Christopher Price to AAP: 17 Sept 1996

Pembrokeshire
Great Britain

17 September 1996

Maurice E Keenan MD, FAAP
President of the Executive Committee
The American Academy of Pediatrics
16 Bristol Road
West Newton, MA 02165
USA

Dear Dr Keenan,

I write, both as a man circumcised at birth and as a lawyer, since I understand that the Academy is now intending to re-consider the issue of circumcision. In particular, I consider it critical that the members of the up-coming committee should include (given the tenor of current studies) at least an equal number of those who are not, from their published writings, parti pris in favour of routine circumcision.

I write because the continuation by doctors in the United States of America of this procedure as a routine (despite the compelling medical evidence that it is both injurious and unnecessary) gives a malign example to others elsewhere in the world who would perform this mutilating, barbarous and unnecessary amputation. Infant routine circumcision is always painful (even if operative anaesthesia is used, with all its risks), has a significant complication rate and producesinevitable loss of full sensation and function.

I have little doubt that you will receive much material from others pointing out the losses caused by circumcision at any age, drawn from the wide range of published medical studies; and I do not here wish to go over that ground. I would rather make two points: first as to the discriminatory nature of routine circumcision; the second as to the legal and ethical constraints of such a procedure.

To circumcise, that is to say to alter and thus mutilate the genitals of neonatal boys as a matter of routine and absent any pathology requiring treatment, whilst (very properly) refusing to mutilate the genitals of girls is to discriminate against those boys. Both the very circumcision and the discrimination itself are breaches of the boy's human rights under international law (and also enshrined, as I understand it, in the US Constitution, in the 14th Amendment).

I am also concerned that the Academy's helpful and thoughtful guidance on ethics (in PEDIATRICS Vol. 95 No. 2 February 1995) has not been applied or, seemingly even considered, in relation to routine male circumcision. If the ethical stance set out in that guidance (with which, if I may be permitted to say with great respect, I largely agree) were to be properly applied then routine circumcision could not take place.

Whilst the guidance properly makes the point that for many patients and family members, personal values affect health care decisions, and physicians have a duty to respect the autonomy, rights, and preferences of their patients and their surrogates, there is, as the guidance makes clear an over-riding duty on the doctor towards the patient: not only the general duty expressed in the maxim Primum non nocere, but also the recognition that, for paediatricians, children are particularly vulnerable and thus needing the highest standards ofprotection.

The guidance says, impeccably, : Thus proxy consent poses serious problems for pediatric health care providers. Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses ....... the paediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent. Further, Although physicians should seek parental permission in most situations, they must focus on the goal of providing appropriate care and be prepared to seek legal intervention when parental refusal places the patient at clear and substantial risk. (to which I would add, to that last remark, that the duty enunciated is as equally applicable to cases of parental insistence for an unnecessary intervention, particularly one with such proven and inevitable harm and such illusory benefits).

Further, routine circumcision is not medical treatment'; indeed it is, in the light of the medical evidence as to the lack of any real benefits, not even properly to be described as prophylactic. Black's Law Dictionary defines medical treatment as a broad term covering all steps taken to effect a cure of any injury or disease: the word including examination and diagnosis as well as application of remedies. I am not aware of any court that has held that surgical removal of any normal healthy, non-diseased, uninjured part of the body is treatment.

The Academy clearly will already be aware of the line of cases regarding parental assent to procedures on children. These cases include: Re Phillip B.[Cal App. 3d 796, 801.]; Little v Little [576. S. W. 2d 493-5.]; Wisconsin v Yoder [(1972) 406. U.S. 205, 234.] (which subjects parental duty and right to limitations if it appears that parental decisions will jeopardise the health or safety of the child); Kate's School v Department of Health [(1979) 155. Cal. Rptr. 529.]; and Valerie N. v Valerie N.[(1985) 219. Cal. Rptr. 387.].

There is also the over-arching principle, and the dictum, in Prince v Massachusetts, [321. U.S. 158. (1944)] where the United States Supreme Court ruled that parents may be free to become martyrs themselves. But it does not follow they are free ... to make martyrs of their children before that have reached the age of full and legal discretion when they can make that choice for themselves. The Academy should also note article in the California Law Review Vol 82, Dec 1994, No 6 Parents Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights by James G Dwyer.

The principle of the imperative to protect the child and to have regard to the child's best interests is also to be seen in other common law jurisdictions, such as England where the highest appellate court (the House of Lords) so decided in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112: ...parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child, and towards other children in the family. If necessary, this proposition can be supported by reference to Blackstone's Commentaries (1 Bl Com (17th edn, 1830) 452), where he wrote: The power of parents over their children is derived from their duty..... Thus: Once the rule of the parents' absolute authority over minor children is abandoned, the solution to the problem in this appeal can no longer be found by referring to rigid parental rights at any particular age. The solution depends on a judgment of what is best for the welfare of the particular child.

Further, the highest appellate court in Australia in Secretary, Dept. of Health and Community Services v. JWB and SMB: 1992 175 CLR 218 [Marion's Case] said that: Modern case law makes it impossible, therefore, to assert that parents have a natural right of almost absolute control over the person, education, conduct and property of their children. Consequently, the power of parents to consent to medical treatment and surgical procedures in respect of their children can no longer be regarded as existing as an incident or corollary ofsuch a right.

The court in Marion's case indicated that court approval was likely to be required as a matter of law where the proposed procedure involved or was likely to involve:

Invasive, irreversible and major surgery.
Significant risk of making the wrong decision either as to a child's present or future capacity to consent or about what are the best interests of a child who cannot consent.
Consequences of a wrong decision which are particularly grave.

and it is clear from that case that circumcision falls within what the court would regard as a procedure involving the specified criteria for court intervention.

That routine circumcision has taken place for so many decades since the 19th century without thought as to its harmful consequences, is not a respectable argument for its continuation into the 21st century. There have been many other ancient procedures which have been readily abandoned once their harm and lack of efficacy have been realised; none of these had such a bizarre basis, as did routine circumcision, of a 19th century anti-masturbatory hysteria nor a continuation despite a lack of any rational basis and with such desperate and increasingly doomed attempts (which leave one to wonder at the motives of those who attempt this) to find some shred of justification.

For the Academy now to take a responsible and wholly ethical stance and to declare that, in the light of modern studies, it is now clear and accepted that routine circumcision should not be performed, would redound to the world-wide credit of the Academy.

It would also forestall those who, routinely circumcised today and in the future, might wish later to litigate and rely on today's current medical knowledge; whilst it might have been possible to avoid legal liability in the past by claiming that routine circumcision was believed to be harmless and that there were benefits, that stance is now no longer available given current medical knowledge.

Yours sincerely

Christopher P. Price MA (Oxon)

Copy to:
Stanley Zinberg MD,
American College of Obstetrics and Gynecology,
409 12th Street SW, Washington DC 20024-2188
USA

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