Somerville's letter to Robin Walker of Jan. 28, 1998

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McGill

Margaret A. Somerville
Gale Professor of Law
McGill Centre for Medicine, Ethics and Law
3690 Peel Street
Montreal, Quebec, Canada H3A 1W9

Centre de médecine, d'éthique et de droit
Université McGill
3690, rue Peel
Montréal (Québec) Canada H3A 1W9

January 28, 1998

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

Dear Dr. Walker,

Thank you for your letter of December 12, 1997. My delay in replying rises from the fact that I have been in Australia for the last month. As I am sure you will understand, the backlog of work is very heavy, consequently, I will only reply very briefly.

All woundings are criminal assault unless they can be justified. The burden of proof of justification is on the person who causes the wounding. A therapeutic aim is the justification for almost all medical wounding and is an essential justification for those unable to consent to the wounding for themselves. Consequently, a physician would need to show that infant male circumcision was medically necessary before it would be justified. If there is equal doubt as to whether or not it is medically necessary (which seems to me to be the most favourable position that, at present, could be taken in favour of infant male circumcision), then the procedure must not be carried out.

In other words, in situations of equal doubt, the person with the burden of proof (the physician) cannot proceed. In short, all woundings that are more than de minimis harms, which circumcision certainly is, are criminal assault unless they are justified and the only possible justification for non-religious infant male circumcision is medical justification. The issue which remains is whether the law will recognize profound religious belief on the part of a child's parents as a sufficient justification for a non-medical wounding. That question has not been addressed in the courts.

You raise the issue of cosmetic surgery and whether this constitutes criminal assault. Cosmetic surgery can only be carried out provided two conditions are present. First, the intervention must not be contrary to public policy. (You should note that this is also true of therapeutic interventions, but there is a presumption that necessary therapeutic procedures carried out by properly qualified medical practitioners are not contrary to public policy). I have no doubt that adult male circumcision would not be considered contrary to public policy. In other words, it is not something that would, in itself, be prohibited. Second, a non-therapeutic intervention such as cosmetic surgery is only legally justified with the voluntary and informed consent of the person who undergoes the intervention. Infants cannot give such a consent, adults can. Whether mature minors can consent to non-therapeutic interventions (they can consent to therapeutic ones) is a debated question. If you wanted to read further about the legitimization of non-therapeutic medical procedures, you could see my 1980 article Medical Interventions and the Criminal Law: Lawful or Excusable Wounding (McGill Law Journal), in which I considered the difficulties that we were facing, at the time, in legitimating the medical intervention that we undertook on live organ donors. Initially, taking, for example, a kidney from a live organ donor, was regarded as a criminal assault. We later justified this on the grounds that the person was a competent, consenting, adult and that the intervention itself, provided that the kidney was to be used to save the life of another person, was not contrary to public policy. It should be noted, however, that say, for instance, one wanted to remove a person's kidney simply for research purposes, this would not fall within the public policy legitimization (I am assuming here that there is no therapeutic reason for the person involved, to have his or her kidney removed).

I believe that if you re-read the Ottawa Citizen article, you will find that the word technically is used in conjunction with the words criminal assault. It was not used in the title, but was used in the body of the article.

Finally, you seem to think that interventions become ethical or unethical according to whether the person carrying them out believes they are or are not acting ethically. That is not correct. While following the dictates of one's conscience is necessary for good ethics, it is not sufficient. There are many people who believe that female genital mutilation is ethical and yet we Canadians decided very recently to prohibit this using our strongest political and policy tool, the criminal law.

With kind regards.

Sincerely,
[signed]

Margaret A. Somerville, AM, FRSC

Gale Professor of Law;
Professor, Faculty of Medicine

cc:
Dr. J. R. Williams, Director of Ethics, Canadian Medical Association
Dr. Eileen Marie Wayne, Rock Island, IL, U.S.A.
Mr. D. Harrison, Vancouver, BC

Citation:

Somerville MA. Letter to C Robin Walker. 28 January 1998.

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