Letter to Stuart Horner, British Medical Association (1996)

Prof. Stuart Horner
Chairman, Medical Ethics Committee
British Medical Association
BMA House
Tavistock Square
London WC1H 9JP

I have just seen this Guidance, which for the most part is, in my opinion as a lawyer, dangerously flawed, misleading and one-sided.

I have no real problem with the first section (much of which deserves commendation) dealing with circumcision for medical purposes, except that the point should properly have been made that current work, e.g that of Gordon and Collin,¹ indicates that far too many circumcisions are being performed under the guise of necessary treatment than could properly be justified by proper and informed clinical judgement. Further, I can make little sense of the paragraph:

Doctors must be allowed to make clinical judgements in individual cases, based on the above, as to the treatment to be used. The BMA would therefore have concerns at any prohibition of the use of techniques which, in certain circumstances are considered by the profession at large to be clinically appropriate.

I am not aware of anyone who would seek a prohibition of male circumcision where this is medically imperative; rather, as the Guidance itself makes clear, less invasive treatments must be considered and used where effective. Perhaps the misapprehension here is founded in part on the considerable misapprehensions as to the harm of all circumcisions, the legal considerations and the lack of any medical benefits of non-therapeutic circumcisions which render the remainder of the Guidance so inept.

The remainder of the Guidance deals with circumcisions for religious and cultural reasons (which I prefer to describe as an example of non-therapeutic circumcisions). The Guidance fails to deal adequately with the physical aspects of circumcision: not only does it fail to adhere to its own advice that doctors should keep up to date with developments in medical practice, it also quotes (as the sole reference) a letter from a US doctor whose bias in favour of routine circumcision is notorious, and whose writing ignores, as does the Guidance, the considerable body of medical literature refuting his claims. Thus, the American Cancer Society (ACS) has written to the American Academy of Pediatrics as follows:

...[W]e would like to discourage the American Academy of Pediatrics from promoting routine circumcision as a preventative measure for penile and cervical cancer. Research suggesting a pattern in the circumcision status of partners of women with cervical cancer is methodologically flawed, outdated, and has not been taken seriously in the medical community for decades. Penile cancer rates in countries which do not practice circumcision are lower than those found in the United States. Fatalities caused by circumcision accidents may approximate the mortality rate from penile cancer.

Thus the claim for a reduction of penile cancer is untenable; and that for protection against cervical cancer (which presumably is what is meant by It has also been argued that male circumcision may confer some health benefits to female sexual partners.) has rightly been described by the ACS as having not been taken seriously in the medical community for decades.

The references to the harm of circumcision are wholly inadequate, and again reflect an ignorance of medical knowledge. That there is a loss of sensitivity was written about as long ago as the 12th century, when Maimonides wrote in his Guide to the Perplexed:

As regards circumcision, I think that one of its objects is to limit sexual intercourse, and to weaken the organ of generation as far as possible, and thus cause man to be moderate. Some people believe that circumcision is to remove a defect in man's formation; but every one can easily reply: How can products of nature be deficient so as to require external completion, especially as the use of the fore-skin to that organ is evident? This commandment has not been enjoined as a complement to a deficient physical creation, but as a means for perfecting man's moral shortcomings. The bodily injury caused to that organ is exactly that which is desired; it does not interrupt any vital function, nor does it destroy the power of generation. Circumcision simply counteracts excessive lust; for there is no doubt that circumcision weakens the power of sexual excitement, and sometimes lessens the natural enjoyment.

Reference ought also been made, inter alia, to a Lancet article from 1953, which shows that the damage to penile function has been well-known for a long time.² More recently there has been the work of Taylor, Lockwood and Taylor and the references there cited.³

The Guidance is wholly misleading as to the legal position. There is considerable doubt as to the legality of non-therapeutic circumcisions; and the Guidance wholly ignores the real problems of the circumstances when parents may lawfully consent to procedures being carried out on their children.

The basic proposition in law is that a person's body is inviolate. Whilst one can consent to a degree of assault, the basic rule is that consent is not a defence to an assault inflicting actual bodily harm (see R v. Brown, cited in the Guidance; see also Collins v. Wilcock where Robert Goff LJ said: the fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery.). Consent will however be a defence to injury inflicted during medical treatment with consent.

Whilst Lord Templeman did make the remark in R v. Brown quoted in the Guidance, it is clearly obiter; and none of the other Law Lords followed him. I have no doubt that the toleration accorded to routine circumcision stems from (given that English law does not demand professional qualifications for the performance of surgery) the exemption accorded to medical treatment in general, and is not a free-standing exemption in its own right.

Further, even if it had once enjoyed (and I firmly doubt that) an exemption in its own right, it does not follow that it still does; in just the same way that duelling, once tolerated, became unlawful.

Although there are no precedents in this field to rely on there would appear to be three possible grounds upon which a defence of lawfulness might succeed at common law. The first is that the procedure is therapeutic. If this can be established a parent can validly consent to it on behalf of a child who is too young to understand what is being done. It would appear unlikely that this line of defence could generally succeed other than in comparatively rare instances of physical defect or abnormality. Second, although the matter is not entirely free from doubt, it seems that a parent may equally validly authorise a non-therapeutic operation, provided it is not actively against his child's interests. This would appear to have been the basis upon which the vast majority of male infants have been circumcised in this country with impunity from time immemorial. There is no need under this heading for the parent to establish that the operation is positively beneficial for the child, merely that he was acting reasonably in authorising it. Third, it has been tentatively suggested that a parent may even authorise something that is against his child's interests if it is compensated by sufficient advantage to others and is not seriously detrimental to the child. This exception is particularly apposite for establishing the legitimacy of transplant operations which directly benefit patients in pressing need (e.g. a brother or sister). It seems extremely unlikely that it could justify the more remote and controversial benefit of satisfying a deeply-felt community attachment to traditional customs. Moreover, to the extent that female circumcision, excision and infibulation are in fact mutilations and hence seriously detrimental to the child the defence would be ruled out in any case.

Given that, at the least, it is incontestable from the medical studies that circumcision is actively against [the child's] interests then the two possible defences he gives for non-therapeutic circumcisions fail; note also his comments on circumcisions for cultural reasons. Poulter's view as to male circumcision is flawed however by a failure to appreciate the physical pain, risks and inevitable harm that flow from it.

If my analysis is correct then any person who circumcises for non-therapeutic reasons (and thus outside the scope of the medical exemption as to the infliction of injury) would be committing a criminal offence: and in view of the well-known and severe damage to normal penile function it would be appropriate to charge the graver offence under section 18 Offences Against the Person Act 1861, for which a substantial term of imprisonment could be expected on conviction.

The Guidance is wholly silent on the circumstances when parents might lawfully give consent to procedures on their child. Section 1(1)

Children and Young Persons Act 1933, provided that a person who wilfully assaults a child or causes or procures him to be assaulted...in a manner likely to cause him unnecessary suffering or injury to health (emphasis added) shall commit an offence.

Children Act 1989 Section 1(1) provides: When a court determines any question with respect to(a) the upbringing of a child, the child's welfare shall be the court's paramount consideration], the child's welfare was the court's paramount consideration.

The paramouncy of the welfare of the child was made clear in

Gillick v West Norfolk and Wisbech Area Health Authority;⁴ even in S v. S, W v. Official Solicitor,⁵ adopting a lower test, it was clear that that parents can give valid consent only to treatments which are not against the interests of the child.

The inability of parents to give legally valid consent to circumcision both removes any scintilla of defence to a criminal charge and also defeats such a defence to a civil claim, against both the circumciser and his parents, by the child himself when of age.

The wholly muddled, inadequate and ill-thought-out Guidance here does a grave disservice both to a minority of infant boys and, by exposing them to criminal and civil proceedings, to your members.

Finally, I note that the Guidance drags out the weary argument: ...it is argued that it is in the best interest of the child to be circumcised, to be accepted into a religion or community. Arguably the procedure can confer social benefits in some such circumstances. It is wholly improper and unlawful to impose on another person one's own religious or cultural views where so doing involves the physical mutilation of that unconsenting person. The

European Convention on Human Rights (ECHR) echoes provisions found, for example in the Universal Declaration of Human Rights, in providing (Article 8 ECHR) that: everyone has the right to respect for his private life; and private life has been found by the Court to include bodily integrity. Further, whilst Article 9 ECHR provides for freedom of religious belief, article 9(2) places a limit on the manifestation of those beliefs where to do so would interfere with, or deprive, another's freedoms and human rights.

For any doctor to perform surgery on a person which carries no medical benefit and which is clearly harmful to that person is a grave breach of medical ethics (as well as the law). As the Hippocratic Oath put it: The regimen I adopt shall be for the benefit of my patients according to my ability and judgement, and not for their hurt or for any house I enter, there will I go for the benefit of the sick, refraining from all wrongdoing or corruption; or in the Latin so beloved by lawyers Primum non nocere.

The Nuremberg Code (1947) (which followed the unspeakably depraved behaviour of the Nazis) as to medical ethics states:

Principle I: The voluntary consent of the human subject is absolutely essential. This means that the person involved should have the legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

Further, as to medical ethics, the British Medical Association itself has written:

The standard established by the World Medical Association—the Declaration of Tokyo—gives little scope for ambiguity on whether or not doctors should become involved in torture [of prisoners]. It makes it clear that the doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures (emphasis added). There can be no doubt that non-therapeutic circumcision is a form of cruel and inhuman treatment with grave impact on the victim's physical and emotional health, function, and bodily integrity; and thus offending national and international laws.

Finally, performing or allowing, male infant circumcision is an act of discrimination. There are many attitudes which are, rightly, abhorred by a civilised society, condemned by international conventions and prohibited by national legislation: these include discrimination on various grounds. Yet the discrimination against boys in permitting the inevitably damaging mutilation of their genitals, whilst enacting legislation to declare as criminal the similar procedure when done to girls, is at the least as damaging as any other expression of discrimination, and given the resulting and irreparable sexual dysfunction the more so; this mutilation involves the amputation of highly functional and sensitive flesh, thereby ablating the victim's ability fully to enjoy sexual intercourse.

Kluge, a female [sic] professor of philosophy, compares female circumcision with male circumcision and, expressing the same views on both, writes:

To argue differently is to be guilty of discrimination on the basis of sex....Both involve what in other contexts would be called nonconsensual mutilation of a minor for non-medical reasons.⁶

Further, to allow circumcision further discriminates between those boys who, because of an accident of birth, face non-therapeutic circumcision and those more fortunate boys who do not.

Rejoicing, rightly, in our being a multi-cultural society does not, as has been demonstrated above, mean that we should be blind to practices, whatever their source and motive, which are themselves abusive and discriminatory of others, and which directly and inevitably diminish the freedoms, the human rights, the integrity and the dignity of others.

I should be pleased to have your assurance that this mischievous Guidance will now be withdrawn and re-written so as to reflect properly the medical, legal and ethical issues.

References

Gordon A and Collin J. Save the normal foreskin. BMJ (1993), 306, 1-2.
Whiddon D. The Widdicombe File: Should baby be circumcised?. Lancet 2: 337-8, 1953
Taylor R, Lockwood AP and Taylor AJ: The prepuce: specialized mucosa of the penis and its loss to circumcision. Br. J. Urol (1996) 77, 291-295.
Collins v. Wilcock (1984) 1 WLR 1172,1177; Ethnic Minority Customs, English Law and Human Rights; Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 at 420, [1986] AC 112
S v. S, W v. Official Solicitor [1970] 3 All ER 107; Costello-Roberts v UK (1993) ECHRR 112; Medicine Betrayed at page 33
Kluge E. Female Circumcision: When Medical Ethics Confronts Cultural Values, Canadian Medical Association Journal 1993; 148: 288-9

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