Somerville/Walker

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McGill

Margaret A. Somerville
Gale Professor of Law

McGill Centre for Medicine,
Centre de médecine, d'éthique
Tel.: (514) 398-7401

Ethics and Law
et de droit de l'Université McGill
Fax.: (514) 398-4668
3690 Peel Street
3690, rue Peel
Telex: 05268510

Montreal, Quebec, Canada H3A 1W9
Montréal (Québec) Canada H3A 1W9

November 10, 1997

Dr. C. Robin Walker
Chief, Division of Neonatology
Children's Hospital of Eastern Ontario
401 Smyth Street
Ottawa, Ontario K1H 8L1

Dear Dr. Walker,

I have received a copy of your letter of November 5, 1997 to Mr.Dennis Harrison.

First, let me say that I thought your comments on infant circumcision, as reported in the press, were excellent. Some of those in your letter surprise me, however, in view of thesepress reports.

Second, I would like to explain my use—with which you appear to disagree—of the words criminal and unethical in relation to infant male circumcision. If you read the Ottawa Citizen article, you will see that I said that infant male circumcision undertaken for non-medical reasons was technically criminal assault. This is correct. All wounding of one person by another person is prima facie criminal assault (indeed, aggravated criminal assault), but it can become justified—that is, not illegal, not a crime—on certain conditions. The most common and important situation in which wounding is not a criminal assault, is when it is indicated as medically required surgery and it is undertaken with the informed consent of the person on whom it is carried out or, if this person is incompetent, of their legal representative (in the case of children, the parents). The difficulty with infant male circumcision is that when it is not medically indicated—the Canadian Paediatric Society, for instance, has stated it is not medically indicated as a routine procedure—medical justification is not present and, although adults can consent to have a non- therapeutic intervention carried out on themselves provided the intervention is not considered to be contrary to public policy, in general, they may not consent to having such interventions carried out on their children. The exception to this is if the intervention is considered to be what the law calls de minimis, that is, a trifle of which the law will not take notice. Arguably, ear-piercing, especially as it is reversible, falls within this category. However, even the rabbis with whom I talked agreed that male infant circumcision is not de minimis. (For your information I am enclosing copies of correspondence with two Ministers of Justice [1, 2] that set out the above legal analysis in slightly more detail). What we are faced with here then, is the question of whether profound religious belief justifies infant male circumcision within the criminal law. There are examples of religious belief providing justifiable exceptions to the law e.g. Quakers who are pacifists being exempt from conscription. But even if such an exemption is allowed, it would not apply to justify parents consenting to circumcision of their child other than for religious belief.

As to whether it is unethical for a physician to carry out male circumcision, that depends on a medical ethics analysis. I am attaching a copy of a letter which Dr. David Alwin and I wrote to The New England Journal of Medicine, which raises this issue. If, as Taddio et al. state in one of their articles, it is barbaric to carry out male infant circumcision without anaesthesia, and it seems a reasonably intrusive intervention in the form of a penile nerve block is required for adequate anaesthesia, is it ethical for physicians to be undertaking such a procedure for non-medical reasons? Moreover, is it ethical for physicians to permanently change the physical integrity of a child who cannot consent for himself, when this is not medically necessary? We also need to keep in mind that the physician has the burden of proof to show that a wounding is justified. Therefore, contrary to the statements in your letter that until there is general agreement throughout the medical profession that the procedure is unwarranted and indeed that the performance of the procedure is inappropriate, the converse is the case. Physicians should not do this procedure unless they can show it is ethical and legal to do so. Likewise, your statement [m]oreover, until such time as the law is amended, parents do in Canada continue to have the right to make choices on behalf of their children, is not correct as I have explained above. The present law would prohibit circumcision on a child unless the persons consenting to this and the physician carrying it out can show that it is justified. In this respect a judgment of the Supreme Court of Canada, in Re Sheena B, is also of interest. The court distinguishes parents' rights to practice their religion with respect to themselves and with respect to their children. There can be limits imposed in the latter respect that would not apply to the parents' practice concerning themselves.

As to the comparison between male and female circumcision, you are correct that in the great majority of cases, female genital mutilation is vastly more destructive and harmful than male circumcision. However, from a legal and medical ethics point of view, the same basic issues are raised. Indeed, the reason that I got into a discussion with Sharon Kirkey about infant male circumcision, was that she phoned me to ask about the ethics that governed an obstetrician who had delivered a child from an infibulated woman, who was requesting that the infibulation be reconstituted after the delivery. Apparently, under current Ontario guidelines, it is considered unethical for a physician to reconstruct the infibulation, even for a competent consenting adult woman. Indeed to do so may well fall under the recent amendment to the Criminal Code prohibiting any surgical interference with female genitalia, no matter how minor, exceptfor medical reasons.

Finally, I would point out that as I stated in The New England Journal of Medicine and as I was reported as saying in the Ottawa Citizen article, we have not yet considered whether profound religious belief will by itself constitute a justification for carrying out infant male circumcision. The point is that we should face this question directly and not under the cover of a medical façade. You are obviously an expert with respect to whether male infant circumcision is medically required, and have far greater knowledge about this than I do, but I am surprised from the research that I have done recently on the medical literature on this topic, that you are as uncertain as you appear to be in your letter to Mr. Harrison as to whether or not routine infant male circumcision is medically indicated.

Yours sincerely,
[signed]

Margaret A. Somerville, AM, FRSC

Gale Professor of Law; Professor, Faculty of Medicine

enclosure
MAS/ep

cc:
Dr. John R. Williams, Director of Ethics, Canadian Medical Association
Mr. Dennis C. Harrison, Vancouver, B.C.

Somerville M. Letter to C. Robin Walker, 10 November 1997.

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