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

References

1. See Union Pac. Ry. Co v Botsford, 141 U.S. 250, 251 (1890) (holding that the court has no right to order a surgical exam); see also Cruzan v. Missouri Dep't of Health,  497 U.S. 261, 169 (1990) (permitting the state of Missouri to require evidence in order to withdraw life sustaining equipment); In re Gardner, 534 A.2d 947-956 (Me. 1987) (holding that a patient, who prior to an accident stated that he did not want to be kept alive in a vegetative state, had the right to refuse life support.); Schloendorff v. Society of New York Hosp., 105 N.E. 92,93 (N.Y. 1914) (stating that every adult has control over his or her own body).
2. See Planned Parenthood v. Casey,  505 U.S. 833, 915 (1992) (concurring that there exists a constitutionally protected liberty interest which includes the right to bodily integrity); see also  Eisenstadt v. Baird, 405 U.S. 438,453 (1972) (describing the right of privacy as the right of the individuals ... to be free from unwarranted governmental intrusion rather than the right of the family as an entity); Conservatorship of Valerie N., 707 P.2d 760, 785 (Cal 1985) (holding that prohibiting sterilization violated privacy and liberty interests). The court in Conservatorship of Valerie N stated [T]he great conceptual background for due process privacy law [is] bodily autonomy.... At present only the most powerless members of society appear to need to rely on the Constitution for such a basic right. The courts have ... recognized individual liberty in things of the body as a touchstone. see id. (quoting Note, Due Process Privacy and the Path of Progress, U. ILL. L. FORUM 469, 515 (1979)); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) discussing the right to determine what to do with one's own body)); Hondroulis v. Schuhmacher, 553 So. 2d 398, 414-15 (La. 1988) (stating that the decision of whether to undergo surgery or other medical treatment, no less than the decision to continue or terminate pregnancy is, to an extraordinary degree, an intrinsically personal decision.)
3. See Union Pac. Ry. Co v. Botsford, 141 U.S. at 251 (stating that there is no right more sacred than the right to control one's own person).
4. See  Cruzan, 497 U.S. at 278 (inferring from prior court decisions a constitutionally protected libery interest in declining medical treatments).
5. See  Thomas Aquinas, SUMMA THEOLOGICA 2 (Fathers of the English Dominican Province trast., Benzingers Bros. 1947) (1498) (communicating the significance of religious dogma); see also Steven M. Wise, Legal Rights for Nonhuman Animals: The Case for Chimpanzees and Bonobos, 2 Animal 179, 181 (1966) (discussing the chain of being ranging from the corporeal to the intellectual).
6. See Wise, supra note 5, at 181.
7. See EDWARD WALLERSTEIN, CIRCUMCISION AN AMERICAN HEALTH FALLACY 1 (1980) (discussing the number of American males who undergo this type of surgery and the techniques used, even though no religious ritual or puberty rights are involved); see also infra note 14 and accompanying text.
8. See Randi Hutter Epstein, Circumcision Controversy: Doctors Debate the Benefits and Risks of This Common Procedure, but for Most Parents the Decision is Personal, WASH. POST, Oct. 7, 1997, at Z14 (describing circumcision and comments for and against it).
9. The term female genital mutilation has been the subject of considerable controversy. Some scholars argue for the use of the term female genital surgery in an effort to be more objectively descriptive and culturally neutral. See Hope Lewis, Between Irua and Female Genital Mutilation: Feminist Human Rights Discourse and the Cultural Divide, 8 HARV. HUM. RTS. J. 1, 7 (1995) (nothing that there are objections to the word mutilation because it has a negative connotation and elicits a misunderstanding of its purpose). Most authors have dispensed with the term female circumcision on the premise that the surgical procedures gathered under the term are more abhorent than male circumcision. Id. at 6.
10. Criminalization of Female Genital Mutilation Act, Pub. L. No. 104-208, § 645, 110 Stat 3009-708, (1966) (codified as amended at  18 U.S.C. § 116.
11.  Convention on the Elimination of all forms of Discrimination against Women, G.A. Res. 180, U.N. GAOR, 34th session., U.N. Doc. A/34/180 (1980). More recently, the U.N. General Assembly passed the  Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess., U.N. Doc. A/48/629 (1993). Article 2 of DEVAW includes FGM as an example of violence that is covered under the resolution.
12. See infra PART V. (outlining the possible legal implications for circumcision decisions in light of the Criminalization of Female Genital Mutilation Act).
13. See United States v. Virginia,  518 U.S. 515, 533 (1996) (holding that gender based classifications require an exceedingly persuasive justification).
14. See HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY 769 (6th ed. 1991) (defining parens patrie as the role of state as sovereign and protector of persons under legal disability, such as juveniles or the insane....).
15. ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA, 162, 168 (1985) (explaining the Gomco and Plastibell techniques of circumcision).
16. See Epstein, supra note 8, at Z14 (commenting on the factors parents consider when deciding whether to circumcise); see also EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 1, 6-14 (1980) (stating that other countries conduct circumcision only or a step by step description of several different circumcision techniques, including illustrations see Ras religious rituals or puberty rites); infra notes 27-36 and accompanying text.
17. See Epstein, supra note 8, at Z14 (discussing the circumcision procedure).
18. See ROMBERG, supra note 15, at 41-47 (describing the Jewish circumcision ceremony from the night before until the time of circumcision). Jewish circumcision practices have varied over the course of history. Circumcision was initially practiced on adolescents. Id. at 36. Some aspects of the rite, such as the ritualized sucking of blood from the penile wound have been modified or abandoned. Id. at 45.
19. See Katherine Kelly, M. Bruce Edmonsen & John M. Pascoe, Pediatric Residency Training in the Normal Newborn Nursery: A National Survey, 151 ARCHIVES OF PEDIATRICS AND ADOLESCENT MED. 511, 513 (1997) (stating that in a national survey of pediatric care practices, anesthesia was used in approximately ten percent of circumcisions).
20. See WALLERSTEIN, supra note 16, at 217 (indicating that the rate of circumcision rose from approximately 5% in the year 1870 to approximately 85% in 1979). Some studies indicate that rates have been over 90% Id.
21. The 1996 estimated population of the United States was 264,867,900. 1997 Market Statistics, available in 1997 WL POPDEMO.
22. The rates of circumcision in the United States for 1991, 1992, and 1993 are 61.6%, 60.7% and 59.5% respectively. National Center for Health Statistics, Department of Health and Human Services, United States Official Circumcision Statistics (visited Oct. 3, 1998) <https://www.cirp.org/library/statistics/USA/> [hereinafter National Center for Heath Statistics]. A slightly different method of computing the rate in 1994 resulted in a reported rate of 62.7%. Id. The higher rate in 1994, as compared with the general downward trend is not significant due to the different method of computation. Id.
23. Id.
24. See Tom Steadman, Circumcision, A Divisive Medical Practice, GREENSBORO NEWS & RECORD, June 10, 1997 at D1 (reporting that [a]mong Jewish families, where the rite of berit milah... is considered a religious and cultural event, the rate is closer to 100%).
25. See Peter Kandela, Court Ruling Means that Egypt Embraces Female Circumcision Again, 349 LANCET, Jul. 5 1997, at 41 (discussing the continuing debate as to the legal and religious implications of female circumcision).
26. See Steadman, supra note 24, at D1 (stating that the rate of circumcision among the Gentile population has increased considerably).
27. See Phil Nguyen, Foreskin Envy: Circumcising our Sons, VIETNOW MAG., Jul. 31, 1997, at 50 (stating that in the 1870s circumcisions were introduced to cure masturbation, which was believed to cause many diseases); see also WALLERSTEIN, supra note 16, at 2 (stating that circumcision was introduced a century ago to cure various physical and emotional ailments); ROMBERG, supra note 15, at 1 (stating that [s]ome historians have speculated that circumcision has been practiced for more than 5000 years among the native tribes of the West Coast of Africa); Paul M. Fleiss, The Case Against Circumcision, MOTHERING, Dec. 22, 1997, at 2 (stating that anti-masturbation hysteria in America occurred during the Victorian era to punish boys for masturbating).
28. See Fleiss, supra note 27, at 2 (claiming that this movement coincided with the discouragement of breastfeeding).
29. See generally WALLERSTEIN, supra note 16, at 13 (stating that male circumcision was said to prevent masturbation); ROMBERG, supra note 15, at 6 (claiming that circumcision was used to weaken the sexual organ to reduce masturbation); Hanny Lightfoot-Klein, Prisoners of Ritual: An Odyssey into Female Genital Circumcision in Africa, (Oct. 3, 1998) < http://nocirc.org/articles/similar.html> (summarizing parallel beliefs surrounding both types of circumcision).
30. See Charles J. Schleupner, Urinary Tract Infections Separating the Genders and the Ages, 101 POSTGRADUATE MED 231 (1997) (stating that the rate of urinary tract infections is higher in uncircumcised infant boys); T.E. Wiswell & J.D. Roscelli, Corroborative Evidence for the Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 78 PEDIATRICS 96 (1986) (stating that in their study, the number of urinary tract infections increased as the number of male circumcisions decreased).
31. See ROMBERG, supra note 15, at 4 (stating that one of the reasons for circumcision is hygiene). See generally WALLERSTEIN, supra note 16, at 2 (discussing the reasons why Americans practice circumcision). The belief in circumcision probably had its origins in demographic studies that showed which that sexually transmitted diseases less common among circumcised Jews during the mid-to-late 1800s. Id. at 80. These studies did not consider religious and cultural practices which insulated Jews from contagion. Id. Current observations indicate that circumcision has the opposite effect. See Fleiss, supra note 27, at 19 (stating that the U.S. has both the highest rates of sexually active circumcised males in the western world and the highest rate of sexually transmitted diseases...). Medical studies have found either no correlation between circumcision and transmission rates or a slight increase in transmission among circumcised men. See generally Basil Donovan, Ingrid Basset & Neil J. Bodsworth, Male Circumcision and Common Sexually Transmitted Diseases in a Developed Nation Setting, 70 GENITOURINARY MED. 317, 319 (1994); G.L. Smith, Robert Greenup &Earnest T. Takafoji, Circumcision as a Risk Factor for Urethritis in Racial Groups, 77 AM. J. PUB. HEALTH 452, 454 (1987); L.S. Cook, L.A. Kootsky, &K.K. Holmes, Clinical Presentation of Genital Warts Among Circumcised and Uncircumcised Heterosexual Men Attending an Urban STD Clinic, 69 GENITOURINARY MED. 262, 264 (1993) (concluding) circumcised men were more likely to have genital warts); Ingrid Bassett, Basil Donovan, Neil J. Bodsworth, Peter R. Field, David W. T. Ho, Stig Seansson, &Anthony L. Cunningham, Herpes Simplex Virus Type 2 Infection of Heterosexual Men Attending a Sexual Health Centre, 160 MED J. AUSTL. 697, 700 (1994) (claiming that the study found no evidence that intact foreskin is a risk factor for HSV-2 [herpes simplex virus type 2] infection); Edward O. Laumann, Christophen M. Nasi, &Ezraw W. Zuckerman, Circumcision in the United States: Prevalence, Prophylactic Effects, and Sexual Practice, 277 J. AM. MED ASS'N 1052, 1057 (1997) (claiming that circumcised men were slightly more likely to have had both a bacterial and a viral STD [sexually transmitted disease] in their lifetime).
32. The American Cancer Society has determined that perpetuating the belief that circumcision prevents cancer is in appropriate. Letter from Hugh Shingleton, M.D., National Vice President of the American Cancer Society, &Clark W. Health, M.D. Vice President of the American Cancer Society, to William Oh, M.D., &Peter Rappo, M.D. American Academy of Pediatrics (Feb. 16, 1996) (on file with author).
33. See Steadman, supra note 24, at D1 (stating that during World War I, the U.S. Army performed circumcisions due to infections caused by lack of hygiene); Sharon Bass, Circumcision Persists Despite Doctor's disapproval, MAINE TIMES, Jan. 2, 1997, at 10 (claiming that many American soldiers in World War II failed physicals due to health conditionings relating to lack of circumcision); ROMBERG, supra note 15, at 179 (discussing the popular misconception of a circumcision requirement for military service).
34. See Laumann, Nasi &Zuckerman, supra note 31, at 1054 (stating that circumcised males engage in oral sex, anal sex, and masturbation at greater rates than uncircumcised males). This study found a statistically significant correlation between circumcision and a reduced likelihood of impotence in older men, but also found that circumcised men engage in more elaborated sexual practices. Id. at 1054. Such practices include masturbation, possibly as a result of reduced penile sensitivity. Id. The behavior may better enable them to adapt as they age. Id. at 1056. This finding is particularly ironic in view of the Victorian-era justification of circumcision as an anti-masturbation measure. But see, Letter: In Praise of Foreskin, THE GUARDIAN, Sept. 26, 1997, at 018, available in 1997 WL 2403678, at *D1 (describing one man's negative sexual experience after circumcision).
35. See Bass, supra note 33, at 10 (noting that circumcision in the United States is usually performed as a cosmetic procedure).
36. Bass, supra note 33, at 10.
37. See National Center for Health Statistics, supra note 22, at <https://www.cirp.org/library/statistics/USA/> indicating a decrease in circumcision rates).
38. See Fleiss, supra note 27 (suggesting that the reasons given today for circumcision will be considered irrational in the next generation).
39. See supra notes 34-38 and infra notes 39-50 and accompanying text; see also Kathleen Parker, Retire Primitive Practice of Circumcision, GREENSBORO NEWS AND RECORD, Mar. 31, 1997, at D1 (commenting that [t]oday, in the absence of medical justification, we continue to perform the [circumcision procedure for cultural and religious reasons and, well, just because.... Its time to take a closer look at why we just do and ask whether we really want to continue.); Bass, supra note 33, at 10 (stating that [t]he alleged health benefits have been found questionable); Epstein, supra note 8, at 240 (contrasting that [n]ow doctors are debating the whether the benefits, such as reducing the likelihood of urinary tract infections, outweigh the risks, such as the possibility of inflicting pain or the rare chance of an infection near the incision.... There is little medical consensus.); Nguyen, supra note 27, at 50 (writing for the Vietnamese community in the United States and challenging various justifications for the practice of circumcision.).
40. See Edgar J. Schoen, Letter to the Editor, 278 J. AM. MED, ASS'N 201,201 (1997) (stating that a previous article unfairly concluded that there was equal risk of Sexually Transmitted Diseases in circumcised and uncircumcised men). The tenacious defense of circumcision by many people in the face of mounting medical evidence suggests that the desire to preserve the practice runs far deeper than concerns for hygiene. Id.
41. See American Academy of Pediatrics, Report of the Task Force on Circumcision (RE9148), 84 PEDIATRICS 388, 389 (1989) (reporting on studies from 1985 that showed uncircumcised males had a greater chance of getting urinary infections).
42. See The Australian College of Paediatrics, Position Statement: Routine Circumcision of Normal Male Infants and Boys, May 1996, [hereinafter Australian College of Paediatrics] <https://www.cirp.org/library/statements/acp1996/> (visited Oct. 3, 1998) asserting that [s]tudies claiming these benefits [of reduced urinary tract infection, cancer, and sexually transmitted disease] do have methodological problems that could influence findings and these problems will be difficult to overcome). In a review of those urinary tract infection studies which claimed a benefit from circumcision, a study by Dr. Martin S. Altshul found not a single confirmed case of UTI [urinary tract infection] in a normal male infant. All of the confirmed cases occurred in infants who had clear-cut urinary birth defects. Circumcision Information Centre, Circumcision Update: Circumcision Does Not Lower the Incidence of Urinary Tract Infection, (visited Oct. 3, 1998), <https://www.cirp.org/pages/riley/uti/> [hereinafter Circumcision Information Center].
43. See  Fetus and Newborn Committee, Canadian Paediatric Society, Neonatal Circumcision Revisited, 154 CAN. MED. ASS'N 769 (1996), [hereinafter Fetus and Newborn Committee] (visited Oct. 3, 1998) < http://www.cps.ca/english/statements/FN/fn98-01.htm> (recommending that circumcisions on newborns should not be routinely performed). The author commented that, [t]hese studies are retrospective, and therefore some caution must be exercised in their interpretation. Id. at 771.
44. See Circumcision Information Centre, supra note 42, at <https://www.cirp.org/library/disease/UTI/> (quoting Martin S. Altshul on the connection between urinary tract infections and birth defects).
45. Circumcision Information Centre, supra note 42, at <https://www.cirp.org/library/disease/UTI/>
46. See  Fetus and Newborn Committee, supra note 43 (referring to articles on circumcision and urinary tract infections). The report stated that [a] potential bias in these studies is that patients were admitted to hospitals because of their infections; since infections not requiring hospital treatment were excluded, the true incidence may have been under-reported. Id. at 771.
47. See H.A. Cohen, M.M. Drucker &S. Vainer, Post Circumcision Urinary Tract Infection, 31 CLINICAL PEDIATRICS 322 (1992) (reporting on a study of the occurrence of urinary tract infections within the first year of life after circumcision); see also D. Amato &J. Garduno-Espinoza, Circumcision of the Newborn Male and the Risk Of Urinary Tract Infection During the First Year: A Meta-analysis, 49 BOL. MED. INFANT MEX. 652 (1992) (analyzing literature on the effect of circumcision and the incidence of urinary tract infection and examining their methodological limitations).
48. See  Fetus and Newborn Committee, supra note 43 (stating that in one study the hygienic procedures used by uncircumcised patients showed that they were less likely to have inflammation or adhesions).
49. See Steadman, supra note 24, at D1 (noting the increase in infant circumcision following the Army's implementation of adult circumcision in World War I).
50. See ROMBERG, supra note 15, at 193 (stating that the same American man elected circumcision for personal reasons).
51. See generally ROMBERG, supra note 15, at 193 (suggesting that cultural reasons have motivated American doctors to recommend circumcision). See also WALLERSTEIN, supra note 16, at 127-34 (stating that some males choose to be circumcised for cosmetic effect, religious conversion to the Jewish or Moslem faiths, and at the insistence of spouses based on fears of cancer.).
52. See Rick Ansorge, An Agonizing Choice, CHI. TRIB., Mar. 7, 1997, at 7 (stating that [i]n Canada, the rate [of circumcisions performed] fell from forty-four percent in 1975 to four percent in 1995. In England and Europe, the rate is below one percent.).
53. See Epstein, supra note 8, at Z14 (stating that [I]n Britain, circumcision rates were about the same as in the United States until 1948, when the newly created National Health Service stopped paying for it and rates dropped to about five percent, what they are today.).
54. See The Australian College of Pediatrics, supra note 42, at ¶ 3 (addressing the fact that [d]uring the last 50-100 years, neonatal circumcision became widespread in English-speaking countries... . In Australia, the circumcision rate has fallen very considerably in recent years, and it is estimated that currently only ten percent of the male infants are routinely circumcised.).
55. See British Medical Association, Circumcision of Male Infants: Guidance for Doctors, Sept. 1996 (visited Sept. 30, 1998) <https://www.cirp.org/library/statements/bma/> [hereinafter British Medical Association] (arguing that to [t]o circumcise for therapeutic reasons where medical research has shown other techniques to be at least as effective and less invasive would be unethical and inappropriate... . It is rarely necessary to circumcise an infant for medical reasons.).
56. See  Fetus and Newborn Committee, supra note 42, at 769 (stating that after, carefully reviewing all of the recent studies on circumcision, the Society recommended that [c]ircumcision of newborns should not be routinely performed
57. See J. Fred Leditschke, President of the Australasian Association of Paediatric Surgeons, Guidelines for Circumcision, (visited Apr. 1996) <https://www.cirp.org/library/statements/aaps/> The Guidelines state that:
    [T]he Australasian Association of Paediatric Surgeons does not support the routine circumcision of male neonates, infants, or children in Australia. It is considered to be inappropriate and unnecessary as a routine to remove the prepuce, based on the current evidence available... . We do not support the removal of a normal part of the body, unless there are definite indications to justify the complications and myths which may arise. In particular, we are opposed to male children being subject to a procedure, which had they been old enough to consider the advantages and disadvantages, may well have opted to reject the operation and retain their prepuce. Id.
58. British Medical Association, supra note 55, at ¶¶ 9-10.
59. See The Australian College of Pediatrics, supra note 42, at ¶4 (stating that [a]t the present time it would be wrong to claim that there are definite health benefits for circumcision or to deny that they exist... . The possibility that routine circumcision may contravene human rights has been raised because circumcision is performed on a minor and is without proven benefit.
60. See THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PLANNING FOR PREGNANCY, BIRTH AND BEYOND 41, 47 &211 (2d ed. 1990) (discussing the controversy about the need for circumcision and that there are no laws or hospital rules that require circumcision).
61. See AMERICAN ACADEMY OF PEDIATRICS, COMMITTEE ON FETUS AND NEWBORN, STANDARDS AND RECOMMENDATIONS FOR HOSPITAL CARE OF NEWBORN INFANTS 110 (5th ed. 1971 [hereinafter American Academy of Pediatrics]. Until somewhat recently the American Pediatric Society was not supportive of circumcision as a medical practice. Id. In 1971, the APS frankly admitted that [t]here are no valid medical indications for circumcision in the neonatal period. Id. The APS reiterated its position in 1975, 1977, and 1983. See National Organization of Circumcision Information and Resource Center Homepage, (visited Sept 30, 1998) <https://www.cirp.org/library/statements/aap/> reviewing the APS's positions regarding circumcision). In 1989, however, the APS altered its position, in response topreliminary data suggesting possible benefits of circumcision in reducing urinary tract infections, sexually transmitted disease, and cancer of the penis and cervix. AMERICAN ACADEMY OF PEDIATRICS, supra note 61, at 388.
62. See AMERICAN ACADEMY OF PEDIATRICS, supra note 61, at 390. The APS gratuitously added that the the benefits and risks should be explained to the parents and informed consent obtained. Id. This comment argues that informed consent cannot be obtained from the parents under the 1989 APS position, absent unusual medical circumstances, because there is insufficient showing that the procedure is medically necessary and in the child's best interest. The legal community need not take direction from the medical community in determining the legal prerequisites of informed consent.
63. Laumann, supra note 31, at 1057.
64. Laumann, supra note 31, at 1057.
65. Circumcision is not an insignificant source of income for hospital and pediatricians. The cost of circumcision is approximately $100-150. Sharon Bass, supra note 33, at 10. It is estimated that an enthusiastic pediatrician may earn $10,000 a year from the procedure. ROMBERG, supra note 15, at 111. The foreskin has also found use as a source of tissue in the manufacture of synthetic skin. Paul Recer, New Methods May Aid Those With Chronic Wounds, SEATTLE TIMES, Oct. 21, 1997, at A13. Five billion dollars a year is spent treating wounds for which synthetic skin has potential application. Id. Jewish and Islamic groups may also seek to sway the APS in order to safeguard the legality of circumcision as a religious practice. Id.
66. See American Medical Association, AMA Principles of Medical Ethics, (visited September 8, 1998) <https://www.cirp.org/library/statements/ama/>. The article states that [a] physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences in the confines of the law. Id. at ¶ 5. The AMA principles do not mention the rights of parents. Id.
67. See infra note 68-71 and accompanying text.
68. See Robert N. Emde, Robert J. Harmon, David Metcalf, Kenneth L. Loening, & Samuel Wagonfeld, Stress and Neonatal Sleep, 33 PSYCHOSOMATIC MED. 491, 491-97 (1971) (showing that circumcision was initially followed by prolonged non-rapid eye movement (non-REM) sleep).
69. See Paul Drake &Linda French, Analgesia During Circumcision, 45 J. FAM. PRAC. 100, 100 (Aug. 1997); Janice Lander, Barbara Brady-Fryer, James B. Metcalfe, Shemin Nazarali, & Sarah Muttitt, Comparison of Ring Block, Dorsal Penile Nerve Block, and Topical Anesthesia for Neonatal Circumcision: A Randomized Controlled Trial, 278 J. AM. MED. ASS'N 100, 103 (1997) (recommending use of analgesia during neonatal circumcision to decrease pain, and stating you could look at people with senile dementia and say they won't remember the pain either so we can operate on them without anesthesia). Approximately 64% to 96% of newborns circumcised in North America do not receive anesthetics. Id. Without exception, newborns in this study who did not receive an anesthetic suffered great distress during and following the circumcision, and they were exposed to unnecessary risk (from choking or apnea). Therefore, we have concluded that circumcision should be performed with anesthetic. Id.; see also Larry Tye, Anesthesia Urged in Infant Circumcision, BOSTON GLOBE, December 25, 1997 at A3 (responding to those who suggest that the infant will not remember the pain).
70. See Richard E. Marshall, Fran L. Porter, Ann G. Rogers, JoAnn Moore, Barbara Anderson &Stuart B. Boxerman, Circumcision: II Effects Upon Mother Infant Interaction, 7 EARLY HUM. DEV. 367, 367-74 (1982) (studying 59 mother-infant pairs during the first few days of infants' life to compare behavioral differences between circumcised and uncircumcised infants). The author states, [O]ur data suggest that circumcision has brief and transitory effects on mother-child interaction observed during hospital feeding sessions. Id. at 367.
71. See Anna Taddio, Effect of Neonatal Circumcision on Pain Response During Subsequent Routine Vaccination, 349 LANCET 591, 599 (Mar. 1, 1997) (illustrating that neonatal circumcision in male infants is associated with increased pain response in vaccination four to six months after surgery); Maryann Napoli, Newborns and Pain: A Post Circumcision Study, HEALTHFACTS 6, 6 (Apr. 1997) (citing to the Anna Taddio's article in the Lancet which discusses whether there are lasting effects from the pain experienced during circumcision).
72. Fleiss, supra note 27, available in 1997 WL9436554, at ¶ 9.
73. Fleiss, supra note 27, at ¶33.
74. Fleiss, supra note 27, at ¶23.
75. See W.F. Gee & J.S. Ansell, Neonatal Circumcision; a Ten Year Overview: With Comparison of the Gomco Clamp and the Plastibell Device, 58 PEDIATRICS 824, 824-27 (1976) (stating that records of 5,882 live male births were reviewed to ascertain the incidence and nature of complications following neonatal circumcision, with the most frequent complications being hemorrhage, infection, and trauma).
76. Cole v. Turner, Nisi Prius, 6 Modern Rep. 149 (1704). See U.S. v. Charters, 829 F.2d 479 (4th Cir. 1987) stating that the right to be free from undesired touching traces its origin to English common law).
77. See Bonner v. Moran, 126 F.2d 121,122 (D.C. Cir. 1941) (citing Schloendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y 1914)) (stating [w]e think there can be no doubt that a surgical operation is a technical battery, regardless of its results, and is excusable only when there is express or implied consent by the patient; or stated somewhat differently, the surgeon is liable in damages if the operation is unauthorized); See also Tabor v. Scobee, 254 S.W. 2d 474,475 (Ky. 1951) (involving the removal of patient's fallopian tubes without consent during operation for appendicitis); Mohr v. Williams, 104 N.W. 12, 14 (Minn. 1905) (asserting that it cannot be doubted that ordinarily the patient must be consulted, and his consent given before a physician may operate upon him) See generally Carl T. Drechle, Annotation, Physicians, Surgeons and Other Healers, 61 AM. JUR 2d §§ 174-177 (1981) & Supp. 1997) (discussing physician liability and patient consent); Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician's Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 1008,1012 (1978 & Supp. 1997) (exploring collection of modern cases discussing the general nature of physician's duty to inform patients of risks.).
78. See U.S. v. Charters, 829 F.2d 479, 490-91 (4th Cir. 1987) (providing that forcible medication implicates right to freedom from physical invasion and privacy protected by the constitution, and forms the basis of the informed consent requirement); see also Schloendorff, 105 N.E. at 92 (concluding that informed consent is based on right to control of body); Bowers v. Talmage, 159 So. 2d 888, 890 (Fla. Dist. Ct. App. 1963) (noting that the doctor was under a duty to adequately inform parents of possible dangerous outcomes of child planning operation).
79. Frantz, supra note 77, at 1018.
80. See Newmark v. Williams, 588 A.2d 1108, 1115-16 (Del. 1991) (holding that an operation without informed consent is battery); see also Ruby v. Massey, 452 F. Supp. 361, 364 (D. Conn. 1978) (noting that a doctor who performs circumcision without informed consent may be liable); Conservatorship of Drabick v. Drabick, 245 Cal. Rptr. 840, 849 (Cal. Ct. App. 1988) (holding that an adult has the right to determine the scope of his own medical treatment, including instructions relayed through the use of a conservator); Scott v. Kaye, 24 A.D. 2d 890, 891 (1965) (concluding that an operation without informed consent is an unauthorized operation).
81. See Bourgeois v. McDonald, 633 So. 2d 684, 688 (La. Ct. App. 1993) (stating that the test is whether a reasonable patient in plantiff's position would have consented had a doctor disclosed the material information or risks involved); see also Karp v. Cooley, 493 F.2d 408, 422 (5th Cir. 1974 noting that other jurisdictions have held that in order to recover, patients must prove that they would not have given consent if informed).
82. See Hum v. Dericks, 162 F.R.D. 628,639 (D. Haw. 1995) (stating that one issue involved in the concept of informed consent is dispensing with the requirement when emergency conditions are present).
83. See Hively v. Higgs, 253 P. 363, 365 (Or. 1927) (holding that the fact that an operation is routine and without serious risk does not obviate need for informed consent).
84. See supra notes 65-67 and accompanying text.
85. See Brown v. Wood 202 So.2d 125 (2d Cir 1967); McGeshick v. Coucair, 9 F. 3d 1229 (Wis. Ct. App. 1993); Stovall v. Harms, 522 P.2d 353 (Kan. 1974); Drechsler, supra note 77, at § 188 (stating that the physician-based standard is still the most common rule).
86. K.A.C. v. Benson, 527 N.W.2d 553,561 (Minn. 1995) See Stauffer v. Karabin, 492 P.2d 862, 865 (Colo. Ct. App. 1974) (discussing customary disclosure practices); Coleman v. Garrison 327 A.2d 757, 762 (Del Super. Ct. 1974) (stating that the general rule is that the law holds all surgeons to a standard of conducting themselves with the same care and competence as any surgeon in good standing within the same or similar community).
87. See Drechsler, supra note 77, at § 189 (asserting that the modern view gaining acceptance by a number of courts is that the fundamental right of self-determination mandates disclosure based on patients needs); see also Getchell v. Mansfield, 489 P.2d 953 (Or. 1971) (stating that the material risk is one which physicians should know would be significant to a patient making a decision). See generally Ball v. United States, 461 F.2d 772 (6th Cir. 1972); Korman v. Mallin, 858 P.2d 1145 (Alaska 1993); Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); Feeley v. Baer, 669 N.E.2d 456 (Mass. 1996); Dixon v. Peters, 306 S.E.2d 477 (N.C. Ct. App. 1983.).
88. See Canterbury v. Spence,  464 F.2d 772 , 789 (D.C. Cir. 1972) arguing that no custom may result in a custom of silence); see also Cobbs v. Grant, 502 P.2d 953 (Or. 1971) (observing that the physician-based standard is so nebulous that it gives physicians absolute discretion). Mason v. Ellsworth, 474 P.2d 909, 915 (Wash. Ct. App. 1970) (holding that the existing physician standard may be negligent).
89. See Frantz, supra note 77, at § 1013 (stating that  The Patient's Bill of Rights adopted in 1972 by the  American Hospital Association adopts a patient-based standard); see also Dunham v. Wright, 423 F.2d 940, 946 (3d Cir. 1970) (holding that fundamental fairness requires informed consent because patients bear all risks and expense).
90. See Hondroulis v. Schumacher, 553 So.2d 398, 402 (La. 1988) (maintaining that awareness requires that material risks have been accumulated in fact).
91. See Wilson v. Lockwood, 711 S.W.2d 545, 549 (Mo. App. 1986) holding that there was no liability for failure to warn where parents read brochure and where Plastibel did not fall off after circumcision); see also East v. United States, 629 F. Supp. 682, 686 (E.D. Mo. 1986) (ruling that there is no evidence to suggest that patient would have declined consent if he had been informed of the standard surgical practice of circumcising the penis as part of the requested prosthetic implant operation).
92. See Kalina v. General Hosp. of Syracuse, 195 N.E.2d 309,309 (N.Y. 1961) (holding that there is no liability to parents for unauthorized circumcision because there is no duty to parents); see also Fishbeck v. North Dakota,  115 F.3d 580, 581 (8th Cir. 1997) (holding that parents wishing to circumcise their sons have no standing to challenge anti-female genital mutilation statute on equal protection grounds).
93. See supra notes 23-28 and accompanying text.
94. See Fishbeck, 115 F.3d at 581 (holding that parents had no standing because nothing could reverse circumcision of son that mother had opposed); see also Kalina v. General Hosp. of Syracuse, 220 N.Y.S.2d 733, 735 (N.Y. Sup. 1961 (holding that Jewish parents had no legally protected interest in improper circumcision of son where surgeon was not a Jewish mohel. A mohel is a religious figure approved to perform the circumcision ritual.). But see Oliner v. Lenox Hosptial., 431 N.Y.S.2d 271, 272 (N.Y. Sup. Ct. 1980) (holding that parents had enforceable right to the circumcision ritual in a hospital under public health law mandating that civil and religious liberties shall not be infringed). C. f. Ruby v. Massey, 452 F. Supp. 361, 371 (D. Conn. 1978) (asserting that courts have the duty to protect the plaintiff's interests, and holding that doctors may not deny access to hysterectomies for mentally and physically handicapped minor daughters on the grounds that on the grounds that procreation is a fundamental right).
95. See Oliner v. Lenox Hospital., 106 Misc. 2d 107, 109 (N.Y. Sup. Ct. 1980) (affirming that parents had standing to demand circumcision be performed on their son according to the parents' religious standards).
96. See Ruby v. Massey, 452 F. Supp. 361, 368-70 (D. Conn. 1978) (stating that the rights of children to abort a fetus or bear a child are tantamount, despite the present interests of guardians or physicians).
97. See Smith v. Seibly, 431 P.2d 719, 722 (Wash. 1967) (outlining the criteria that historically characterized minors as not suitably mature to make decisions about their own medical treatment).
98. According to some statutes, the ability of minors to consent is favored for limited purposes such as treatment of venereal disease, alcohol or drug abuse, and emotional or psychological counseling without parental consent. See, e.g., ME. REV. STAT. ANN. Tit. 22 §§ 1502, 1823, 1908 (West 1996); ME. REV. STAT. ANN. Tit. 32, §§ 2595, 3817, 6221, 7004 (West 1996).
99. See Carey v. Population Serv. Int'l,  431 U.S. 678, 700 (1977) (overturning restrictions on the distribution of condoms to minors); Planned Parenthood of Mo. v. Danforth,  428 U.S. 52, 75 (1976) (overturning a requirement of parental consent in the case of abortion of minors); Smith v. Seibly, 431 P.2d 719, 723 (Wash. 1967) (defining criteria for considering whether an 18 year-old minor may consent to a vasectomy).
100.  428 U.S. 52, 74 (1976)
101. Id.
102. Id. at 74. See Carey, 431 U.S. at 692 (noting that minors as well as adults, are entitled to constitutional protection of their rights).
103. Danforth,  428 U.S. at 74.
104. Id. at 75.
105. Id. at 73.
106. See, e.g., Danforth,  428 U.S. at 74 (acknowledging that some minors may be mature to make appropriate decisions about terminating pregnancy); see also Smith v. Seibly, 431 P.2d 719, 723 (Wash. 1967) (recognizing that the minor in this case exhibited considerable maturity and could make an informed decision to have a vasectomy).
107. Danforth,  428 U.S. at 74.
108. Id. at 72-73.
109. Id. at 67.
110. See Jacobsen v. Massachusetts,  197 U.S. 11, 26 (1905) (upholding the constitutionality of a state law requiring persons to be inoculated against smallpox, the Court noted that [t]here are manifold restraints to which every person is necessarily subject for the common good); see also Kristine M. Severyn, Jacobsen v. Massachusetts: Impact on Informed Consent and Vaccine Policy, J. PHARMACY & L. 249 (1996).
111. In re Quinlan,  348 A.2d 801, 818-19 (N.J. Super. 1975).
112. Little v. Little, 576 S.W.2d 493, 496-97 (Tex. Ct. App. 1979).
113. Id. at 497.
114. See generally Oliner v. Lenox Hosp., 106 Misc. 2d 107, 109 (N.Y. Sup. Ct. 1980) (holding that a hospital must comply with parental interest in having circumcision performed as a bris).
115. See Griswold v. Connecticut,  381 U.S. 479, 483 (1965) (holding that illegality of contraceptives invades privacy rights of married couples protected by the Ninth Amendment penumbral theory); see also Skinner v. Oklahoma,  316 U.S. 535, 541 (1942) (holding that [m]arriage and procreation are fundamental to the very existence and survival of the race, invoking protection under the Equal Protection Clause of the Fourteenth Amendment of a sterilized prisoner).
116. See generally In re Philip B., 156 Cal Rptr. 2d 48, 50 (Cal. Ct. App. 1979) (holding that parental autonomy is constitutionally protected but not absolute).
117. See  406 U.S. 205, 232 (1972) (upholding the decision by Amish parents to withdraw their children from public school after a careful balancing of parental and state interests.).
118. See  262 U.S. 390, 399 (1923) (striking down a law prohibiting the teaching of German and holding that the liberty interest protected under the Fourteenth amendment included the right to marry, establish a home, and bring up children ....).
119. See  268 U.S. 510, 534-35 (1925) (striking down a law requiring attendance at public schools and considering the liberty of parents and guardians to direct the upbringing of children under their control).
120. See Wisconsin v. Yoder,  406 U.S. 205, 231 (1972) (balancing parental interest in free exercise of religious rights with the state interest in maintaining consistent compulsory attendance laws for school-aged children); Pierce v. Society of Sisters,  268 U.S. 510, 532-33 (1925) (balancing parental rights of choice in education around religious interests with states' rights to provide education as they deem appropriate); Meyer v. Nebraska,  262 U.S. 390, 402-03 (1923) (holding that states' interest in educating children in English may not supercede parental rights to speak with children in their native language).
121. See Elizabeth J. Sher, Choosing for Children: Adjudicating Medical Care Disputes Between Parents and the State, 58 N.Y.U. L. REV. 157, 173-84 (1983) (stating that courts only advocate parental assertion of rights in cases involving decisions aboutreligion, education and morality).
122. See Stanley v. Illinois,  405 U.S. 645, 654-55 (1972) (the right to raise one's children is a fundamental right which cannot be abridged unless the potential harm to the child is significant); Griswold v. Connecticut,  381 U.S. 479, 495 (1965) (striking down a Connecticut law interfering with the right to use contraceptives, and holding that the entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the right to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.)
123. Prince v. Massachusetts,  321 U.S. 158, 159-60 (1944).
124. Id.
125. Id. at 160.
126. Id. at 170.
127. See, e.g., Wisconsin v. Yoder,  406 U.S. 205, 234 (1972) (holding that parental discretion may be challenged if it appears that the parental decision will jeapardize the health and safety of the child, or have a potential for significant social burdens); Stanley v. Illinois,  405 U.S. 645, 647 (1972).
128. H.L.V. v. Matheson,  450 U.S. 398 (1981).
129. See, e.g., Belotti v. Baird,  443 U.S. 622, 647-49. (1979) (holding that statutes cannot require minors to inform their parents of their intent to have an abortion and obtain parental or judicial consent, or prohibit the sale of contraceptives to minors); Carey v. Population Serv. Int'l,  431 U.S. 678, 693-94 (1977); Planned Parenthood of Mo. v. Danforth,  428 U.S. 52 (1976). But see H.L. v. Matheson,  450 U.S. 398, 413 (1981) (holding that [t]he statute plainly serves important state interests, is narrowly drawn to protect only those interests, and does not violate any guarantees of the Constitution).
130. See Conservatorship of Valerie N., 707 P.2d, 760, 773 (Cal. 1985). The court stated that:

     [T]he interests of the incompetent which mandate recognition of procreative choice as an aspect of the fundamental right to privacy and liberty do not differ from the interests of women able to give voluntary consent to this [contraception through sterilization] procedure.... Therefore, whether approached as in infringement of the right of privacy under the First Amendment or the privacy right that is found within the liberty protected by the Fourteenth Amendment, and whether analyzed under due process or equal protection principles, the issue is whether withholding the option ... is constitutionally permissible.

     Id.
131.  442 U.S. 584 (1979)
132. Id.
133. Id. at 616.
134. Id. at 606-08.
135. Id. at 602.
136. Parham v. J.R.,  442 U.S. 584, 603 (1979).
137. See generally Pierce,  262 U.S. 390 (1923).
138. See Ruby v. Massey, 452 F. Supp. 361, 365 (D. Conn. 1978) (holding that a parent may give lawful consent to surgical treatment that in a physician's opinion is medically necessary).
139. Id. See In re Hudson, 126 P.2d 765, 778 (Wash. 1942) (protecting a parent's right to bar amputation of a child's deformed arm because there was no issue of child abuse or neglect); c.f. Alfonso v. Fernandez, 584 N.Y.S.2d 406, 412 (N.Y. Sup. Ct. 1992) (holding that a condom availability program was not a health service, therefore not requiring parental consent). But see Powers v. Floyd, 904 S.W. 2d 713, 717 (Tex Ct. App. 1995) (advocating a broad reading of treatment and rejecting Little v. Little definition of medical treatment as too narrow because it would allow surgery to remove an unwanted birthmark or even circumcision.); Little v. Little, 576 S.W.2d 493, 495 (Tex. Ct. App. 1979) (ruling that while parents could consent to surgical intrusion on a mentally retarded minor, such services did not constitute medical treatment because medical treatment signifies affirmative efforts to effect a cure).
140. See generally Powers v. Floyd, 904 S.W.2d 713, 717 (Tex Ct. App. 1995) (holding that parental discretion may be appropriate in a wide range of circumstances).
141. See Davis Richards, Male Circumcision: Medical or Ritual, 3 J. L. & MED. 371 (1996) (arguing that the evolution for the concept of balancing the interests of the minor, parents, and the state, as applied to circumcision, has evidently proceeded further in Australia than in the United States).
142. See Newmark v. Williams, 588 A.2d 1108, 1113 (Del. Super. Ct. 1991) (holding that the state has burden of clear and convincing evidence that intervention is necessary in order to overrule parental objection to treatment); In re Green 292 A.2d 387, 391-92 (Pa. 1972) (holding that the state does not have authority to force medical intervention where the child's life is not in danger).
143. See In re Phillip B., 156 Cal Rptr. 2d 48, 51 (Cal. Ct. App. 1979) (stating that [t]he state is the guardian of society's basic values. Under the doctrine of parens patriae, the state has a right, indeed a duty, to protect children. State officials may interfere in family matters to safeguard the child's health, educational development and emotional well being).
144. See Parham v. J.R.,  142 U.S. 584, 603 (1979) (finding that while parental rights are substantial, they are not absolute when a child's physical or mental well-being are at stake and stating that the Supreme Court has recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized).
145. See In re Quinlan,  348 A.2d 801, 822 (N.J. Sup. Ct. 1975) (holding that religious beliefs are absolute, but religious practices are not free from government regulation).
146. Prince v. Massachusetts,  321 U.S. 158, 801 (1944). See also Bothman v. Warren, 156 Cal. Rptr. 48, 51-52 (Ct. App. 1979) (adopting a clear and convincing evidence standard).
147. Bothman, 156 Cal. Rptr. At 51-52.
148. Prince, 321 U.S. at 169 (holding that the State may intervene under parens patriae to protect a child's health, educational development and emotional wellbeing. There must however be clear and convincing justification.).
149. Id. See generally Pierce v. Society of Sisters,  268 U.S. 510 (1925); Meyer v. Nebraska,  262 U.S. 390 (1923); Davis v. Beacon, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1878).
150. Id.
151. Id.
152. See Catherine L. Annas, Irreversible Error: The Power and Prejudice of Female Genital Mutilation, 12 J. CONTEMP. HEALTH L. & POL'Y 325, 337 (1996) (arguing the parallel between sterilization and FGM).
153. While sterilization cases sometimes involve guardians in lieu of parents' the responsibilities of guardians toward their wards are treated almost identically by the courts as birth parents and their children. It is conceded, however, that the sacredness of the parent/child relationship does not extend to the guardian/ward relationship. There is no discernable difference, however, between the outcome of sterilization cases involving parents and those involving wards. Annas, supra note 152, at 338.
154. Annas, supra note 152, at 338.
155. See e.g., Anonymous v. Anonymous, 469 So. 2d 588 So. 2d 588, 592 (Ala. 1985); Mildred G. v. Valerie N., 707 P.2d 760, 786 (Cal. 1985); Matter of Romero, 790 P.2d 819, 821-11 (Colo. 1990); In re Grady, 426 A.2d 467, 473-74 (N.J.) 1981). See generally Carey v. Population Serv. Int'l,  431 U.S. 678, 679 (1977); Eisenstadt v. Baird,  405 U.S. 438, 454-5 (1972); Griswold v. Connecticut,  381 U.S. 479, 485-86 (1965); Skinner v. Oklahoma,  316 U.S. 535, 542-43 (1942) (holding that the right to privacy in connection with decisions affecting procreation extends to minors. The state may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy).
156. Mildred G., 707 P.2d at 786.
157. See Hudson v. Hudson, 373 So. 2d 310, 310 (Ala. 1979) (holding that a court may not authorize sterilization absent statutory authority); see also Ruby v. Massey, 452 F. Supp. 361, 366 (D. Conn. 1978) (holding that parents may not veto or give consent to sterilization of their children); A. L. v.G. R. H.., 325 N.E.2d 501, 502 (1975), (ruling that a mother ould not consent to sterilization of retarded son under common law parent-child relationship).
158. See In re C.D.M., 627 P.2d at 607, 612 (Alaska 1981) (finding that a court has authority under parens patriae to order sterilization when using a clear and convincing evidence test to determine the best interest); In re Grady, 426 A.2d 467, 483 (N.J. 1981) holding that clear and convincing evidence of best interest should be used even if the sterilization is not medically necessary because the court has the inherent power to order the sterilization); In re Terwilliger, 450 A.2d 1376, 1383 (Pa. Super. Ct. 1982) (holding that parents may not authorize sterilization absent judicial or statutory authority and may authorize only after considering the best interest of the incompetent person. A court, however, may order the sterilization under parens patriae); In re Romero, 790 P.2d 819, 822 (Colo. 1990) (claiming what is medically necessary via the best interest test); In re A.W., 637 P.2d 366, 375 (Colo. 1981) (reviewing what is medically necessary by clear and convincing evidence); Mildred G. v. Valerie N., 707 P.2d 760, 771 (Cal. 1985) (finding that a statute prohibiting sterilization unconstitutionally deprives developmentally disabled persons of a constitutionally protected choice. A state may, however, regulate choice if guardians show necessity.
159. Mildred G., 707 P.2d at 766.
160. See generally Parham v. J.R.,  442 U.S. 584 (1979) (emphasizing the procedure whereby the state orders a determination before admission that the patient will benefit and hospitalization is appropriate); Hart v. Brown, 289 386, 391 (Conn. Super Ct. 1972) (weighing the possibility of the procedure being clinical experimentation as opposed to a medically accepted theory); Matter of Grady 405 A.2d 851 (N.J. Super. Ct. Ch. Div. 1979) (giving the statutory provisions concerning sterilization in minors which safeguard the procedure).
161. The doctrine originated in a case involving the administration of an incompetents estate. Ex parte Whitbread in re Hinde, a Lunatic, 35 ENG. REP 878 (1816). In Ex Parte Whitbread, the court used its equitable powers to grant a pension from the estate of the incompetent to a loyal personal servant whom the incompetent had no legal duty to support. Id. See In re Carson, 241 N.Y.S. 2d 288, 289 (N.Y. Sup. Ct. 1962) (recognizing that the doctrine calls upon the court to don the mental mantle of the incompetent).
162. See Strunk v. Strunk, 445 S.W.2d 145, 145 (Ky. 1969) (examining the donation of an organ by an incompetent); see also In re A.C., 573 A.2d 1235, 1239 (D.C. Ct. App. 1990) (addressing caesarian delivery of a terminally ill patient's baby).
163. See Strunk, 445 S.W.2d at 148 (invoking the doctrine of informed consent to permit removal of a kidney from an incompetent donor. The kidney was needed to save the life of the donor's brother. The court found that the incompetent donor was emotionally close with his brother and would if competent, consent to the procedure); Hart v. Brown, 289 A.2d 386, 386 (Conn. Super. Ct. 1972).
164. See Superintendent v. Saikewicz, 370 N.E. 417, 430 (Mass. 1977) (holding that [t]he 'substituted judgment' standard which we have described commends itself simply because of its straightforward respect for the integrity and autonomy of the individual).
165. See Lynn E. Lebit, Compelled Medical Procedures Involving Minors and Incompetents and Misapplication of the Substituted Judgment Doctrine, 7 J.L. & HEALTH 107, 110-11 (1993) (examining the difference between the substituted judgment doctrine and the best interest standard). The best interest test, Lebit argues does not afford equal protection to incompetents and mirrors because of the loose standards of benefit which have been applied in various court cases. Id. at 3-5. Lebit proposes a best interest test for minors and congenitally impaired mental incompetents combined with a judicial presumption favoring the preservation of bodily integrity and a clear and convincing standard of review. Id. at 11. Lebit's construction of the substituted judgment doctrine disqualifies it for use upon those for whom the doctrine was first formulated and for those for whom it has historically been applied, namely mental incompetents. Id. For purposes of this article, the ambiguities between the substituted judgment doctrine and the best interest standard may be left in place. Id.
166. Saikewitz, 370 N.E.2d at 430. The court stated:

     We realize that in inquiry into what a majority of people would do in circumstances that were truly similar assumes an objective viewpoint not far removed from a reasonable person inquiry. While we recognize the value of this kind of indirect evidence, we should make it plain that the primary test is subjective in nature, that is, the goal is to determine with as much accuracy as possible the wants and needs of the individual involved. This may or may not conform to what is thought wise or prudent by most people.

     Id.
167. Id.
168. Mildred G. v. Valerie N., 707 P.2d 760, 789. The court stated:

     Like Valerie, the daughter in Grady had never been capable of articulating choices. There was not the slightest bit of evidence regarding the ability of the parents to determine that their daughters would choose to be sterilized. Hence, 'a decision by the parents [was] mere speculation, rather than an ascertainment of the incompetents preferences based on prior observations and conversations, as in Quinlan.

     Id. (citations omitted).
169. Id.
170. The circumcision of an adult is a more involved medical procedure than routine infant circumcision, and has been described as more traumatic for the patient. See generally ROMBERG, supra note 15, at 191; WALLERSTEIN, supra note 16, at 127. A policy which postpones circumcision until the patient reaches maturity will adversely affect the rare patient for whom circumcision becomes medically necessary in adulthood.
171. In re R.H., 622 N.E.2d 1071, 1076 (Mass. App. Ct. 1993). The court stated:

     [I]n determining what the incompetent person's choice would be, the judge should consider: (1) the patient's expressed preferences, if any; (2) the patient's religious convictions, if any; (3) the impact on the patient's family; (4) the probability of adverse side effects from any treatment ...[and the] present and future incompetency of the individual....

     Id.
172. Id.
173. See Lebit, supra note 165, at 125-127.
174. See Walker v. Superior Ct., 763 P.2d 852, 855 (Cal. 1988), (finding that [p]arents have no right to free exercise of religion at the price of a child's life, regardless of the prohibitive or compulsive nature of government infringement); see also Jehovah's Witnesses v. King County Hosp., 278 F. Supp. 488, 497 (W.D. Wash. 1967) (allowing the state of Washington to authorize a medically necessary blood transfusion over a parent's religious objections).
175. See in Re Quinlan,  348 A.2d 801, 807 (N.J. Super. Ct. Ch. Div. 1975) (creating a presumption that a person desires to go on living).
176. See In Re Phillip B., 92 Cal. App. 3d 796, 802 (Cal. Ct. App. 1979) (holding that although necessary, if an operation would pose great risk, the court cannot overrule parental objection).
177. Compare In re Nemser, 273 N.Y.S. 2d 624, 631 (N.Y. Sup. Ct. 1966) (declining to permit the children of a semi-conscious parent to order amputation on the parent where the procedure was not clearly a matter of life or death), with In re Schiller, 372 A.2d 360, 363 (N.J. Super. Ct. Ch. Div. 1977) (deciding that a guardian of an incompetent person may consent to amputation when life or death matter). But see In re Richardson, 284 So. 2d 185, 187 (La. Ct. App. 1973) (holding that neither the court nor the parents have authority to order a minor to donate a kidney).
178. See Nemser, 273 N.Y.S.2d at 689 (discussing the progression of doctors proceeding with certain medical procedures on patients who are willing or unwilling to consent thereto).
179. Id.
180. See Anonymous v. Anonymous, So.2d 588, 592 (Ala. 1985) (Faulkner, J., dissenting) (asserting that where a person's incompetence is due only to age, there are fundamental constitutional rights involved and one is entitled to court protection); In re Romero, 790 P.2d 819, 824 (Colo. 1990) (finding that a State must consider permanence of disability before ordering medical intervention).
181. See Newmark v. Williams, 588 A.2d 1108, 1118 (Del. 1991) (recognizing that the painful procedure was not in the best interest of the child even though the child's life was in jeapordy).
182. See Hart v. Brown, 289 A.2d 386, 390 (Conn. Super. Ct. 1972) (holding that a nontherapeutic operation may be ordered by a court where there is an emotional benefit to the child); see also Strunk v. Strunk, 445 S.W.2d 145, 149 (Ky. 1969) (ruling that parents are authorized by the court to give consent to operate on an adult incompetent where there is an emotional benefit to the donor). A kidney transplant may be authorized by the court where the court found that the surgery was in the best interest of the child, however, the parents could not authorize surgery unless the minor's life was in danger. Id.; see also Bonner v. Moran, 126 F.2d 121, 139 (D.C. Ct. App.); Fleming v. Michigan Mut. Liab. Co., 363 F.2d 186, 188 (La. 1966) (showing evidence of consent in sharp dispute); Drechsler, supra note 77 at § 179.
183. See In re Phillip B., 92 Cal. App. 3d 796 (Cal. Ct. App. 1979) (finding that in determining whether the State may intervene to require treatment over parental objection considerations include a child's express preferences).
184. See supra notes 50-53 and accompanying text.
185. See supra notes 127-131 and accompanying text.
186. See Criminalization of Female Genital Mutilation Act. Pub. L. No. 104-208, § 645, 110 Stat. 3009, 3009-708 (1996) (codified as amended at  18 U.S.C. § 116) [hereinafter The Anti-FGM Act].
187. See titles, supra, note 10; see also   Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 34/180, U.N. GAOR, 3rd Comm. 34th Sess., Annex, Agenda Item 75, U.N. Doc. A/RES/34/180 (1980). More recently, the General Assembly passed the  Declaration on the Elimination of Violence Against Women (DEVAW), G.A. Res. 48/104, U.N. GAOR, 3rd Comm., 48th Sess., Agenda Item 111, U.N. Doc. A/48/104 (1994). Article 2 of DEVAW includes FGM as an example of violence against women that is covered under the resolution.
188. See Anti-FGM Act,  18 U.S.C.A. § 116(a) (West 1992 & Supp. 1997) (defining the term female genital mutilation).
189. Id.
190. Id. at §§ 645(a)(3), (a)(6) 110 Stat. at 3009-7008.
191. Id. at §§ 645(a)(3), (a)(6) 110 Stat. at 3009-7008.
192. Id. at § 645(a)(5). Many Muslims believe that the practice is required under the tenets of Islamic religious law, or Shari'a. This belief is disputed by some Muslim clerics. Kandela, supra note 25, at 41.
193. 18 U.S.C.A. § 116(c) (West 1992 & Supp. 1997).
194. Kandela, supra note 25, at 41 and accompanying text.
195. U.S. CONST.  amend. XIV, § 1. See infra Part V.B.
196. FRAN HOSKEN, THE HOSKEN REPORT 1 (4th rev. ed. 1993). The Hosken Report has been cited extensively in the FGM network as a source for statistics on the practice of FGM in Africa. The World Health Organization estimates between 85 to 114 million girls and women have been affected by the procedure. Reginold Bundy. Legislating Culture? TRI-STATE DEFENDER, Mar. 12, 1997, at 1A, available in 1997 WL 11759356.
197. See Kandela, supra note 25, at 41 (quoting from the Mufti of Egypt about his position in favor of the Egyptian government's attempt to ban female circumcision, stating [t]his tradition has no basis in Islamic Law.)
198. HOSKEN, supra note 196, at 36.
199. HOSKEN, supra note 196, at 37.
200. See HOSKEN, supra note 196, at 36 (stating that not a single case of FGM [is] medically documented in the United States); see also 142 CONG. REC. S8972-01 (daily ed. July 26, 1996) (statement of Sen. Reid) (asserting that [w]e have had a report in one California community where there were seven of these practices committed on young women); Bundy, supra note 196, at 1A (noting that Dr. Michael Rich, Professor of Pediatrics at Harvard Medical School, admits he hasn't seen a case of [female] genital mutilation conducted in the United States, but he and other doctors were forced to undo the procedure on a pregnant 19-year-old Somalian immigrant.); Barbara Crossette, Female Genital Mutilation by Immigrants is Becoming Cause for Concern in the United States, N.Y. TIMES, Dec. 10. 1995, at 18 (noting immigrant communities in the United States are alleged to have raised money to bring practitioners of FGM to the United States to perform the procedure). But see Linda Burstyn, Female Circumcision Comes to America, THE ATLANTIC MONTHLY, Oct. 1995, at 28 (suggesting that lack of statistical data on FGM in the United States is due to the secrecy within immigrant communities regarding the practice, coupled with a distrust of western doctors.).
201. See Andrew Selsky, South African Rite of Passage Scrutinized, FT. WORTH STAR TELEGRAM, Mar. 2, 1997, at 29, available in 1997 WL 4824914 (describing the procedure of male circumcision on adolescent boys in Africa as a rite of manhood); Authorities Probe Three Year Old Boy's Death During Circumcision, AGENCE FRANCE-PRESSE, Jan. 8, 1997, available in 1997 WL 2036828 (describing a botched male circumcision in Egypt); Alec Russell, Ancient Practice of Tribal Circumcision Divides South Africa, THE DAILY TELEGRAPH LONDON, Jan. 23. 1997, at 17 (noting that in one African group initiation rite, three initiates died, 16 lost their manhood, and 26 had to have intimate plastic surgery).
202. See Russell, supra note 201, at 17 (noting that South Africa President Nelson Mandela describes that during the circumcision procedure he felt as if fire was shooting through…his veins and the pain was so intense that …[h]e buried…[his] head in…his chest).
203. See Russell, supra note 201, at 17. The author states that:

     [I]t was when the 16th teenager arrived in her ward late last year with gangrenous wounds from a botched circumcision that she [Nurse Ngomane] decided enough was enough. As a Xhosa, she knew women were barred from entering the initiates camps. They are the preserve of the young men who for up to a month after being circumcised daub their faces white, wear blankets and live off a spartant diet.…They [the patients] had staggered from the hills saying that scores more were in agony from infected wounds after a surgeon used the same rusty spear on 80 initiates. Helped by the local police chief…Mrs. Ngomane dragged more than 50 initiates into her car. It was appalling, she said. Their bandages were filty. The stench of rotting flesh was unbearable, and the pain those kids were experiencing was unbelievable.

     Id.
204. Andrew Selsky, A Journey to Manhood on the Hut of Pain, THE GLOBE AND MAIL, Apr. 19, 1997, at D4.
205. Andrew Selksy, Circumcision is Still Rite of Manhood in Africa, THE TORONTO STAR, Mar. 8, 1997, at L6, available in 1997 WL 3825490.
206. See ROMBERG, supra note 15, at 2-3 (describing varying techniques of circumcision based on the traditions of each culture).
207. See ROMBERG, supra note 15, at 2-3 (explaining that the motivation for this practice ranges from making the young men better runners to preventing the birth of twins.
208. See ROMBERG, supra note 15, at 2-3 (concluding that this practice is the most barbaric).
209. See ROMBERG, supra note 15, at 2-3 (commenting that the lower part of the foreskin hangs atrophied for the rest of the man's life).
210. See ROMBERG, supra note 15, at 2-3 (including people from the South Sea islands and tribes of Mexico and South America).
211. See Eric Steiner Carlson, Sexual Assault on Men in War, 349 THE LANCET 129, 129 (1997) (describing the lack of attention paid to sexual assaults on men, including rape, forced homosexual sex between prisoners, castration, and circumcision.
212. See Klein, supra note 29 (comparing the attitudes toward FGM in Africa with those toward male circumcision in North America). See generally, ROMBERG,supra note 15 (detailing all aspects of circumcision and its effects on both males and females); WALLERSTEIN, supra note 16, (giving a comprehensive and informative document on circumcision and the controversy surrounding the practice).
213. See Donna Abu-Nasr, Activist Fighting Custom of Genital Mutilation in the United States, PLAIN DEALER, May 27, 1997, at 5F (quoting former Rep. Pat Schroeder, [FGM is] …not like circumcision for men. It's much like Lorena Bobbit.) This is presumably intended to imply that FGM is equivalent to penisectomy. Id.
214. See id. (noting resistance to FGM law by orthodox Jews because they are fearful of a ban on male circumcision.
215. See Haim Chertok, The Infant Wont' Remember It, But His Father Won't Forget. JERUSELEM POST, Jan. 10, 1997, at 4 (extolling the meaningfulness of the brit [sic] as part of Jewish Family and community life, and accusing detractors of anti-semitism); Francine Klagsbrun, Circumcision May Resemble Genital Mutilation, But It Has Meaning for Jewish Uniqueness, MOMENT, Apr. 30, 1997, at 22 (explaining the Biblical source of circumcision and the covenant with God that results).
216. See supra text accompanying notes 17-18 (discussing male circumcision as a Jewish and Muslim tradition).
217. See 117 S. Ct. 2157, 2161 (1997) citing Employment Div., Dep't of Human Resources of Oregon v. Smith,  494 U.S. 872, 878 (1990)). The free exercise clause of the First Amendment did not prevent the state of Oregon from passing and enforcing a law prohibiting the use of peyote, even though such a law would interfere with the religious practices of Native Americans. Id. The Court declined to apply a balancing test that would have considered whether the State statute effectuates a compelling governmental interest. Id.
218. See Flores, 117 S. Ct. at 2157; Smith 494 U.S. at 872. The abandonment of a compelling governmental interest test drew considerable dissent from four Justices in Smith and stimulated passage by Congress of the (now defunct) Religious Freedom Restoration Act of 1993. 42 U.S.C.A. § 2000bb (1993) See also Hill v. Alabama, 88 So. 2d 880, 885 (Ala. Ct. App. 1956) (holding that the statute prohibiting religious snake handling was constitutional); Tennessee ex rel Swann V. Pack, 527 S.W.2d 99, 109 (Tenn. 1975) (using the grave and immediate danger doctrine to hold that the state has the power to regulate ritualized snake handling even when such handling is central to religious practice); c. f. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 221`7, 2226 (1993) (holding that a city ordinance banning animal sacrifice not generally tailored to further a compelling State interest and had discriminatory intent.) But see United States v. Middleton, 690 F. 2d 820, 823 (11th Circ. 1982) (holding that the regulation of marijuana is constitutional against any free exercise of religion challenge). See also Reynolds v. United States, 98 U.S. 145, 166 (finding a state prohibition of polygamy constitutional); Adrienne Bell, The Verdict on Religion: Observers find a Pattern in Two Supreme Court Rulings, CHICAGO SUN TIMES, July 13, 1997, at 61 (analyzing the impact of the Supreme Court's ruling in City of Boerne v. Flores, which declared the Religious Freedom Act of 1993 unconstitutional). DePaul University Law Professor Steven Resnicoff opined that if the State of Illinois decided to bar circumcision for alleged health reasons,…[t]hat could stand even though Jews believe in circumcision for all males.). Id.
219. See Christine Stutz, Dr. Ronald Goldman on Circumcision, BALTIMORE JEWISH TIMES, May 23, 1997, at 14 (commenting on the pain and trauma involved in circumcision).
220. See Ohad Gozani, International World Bulletin, DAILY TELEGRAPH, May 5 1997, at 12 (addressing that a public campaign to ban circumcision in Israel has begun, led by a group of Israelis who describe the ritual procedure as a primitive and barbaric act).
221. Indeed, unless the act is extended to include males, the Act is vulnerable to an equal protection challenge. See infra Part V.B.
222. The assertion of this distinction in the FGM legal commentary is in most cases perfunctory, suggesting a lack of serious consideration. See, e.g., Lori An Larson, Female Genital Mutilation in the United States: Child Abuse or Constitutional Freedom, 17 WOMEN'S RTS. L. REP. 237 (1996); see also Hughes, supra note 41, at n. 1. The distinction between circumcision and FGM is also commonly expressed in the popular press. See Welcome Intolerance for Torture, ST. PETERSBURG TIMES, Jan. 3, 1998 (reporting that FGM is different than circumcision); Letters to the Editor, SAN FRANCISCO EXAMINER, Jan. 3. 1998, at A18 (stating that FGM is equivalent to castration, not circumcision.); Letters to the Editor, THE TORONTO STAR, Mar. 20, 1997, at A26 (paralleling FGM with circumcision); Kimberly Wilmot, Political Asylum Helps Woman to Escape Circumcision, THE PLAIN DEALER, Jan. 7, 1997 at 4E (asserting that the allowance of asylum based on FGM is due to a growing awareness that FGM is not the same as male circumcision); Lawmakers Take Steps to Ban FGM, STATE J. REG., Feb. 7. 1997, at 6 (stating that FGM is different than circumcision); On Female Circumcision, JAKARTA POST, Apr. 17, 1997 (reporting FGM as the equivalent to male castration); Letters to the Editor, INDIANAPOLIS STAR, July 16, 1997, at A9 (stating that [m]any men experience increased pleasure during the sex act because the sensitive tip of the penis is exposed. This is quite the opposite in the Egyptian practice on women. [Ed. note, this is completely incorrect, as the sensitive tip of the uncircumcised penis is fully exposed upon erection.].); Editorial, PORTLAND PRESS HERALD, June 27, 1997, at 12A (arguing that [u]nlike male circumcision, which may have have medical utility and was commanded for Jews in the Old Testament, FGM is practiced solely in the belief that it curbs women's sexual desires).
223. See HOSKEN, supra note 196, at 46-47. (arguing that rape and sexual assault of women would be eliminated by penisectomies - which would be a very great benefit to all societies).
224. HOSKEN, supra note 196, at 46-47.
225. HOSKEN, supra note 196, at 46-47. Many writers assert an equivalence between clitoridectomy and castration. Castration involves the removal of the testicles and is therefore more analogous to the removal of the ovaries in women. Id.
226. The absurdity of such a facile argument is obvious when one considerers that it is approximately equivalent to saying that the removal of a man's nipples is the same as the removal of a woman's breasts, since both developed from the same embryionic structures.
227. U.S. CONST. Amend XIV, § 1.
228. See Frontiero v. Richardson,  411 U.S. 677, 684 (1973) (finding that because of societal stereotypes of women, statutes were laden with distinctions between the sexes, which through much of the nineteenth century, put women at a great disadvantage).
229. See Goesaert v. Cleary,  335 U.S. 464, 466 (1948) (applying the reasonable basis standard to a challenge against a public law barring all women opportunities in the bartending field).
230. See Reed v. Reed,  404 U.S. 71, 73 (1971) (challenging a statute which provided that as between persons equally qualified to administer estates, males must be preferred to females); see also; Kirchberg v. Feenstra,  450 U.S. 455 (1981) (challenging a husband's unilateral right to dispose of property without the wife's consent); Stanton v. Stanton,  421 U.S. 7, 8 (1975) (challenging the statute which based on differences between the sexes, designated that girls attain majority at age 18 and boys at 21).
231. United States v. Virginia,  518 U.S. 515, 541-42 (1996);  518 U.S. 515; J.E.B. v. Alabama ex rel. T.B.,  511 U.S. 127 (1994).
232. See Virginia, 518 U.S. 515, 531 (citing Mississippi University for Women v. Hogan,  458 U.S. 718, 724 (1982)).
233. See id. (quoting Wengler v. Druggist Mutual Ins. Co.,  446 U.S. 142 (1980).
234. Id.
235. See Parker, supra note 39, at D1 (stating that [f]or thousands of years, young males have been subjected to what amounts to genital mutilation for medical reasons that have been largely disproved by modern science.; see also Rick Ansorge, An Agonizing Choice, CHI. TRIB., Mar. 7 1997, an 7 (contrasting that in recent years, more activists have spoken out against circumcision…); Sharon Lerner, Rite or Wrong? As the U.S. Law Against FGM Goes Into Effect, African Immigrants Debate an Ancient Custom, THE VILLAGE VOICE, Apr. 1, 1997, at 44 (describing Africans challenging the practice of circumcision in the United States as the equivalent to Americans challenging FGM); Letters to the Editor, TORONTO STAR, Mar. 20, 1997, at 26 (stating that male circumcision should be equated with FGM); Letters to the Editor, DES MOINES REG., July 8, 1997, at 6 (challenging the inconsistency of views in the United States regarding FGM and male genital mutilation).
236. See William E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional Issues, 23 J. FAM. L. 337, 337 (1984) (noting that approximately 89% of all males are circumcised within hours of birth).
237. Fishbeck, 115 F3d at 580.
238. N.D. CENT. CODE § 12.1-36-01 (1997)
239. Id. Two of the plaintiffs, Jody McLauglin and Duane Voskuil, had been involved in the original drafting of the legislation which had included protection for males as well as females. The protection for males was dropped as a political concession to passage of the Act. News, STAR-TRIB., May 19, 1997, at 7A. The equal protection flaws in the North Dakota statute and a similar statute passed in Minnesota have been identified by others. See James G. Dwyer, The Children We Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors, 74 N.C.L. REV. 1323, 1324 (1996) (arguing that statutorily exempting religious exemptor parents from generally compulsory child care in the name of free exercise of religion infringes upon the child's equal protection rights).
240.  Fishbeck, 115 F. 3d at 580.
241. Id.
242. See id. (passing on a decision of whether the  Eleventh Amendment would bar relief because the case is dismissed for lack of standing.).
243. See Maura Lerner, Federal Ruling Dashes Hopes of Circumcision Opponents, STAR-TRIB., June 5, 1997, at 03B (discussing the effect of the federal ruling in Fishbeck on the hopes of circumcision opponents).
244. See Raines v. Byrd, 117 S. Ct. 2312, 2322 (1997) (holding that members of Congress who challenged the constitutionality of the line item veto did not have a sufficient personal stake in the dispute to establish standing); see also Lujan v. Defenders of Wildlife,  504 U.S. 555, 560-61 (1992) (holding that environmental organizations lacked standing to challenge a joint regulation promulgated by the secretaries of interior and commerce because they failed to demonstrate injury and redressibility). The court in Lujan commented that:

     [T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized…and (b) actual or imminent, not conjectural or hypothetical,.… Second, there must be a causal connection between the injury and the conduct complained of.… Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

245. National Organization to Halt the Abuse and Routine Mutilation of Males (NOHARMM), (visited Oct. 7, 1998) The author stated:

     [A]ny adult may file suit against those who harmed him either within one year of the actual harm or within one year after realizing such harm. We seek a class action suit declaring the right of a child to be protected from circumcision is superior to a parent's right to consent to such surgery. The plaintiffs in such a case need to be one or more circumcised young men (age 16-17) who can file suit within one year after turning 18. The defendants in the case could be a doctor, a hospital, or even willing parents. Potential plaintiffs seeking legal referrals may contact NOHARMM.

     Id.
246. Such legislative solutions are already widespread. In Maine, for example, parents may consent to the piercing of a child's ear but not to a tattoo. See ME. REV. STAT. ANN. TIT. 32. §§ 4201-203 ( West 1988) (stating that [n]o person shall place a tattoo mark on figure upon a person under the age of 18 years).
247. Annas, supra note 152, at 336. See generally Brigman, supra note 236, at 336 (arguing that routine neonatal circumcision of males is child abuse).
248. See generally Hughes, supra note 141, at 337. State intervention into parental decisions impinging upon personal privacy is advocated by feminist scholars for reasons applicable to protection of the infants to bodily integrity. See CATHERINE A. MACKINNON, TOWARDS A FEMINIST THEORY OF THE STATE, 35-36, 194 (1989) (describing the public/private distinction and how it isolates women from public discourse); Riane Eisler, Human Rights: Towards an Integrated Theory for Action, 9 HUM. RTS. Q. 287,292 (1987).

Citation:

• Ross Povenmire. 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. J Gender, Soc Policy & Law. 1998-1999;7(1):87-123.