Male Circumcision and the Rights of the Child

Jacqueline Smith*

"Indoctrination can harm the child, most notably by effectively closing off the alternatives for the adult the child will become. An individual can choose only among the options of which she is both aware and can consider seriously. If parents limit the child's exposure to religious and moral views identical to their own, the child will see only one option and choose it: she will likely hold the same beliefs when she becomes an adult."¹

Introduction

In this article, I will address the issue of male circumcision relating to the rights of the child. In most countries the issue is hardly discussed or even ignored. In the Netherlands, only rarely male circumcision is the subject of debate. The Netherlands Government worries more about the safety and hygiene of the circumcisions taking place, resulting, inter alia, in subsidising education for circumcisers.² This is in sharp contrast to the intensive debate on genital mutilation of girls, which took place in 1992 and 1993.³ This discussion formed the direct reason for a study carried out by the Netherlands Institute of Human Rights (SIM).⁴ In the latter study, the only explicit mentioning of male circumcision concerned the fact that genital mutilation of girls frequently goes further than mere circumcision, a small incision or the removal of the prepuce of the clitoris. The only form of female genital mutilation which is anatomically comparable with the circumcision of boys is that form of circumcision in which the clitoral prepuce is cut away. This form, however, occurs very rarely.⁵

The choice to make a dissociation between the two practices was at that time a pragmatic, political decision, related to the vehemently discussion in the Netherlands,⁶ and because the fight against female genital mutilation would be more difficult if male circumcision were also to be challenged.⁷ The main conclusion of the study was that female genital mutilation is a harmful traditional practice in the sense of Article 24(3) of the UN Convention on the Rights of the Child and that the States Parties accordingly should take all effective and appropriate measures to abolish this practice.⁸

In discussing the results of the research with Peter Baehr, he asked me whether the conclusions drawn in the report would also apply to male circumcision. Although the issue of male circumcision was not dealt with in the research on female genital mutilation, it was frequently mentioned in the literature and other material studied at that time.⁹ I take this opportunity to address the issue of male circumcision, using mainly the material collected for the study on female genital mutilation. Studying additional literature on male circumcision, I learned that this custom has been as much the subject of extreme controversy as is the case with female genital mutilation and that the debate on routine neonatal male circumcision is intensifying, particularly, but not only in the USA.¹⁰

After a description of male circumcision in section 1, section 2 will give some examples of what authors on female genital mutilation have said about male circumcision. Sections 3 and 4 will deal with the human rights and legal aspects of male circumcision. Finally, some concluding observations will be made.

1. A Description of Male Circumcision

History and Prevalence

Male circumcision is probably one of the oldest of all surgical procedures.¹¹ Male circumcision preceded female genital mutilation, both operations existed long before Judaism and Islam were introduced.¹² In the absence of any historic, medically confirmed documentation, the origins of the practices have provided much room for speculation but have revealed very few facts. Although the origin of the practice is not entirely clear, it almost certainly began as a religious rite.¹³ In all societies where female genital mutilation is practised, male circumcision is also performed.¹⁴ But throughout history the male operation has existed in many more societies than operations on females.¹⁵ Currently, approximately one-fifth of the world's male population is circumcised, particularly on religious grounds. In Western society, mostly in the Anglo-Saxon countries like Australia, Canada, the United Kingdom and especially the USA, circumcision is usually performed for non-religious, "medical" reasons. There is, however, enormous variation between the circumcision rate in the UK (5-6 percent) and that in the USA (60 percent). In Britain neonatal circumcision declined from an incidence of around 30 percent in the 1940's to a very low level at present. Still, it remains a common operation, with over 30.000 procedures annually.¹⁶ To compare, it is estimated that there are between 85 and 115 million girls and women throughout the world whose genitals have been mutilated.¹⁷

One can distinguish several types of male circumcision of which the simple or routine infant circumcision, which is the removal of the foreskin or prepuce, is most commonly practised.¹⁸ In most cases, no anaesthesia is used. In general, the operation is perceived by the medical staff as a relatively minor procedure, with no or hardly any risks for the child.¹⁹ Regarding the risks of male circumcision, some authors have reported a complication rate as low as 0.06 percent, while at the other extreme rates of up to 55 percent have been quoted. This reflects the differing and varying diagnostic criteria employed. A realistic figure seems to be 2-10 percent.²⁰ Although haemorrhage (bleeding) and sepsis (infection) are the main causes of morbidity, the variety of complications is enormous. The literature abounds with reports of morbidity and even mortality as a result of circumcision. Other complications mentioned in the literature are, inter alia, psychological and possible sexual complications.²¹

Religious Reasons for Male Circumcision

In the Jewish community circumcision (brit milah) is a religious ritual and is usually performed on the child's eight day²² of life by a Mohel. The rite of circumcision is one of the most ancient practices of Judaism. The commandment to circumcise male children was given to Abraham in the Torah (Genesis 17:7-14).²³ Circumcision is (in general) a common denominator among movements: Reform, Conservative, Re-constructio-nist, Orthodox, all circumcise their male children and require male converts to undergo some form of circumcision.²⁴ Anaesthetic is not used.

In the United States, the Jewish community has begun to question the practice, using arguments based on the religion. For instance, according to Jewish law, it is forbidden to hurt living things. Even the necessary causing of pain is considered cruel in Judaism. Also the fact that circumcision involves the surgical alteration of a perfectly natural God's given part of the body, which stems from Jewish thought plays a role. The opinions range from supporting the view that a carefully considered decision against circumcision can be reconciled within Jewish tradition to the statement that "the ritual of circumcision is one of the mistakes Judaism carries within it and should be considered not differently from the way they are considered by society in general, no matter how centrally important they seem to Jewish culture".²⁵ Bringing a Jewish boy into the covenant symbolically in a ceremony officiated by a rabbi is an alternative proposed by some authors.²⁶

Religious circumcision is also practised by Muslims: the procedure is performed between the ages of four and 13 years. Curiously, however, the Koran contains no specific ordinance on this subject.²⁷ However, according to the Sunnah (sayings and practices of the Prophet) "circumcision is a sunnah for men and excision an honour for women".²⁸ In the literature, also medical reasons are mentioned (removal of the prepuce under which impurities may gather and allow germs to spread and cause infection),²⁹ and historic, pragmatic reasons.³⁰ Also within the Islamic doctrine, arguments against circumcision can be found, either based on the Koran itself,³¹ or on the Sunnah. However, these arguments are, to my knowledge, only used against female genital mutilation.

Within Christianity, male circumcision has no religious significance.³² Other religions and cultures practice male circumcision especially as a requirement for "manhood" within certain puberty rites.³³

Non-Religious Reasons for Circumcision

Male circumcision evolved from a religious ritual or puberty rite into routine surgery for health reasons in the Anglo-Saxon countries. During the existence of the non-religious circumcision different reasons have been adopted ranging from prevention from masturbation, which, it was believed, caused blindness and/or insanity (mid 19th Century), to most recently HIV prevention. Initially, it was also advocated as a cure to prevent alcoholism, asthma, hernia and, for instance, headaches. Since the turn of the century, other reasons have been given to perpetuate the practice: hygiene,³⁴ avoidance of sexually transmitted diseases, prevention of penile cancer and of cervical cancer, protection against urinary tract infections in infancy, and decreasing the risk of AIDS. Until today, male circumcision remains in the medical literature a very controversial issue. Many advantages for circumcision have been claimed, but as one is disproved and discarded, others are found.

The medical debate centres around the controversy whether male circumcision can be regarded as harmless. With regard to whether or not routine neonatal circumcision has health benefits, the medical literature contains contradictions³⁵ and also the professional groups find it difficult to reach a conclusion.³⁶ A good example is the American Academy of Pediatrics (AAP) which issued several statements on routine neonatal circumcision, contradicting one another.³⁷ Also, mainly in the United Kingdom, controversy exists on whether too many circumcisions are being performed to manage minor foreskin (phimosis) problems in childhood, which could be managed conservatively.³⁸

Especially in the United States, where neonatal circumcision in 90 percent of the cases is performed as a routine medical procedure, numerous activist groups have emerged in the past decade, in response to the demand by parents for more accurate information in order to have the possibility of an informed choice on circumcision.⁴⁰ The similarity with the grassroots level organisations in Africa, which are in the forefront in the fight against female genital mutilation, is striking.⁴¹ Most of the organisations are of the opinion that, whilst the consequences of the circumcision of boys and the circumcision of girls differ, the violence involved is the same.⁴²

2. Authors on Female Genital Mutilation about Male Circumcision

"As the clitoris is regarded as the masculine element in the [girl] child, it is believed that the foreskin on the penis which is regarded as the female element in a male should be removed."⁴³ From a biological and health view the operations on girls are not the counterpart of male circumcision.⁴⁴ However, although perhaps the extent and also the complications of the operation are different, the fact remains that healthy tissue is removed from a healthy person without his or her consent.

In addition, there are many parallels between female genital mutilation and male circumcision, especially with regard to the background (religious requirement or tribal tradition) and the reasons and justifications given to perform the operation. According to Lightfoot-Klein:

"[c]hildhood genital mutilations are anachronistic blood rituals inflicted on the helpless bodies of non-consenting children of both sexes. The reasons given for female circumcision in Africa and for routine male circumcision in the U.S. are essentially the same. Both falsely touch the positive health benefits of the procedures. Both promise cleanliness and the absence of "bad" genital odours, as well as greater attractiveness and acceptability of the sex organs. The affected individuals in both cultures have come to view these procedures as something that was done for them and not to them."⁴⁵

Toubia wrote: "The unnecessary removal of a functioning body organ in the name of tradition, custom, or any other non-disease related cause should never be acceptable to the health profession. All childhood circumcisions are violations of human rights, and a breach of the fundamental code of medical ethics."⁴⁶ Also Hosken states that:

"It is self-evident that any deliberate physical mutilation especially of the female genital organs is a violation of this person's integrity and her human right to health as much as the mutilation of male genital organs is. The excision of the penis which is equivalent of excision of the clitoris is instantly recognized as a severe physical genital mutilation with permanent consequences and is a criminal offense. The same is true of what is done to female children resulting in permanent health and psychological trauma. Both are human rights violations."⁴⁷

3. Human Rights and Legal Aspects of Male Circumcision

From the literature, it becomes apparent that there are two opposite sides in the debate on routine male circumcision. One side advocates the practice, primarily on a preventative health basis or on religious grounds (see supra). The other side opposes the practice, primarily on human rights and preservation of bodily integrity grounds. In the remaining of this article, I will elaborate on the arguments presented by the latter group.⁴⁸

Human Rights

A number of rights are raised in the legal discussion concerning the phenomenon male circumcision: the rights of the child in general, the right to health, wherein legal-ethical arguments with regard to the actions of the medical profession play a role, the right to physical integrity, the right of parents to bring up their children according to their own traditions and culture and, as the continuation of that, the right to cultural self-determination.

The Rights of the Child in General

Taking as a basis the Universal Declaration of Human Rights and the Declaration on the Rights of the Child, male circumcision can be conceived as being a breach of the universally accepted human rights and rights of the child.⁴⁹ The Universal Declaration of Human Rights,⁵⁰ which is nowadays generally accepted as customary international law, prohibits in Article 5 acts of torture and inhuman treatment. Article 12 provides for a right to privacy and Article 3 reads: "Everyone has the right to life, liberty and security of person."

The Convention on the Rights of the Child, in Article 19(1) provides that the States party to the Convention

"shall take all appropriate legislative, administrative, social and educational measures to protect the child against every form of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."

Article 37 provides that the States shall ensure that a child is not subjected to torture or other cruel, inhuman or degrading treatment or punishment. For present purposes, Article 24(3) of the Convention is the most important. This paragraph reads:

"States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children."

This part of Article 24 was extensively discussed during several meetings of the Working Group.⁵¹ During these discussions, it was proposed that the subject of female genital mutilation be included explicitly in the article, in order to clarify the content of the article and to indicate that it concerned practices "of a serious nature."⁵² However, also restraint with regard to subjects which imply differences in cultural values was advocated.⁵³ Finally, agreement was reached on the condition that the term "traditional practices" would encompass all those practices that are included in the 1986 report of the Working Group on Traditional Practices Affecting the Health of Women and Children.⁵⁴ A last attempt from the Netherlands to refer explicitly to female genital mutilation within this article failed.⁵⁵

Veerman considers the Convention on the Rights of the Child to be innovative, for, among other things, "[I]t will be the first binding instrument that specifically states that "traditional practices" such as female circumcision (...) are harmful."⁵⁶ It is, according to Veerman, generally known that the "traditional practices" named in Article 24(3) refer in the first place to female genital mutilation, and that these vague terms are used in order to avoid problems.⁵⁷ The question is whether the article is also applicable to male circumcision. If one considers the latter procedure not "an infringement upon the health or rights of boys and young men as it implies no permanent damage to health,"⁵⁸ then Article 24(3) is not relevant. However, given the fact that male circumcision is painful and can have harmful implications, one could also argue that this custom also falls under the definition, especially because of the vague terms used.

Regional human rights instruments,⁵⁹ to which in this context reference can be made, are the African Charter on Human Rights and Peoples' Rights,⁶⁰ and the Charter on the Rights and Welfare of the African Child.⁶¹ The latter Charter refers in Article 1(3) specifically to "[A]ny custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent to such inconsistency be null and void." Article 14 deals with physical, mental and spiritual health. There is no mention in this article of traditional practices; however Article 21(1) is dedicated wholly to traditional practices. The paragraph reads:

"States Parties to the present Charter shall take all appropriate measures to abolish customs and practices harmful to the welfare, normal growth and development of the child and in particular: a) those customs and practices prejudicial to the health or life of the child, and b) those customs and practices discriminatory to the child on the grounds of sex or other status."

The Right to Life

Male circumcision is also conceived by some authors as a threat of the right to life. The operation can lead to medical complications, which occasionally result in death.⁶²

The Prohibition of Discrimination

One could also argue that male circumcision constitutes a violation of the International Convention on the Elimination of All Forms of Racial Discrimination.⁶³ Article 5(b) contains an explicit reference to personal security, stating that:

"In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right to everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (...) (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution (...)."⁶⁴

As circumcision is perceived as inflicting bodily harm, this article could be applicable.

The Prohibition of Torture

Male circumcision can be conceived as a form of cruel, inhuman or degrading treatment, in view of the way in which it often takes place and in view of the pain which accompanies it. In the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment⁶⁵ it is stated that: "The States party to this Convention undertake to take all effective legislative, administrative, judicial or other measures for the prevention of and eventual punishment for torture." The States also may not deport or return a person to his native country if there are grounds to believe that that person shall run the risk of torture. In addition, Article 16(1) expressly provides that each State party undertakes: "to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity (...)"

The Right to Health

A number of the documents on international human rights, including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, contain provisions which lay down the right to health. If one adheres to the opinion that male circumcision is medically unnecessary, and that consequently the procedure carries an unnecessary danger of complications, certainly where this takes place under unhygienic conditions, it can be argued that the procedure forms a threat to the health of the child. Because of the procedure, without any necessity the natural anatomy and physiology of the child is changed, and this can lead to life-threatening health problems.⁶⁶

From a legal perspective, parents carry the primary responsibility for the health of their child, and must take decisions in these matters on the basis of the fact that the child is not yet capable of doing so because of his "diminished capacity."⁶⁷ Parental consent is required for all forms of medical treatment. However, there is also the parental right to refuse medical treatment, on religious grounds, for example. Just as in the case of male circumcision, the parents are, in refusing medical treatment of the child on religious grounds, convinced that their decision is in the interest of the child. In this latter case, it is argued that the decision to adhere to a religion and to accept the consequences thereof suggests a degree of intellectual adulthood. Children are not in a position to take this decision, so parents take this decision for them. When the health consequences of refusing medical treatment are, for instance, threatening the life of a child, in practice it can happen that parents are divested of their parental authority during the period of the medical procedure.⁶⁸ One of the arguments for this action is that the child has no choice in a matter which concerns his health, welfare and physical existence. The child has no say in the matter. This argumentation is also employed by various authors in respect of male circumcision and female genital mutilation.⁶⁹ According to them, the decision to undergo the operation can better be postponed until the individual is able to make its own choice, that is, when it has reached adulthood. The situation changes when an adult, after having been informed of the consequences, decides to follow tradition and undergo the operation.⁷⁰ It is also advocated that parents should be fully informed about the functions of the foreskin,⁷¹ the pain, complications and possible disadvantages of the procedure, in order to be able to make a more carefully considered decision on whether or not to circumcise their child.⁷² When the necessary information is given, it is ultimately the responsibility of parents to knowingly put their children at risk.

The Right to Physical Integrity

The right to physical integrity has two components: protection against violation of and offenses against the body by others, thus from outside, and the right to determine over one's own body, the right to self-determination. The right to physical integrity is one of the fundamental civil rights. It is a right to "freedom." The government should therefore refrain from interference. However, the government also has a relevant duty of care, namely the stimulation of a climate in which civil rights can achieve a substantive form.

In activist literature in particular, male circumcision is seen as a violation of the right of self-determination of the child over its own body.

The Right of Parents to Bring Up their Children According to their Own Traditions and Culture

Parents have the right to bring up their children according to their own traditions and culture. Parents have the desire to give their children the best possible upbringing, an upbringing in "the best interests" of their child, independent of governmental interference. These interests can be in bringing the child up according to their own culture and traditions, or can be influenced by economic, social and cultural advantages, as well as by strong social and cultural pressures.⁷³ One problem with genital mutilation is that the parents do not carry out the practice in order to hurt or abuse their child. Consequently, the parents do not see it as a form of child abuse. The procedure is carried out because it is judged to be in the "best interests of the child," socially or physically. The rights of the child can conflict with the right of parents to bring up their children according to their own traditions and culture. Most cultures are in agreement that it is not good to endanger the health or welfare of people who cannot make their own decisions. It is generally accepted that a harmful and disfiguring practice may not be carried out upon someone who has no capacity to consent. Children do not judge independently or expertly, there is no question of "permission."⁷⁴ There is no question of free will. This last argument can be a reinforcement in respect of the contention that the operation can better be postponed until the individual is able to make his or her own choice, that is, when he or she has reached adulthood.

The Right to Cultural Self-Determination Versus Universally Accepted Human Rights

It would be going too far within the framework of this article to make an indepth examination of the possible controversy between the right to cultural self-determination and universally-accepted human rights. However, it is important to make a number of remarks about this subject, since this can clarify the dilemma facing some cultures.

The practice of male circumcision and female genital mutilation is part of an intricate and complex cultural system. The elimination of the practice could mean the disturbance of the cultural balance, and the attempts of outsiders to alter or eliminate the practice are often seen as an irresponsible interference in a people's culture and as moral imperialism. The question is, however, whether a community has the right to maintain a tradition, simply because it is a tradition.

When is the "tradition" a violation of human rights which justifies the pressures of others to end it? When is a practice sufficiently harmful or dangerous to warrant being called a violation of human rights? Does male circumcision fall within this description? All these questions are concerned with the controversy between cultural self-determination and human rights. One of the most important aspects in determining whether a cultural practice can be deemed to be a violation of human rights is the extent to which innocent people are wounded or killed as a result of that practice.⁷⁵ At the same time, an important consideration is the extent to which the "victim" participates at his or her own free will.

The controversy can be brought back to that between tradition and children's rights: the right to maintain a tradition versus the right to physical integrity and the right of children to be protected from unnecessary pain, complications to their health, permanent disfigurement of their bodies, and even death. What should prevail and how would this be determined, and by whom?

This last question raises the issue as to whether the concept of human rights is a Western concept, and whether there are universal human rights, which could be applied without cultural value judgment? Here one can, in general terms, again distinguish two trends. Firstly, that of cultural relativism, in which it is said that there are many different cultures in the world and that it is impossible to apply one and the same set of values to them.⁷⁶ The other conception demonstrates that a universal standard is not only possible, but indeed necessary, basing this on the idea that the concept of human rights is not just a western ideology, but that human rights are "inalienable, entitled to all human beings, and cannot be denied by a state or government."⁷⁷ Countries cannot withhold these rights from their subjects or deprive them of these rights, and it is the duty of governments to implement and uphold these rights.

4. Legal Measures

The demand for a legal prohibition of all forms of male circumcision as well as of female genital mutilation is a very tricky point of discussion. This is because a number of opponents of legal measures are of the opinion that such measures would only force the custom to go "underground," increasing the health risks. The problem with laws and regulations, particularly in the case of a deeply-rooted practice is that, without clear enforcement mechanisms and without the support of education, information and consciousness-raising, no clear effects can be expected from the law. Laws forbidding behaviour which is deeply rooted in a culture will neither receive extensive support nor bring about much change.⁷⁸ If effective legislative action is to be achieved, the following prerequisites must be fulfilled. On one side there must be active, consistent support for the legislation, followed by governmental enforcement of the laws. On the other side, the laws must be concurrent with other activities, such as education and information.

In this context, it is interesting to note, that two countries in which non-religious routine neonatal male circumcision frequently takes place have adopted strict laws against female genital mutilation. Both laws explicitly, in almost the same wording, state that in order to determine whether an operation is necessary for the health of the person "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."⁷⁹

Conclusion

At what point should a practice be deemed dangerous enough to be a violation of human rights, in this case the rights of the child, worthy of freedom from external interference? How is this determined and by whom? Comparing male circumcision and female genital mutilation, in my opinion, the severity of the operation should not be an issue.⁸⁰ Fact is that in all cases healthy tissue from a person without the consent of that person is removed. The focus must be placed on the children who are forced to suffer without consent. Male circumcision is, like female genital mutilation, a "harmful traditional practice" and as such in violation with the rights of the child. It is necessary to advocate full respect for these human rights for all children, boys and girls alike. By condemning one practice and not the other, another basic human right, namely the right to freedom from discrimination, is at stake. Regardless whether a child is a boy or a girl, neither should be subject to a harmful traditional practice.

The attitude of Western societies to oppose to female genital mutilation, but not to condemn male circumcision (perhaps because they are afraid that they will be considered as anti-semitic⁸¹), suggests a double standard of the acceptance⁸² and implies (racial) discrimination of circumcised boys (Jewish and Moslem) by not trying to protect them against useless pain as is the case with girls and non-circumcised boys.

As was stated in the study on female genital mutilation, moral condemnation is not the best solution to the problem. International and domestic legislation are not enough to stop all forms of harmful traditional practice. The problem with laws and regulations, particularly in the case of a deeply-rooted practice, is that, without clear enforcement mechanisms and without the support of education and information, no clear effects can be expected. Laws forbidding behaviour which is deeply rooted in a culture will neither receive extensive support nor bring about much change. Laws can, however, play a supportive role, alongside information and education. These measures must be combined with efforts to raise the level of awareness.

It is questionable whether, in the majority of cases of routine neonatal circumcision, the parents are fully informed as to the function of the foreskin, and the pain, possible complications and risks and consequences of the operation. It is the responsibility of doctors and health care professionals involved as well as religious leaders and practitioners to inform the parents.

In my view, the best way to do justice to the rights of the child is to do no harm, to let it enjoy life in every aspect and to protect it against influences not asked for. Regardless of whether a child is a boy or a girl, neither should be subject to a tradition which is harmful. When the child is of consenting age, fully informed about all possibilities which lay ahead of him or her, it can make up his or her own mind and choose the way he or she thinks is best.

* Researcher at the Netherlands Institute of Human Rights (SIM), Utrecht.

References

H. LaFollette, " Freedom of Religion and Children," Public Affairs Quarterly, No. 3, 1989, pp. 75-87 (84), as cited by Piet van der Ploeg, "Moet besnijdenis mogen?" [Should circumcision be allowed?], Comenius, Vol. 17, No. 3, 1997, pp. 117-129 (122).
See on the policy of the Dutch Government relating to male circumcision, for instance, Trudy Veerman, Aart Hendriks, Jacqueline Smith, "Recht doen aan gezondheid(sbelangen) van kinderen" [To do Justice to the Health (Interests) of Children], in: Recht en kritiek, Vol. 21, No. 2, 1995, pp. 136-165 (154-158).
The immediate cause for the discussion was the publication of a report by K. Bartels and I. Haaijer, 's Lands wijs, 's lands eer?: Vrouwenbesnijdenis en Somalische vrouwen in Nederland [When in Rome, do as the Romans do?; Circumcision of women and Somali women in the Netherlands], Centrum Gezondheidszorg Vluchtelingen, The Hague, 1992.
Jacqueline Smith, Visions and Discussions on Genital Mutilation of Girls: An International Survey, Defence for Children International, Section The Netherlands, Amsterdam, 1995. This study was carried out on behalf of Defence for Children International, Section The Netherlands, at the request of the Netherlands Ministry of Foreign Affairs, Directorate General for International Cooperation.
Ibidem, p. 2 and p. 10. See also the Inter-African Committee on Traditional Practises Affecting the Health of Women and Children, Report on the Regional Conference on Traditional Practises Affecting the Health of Women and Children, 19-24 November 1990, Addis Ababa, Ethiopia; Berhane Ras-Work, Activities Concerning Traditional Practises Affecting the Health of Women and Children and Profile of Non-Governmental Organisations Involved in this Issue, WHO, Geneva, 1989.
See for an extensive description of this discussion, Smith, op.cit. (note 4), pp. 161-165.
See also the Report of the UN Seminar related to Traditional Practices affecting the Health of Women and Children, Ouagadougou, Burkina Faso, 29 April-3 May 1991, "As regards the strategy for combatting female circumcision, it was recommended that efforts should be made to separate, in people's minds, male circumcision, which has a hygienic function, and female circumcision, which is a grave attack on the physical integrity of women." (UN Doc. E/CN.4/Sub.2/1991/48, p. 6, para. 27)
Adopted on 20 November 1989 by the General Assembly of the United Nations and entered into force on 2 September 1990, UN Resolution 44/25 (1989), UN Doc. A/44/736. 191 countries are at present (May 1998) party to this Convention.
Like, for instance, Hanny Lightfoot-Klein, Prisoners of Ritual: An Odyssey into Female Genital Circumcision in Africa, Harrington Park Press, New York, 1989; Fran P. Hosken, The Hosken Report; Genital and Sexual Mutilation of Females, 4th Rev. WIN News, Lexington, 1993; Nadia Toubia, "Women and health in Sudan," in: Women of the Arab World, London, Zed Press, 1988, pp. 98-109; and Nadia Toubia, International Journal of Gynecology and Obstetrics, 46, 1994, pp. 127-135.
Especially because the American Academy of Family Physicians and the American Academy of Pediatrics are currently reviewing their position statement on circumcision. The fact that in the SIM study on female genital mutilation, it was stated that the two customs - female genital mutilation and male circumcision - are technically incomparable and of a different background and nature provoked several reactions, especially from activist groups from the USA, who are advocating the right to physical integrity and the right to individual self-determination of all children, including boys.
For an extensive description, see, inter alia, E. Wallerstein, Circumcision, an American Health Fallacy, Spinger Publishing Company, New York, 1980 and F. Bryk, Die Beschneidigung bei Man und Weib: Ihre Geschichte, Psychologie und Ethologie, Neubrandenburg, 1931.
Hosken, op.cit. (note 9), p. 71.
N. Williams and L. Kapila, "Complications of Circumcision", British Journal of Surgery, Vol. 80, October 1993, pp. 1231-1236 (p. 1231).
For an extensive overview of the prevalence of genital mutilations, see, for instance, James DeMeo, "The Geography of Genital Mutilations", paper presented at the First International Symposium on Circumcision, 1-3 March 1989, Anaheim, California, published in The Truth Seeker, July/August 1989, pp. 9-13.
Hosken, op.cit. (note 9), p. 71.
Among others, Williams and Kapila, loc.cit. (note 13) and Wallerstein, op.cit. (note 11).
World Health Organization, Information Kit, WHO, Geneva, July 1994. See also the numbers compiled by NOHARMM from various sources, which indicate that worldwide about 500 million males are circumcised.
For other forms mentioned in the literature, see, inter alia, Wallerstein, op.cit. (note 11); William E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional Issues, Journal of Family Law, Vol. 23, No. 3, 1984, pp. 337-357; Abbie J. Chessler, "Justifying the Unjustifiable: Rite v. Wrong," Buffalo Law Review, Vol. 45, 1997, pp. 555-613 (564-566).
Consequently, it is likely to be delegated to a junior surgeon. Kapila and Williams, loc.cit. (note 13), p. 1231, relate the complication rate directly to the operator's inexperience.
A reliable account is given by ibidem, p. 1231.
Ibidem, p. 1234.
As reason for the requirement that the operation be done at the eighth day, it is given that before that day the baby is too tender and later the father might not be able to bring himself to do it. Some doctors have said that afterwards, the baby develops too much and circumcision would actually be a more serious matter. After the eighth day the nervous system becomes more developed (especially after puberty).
The text is, inter alia, available on http://www.landfield.com/faqs/judaism/faq/12-kids, containing frequently asked questions on Jewish Childrearing: Why are Jewish boys circumcised?
Judaism does not practice female circumcision.
Moshe Rothenberg, " Ending Circumcision in the Jewish Community?," paper presented at the Second International Symposium on Circumcision, 30 April-3 May 1991, San Francisco, California.
See, for instance, Lisa Braver Moss, "The Jewish Roots of Anti-Circumcision Arguments," paper presented at the Second International Symposium on Circumcision, 30 April-3 May 1991, San Francisco, California; and Rothenberg, loc.cit. (note 25).
Sami A. Aldeeb Abu-Sahlieh, "Islamic Law and the Issue of Male and Female Circumcision," in Third World Legal Studies, 1994-1995, pp. 73-101 (77). Hosken states, however, that for Moslems the removal of the foreskin is an absolute religious requirement demanded by the Koran, Hosken, op.cit. (note 9), p. 33. In this context, curious enough no mention is made by the author of the Jewish tradition.
Abdel Rahman Al Nagger, Islam and Female Circumcision, translation of a communication presented at the Inter-African Committee Workshop on Traditional Practices, at the Nairobi Forum, 12 July 1985 (on file with the author), p. 7. Within the Islam, no obligation is mandatory unless it is supported by a provision or a verse in the Koran or a valid reliable saying of the Prophet, or an unanimous agreement of scholars. With regard to the latter, the Ijtihad (opinions and deductions of religious leaders) "which we may follow if they do not harm us or disagree if they do," there is disagreement between scholars of four Moslem sects regarding circumcision of males (ibidem, p. 8). See also Aldeeb Abu-Sahlieh, loc.cit. (note 27), pp. 78-80.
Rahman Al Nagger, loc.cit. (note 28).
Ibidem, p. 4. Rahman Al Nagger mentions as a reason that Moslems are circumcised that their bodies may be recognized if they are killed in battle, so that prayers may be said for them and their bodies buried in Moslem cemeteries.
See, for instance, the references made by Aldeeb Abu-Sahlieh, loc.cit. (note 27), pp. 80-81 and Nawal El Saadawi, The Hidden Face of Eve; Women in the Arab World, Zed Press, London, 1980, p. 42.
See, for instance, Maurice Assad, Christianity and Circumcision (on file with the author), who refers to the New Testament, First letter to the Corinthians (7:17-20) dealing with male circumcision of the non-Jews who became Christians. There it is stated; "Let him not seek circumcision. For neither circumcision counts for anything nor uncircumcision, but keeping the commandments of God. Every one should remain in the state in which he was called." See also Chessler, loc.cit. (note 18), p. 586.
For instance throughout tribal Africa, see DeMeo, loc.cit. (note 14); and Hosken, op.cit. (note 9), p. 33.
A recent study challenged this notion again, stating that not only do circumcised boys need more care than children with an intact penis during the first 3 years of life, they also are far more likely to develop (minor) penis problems, such as swellings and skin adhesions, than their intact counterparts. See R. S. Van Howe, "Variability in penile appearance and penile findings: a prospective study," British Journal of Urology, Vol. 80, No. 5, November 1997, pp. 776-782.
For an overview of the debate on health benefits, see, amongst others, Marilyn Fayre Milos and Donna Macris, "Circumcision; A Medical or a Human Rights Issue?," Journal of Nurse-Midwifery, Vol. 37, No. 2 (Supplement), March/April 1992, pp. 87S-96S. See also Dr. Benjamin Spock, writer of "Baby and Child Care," who recommended in earlier editions of his book that boys should be circumcised. He changed his mind, stating that "We now know that it is not the only choice, nor is it agreed that it is the most sensible choice. My own preference, if I had the good fortune to have another son, would be to leave his little penis alone," Circumcision - It's Not Necessary, Redbook, April 1989.
See, for instance, the statement by J. Fred Leditschke, President of the Australasian Association of Paediatric Surgeons, A.A.P.S., which 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." The Australian College of Paediatrics states that routine male circumcision should not be performed prior to 6 months of age. In addition, it considers that, "neonatal male circumcision has no medical indication. It is a traumatic procedure, performed without anaesthesia to remove a normal functional and protective prepuce." The British Medical Association (BMA) Guidelines advise: "The BMA opposes unnecessarily invasive procedures being used where alternative, less invasive techniques, are equally efficient and available."
Compare the 1975 statement that "There is no absolute medical indication for routine circumcision of the newborn" (AAP Ad Hoc Task Force Committee on Circumcision, American College of Obstetricians and Gynecologists concurred, Guidelines for perinatal care, Washington DC, 1983), p. 87 and the 1984 pamphlet stating that the foreskin shields the glans; with circumcision, this protection is lost (AAP pamphlet "Care of the Uncircumcised Penis," AAP, Elk Grove Village, 1984). In 1986, the AAP revised its publication, excluding this paragraph. In 1989, a new position of the AAP was issued, stating that newborn circumcision has potential medical benefits and advantages as well as disadvantages and risks (Report of the Ad Hoc Task Force on Circumcision, AAP, Elk Grove Village, 1989, p. 3) Recently, the AAP has appointed a new ad hoc Task Force Committee on Circumcision to revise the AAP position.
A. Gordon and J. Collin, "Save the Normal Foreskin," BMJ 1993, 306, pp. 1-2 and Williams and Kapila, loc.cit. (note 13), p. 1231. Already in 1949, Douglas Gairdner declared in 1949 that the foreskin is normal, healthy tissue, and its adherence to the glans serves the important function of protecting the glans from urine and faeces in infancy and early childhood. Subsequently, the British National Health Service discontinued payment for the surgery and the practice ceased. See D. Gairdner, "The Fate of the Foreskin," British Medical Journal, Vol. 2, 1949, p. 1433, cited in Milos and Macris, loc.cit. (note 35), p. 88S.
Also in Canada, the debate over routine male circumcision is intensifying. See, for instance, the recent statement of Dr. Margaret Somerville, director of the McGill Centre for Medicine, Ethics and Law, that non-medical infant male circumcision is technically criminal assault, cited in: Sharon Kirkey, "Circumcising baby boys 'criminal assault,'" Ottawa Citizen Online, 17 October 1997. The Canadian Pediatric Society issued recently a statement saying there is no valid medical reason to justify routine infant male circumcision and recommending that: "Circumcision of newborns should not be routinely performed."
Mention can be made of: the National Organization of Circumcision Information Resource Centres (NOCIRC); Doctors Opposing Circumcision (D.O.C.); Brothers United for Future Foreskins (BUFF); National Organization of Restoring Men (NORM); National Organization to Halt the Abuse and Routine Mutilation of Males (NOHARMM); Nurses for the Rights of the Child (NRC); Parents of Intact Sons; Uncircumcising Information and Resources Center (UNCIRC)
See Smith, op.cit. (note 4), pp. 103-141.
See, for instance, the Declaration of the First International Symposium on Circumcision, which condemned all forms of circumcision on the grounds of the violation of physical integrity and the consequences for physical and mental health. For the text of the Declaration, see The Truth Seeker, Vol. 1, No. 3, 1989, p. 52. See also NOCIRC Newsletter, Vol. 8, No. 1, 1994.
Hosken, op.cit. (note 9), p. 31.
Ibidem, p. 32: "But what is done to girls has a different purpose and results: a healthy and most sensitive organ is removed. From a biological viewpoint the genital mutilations performed on females are the equivalent of the amputation of part or all of the penis - with very similar physical and sexual results and quite different from what is done to boys. With boys the foreskin is cut, though both operations may result in deadly infection." "The equivalent of removing the tip of the clitoris (sunna circumcision) is the same as the removal of the glans of the penis - both are most sensitive and full of nerve endings," ibidem, p. 47. Hosken in her fight against female genital mutilation even goes further in proposing to have the excision of the penis introduced as a means to sexual control of males, instead of female genital mutilation (ibidem, p. 47). On the differences between male circumcision and female genital mutilation, see also Assaad, op.cit. (note 32), p. 14, who states that there is a "principle difference between male circumcision and female circumcision. In male circumcision no parts of the male sex organs are being mutilated, only the foreskin - the outer cover of the male sex organs - is being removed, without touching the male sex organ itself."
Lightfoot-Klein, op.cit. (note 9), p. 193. See also by the same author, "Erroneous Belief Systems Underlying Female Genital Mutilation in Sub-Saharan Africa and Male Neonatal Circumcision in the United States; A Brief Report Updated," paper presented at the Third International Symposium on Circumcision, 22-25 May 1994, Maryland. See also Chessler, loc.cit. (note 18), pp. 573-586.
Toubia, loc.cit. (note 9), pp. 127-135.
Hosken, op.cit. (note 9), p. 18.
As a frame of reference the same categories are used as in the study on female genital mutilation. See Smith, op.cit. (note 4), pp. 20-24.
For views as to whether human rights are also children's rights, see, inter alia: E. Verhellen, Convention on the Rights of the Child; Background, Motivation, Strategies, Main Themes, Garant, Leuven, 1994, pp. 35-56. More general see, for instance, Målfrid Grude FlekkØy, "Children as Holders of Rights and Obligations," in: Donna Gomien (ed.), Broadening the Frontiers of Human Rights, Essays in Honour of AsbjØrn Eide, Scandinavian Press, Oslo, 1993, pp. 97-120 and Philip Alston (ed.), The Best Interests of the Child; Reconciling Culture and Human Rights, UNICEF, Clarendon Press, Oxford, 1994.
Adopted and promulgated by the General Assembly of the United Nations on 10 December 1948.
See for an overview of the discussion, Smith, op.cit. (note 4), pp. 42-43.
Representative of the United States, UN Doc. E/CN.4/1987/25, para. 35.
UN Doc. E/CN.4/1987/25, para. 29.
UN Doc. E/CN.4/1986/42.
UN Doc. E/CN.4/1987/25, para. 38.
Philip E. Veerman, The Rights of the Child and the Changing Image of Childhood, Martinus Nijhoff, Dordrecht, 1992, pp. 184-185.
Ibidem, pp. 199-200.
Kirsten Lee, "Female Genital Mutilation - Medical aspects and the rights of children," International Journal of Children's Rights, Vol. 2, No. 1, 1994, pp. 35-44 (35). However, she also admits that "[c]ontrary to popular belief in various parts of the world, as for example in the United States, male circumcision has no health or sexual advantages either." See also Geraldine van Bueren, The International Law on the Rights of the Child, Martinus Nijhoff, The Hague, 1995, p. 307.
Two other regional documents, which status is until now uncertain, could be of relevance. The Charter of the Rights of the Arab Child, promulgated by the Arab League of which the exact date of its acceptance by the Council of Ministers of the Arab League is not clear. See Veerman, op.cit. (note 56), pp. 260-263. Text of the Charter in idem, pp. 517-526. The Charter does not contain an explicit reference to harmful traditional practices. However, it is included in the fundamental rights that the States "confirm and guarantee the right of the child to have State protection from abuse and exploitation both physically and psychologically even if it were from members of his family." In June 1992, the European Parliament discussed and approved the Draft European Charter on the Rights of the Child. See minutes of the Assembly of 8 July 1992, European Parliament, p. 13 and pp. 29-38. Article 19 of this Draft contains the right of every child to physical and moral integrity: "No child shall be subjected to torture, inhuman, cruel or degrading treatment by any public or private person." Article 25 stipulates the right of every child to have his own culture, to practise his own religion or belief and to use his own language."
Adopted by the 18th Meeting of the Heads of State and Government Leaders of the Organisation of African Unity on 27 June 1981 in Nairobi. The Charter entered into force on 21 October 1986.
This Charter was prepared within the Organisation of African Unity. The draft was approved by the 26th Meeting of the Heads of State and Government of the Member States of the OAU. It will become effective when the 15 Member States have ratified the Charter or have acceded to the Charter. A large number of articles are the same as the provisions in the UN Conven-tion on the Rights of the Child; however, the African Charter contains a number of provisions which are specifically directed toward the African continent.
Alison T. Slack, "Female Circumcision: A Critical Appraisal," Human Rights Quarterly, No. 4, 1988, pp. 437-486 (451-452).
Adopted by the General Assembly of the United Nations on 21 December 1965 and entered into force on 4 January 1969, Resolution 2106 (XX) (1965).
Italics by the author. See also Hosken, op.cit. (note 9), p. 9: "Human rights are indivisible, they apply to every society and culture and continent. We cannot differentiate between black and white, rich and poor, male and female, or between North and South, the industrialized or developing countries, if the concept of human rights is to mean anything at all."."
Adopted by the General Assembly of the United Nations on 10 December 1984 and entered into force on 26 June 1987, Resolution 39/46 (1984).
See supra for the applicability of Article 24(3) of the Convention on the Rights of the Child.
Ibidem,p. 469.
Blood transfusions in the case of children whose parents are Jehovah's witnesses.
With special reference to parental consent in the case of routine neonatal male circumcision, see, inter alia, Charles A. Bonner and Michael J. Kinane, Circumcision; The Legal and Constitutional Issues," paper presented at the Second Symposium on Circumcision, 30 April-3 May 1991, San Francisco; J.P. Warren, "Circumcision and the abuse of medical power' (copy on file of author). See also Les Haberfield, "Responding to 'Male Circumcision: Medical or Ritual?'," Journal of Law and Medicine, Vol. 4, No. 4, May 1997, pp. 379-385. The author states that parents and doctors are not acting unreasonably while some medical justification can be shown for the procedure. With regard to female genital mutilation, see El Saadawi, op.cit. (note 31); Inter-African Committee, op.cit. (note 5); United Nations, Review of Further Developments In Fields Which the Subcommission has been concerned. Study on Traditional Practises Affecting the Health of Women and Children, Final Report by the Special Rapporteur, Mrs. Halima Embarek Warzazi, E/CN.4/Sub.2/1991/6, 5 July 1991.
For different views on "informed consent" and whether one can speak of freedom of will in the case of adult female circumcision, see, inter alia, Slack, loc.cit. (note 62), pp. 470-472; Asma El Dareer, Woman, why do you weep: Circumcision and its Consequences, Zed Press, London, 1982.
See, amongst others, Gairdner, loc.cit. (note 35), Gordon and Collin, loc.cit. (note 38) and Warren, loc.cit. (note 69).
"Parents should be fully informed of the possible benefits and the potential risks...", Report of the Ad Hoc Task Force on Circumcision, AAP, Elk Grove Village, 1989, p. 3. See also Kapila and Williams, loc.cit. (note 13), p. 1235; and Les Haberfield, "Informed consent and infant male circumcision," paper presented at the Australasian Law Teachers Association Conference in Sydney, Australia, 3 October 1997, stating that doctors may be at risk of litigation, where they perform a circumcision procedure without giving appropriate information (including the risks of the procedure) to parents to enable them to give an informed consent.
K. Boulware-Miller, "Female Circumcision: Challenges to the Practice as a Human Rights Violation," Harvard Women's Law Journal, Vol. 8, 1985, pp. 155-177 (166-167); Slack, loc.cit. (note 62), p. 467.
Or "consent"; see, concerning this, inter alia, Boulware-Miller, loc.cit. (note 73); Slack, loc.cit. (note 62); Lightfoot-Klein, op.cit. (note 9).
Extreme examples are: the burning of widows in India, burying live babies of the female sex in the Arabian lands, prior to the time of Mohammed.
See, inter alia, Jack Donnelly, "Cultural Relativism and Universal Human Rights," Human Rights Quarterly, Vol. 6, 1984, pp. 400-419; Rhoda Howard, "Women's Rights in English-Speaking Sub-Saharan Africa," in: Claude E. Welch (ed.), Human Rights and Development in Africa, Albany, 1984, pp. 66-68; Alison Dundes Renteln, "The Unanswered Challenge of Relativism and the Consequences for Human Rights," Human Rights Quarterly, Vol. 7, 1985, pp. 514-540; and idem, International Human Rights; Universalism Versus Relativism, Sage Publications, London, 1990, pp. 56-58.
Slack, loc. cit. (note 62), p. 474. See also the Vienna Declaration of 1993, inter alia, paragraph 1, UN Doc. A/Conf.157/23, 12 July 1993. See also Peter R. Baehr, "Human Rights: A Common Standard of Achievement?," Netherlands Quarterly of Human Rights, Vol. 9, No. 1, 1991, pp. 5-18; and Peter R. Baehr, "Universaliteit van Mensenrechten: Is het, kan het, moet het?" [Universality of Human Rights: are they, can they, do they have to?], in: N.J.H. Huls (ed.), Grenzen aan Mensenrechten [Limits to Human Rights], Stichting NJCM-Boekerij, Leiden, 1995, pp. 45-56.
According to Lightfoot-Klein, op.cit. (note 9), pp. 43-45 a law can have some potential in the strife for change where the desire to abandon the practice already exists. Ogiamen advocates an approach which supports a gradual abolition, by means of a process of official recognition of the practice. According to him, the legal considerations should shift from the negative approach (prohibition) to the positive approach (regulation). Tony B.E. Ogiamen, "Legal Aspects of Female Circumcision," in: Female Circumcision. Strategies to bring about change. Proceedings of the International Seminar on Female Circumcision, AIDoS/SWDO, 13-16 June 1988, Mogadisho, 1988, pp. 57-69 (57).
Emphasis added. In Great Britain a law, proscribing genital mutilation, entitled the "Prohibition of Female Circumcision Act" became effective on 16 July 1985. For the United States, see the Federal Prohibition of Female Genital Mutilation Act, passed in June 1995 by the United States House of Representatives and signed by President Clinton on 30 September 1996, Bill H.R. 3247, which was included in the Minority Health Initiatives Act, H.R. 3864, 18 U.S.C. 116, 1996, amending the United States Code, Chapter 7 of Title 18 by adding a new section on "female genital mutilation." See also WIN News, Vol. 23, No. 2, Spring 1997, pp. 46-47 and Vol. 23, No. 4, Autumn 1997, p. 23.
Especially, the idea in the 1992 Dutch report, op.cit. (note 3) of making a small incision in or perforation of the clitoris, suggesting that such a procedure is "symbolic" and would not be mutilation, provoked criticism.
See also Aldeeb Abu-Salieh, loc.cit. (note 27), p. 101.
Not only in the USA, but also, for instance, in the Netherlands. In March 1993, the Dutch Government issued an official statement condemning all forms of female genital mutilation. At the outset, it was again stressed in this statement that female circumcision is a practice contrary to the prevailing attitudes in the Netherlands on the equality of women and their place in society: "It is viewed here as a form of repression, and as Dutch policy aims to combat the repression of women, it opposes all forms of female circumcision. (...) With regard to the recommendation that policy should draw a distinction between mutilating and non-mutilating forms of female circumcision, we have ascertained that this leads to confusion, as the concepts are vague, and that to distinguish between the two forms is no simple matter." See letter from the Ministry of Welfare, Health and Culture, No. GGb/HIZ/931029, 16 March 1993; see also WIN News, Vol. 19, No. 2, Spring 1993, p. 45.

Note:

This report was prepared under the auspices of the Netherlands Institute of Human Rights, University of Utrecht, Utrecht, The Netherlands.

Citation:

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 (SIM Special No. 21). Netherlands Institute of Human Rights (SIM), University of Utrecht, Utrecht, Netherlands, 1998: pp. 465-498.

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