Abbie J. Chessler: Justifying the Unjustifiable: Rite v. Wrong, Chapter 4

Buffalo Law Review, Volume 45: Pages 604-612, 1997.

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Any strategy for eradication must utilize both domestic and international laws. Domestic laws, especially in democratic societies, have been approved by the people and are more likely to be enforced than international law. International law also presents the problem of the perception that outsiders are suggesting that traditions are wrong and should be abandoned; this can often lead to resistance and feelings of alienation and resentment. As with any cultural practice, those who advocate circumcision fear moral imperialism.374

The major difficulty in dealing with cultural practices occurs when entire nations overwhelmingly hold a belief with regard to such practices. The question of condemning such a cultural norm raises the issue of whether such countries deserve moral sovereignty and autonomy because of the overwhelming democratic legitimacy given to the practice within the nation's borders. Whether or not democratic legitimacy can take precedent over issues of moral consequence is difficult to answer. The solution, perhaps, in these nations and others fearing moral imperialism, lies in the use and dissemination of sound scientific knowledge. In contrast to moral condemnation, scientific knowledge, by pointing out biological and verifiable facts, could be used to contradict local myths. A country's general health and welfare policy fortified by scientific research would wield authority without making communities morally inferior.

Male circumcision in practice and its justifications must be seen as comparable to female circumcision. Every child should have a birthright to his or her entire body. The size of the cut should not be an issue; the focus must be placed on the innocent children who are forced to suffer without consent. The penis should be left in its natural state; circumcision takes away something that belongs to the child and is a violation of basic human rights.375 The recent call for anesthesia is evidence of the increased awareness of the pain and suffering on infant faces. If anesthesia, however, were deemed necessary for infant circumcision, this would force most parents and medical practitioners to [think] about the necessity of the operation.376

A positive step has been taken toward the eradication of female circumcision. An equally positive step must be taken to end the practice of male circumcision. International doctrines and domestic remedies may prove helpful, but a better solution lies in a method similar to that being used to combat female circumcision by the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children.377 The committee organizes seminars and workshops to educate practicing communities of the harmful act. The committee also lobbies in order to gain more recognition for the issue of female circumcision.378 Moreover, local programs of education are being instituted for women and birth attendants with the hopes of complete eradication by the year 2000.379 Similar outreach efforts should be conducted to educate communities about the misperceptions and dangers of male circumcision.

The anti-circumcision movement is slowly evolving, but more must be done to fight the practice. The application of domestic laws must be undertaken, especially in the United States. The United States' failure to take steps against male circumcision is hypocritical. The new federal law banning female circumcision demonstrates the unequal perceptions regarding male and female circumcision.380 Retired Representative Patricia Schroeder, one of the bill's sponsors, stated: [t]here is no place for FGM here.381 By condemning one practice and not the other, the United States is misleading its citizens, virtually saying there is a place in American society for mutilating boys but not for girls. This is also evident in Senator Reid's statement to the President regarding female circumcision:

Although I believe this practice is a tortuous act when performed on any woman, I am most concerned about it being performed on children and young girls under the age of 18--in other words, below the age at which a child can give consent. A child does not have the ability to consent or understand the significance and the consequence this ritual will have on her life, on her health, or on her dignity. Young girls are tied and held down, they scream in pain and are not only physically scarred, but they are emotionally scarred for life.

Male circumcision is also performed on children who cannot give their consent. These children scream in pain as well, and evidence exists that the ritual procedure produces both physical and emotional scars. Senator Reid also states that female [circumcision] is difficult to talk about, but ignoring this issue because of the discomfort it causes us does nothing but perpetuate the silent acquiescence to its practice.383 This is exactly what the United States is doing with regard to male circumcision.

With the formation of  External link DOC (Doctors Opposing Circumcision), a campaign to ban routine infant circumcision is underway.384 These doctors recognize that no one has the right to forcibly remove sexual body parts from another individual. They also believe that doctors should have no role in this painful, unnecessary procedure inflicted on the newborn.385 The first tenet of medical practice is First, Do No Harm. Routine circumcision does harm and violates this oath.386. Dr. Benjamin Spock, the famous baby doctor. recommended in early editions of Baby and Child Care, the child care Bible, that infant males should be circumcised.387 However, even the baby doctor changed his tune. We now know that [circumcision] is not the only choice,  External link Spock has since written, nor is it agreed that it is the most sensible choice. My own preference, if I had the good fortune to have another son, would be to leave his little penis alone.388

Activist Organizations such as  External link NOCIRC (National Organization of Circumcision Information and Resource Center), and  External link NOHARMM (National Organization to Halt the Abuse and Ritual Mutilation of Males) are educating communities by documenting the ramifications of circumcision and lobbying for the addition of male circumcision to the law against female circumcision.389 NOCIRC regularly publishes a newsletter, sponsors symposiums on circumcision, and publishes several informational pamphlets for distribution at medical facilities.390 NOHARMM also distributes literature about male circumcision and its complications and produced a film which examines the ethics and human rights issues regarding infant male circumcision.391 Recent support groups, such as  External link NORM (National Organization of Restoring Men) and BUFF (Brothers United for Future Foreskins, and informing the American public about the brutal removal of their foreskins.392 These groups are pioneering non-surgical techniques for restoring foreskins.393 Although these groups demonstrate the negative effects of circumcision, time and money would be best spent campaigning against future male circumcision and not focusing on the restoration of lost foreskins.

Efforts are being made to study the cost effectiveness of male circumcision.394 A recent cost-utility analysis indicated:

[t]he net, discounted lifetime dollar cost of routine infant circumcision is $102 per person, while the net discounted life-time health cost is [fourteen] hours of healthy life. These results suggest that the financial and medical advantages of routine neonatal circumcision cancel each other and that factors other than cost or health outcomes must be used in decision making.395

An estimated $200 million per year is spent on male circumcision. As a result of the economics of circumcision, an intolerable dynamic occurs as physicians seeking profits perpetuate the abuse. Male circumcision, then could be argued, is market driven as opposed to ideologically based--the notion that non-medical parents demand circumcision and doctors provide the service is a guise created by both the physicians and insurance companies. A recent study in Madison, Wisconsin found the following: [A] 30-minute circumcision goes for $260 a cut. The hospital takes half; the doctor takes the other half. If a doctor does just one circumcision a day, five days a week for an entire year, he or she will increase his or her annual income by $33,800.396 These funds could be better spent on researching cures to life-threatening diseases or on other necessary health programs.397

Most insurance companies cover routine infant male circumcision. Male circumcision opponents are reaching out to insurance carriers and notifying them that there is no medical indication for the procedure. Several letters from insurance companies to male circumcision opponents indicate that male circumcision is covered because of artificial consumer demand and imbedded cultural norms.398 Positive efforts, such as writing to and lobbying insurance companies, must continue. Although insurance companies acknowledge that male circumcision is not a medical necessity and continue to cover the procedure, there must be hope that eventually some will take notice and cease issuing policies offering coverage--only then maybe more doctors and parents will question the procedure.399 Moreover, it is ironic that insurance companies continue covering an unnecessary medical procedure, but often refuse to cover procedures which are of greater medical value.400 This too could be linked to a profit driven theory. Whether or not parents insist upon coverage of the procedure should be irrelevant.

Like uncircumcised women, uncircumcised men can clean their genitals to prevent infection and disease. Optimal hygiene is a necessary replacement for circumcision; surgery is not a solution. For this to be successful, however, people will have to begin discussing their genitalia in an open manner with their children and others. Frank discussion of sexuality is generally discouraged in American society; it is often taboo to speak of one's penis or vagina. The discourse must change. Both physicians and parents must begin to look at and discuss the real issue--the abuse of innocent children.

In religious communities, alternatives to traditional ceremonies must be suggested and incorporated; religious leaders must begin to speak out and question circumcision. For example, the Jewish community has begun to address the issues presented by circumcision.401 An Alternative Bris Support Group has been formed for parents who wish to consider a bris without circumcision.402 Parents are now beginning to perform these nontraditional circumcision ceremonies. [T]hey want to emphasize that [the] covenant [is] made in the heart rather than on the body, and that it is equally binding.403 Moreover, Jewish feminists are speaking out against male circumcision, recognizing that it is inconsistent with traditional Jewish values.404 These women contend that opposing circumcision is not just men's work, but it is also women's and that the tow must work together because it is not possible to violate or suppress the sexuality of one gender without doing harm to the other.405 Women need to continue these efforts and begin working with male organizations to halt the abuse.


  1. Culture plays a significant role in any call for eradication of a cultural norm. Any prohibition of male circumcision will be debated by cultural relativists and universalists. There are two obvious opposing concerns: the absolute right of cultural self-determination' and the right of the individual not to be subjected to a tradition or practice that might be harmful or fatal. Alison T. Slack, Female Circumcision: A Critical Appraisal, 10 Hum Rts Q 437, 470 (1988). This comment, however, does not address the arguments made by cultural relativists. For a discussion of the interplay between cultural relativism, and human rights, see Alison D. Rentelm, International Human Rights Universalism Versus Relativism (1990); Amede L. Obiora, The Little Foxes that Spoil the Vine: Revisiting the Feminist Critique of Female Circumcision in Africa (unpublished manuscript, on file with the Buffalo Law Review); I Gunning, Arrogant Perception, World Travelling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 Colum Hum Rts. L. Rev. 189 (1992); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 Har. Hum. Rts J. 125 (1994); Eugenie A. Gifford, The Courage to Blaspheme: Confronting Barriers to Resisting Female Genital Mutilation, 4 UCLA Women's LJ 329 (1994); Sandra D. Lane & Robert A. Rubenstein, Judging the Other: Responding to Traditional Female Genital Surgeries, 26 The Hastings Center Report 31 (May 1996); Stephen A. James, Reconciling International Human Rights and Cultural Relativism: The Case of Female Circumcision, 8 Bioethics 1 (1994); Eike-Henner Kluge, Female Circumcision: When Medical Ethics confront Cultural Values; 148 Can Med Assoc. J 288 (1993); Barrett Breitung, Interpretation and Eradication: National and International Responses to Female Circumcision, 10 Emory Int'l Law Rev. 657 (1996); Lewis, supra note 9, at 3; Culture, supra note 18, at 1944; Funder, supra note 22, at 417.
  2. See Romberg, supra note 1, at 386.
  3. Id. at 387. Romberg, in the conclusion of her book on circumcision states:
    Even if a method could be devised that would render neonatal circumcision totally painless and non-traumatic, a consideration of the horrendous complications that have resulted, the sexual advantages of possessing one's foreskin, the ethics of altering another person's body with his permission and the basic concept of leaving the body in its natural state should certainly convince most people that the opera tion should not be done.
    Id. at 389.
  4. Hosken, supra note 22, at 20-21; Funder, supra note 22, at 437.
  5. Hosken, supra note 22, at 20-21; Funder, supra note 22, at 437.
    The most successful endeavors to prevent [female circumcision] have been at the grassroots level led by women, many of whom have undergone this excruciating operation, with support from the World Health Organization, UNICEF, and other international human rights groups.
    Reid Press Release, supra note 290.
  6. Hosken, supra note 22, at 20-21; Funder, supra note 22, at 437.
  7. See supra notes 288-93 and accompanying text.
  8. 139 Cong. Rec. H7,564 (1993).
  9. Reid Press Release, supra note 290.
  10. Id.
  11. George C. Denniston, M.D., M.P.H.,  External link The End of Circumcision in America.
  12. Id.
  13. Id.
  14. Benjamin Spock, M.D.,  External link Circumcision--It's Not Necessary, Redbook, Apr. 1989; see also Wallerstein, supra note 1, at 47-48.
  15. Id.
  16. Id. Rodrick, supra note 192, at 10. NOCIRC publishes literature to inform the public that circumcision is unnecessary and of the physical and psychological effects that may occur as a result of circumcision. The organization has formed a public education campaign which targets prospective parents. Moreover, they attempt through a letter-writing campaign to discourage insurance companies from covering the procedure. Laurie S. Anderson, Routine Circumcision Focus of Reconsideration, Protest, Baton Rouge Advoc., July 4, 1993, at 9C. Tim Hammond is founder of  External link NOHARMM which is a children's rights project of men against infant circumcision. Hammond states that the group has taken a strong stance against infant circumcision because it violates bodyownership rights of children. He thinks that a relatively small group of people understand the purpose and function of the foreskin and the increased sexual pleasure that can be derived if it is left intact. Furthermore Hammond states that circumcision has been blindly accepted for so long in this country because males have been more reluctant than females to talk about their bodies to their physicians, and more often experience embarrassment or shame when discussing sexuality. Jill Sell, National Group Opposes Male Infant Circumcision, Plain Dealer, July 6, 1993, at 9D (quoting Tim Hammond).
  17. Two pamphlets distributed by  External link NOCIRC are Nurses for the Rights of the Child,  External link Answers To Your Questions About Infant Circumcision, and  External link Answers To Your Questions About Your Son's Intact Penis. (Newsletters and pamphlets are on file with the Buffalo Law Review). NOCIRC sponsored the First International Symposium on Circumcision (ISC) in 1989, and on March 3, 1989, the general assembly adopted the Declaration of the First ISC. Several of the declarations tenets read as follows:
    We recognize the inherent right of all human beings to an intact body. Without religious or racial prejudice we affirm this basic human right.
    We recognize the foreskin, clitoris and labia are normal, functional body parts.
    Parents and/or guardians do not have the right to consent to the surgical removal of their children's normal genitalia.
    The only persons who may consent to medically unnecessary procedures upon themselves are the individuals who have reached the age of consent (adulthood), and then only after being fully informed about the risks and benefits of the procedure.
    We categorically state that circumcision has unrecognized victims.... Physicians who practice routine circumcisions are violating the first maxim of medical practice, Primum non nocere, First Do No Harm, and anyone practicing genital mutilation is violating Article V of the United Nations Universal Declaration of Human Rights: No one shall be subjected to torture or to cruel, inhuman or degrading treatment.
    Geoffrey T. Falk, Declaration of the First International Symposium (visited Oct, 1, 1996.) See also Marilyn Fayre Milos & Donna Macris, Circumcision: a Medical or a Human Rights issue?, 37 J Nurse-Midwifery, Mar./Apr. 1992.
  18. Nearly forty NOHARMM informational sheets on circumcision are on file with the Buffalo Law Review.
  19. Rodrick, supra note 192, at 10; see also Bigelow, supra note 224, at 56; R. Wayne Griffiths, Restoration, Ball Bearing Method, Uncut (July 1988) (edited Oct. 1991, on file with the Buffalo Law Review); Information sheet supplied by  External link NORM that lists devices that may be used for foreskin restoration (on file with the Buffalo Law Review); Electronic Mail Letter from Bernard W. Knott to Barrett, (Mar. 25, 1996) (on file with the Buffalo Law Review).
  20. James Bone, Men Fight for End to First Cut of Manhood, The Times (London), May 16, 1995.
  21. See, e.g., Tom Garry, Circumcision: A Survey of Fees and Practices, OBG Management, Oct. 1994, at 34. Circumcision fees average $137 nationwide. States such as New York, New Jersey, and Maryland had the highest fees while the lowest were found in the Midwest, Deep South and Southwest. Id.: Theodore G. Ganiats, MD, Routine Neonatal Circumcision: A Cost Utility Analysis,11 Med. Decision Making 282 (1991); Frank Lawler et al., Circumcision: A Decision Analysis of Its Medical Value, 23 Fam Med. 587 (1991).
  22. Ganiats et al., supra note 394, at 282. This analysis looked at the factors which fuel the debate over male circumcision such as the cost of the procedure, the pain associated with the procedure, the risk of urinary tract infections, and the risk of penile cancer. Lawler et al., supra note 394, at 587.
  23. Clair Wiederholt, Genital Mutilation Not Confined to Girls, Wis St. Jrnl., May 12, 1996.
  24. It is estimated that the average cost of a circumcision in California is $100 which adds up to several million dollars a year. John M. Goldenring, M.D., Circumcision Debate, L.A. Times, Mar. 19, 1989, at pt. 6, 12.
  25. Letter from John P. Hansen, Medical Director, Group Health Cooperative HMO, to Ph.D., Madison, Wisconsin (Mar. 23, 1994) (on file with the Buffalo Law Review, anonymity of addressee) In this letter the medical director states:
    GHC has chosen to continue to cover these procedures because GHC feels that a substantial number of our members want this to be covered. In fact, there would likely be a significant consumer negative response if we refused to [perform] these The support for circumcision in this country is cultural and societal, not medical. GHC is responding to societal and cultural expectations by covering this procedure.
    Id.; Letter from W. Knox Fitzpatrick, M.D., Vice President, BlueCross/BlueShield of Utah, to Sandy, Utah (Sept. 21, 1994.) (on file with the Buffalo Law Review, anonymity of addressee). In this letter the Vice President of Medical Affairs states that [i]t has been known for decades that circumcision provides no demonstrably medically necessary purpose. It is rooted in our culture, however, and efforts to the contrary have done little to abolish this habit. Id.
  26. Romberg, supra note 1, at 114.
  27. For a brief discussion, see Romberg, supra note 1, at 112-14.
  28. Lisa Braver Moss, The Jewish Roots of Anti-Circumcision Arguments, Address at the Second International Symposium on Circumcision. (Apr. 30, May 3, 1991)(on file with the Buffalo Law Review); Nelly Karsenty, A Mother Questions Brit Milla, 16 Humanistic Judaism 14, Summer 1988. The debate over male circumcision is even occuring in Israel. Israelis are joining the group against mutilation of genitals. which started a public campaign calling for a ban on circumcision. Ohad Gozani, International World Bulletin, Daily Telegraph, (London), May 5, 1997, at 12. The group describes male circumcision as a primitive and barbaric act. Id. One of the group's organizers further states: (t)his is plain abuse, particularly of babies. Id.
  29. Paula Hills, A Nontraditional Circumcision Ceremony 26 NOHARMM, Alternative Bris Support Packet (on file with the Buffalo Law Review); see also Moshe Rothenberg, Being Rational About Circumcision and Jewish Observance., 4 M.E.N. 22-23 (1989).
  30. Hills, supra notes 440 (sic), at 26.
  31. Pollack, supra note 182, at 171.
    Judaism places infinite value on life, particularly human life. The principal of pikuah nefesh is fundamental in Judaism; that is, for the sake of saving an life, even the Sabbath may be desecrated. Sh'mirat haguf, the protection of one's body is high priority. Tattooing, cutting the flesh and amputation are all forbidden. The precept of ba-al tashhit also informs biblical and Rabbinic thought. We are taught not to destroy the fruit trees, even during a war. ...Circumcision is antithetical to this very powerful life-affirming tradition.
    Id. at 183-84.
  32. Id. at 185.

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