Responding to Male Circumcision: Medical or Ritual?

Correspondence to: Mr Les Haberfield, Dept of Business Law, Royal Melbourne Institute of Technology, 239 Bourke St, Melbourne, Vic 3000, Australia.

The question of infant male circumcision in Australia continues to be a controversial issue. While some medical advantage to this procedure may be demonstrated, parents should remain free to choose to circumcise a son. Where such a decision is made in the best interests of a child, parental consent is unlikely to be called into question or vitiated.

Introduction

Following a great deal of criticism of female circumcision in recent years, some have argued by analogy that male circumcision should be outlawed. One such article by David Richards appeared in this journal in 1996.¹

There are three major shortcomings to Richards' article dealing with male circumcision. In the first place, Richards errs when he states that a distinction is wrongly made between male and female circumcision.² Secondly, this author disagrees with his suggestion that a parent cannot give a valid consent to the circumcision of a male infant.³ Finally, Richards fails adequately to consider the right of an individual's autonomy in a liberal society.

While some medical and religious justification for male circumcision can be shown, it should remain a legitimate procedure in the best interests of an infant male child.

Distinguishing between male circumcision and female circumcision

Degree of risk

As a medical procedure, it is clear that there are a number of risks of complications in the procedure of infant male circumcision. These are discussed in a 1993 research paper by the Queensland Law Reform Commission⁴ and include pain, damage to the shaft, damage to the urethra, unsightly appearance, urethral fistulas, haemorrhage, phimosis, infection of meatus, and even death or amputation in rare cases.

It should be further pointed out that while a significant percentage of male children are still circumcised today in Australia,⁵ the Australian medical profession does not encourage the practice. The Australian Medical Association supports the policy adopted by the Australian College of Paediatrics which in a 1991 Position Statement argued that [t]he Australian College of Paediatrics should continue to discourage the practice of circumcision as in the newborn male infant.⁶ It acknowledged, however, that [s]ome parents after considering medical, social, religious and family factors will opt for circumcision of their male child.⁷ In such a scenario the Australian College of Paediatrics recommends that the procedure is performed under medical circumstances that reduce hazards to a minimum.

It is interesting to note, however, that in August 1995, a four-member working party from the Australian College of Paediatrics produced a draft discussion paper which, following the publication of new medical literature arguing that the failure to circumcise may lead to an increase in the number of urinary tract infections in male infants, recommended a softening of the College's anti-circumcision position.⁸ This more open position was affirmed by the publication of the College's final Position Statement in mid-1996. While acknowledging evidence of both benefits and risks connected with infant male circumcision, the College concluded that it is not possible to be dogmatic on the exact risk/benefit ratio⁹ of the procedure.

It would appear, then, that the opposition of the medical profession in Australia is not unanimous in its discouragement of the practice of infant male circumcision. While the Australian College of Paediatrics discouraged the procedure in 1991, it has softened its stance and is now neutral on the question. It certainly has not suggested prohibiting the procedure. In fact, as stated, above, it overtly recognises that some will seek the procedure after weighing medical, social, religious and family factors.¹⁰

Decreasing the risk of urinary tract infection is also not the only claimed benefit of prophylactic infant male circumcision. There is some evidence that circumcision may reduce the risk of penile cancer. While penile cancer is rare and different studies show some conflict in reported conclusions,¹¹ it is worth noting an Australian study between 1960 and 1966¹² which showed 78 deaths from carcinoma of the penis compared with only two reported deaths from circumcision in the same period.¹³

Hygiene is another claimed benefit of male circumcision. The failure properly to clean beneath the prepuce may lead to infections. Circumcision reduces the need for genital hygiene. It has also been suggested that there may be a relationship between circumcision and some protection against sexually transmitted diseases. For example, in a 1983 Western Australian study of men attending a special treatment clinic, it was estimated that uncircumcised men were twice as likely as circumcised men to contract genital herpes or gonorrhea. The same study suggested that uncircumcised men were five times as likely to develop candidiasis or syphilis.¹⁴ There was no attempt in the study, however, to measure the socio-economic status of the subjects. For example, poorer personal hygiene and reluctance to be treated by a doctor at the onset of symptoms might explain these differences.¹⁵

In relation to HIV infection, some recent research studies indicate that for men involved in a high-risk lifestyle, circumcision may offer some protection. Not all such studies reveal these results and conclusions in this area are hotly disputed.¹⁶

It would appear, then, that while the Australian College of Paediatrics has discouraged routine prophylactic male circumcision in the recent past, at least some case can be madefor the benefits of such a procedure. It is interesting to note that in the United States, for example, it has been estimated that the rate of infant circumcision may still be as high as 75 per cent.¹⁷

In connection with female circumcision, on the other hand, there are no known medical benefits,¹⁸ only a number of serious risks of both physical and psychological short-term and long-term harms.¹⁹

It should be noted, however, that the terms female circumcision or female genital mutilation (which has gained international acceptance as a description of the effects of female circumcision)²⁰ are used to describe a variety of ritual practices throughout the world. The procedure may vary from the simple nicking of the clitoris to excision of the whole or part of the clitoris (and sometimes the labia minora) to infibulation, which consists of the excision of the clitoris, labia minora, and part of the labia majora. In infibulation, the two sides of the vulva are sewn together leaving a small opening for the passage of urine and menstrual blood.²¹

The literature demonstrates a number of potentially serious and likely harms that a woman may suffer, particularly where excision or infibulation are employed. Some of the noted complications include, in the short term, serious pain, haemorrhaging, septicaemia, infections including tetanus, and death. In one report, it was estimated that the number of deaths resulting from female circumcision in areas of Africa without antibiotics may be as high as one-third of the women circumcised.²² Long-term complications include chronic recurrent infections, difficulty and pain associated with urination, keloid and severe scar formation, sterility, painful periods and sexual intercourse, childbirth complications (including longer labour and risks to the fetus) and unbearable sensitivity to touch.²³ Loss of sexual pleasure must also be added to this list.

Accordingly, male and female circumcision are not wrongfully distinguished at an intellectual and medical level, as Richards suggests.²⁴ The two phenomena may be distinguished on the basis of the degree and likelihood of harm or injury. Some suggest that the equivalent effect of female circumcision on a male would be castration or removal of the penis.²⁵ Thus a number of countries in the Western world have responded to the serious risk of harm to women by prohibiting female circumcision.²⁶

In its least severe form, female circumcision involves simply nicking the clitoris. This form is more akin to male circumcision as Richards suggests.²⁷ However, even in this form, some medical risk is apparent to a woman without any claimed medical benefits. In any event, the valid point is made by some writers that the prohibition of some forms of female circumcision is unworkable since it is difficult to maintain a check on what occurs in practice. This was the experience in the Sudan when legislation passed in 1946, prohibiting some types of female circumcision, had little effect on decreasing infibulation in that country.²⁸

Religious practice

Among Jews and Muslims in Australia, male circumcision is a ritual practice integral to religious belief. Both groups view circumcision as a covenant with God as specifically mentioned in Genesis 17 of the Old Testament. Jewish boys are required to be circumcised on the eighth day of life even if that day falls on the Sabbath. So important is the role of circumcision in Jewish belief that an infant who dies before the eighth day of his life must be circumcised at the grave.²⁹

Female circumcision, on the other hand, while predominantly found among AfricanMuslims, is not universally practised in Islamic societies. While there is some controversy regarding the significance of the practice, it is generally accepted that it is not a mandatory religious rite, and some Islamic groups suggest that it is not recommended practice.³⁰ At best, scholars may find anthropological justifications for the institution of female circumcision such as stabilising tribal group identity. In other African groups, the practice may be entrenched without even anthropological justification.³¹

In short, male and female circumcision can be distinguished on both medical and religious grounds.

The question of consent

While relevant authority suggests that in some instances the consent of an adult to a medical procedure on a child may be vitiated, and hence invalid, male circumcision is generally not such a procedure.

The High Court held in Marion's Case³² that parental consent will not justify all kinds of treatment. The majority specifically mentioned procedures such as clitoridectomy as one example.³³ However, it must be stressed that infant male circumcision was not mentioned by the High Court as an example of a procedure to which a parent could not validly consent. The only reference to male circumcision was found in the judgment of Deane J who specifically referred to the procedure as within the normal authority of parents. He regarded parental consent to circumcision as appropriate for both religious and hygienic reasons.³⁴

In Marion's Case,³⁵ the parents of an intellectually and physically disabled 14-year-old girl applied to the Family Court for authority to have their daughter sterilised by hysterectomy and ovariectomy. The question of the parental right to consent to the procedure reached the High Court where it was held that parents cannot consent, without court approval, to non-therapeutic sterilisation procedures for their children.³⁶

While the majority of the High Court did not specifically mention which other medical procedures would require prior court approval, the court laid down some criteria for its required involvement in such decisions. The case is relevant to all non-therapeutic medical procedures involving invasive, irreversible and major surgery. Likely examples might include³⁷ the decision to turn off life support, the consent to removing an organ from an infant for the benefit of a sibling, applications for major surgery such as necessary cardiac surgery for a child where a parent refuses consent, and necessary gender reassignment for an infant.³⁸

The previous section of this article considered the therapeutic benefits of prophylactic infant male circumcision and suggested that at least some case could be made for the medical advantages of the procedure. Even if circumcision is non-therapeutic and invasive, it seems fanciful to suggest as Richards does (in citing the Queensland Law Reform Commission), that male circumcision is major surgery.³⁹ Although it was noted that there are some risks attached to the procedure, as is the case with any surgery, a procedure that takes only a few minutes, need not be performed in a hospital, and is still performed on many thousands of children in Australia each year⁴⁰ could hardly be regarded as major surgery. It seems absurd to argue that a superior court is required to approve each of these procedures.

Additionally, the procedure is possibly not irreversible. There have been a number of accounts in the media of a technique known as foreskin restoration which replaces the lost foreskin by stretching the remaining skin in the area of the shaft cut by the procedure. This technique has received some recognition by its publication in at least two medical journals in the United States.⁴¹

In discussing the question of a valid consent for prophylactic infant male circumcision, Richards draws upon the judgment of McHugh in Marion's Case⁴² who stated that a parent has no authority to consent to medical treatment unless it can be found objectively that the treatment is for the welfare of the child.⁴³ While this statement appears to be a perfectly satisfactory statement of law, it is a quantum leap by Richards to suggest that infant male circumcision is not in the best interests of a child. The term welfare has been given a wide meaning by the courts, and may include all aspects of well-being, including physical, financial, emotional, moral, intellectual and spiritual well-being.⁴⁴ Courts have consistently declined to lay down rigid rules or principles about how the welfare of a child is to be determined.⁴⁵ While some medical justification for routine prophylactic circumcision can be argued, and given the very broad nature of the concept of the welfare or best interests of a child, it would appear not unreasonable for parents to have their child circumcised.

It should be further added that Richards makes no reference to ritual male circumcision in this regard. It has already been noted that the best interests of a child include his or her spiritual well-being, and given the integral nature of circumcision to both Judaism and Islam, further weight is added to the decision of parents to circumcise their son. A Jewish or Muslim son who is not circumcised may feel psychologically and spiritually alienated from his culture and religion. It is noteworthy that the Australian Law Reform Commission, in its report entitled Multiculturalism and the Law, stated that the law should explicitly take into account the effect of a decision on a child's cultural identity⁴⁶ when determining what is in the best interests of a child.

In purporting to show that a parent cannot effectively consent to the circumcision of a of an infant male child, Richards further draws on the House of Lords decision of R v Brown⁴⁷ where it was held that it is not in the public interest that a person should cause actual bodily harm to another for no good reason and in the absence of such a reason, consent would be immaterial.

A number of points need to be made here. First, the House of Lords decision in that case was not directly concerned with the parental consent to medical treatment of an infant, but rather with the validity of consent of an adult who purportedly agreed to masochistic violence (including torture and branding of his skin with a hot poker). Secondly, this article has consistently argued that infant male circumcision may have prophylactic medical benefits and is not necessarily employed for no good reason. Finally, the only direct reference to infant male circumcision in the case is found in the judgment of Lord Templeman, who specifically mentioned the lawfulness per se of the procedure in English law.⁴⁸

Accordingly, this article disagrees with Richards' conclusion that a parent's consent may be vitiated, leaving persons involved in the procedure liable in negligence.⁴⁹ However, this article supports Richards' alternative suggestion that a medical practitioner may be liable in negligence if a parent is not given adequate information, in respect of the circumcision procedure,⁵⁰ to give an informed consent (should something go wrong in the procedure or treatment).

As Richards himself points out, the law imposes upon a medical practitioner the duty to take reasonable care in the provision of professional advice as well as treatement.⁵¹ Since the High Court decision in Rogers v Whitaker,⁵² it is now clearly the law in Australia that a doctor has a duty to warn a patient of a material risk inherent in a proposed procedure or treatment. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position if warned of the risk, would be likely to attach significance to it.

This article alluded to a number of risks inherent in a circumcision procedure. It is suggested that before performing a circumcision procedure, doctors need to give some thought to what information might be material to parents choosing the surgery for their child. What is material may vary from case to case and might only require a very small percentage of risk. In the particular fact of Rogers v Whitaker⁵³ itself, for example, a doctor was found negligent in not disclosing the risk of sympathetic ophthalmia in a proposed eye operation, where it was accepted at the trial that the complication occurred on average only one in 14,000 such procedures. It was highly relevant in that case that the patient had persistently questioned the doctor about possible complications and accidental interference to her other eye (without specifically alluding to sympathetic ophthalmia).⁵⁴

The 1996 Policy Statement of the Australian College of Paediatrics addresses to some extent the need for informed-consent by stating that informed discussion with parents regarding risks and benefits is essential and that [u]p-to-date, unbiased written material summarising the evidence in plain English should be widely available to parents.⁵⁵ This is a positive move by the medical profession. The real question, however, is whether the material adequately communicates the risks, material to the particular parents, of a child to be circumcised.

Autonomy in a liberal society

In a liberal democracy, personal liberty is emphasised by allowing people, to the greatest degree possible, to be free to make their own choices. As a consequence of this, the law should, as far as possible, not enter into the realm of personal morality.⁵⁶ Accordingly, a prima facie position is that whether or not a male is circumcised should be a question of choice by the relevant persons, usually a child's parents.

The liberal ideal of autonomy in our society is, however, constrained by the limitation that legal intervention may be justified to protect the vulnerable or weak from what is offensive or injurious.⁵⁷ Obviously, most candidates for male circumcision are vulnerable by virtue of their age. The onus, however, is on the state to show justification before intervening in the decision-making of its citizens.⁵⁸

In the case of female genital mutilation, it was suggested that where no medical benefit and appreciable danger is present in such a procedure, the state is clearly justified in protecting young girls and women from perceived violence. While there are risks evident in routine infant male circumcision, on the other hand, the likely degree of harm is probably lower and some prophylactic benefits are available too. Additionally, a number of male circumcisions in Australia take place as an integral part of Judaism or Islam.

In these circumstances, it would seem that, despite some concern with the negative medical aspects of the procedure, the state does not have compelling grounds for the prohibition of male circumcision. A far less intrusive means of protecting young infant males is the dissemination of educative information to allow parents to make an informed choice as to whether to have a boy circumcised.

Conclusion

This article is generally opposed to the conclusions of Richards.⁵⁹ However, his article represents one of the few pieces found in available legal literature on this topic in the Western world. The issues discussed here are clearly important ones and deserve and deserving of some discussion or debate. While the electronic and print media have canvassed this topic in recent years, sensational claims have often been reported.⁶⁰

While the net benefits of infant male circumcision still remain somewhat unclear, and while some medical benefits of the procedure may be argued, it is inappropriate for the state to interfere in the informed choices of its citizens. For the moment, the consent of a parent to the circumcision of a male child is not unreasonable if made for the welfare of the child.

Should further negative medical evidence come to light in this area, it will be opportune to re-examine routine infant male circumcision. The question of ritual male circumcision in these circumstances will represent a real dilemma.

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