >100 deaths per year in the U.S. alone (Bollinger 2010)
Real Life Complications
 “In a two-year period, I was referred >275 newborns
and toddlers with complications of neonatal
circumcision.”
 “45% required corrective surgery.”
— David M. Gibbons, Pediatric Urologist, Georgetown University Hospital
 7.4% of all visits to pediatric urologist at Massachusetts
General Hospital over five years were for circumcision
complications (Krill 2011)
Postoperative Complications
if We Don’t Wait
 Bleeding.*
 Long-term aggravated response to pain. (Taddio 1997)
 Infection. (Neonatal incidence 1%; O’Brien 1995)
 Meatal Stenosis. (20% Joudi 2011)
 Glandular Necrosis.
 MRSA is twelve times more likely in circumcised boys.
(Nguyen 2007)
 Severe permanent disability or death.*
* Joshua Haskins died Sept 2010 and Brayden Tyler Frazier died March 2013
from circumcision blood loss.
CDC 2007: Advantages of
Circumcising Newborns?
 Advantages for whom?
 Easier to restrain a newborn
 Consent of patient himself not required
 More complications in circumcisions done
during neonatal period (Machmouchi 2007)
 What about loss of tissue? Psychological
damage? Other complications? (Pain
sensitivity)
Are Physicians Well-Trained?
 “Lack of formal instruction”
 “May explain complications, unsatisfactory
results”
 “Many unaware of contraindications and most
non-surgeons can’t handle common
complications”
— Jorge de Maria et al. 2013
Let’s see if we can answer the questions we posed
earlier.
Ethical Question #1
Q1: Is it ethically acceptable to surgically alter
the natural genitals of a child, when no
compelling therapeutic reason exists?
A: NO
 Childhood circumcision only acceptable in
vanishingly rare cases in which medically
necessary and conservative interventions have
failed.
Ethical Question #2
Q2: Who is the appropriate person to give
permission for elective, non-therapeutic cutting of
anyone’s genitals?
A: The owner of the penis, i.e. the male himself,
when he is old enough to give his own informed,
voluntary consent.
No ethical problem with circumcision of
consenting, adequately informed adults.
Ethical Justification--NO
A medical benefits or 'therapeutic' justification for a
procedure requires that:
1. benefits sought outweigh the losses*
2. only reasonable way to obtain these benefits,* and
3. necessary to the well-being of the child.*
None of these conditions is fulfilled for routine infant
male circumcision.*
* Margaret Somerville, MD, The Ethical Canary: Science, Society, and the Human Spirit.
Toronto, 2000.
Is Circumcision Ethical?
1. Violates Four Fundamental Ethical Principles
 Autonomy/Privacy
• Does it respect the individual’s right to make his own decisions?
 Beneficence
• Is it reasonably expected to do good?
 Non-maleficence
• Does it avoid doing unnecessary harm?
 Justice
• Is it fair?
Is Circumcision Ethical?
2. Autonomy—fundamental ethical rule
Patient autonomy is a fundamental ethical rule violated by
circumcision
Autonomy necessary to protect
• freedom
• privacy
• self-determination
• making important decisions about one’s body for oneself
All decisions that can be deferred must be deferred (AAP
Committee on Bioethics 1995)
Is Circumcision Ethical?
3. Prohibited as Unnecessary Surgery
 Violates AMA Ethical Opinion 2.19
• Physicians should not provide, prescribe, or
seek compensation for medical services that
they know are unnecessary
Is Circumcision Ethical?
4. Commercial Use of Human Tissue
 Violates AMA Ethical Opinion 2.08
• No commercial use of human tissue

Foreskins sold without patient consent
violate medical ethics.
Is Circumcision Ethical?
5. Physician’s Duty Is to the Patient Alone
A physician’s duty is to the patient alone
•
The patient is the child, not the parent. (AAP Bioethics Com. 1995)
Based on patient’s needs alone
Independent of parents’ desires
•
Physicians cannot operate on healthy boys for religious, cultural,
or personal reasons regardless of parental wishes. (AAP Bioethics
Committee, Informed Consent, Parental Permission, Assent 1995)
Ethical rule of proportionality also applies—benefits must be
proportional to risks and losses (Diekema 2006)
•
A physician could not amputate a broken leg if it could be put in
cast.
Neonatal Circumcision:
Core statement of the
legal problem
 Do boys, like girls, have a right to bodily integrity?
 Do physicians have right to circumcise healthy boys?
 Do parents have legal right to approve circumcision?
•
•
Parents must act in the child’s best interests
Precludes making medical decisions for non-medical reasons (AAP Bioethics
Committee 1995)
 Advantages don’t exceed disadvantages
 Violates freedom, autonomy, privacy rights
 Removes healthy, functional body part, taking away
right to decide for oneself
Legal Concerns Mounting (1)
 Legal decisions upholding child’s right to protection
against circumcision
Legal settlement upheld right in US to recover damages for circumcision with proper
“consent” and no unusual results (not a “botch”)—Virginia, 2003
Circumcision irreversible, not medically necessary, and not in best interests of child.—
Zutphen, Austria, 2007
Circumcision is bodily injury, and doctors can be criminally liable. Procedure can
and should be safely delayed until age at which boy can choose for himself—
Cologne, Germany, 2012
Mother cannot have doctors perform male circumcision on healthy, normal six-yearold child because of psychological damage it could cause him — Hamm, Germany,
2013
Legal Concerns Mounting (2)
 On September 24, 2013, Swedish legislators
introduced a bill that would outlaw circumcision of
males younger than 18 years of age for non-medical
reasons.
 On October 1, 2013, Council of Europe passed
Recommendation 2023 endorsing child's right to
physical integrity and Resolution 1952 opposing male
circumcision
Is Circumcision Already Illegal?
1. Human Rights: “Supreme Law of the Land”
 General Rights
•
Right to life, liberty, and security of person
•
Right to freedom from cruel, inhuman, and degrading treatment
•
Right to equal protection before the law.
 Special Rights For Children
•
Right to opportunities to develop physically, mentally, morally,
spiritually, and socially in a healthy and normal manner, and in
freedom and dignity.
•
Right to protection from all forms of mental and physical violence,
injury, or abuse, including sexual abuse.
•
Right of protection from traditional practices prejudicial to the
health of children.
Is Circumcision Already Illegal?
2. Tort Law—Tort is Civil Wrong
 Assault
•
Intentional; causes harmful or
offensive contact; Imminent
apprehension
 Battery
•
Intended, offensive, bodily
contact
 False imprisonment
•
Intentional confinement; Aware
of confinement
•
No consent to confinement; Not
privileged
 Defense
•
Consent: “to willing person, no
injury is done”
•
Children do not consent
 List published of over fifty
circumcision-related lawsuits
and settlements--highest
$32M
► Circumcision is a tort
Is Circumcision Already
Illegal?
3. “Consent” Invalid
 Must be an actual medical need
 Not valid for non-therapeutic procedures
 Fully informed parental consent required; otherwise
assault and battery (89 A.L.R.3d 32)
“All risks potentially affecting decision must be
unmasked”
 Parents not fully informed/misinformed (Longley 2009,
Ciesielski-Carlucci 1996)
Is Circumcision Already
Illegal?
4. Boys’ Rights Trump Their Parents’ Rights
 Boys have an absolute, inalienable right to be left intact
• Bodily integrity and security of person (5th, 14th Amendments)
 Parents’ rights are subordinate
• Constitutional rights adhere to individuals
• One person’s constitutional rights end at another person’s
body—Prince v. Massachusetts (US Supreme Court 1944)
• German court held that boys’ rights trump their parents’ rights
•
Congress has said the same about girls’ rights
Is Circumcision Already
Illegal?
5. Beyond the Scope of Medicine
 Having a foreskin not a medical condition or disease
 Medical associations: circumcision is not medically
justified
• Circumcision is beyond the scope of medicine
Is Circumcision Already
Illegal?
6. Unlawful to Use Medicaid to Pay for Circumcision
 Medicaid only covers necessary medical care
 Cosmetic, elective, ritual procedures not
covered
 Correction: 18 states did not defund after AAP
1999.
 Twelve states defunded after AAP 1999.
 Six states (CA, MS, ND, NV, OR, WA)
defunded before AAP 1999.
Is Circumcision Already Illegal?
7. Equal Protection: Males and Females Must be Treated
Equally (5th and 14th Amendments)
Symbolic FGM OK—AAP April 2010
All forms of FGM Wrong—AAP June 2010
“How can it be wrong to surgically alter the
genitals of a baby girl … but okay to
surgically alter the genitals of a baby boy?”
— Soraya Miré, Survivor, FGM Activist
Conclusion for Dr. Walling:
Easy Legal Solution: Wait



•
The Facts
•
Many disadvantages, no meaningful net benefits
•
Not medically justified
Already Unethical
•
Violates many ethical rules
•
Inconsistent with the fundamental principle of autonomy/privacy
Already Illegal
•
Boys, like girls, have the right under many laws to normal bodies and genitalia
•
Physicians cannot operate on healthy boys
•
Successful lawsuits inevitable in US
The boy is the patient, not the parent
•
Circumcision is not in his best interests
Angelo Ofori-Mintah died June 2012 blood loss; David
Reimer suicide May 2004; Brayden Tyler Frazier died March 2013 blood loss
Thank You!
J. Steven Svoboda, J.D., M.A.
Executive Director
Attorneys for the Rights of the Child
www.arclaw.org