Circumcision: Legal Issues

This page indexes legal material relevant to the performance of male circumcision. Documents are indexed in chronological order of publication.

Introduction

The English-speaking nations share the English language, the common law, and male circumcision as part of their history and culture since the late 19th century. This page incorporates relevant legal reference material rom the several English-speaking nations.

Some definitions: A botched circumcision is one that is poorly done and has obvious unexpected results. Wrongful circumcision is circumcision done without valid informed consent. Botched circumcision and wrongful circumcision constitute malpractice.

Prior to 1984, circumcision law was included under malpractice law: Doctors who botched circumcisions could only be sued for failing to adhere to the standard of care.3,4,5 There were, however, a number of circumcision malpractice cases that succeeded on these grounds.

Starting in 1984, academics began to apply general principles of health care law and medical ethics to examine the legality of male circumcision. Children are legally regarded as incompetent persons who are unable to give consent. These principles imply that circumcision of male children (or any other operation done under proxy consent), when unnecessary and performed for other than express therapeutic purposes, may not be legal regardless of the standard of care. There are no valid medical indications for male circumcision in the neonatal period; [*] therefore routine male neonatal circumcision constitutes a non-therapeutic procedure — and now the American Medical Association has identified male neonatal circumcision as a non-therapeutic procedure in its policy statement.

All persons enjoy a general right to bodily integrity. This has been true from at least as far back as the time of Blackstone; it has been affirmed by the United States Supreme Court in Union Pacific Railway Company v. Botsford, 141 U.S. 250 (1891), and reaffirmed in Planned Parenthood v. Casey, External link 505 U.S. 833 (1992). Male neonatal non-therapeutic circumcision removes healthy functional tissue and is viewed by many as an infringement upon the right to bodily integrity.

Somerville discussed the legal distinction between therapeutic and non-therapeutic procedures and between operations on competent and incompetent people in a 1980 paper.

William E. Brigman used new medical evidence to argue that circumcision is child abuse, and discussed possible legal remedies.8 Recent medical articles have documented the actual injury of circumcision, making it possible for a knowledgable attorney to win damages for wrongful circumcision.

Recent legal commentary in the several nations has pointed out numerous legal problems with the practice of circumcision of male children in general, even when done with parental consent and not botched. There is increasing concern that (forcible) child circumcision is a violation of numerous provisions of international human rights law.17,18,23 Legal writers in the several English-speaking nations have been expressing concern in law review articles.6,7,8,9,23,24,25,26,27

Interpreting the legal status of circumcision objectively is difficult, owing to the cultural background and long history of the practice. A 1961 New York case (Kalina vs General Hospital of the City of Syracuse (100 NYS2d 226, 18 A.D.2d 757 (1962)) classifies circumcision as an assault; furthermore, it finds that the assaulted child has a right of recovery.2,3,5

A 1980s California case questioned the power of parents in California to consent to surgical procedures (in this case male circumcision) which had no medical purpose.10 Exceptionally, California statute law allows parents to consent to surgical procedures regardless of purpose. The right of parents in that state to consent to male circumcision was upheld by the appellate court on that narrow ground while ignoring other applicable law. The California Supreme Court refused to hear the appeal. Apparently, the courts were not yet ready to address the issue. A case on circumcision (Re J) has been decided in the United Kingdom. The court determined that circumcision is not in the best interest of the child concerned.

Lynn E. Lebit, in a 1992 article,11 stressed the need for courts to protect the rights of minors and other legally incompetent persons. The power of parental proxy consent is much more limited than that of adult personal consent. There has been a general trend in society and in the courts to accord more recognition to the rights of minors, rights that exist independently of their parents.11,14 It is not at all clear that parental consent to the removal of healthy functional tissue from the body of an incompetent minor child is valid: If parental proxy consent to non-therapeutic circumcision of minor children were to be found to be invalid or vitiated, then almost all circumcisions of minor children are wrongful circumcisions.

The Law Reform Commission of Queensland (Australia) published a research paper on the lawfulness of male circumcision in 1993.12 The paper cited the Australian High Court case of Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 and concluded that male circumcision was unlawful; but failed to propose further action which would enforce the rights of children.

Solicitor Christopher P. Price, M.A., prepared a significant brief for the Law Commission of England and Wales17. A condensed version was later published by the Bulletin of Medical Ethics.18

In 1997, Margaret A. Somerville, founder and director of the McGill Center for Medicine, Ethics and Law in Montréal, characterized male circumcision as technically criminal assault under the Canadian criminal code.

Chessler published a major review of the circumcision issues in the Buffalo Law Review.24

Povenmire argues that any parental rights should be subordinated to the child's right to bodily integrity; a court order should be required before the forcible circumcision of a child is allowed.25

Smith of the Netherlands Institute of Human Rights has published a report on the human rights violations inherent in neonatal male circumcision.26

Two papers that were published in early 1999 are relevant, in that they challenge the validity of parental consent and the lawfulness of male neonatal circumcision as it is customarily performed in the United States and several other English-speaking nations.27,29:

The American Academy of Pediatrics, in a recent circumcision policy statement, declared circumcision to be non-essential to child health; male circumcision must now be viewed in an entirely different light legally from that of an essential and necessary procedure.

Boyle, Svoboda, Price, and Turner argue that non-therapeutic circumcision of healthy boys is criminal assault, and that legal action is needed to protect boys from this kind of assault.33

The American Medical Association has issued a statement on neonatal circumcision in which it defines neonatal male circumcision as a non-therapeutic procedure

Hodges reports on the legal protection given to the prepuce in the ancient world.37

Martin comments on changing standards regarding informed consent in cases of intersexed children. Her comments also appear to be applicable to informed consent for circumcision.38

As of this writing, however, no court in any jurisdiction (to our knowledge) has considered forcible involuntary male circumcision to fall under existing laws against assault. This means that, for the moment, the legality of male circumcision is in a gray area. This situation seems destined to change as lawyers who are interested in the welfare of children are increasingly concerned about the lack of resolution of the legal status of male child circumcision. Recently, an 18-year-old man brought a lawsuit in New York against the doctor who neonatally circumcised him and the hospital in which the circumcision was carried out.

--George Hill

International/Other

State Medical Boards

Persons who believe a medical doctor has been negligent, or otherwise has behaved improperly or in an unethical fashion in relation to the circumcision of male infants, may wish to file a suit against a medical doctor and/or a hospital, especially if a person has been seriously injured. If this is the case, one should consult appropriate knowledgeable legal counsel.

If the complaint does not involve an actual injury, persons may wish to report the behavior to the appropriate medical licensing board for appropriate disciplinary action.

The regulation of medical practice is a function of state government in the USA. The External link Federation of State Medical Boards, a federation of 69 member boards, maintains a website with a listing of the External link addresses of the various state medical boards. Doctors who behave in an unethical or unlawful fashion should be reported to the appropriate state board for disciplinary action. This is for the benefit of the medical profession and the protection of the public. These actions may also be the subject of litigation especially if the malpractice results in personal injury. One should consult appropriate knowledgable counsel.

In the case of male circumcision, such actions as

are examples of misbehavior which should be reported to the appropriate state board.

Intact boys are frequently the subject of maltreatment by ill-trained physicians. Premature forcible retraction of the foreskin is injurious to the boy and is contraindicated. It is actionable malpractice. It should also be reported to the State Medical Board.

Information for the United Kingdom

The General Medical Council receives complaints and regulates the practice of medicine in the United Kingdom. Complaints should be sent to:

General Medical Council
178-202 Great Portland Street
LONDON W1N 6JE
Tel 0171 580 7642
Fax 0171 915 3641

Information for Australia

In Australia, each state or territory has its own medical board to regulate medical practice. Addresses of the various boards are listed at External link Medical Boards. Persons in Australia should lodge complaints against medical doctors with the appropriate medical board.

Information for Canada

In Canada, medical practice is regulated by the provincial Colleges of Physicians and Surgeons. Addresses and links to the various Colleges are available on the External link College of Family Physicians of Canada Web site. Persons in Canada should lodge complaints against medical doctors with the appropriate Provincial college.

References

See also CIRP's Ethics and human rights index.

See also External link Journal pour les Droits de l'Enfant – Link to website of L'Association Contre la Mutilation des Enfants (French language site).

A list of legal settlements related to circumcision lawsuits may be found External link here. (External link to External link Attorneys for the Rights of the Child)

Organizations

Articles

  1. Fisher TL. Outmoded treatment. Can Med Assoc J 1966;95:630.
  2. Morse HN. Law and medicine: ritual circumcision. JAMA, vol. 203 no. 12 (March 18, 1968) pp. 257-258.
  3. Holder AR. Law & medicine: circumcisions. JAMA, vol. 218 no. 1 (October 4, 1971), pp. 149-150.
  4. Zitter JM. Liability for Medical Malpractice in Connection with Performance of Circumcision. 4 American Law Reports 710 (1975).
  5. Brown RH. The pediatrician and malpractice. Pediatrics 1976; 57(3): 392-401.
  6. Somerville MA. Medical interventions and the criminal law: lawful or excusable wounding? 26 McGill L. J. 82 (1980).
  7. Somerville MA. Therapeutic and Non-Therapeutic Medical Procedures: What are the Distinctions? Health Law in Canada, vol. 2, no. 4, (1981), pp. 85-90.
  8. Brigman WE. Circumcision as Child Abuse: The Legal and Constitutional Issues. University of Louisville School of Law, Journal of Family Law, Vol. 23, No. 3, 1984-85.
  9. Sebastian Poulter. English Criminal Law and Ethnic Minority Customs. Butterworths, London, 1986.
  10. External link Bonner CA, Kinane MJ. Circumcision: The Legal and Constitutional Issues. The Truth Seeker, July/August 1989. (link to NOHARMM website)
  11. Lebit LE. Compelled Medical Procedures Involving Minors and Incompetents and Misapplication of the Substituted Judgment Doctrine. 7 Journal of Law and Health 107 (1992).
  12. Queensland Law Reform Commission (Australia). Circumcision of Male Infants. Research Paper. Brisbane, December 1993.
  13. Dwyer JG. Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, California Law Review, Vol. 82, No. 6, (Dec. 1994).
  14. Turner N. Circumcised Boys May Sue. Health Law Update, Melbourne. February 23, 1996.
  15. Richards D. Male Circumcision: Medical or Ritual? Journal of Law and Medicine 3:4, May 1996:371-376
  16. Dwyer JG. The Children We Abandon: Religious exemption to child welfare and education laws as denials of equal protection to children of religious objectors, 74 North Carolina Law Review 1321-1478 (June 1996).
  17. Price C. Male circumcision: A legal affront.   [Brief to the Law Commission of England and Wales, 1996.]
  18. Price C. Male circumcision: an ethical and legal affront. Bulletin of Medical Ethics, May 1997:13-19. [A shorter version of the above paper.]
  19. Haberfield L. Informed consent and infant male circumcision. Presentation, Australasian law teachers conference Sydney, New South Wales, Australia Friday, October 3, 1997.
  20. Dalton J. Legal position is unclear (letter). BMJ 1997; 315: 750
  21. Lipley, N. (1997) Guidance needed on circumcision method. GP, October 3, 1997, p18.
  22. Doctors warned on snip risks. Sydney Morning Herald, Sydney, Australia, October 4, 1997.
  23. Svoboda, JS. Routine Infant Male Circumcision: Examining the Human Rights and Constitutional Issues. In: Sexual Mutilations: A Human Tragedy, Plenum Press, New York and London, 1997 (ISBN 0-306-45887).
  24. Chessler, Abbie J. Justifying the Unjustifiable: Rite V. Wrong. 45 Buffalo Law Review 555 (1997).
  25. Povenmire, Ross. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998-99).
  26. Jacqueline Smith. Male Circumcision and the Rights of the Child. In: Mielle Bulterman, Aart Hendriks and Jacqueline Smith (eds.), To Baehr in Our Minds: Essays in Human Rights from the Heart of the Netherlands. Netherlands Institute of Human Rights, University of Utrecht, Utrecht, Netherlands, 1998.
  27. Van Howe RS, Svoboda JS, Dwyer JG, Price CP. Involuntary circumcision: the legal issues. BJU International 1999; 83, Suppl. 1:63-73.
  28. J. Steven Svoboda. Attaining international acknowledgement of male genital mutilation as a human rights violation. In: Male and Female Circumcision: Medical Legal, and Ethical Considerations in Pediatric Practice. George C. Denniston, Frederick Mansfield Hodges, Marilyn Fayre Milos, editors. Kluwer Academic/Plenum Press, Boston, New York, London, Dordrecht, Moscow, 1999. (ISBN 0-306-46131-5)
  29. Christopher Price. Male non-therapeutic circumcision: the legal and ethical issues. In: Male and Female Circumcision: Medical Legal, and Ethical Considerations in Pediatric Practice. George C. Denniston, Frederick Mansfield Hodges, Marilyn Faye Milos, editors. Kluwer Academic/Plenum Press, Boston, New York, London, Dordrecht, Moscow, 1999. (ISBN 0-306-46131-5)
  30. Shea L. Bond, State Laws Criminalizing Female Circumcision: a Violation of the Equal Protection Clause of the Fourteenth Amendment, 32 John Marshall L. Rev. 353 (1999).
  31. David J. Llewellyn. Some thoughts on legal remedies. In: Male and Female Circumcision: Medical Legal, and Ethical Considerations in Pediatric Practice. George C. Denniston, Frederick Mansfield Hodges, Marilyn Faye Milos, editors. Kluwer Academic/Plenum Press, Boston, New York, London, Dordrecht, Moscow, 1999. (ISBN 0-306-46131-5)
  32. James L. Snyder. The doctor as expert witness in United States Courts. In: Male and Female Circumcision: Medical Legal, and Ethical Considerations in Pediatric Practice. George C. Denniston, Frederick Mansfield Hodges, Marilyn Faye Milos, editors. Kluwer Academic/Plenum Press, Boston, New York, London, Dordrecht, Moscow, 1999. (ISBN 0-306-46131-5)
  33. Gregory J Boyle, J. Steven Svoboda, Christopher P Price, J Neville Turner. Circumcision of Healthy Boys: Criminal Assault? 7 Journal of Law and Medicine 301 (February 2000).
  34. Matthew Giannetti. Circumcision and the American Academy of Pediatrics: Should Scientific Misconduct Produce Trade Association Liability? 85 Iowa L. Rev. 1507 (2000).
  35. Committee on Medical Ethics, British Medical Association. The Impact of the Human Rights Act 1998 on Medical Decision Making. London: British Medical Association, 2000.
  36. J. Steven Svoboda, Robert S. Van Howe, James G. Dwyer. Informed consent for neonatal circumcision: an ethical and legal conundrum. 17 J Contemp Health Law & Policy 61 (Winter 2000).
  37. Frederick M. Hodges. The Ideal Prepuce in Ancient Greece and Rome: Male Genital Aesthetics and Their Relation to Lipodermos, Circumcision, Foreskin Restoration, and the Kynodesme. Bulletin of the History of Medicine, vol. 75, no. 3 (Fall 2001): pp. 375-405.
  38. Patricia L. Martin. External link Moving Toward An International Standard In Informed Consent: The Impact Of Intersexuality And The Internet On The Standard Of Care. 9 Duke J. Gender L. & Pol'y 135 (2003).
  39. Peter W. Adler. External link Is it lawful to use Medicaid to pay for circumcision PDF link. 19 J. Law Med. 335 (2011)
  40. Peter W. Adler. External link Is Circumcision Legal? PDF link 16(3) Richmond J. L. & Pub. Int. 439 (2013).

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