Circumcision and the American Academy of Pediatrics: Should Scientific Misconduct Result in Trade Association Liability?

Iowa Law Review

Volumn 85, Issue 4, 2000, Pages 1507-1566

  Giannetti, Matthew R ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

AMERICAN ACADEMY OF PEDIATRICS; ARTICLE; CIRCUMCISION; COST BENEFIT ANALYSIS; FEMALE; HUMAN; INFANT; INFANT WELFARE; LEGAL APPROACH; LEGAL ASPECT; LEGAL LIABILITY; MALE; MEDICAL SOCIETY; NEOPLASM; PEDIATRICS; PRACTICE GUIDELINE; PROFESSIONAL PATIENT RELATIONSHIP; PSYCHOLOGICAL ASPECT; RISK ASSESSMENT; SCIENTIFIC MISCONDUCT; SEXUALLY TRANSMITTED DISEASE; UNITED STATES; URINARY TRACT INFECTION;

AMERICAN ACADEMY OF PEDIATRICS; LEGAL APPROACH; PROFESSIONAL PATIENT RELATIONSHIP;

CIRCUMCISION, MALE; COST-BENEFIT ANALYSIS; FEMALE; HUMANS; INFANT; INFANT WELFARE; LIABILITY, LEGAL; MALE; NEOPLASMS; PEDIATRICS; PRACTICE GUIDELINES; RISK ASSESSMENT; SCIENTIFIC MISCONDUCT; SEXUALLY TRANSMITTED DISEASES; SOCIETIES, MEDICAL; UNITED STATES; URINARY TRACT INFECTIONS;

EID: 0034350344     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (350)

1. See The Associated Press, Anesthesia Complications Killed Baby: Three-Week-Old Boy Dies At Local Hospital (visited Nov. 2, 1998) 〈http://www.newsnet5.com/news/stories/news-981020-051123.html〉 (relating the story of Dustin Evans, Jr.'s death, but omitting from the headline any reference to the circumcision complications that necessitated the corrective surgery and, thus, anesthesia); James F. McCarty, Reaction to Anesthesia Killed Baby Boy, Report Says (visited Nov. 2, 1998) 〈http://www.cleveland.com/news/pdnews/metro/crainbow.phtml〉 (relating the story of Dustin Evans, Jr.'s death, with a similar omission from the headline). Both articles reflect the interviewed physicians' decision to assert that a rare reaction to anesthesia was at fault and to discount any possibility that circumcision as a medical practice had any role in the patient's death. Routine circumcision of infant boys usually takes place during the first two days of life, before the infant is returned home with his mother. The child is immobilized, by being strapped down on a formed plastic board, and a physician proceeds to tear the foreskin from the glans with a thin flat metal probe inserted between the two attached structures. See ANNE BRIGGS, CIRCUMCISION: WHAT EVERY PARENT SHOULD KNOW 24-31 (1985) (displaying the Gomco clamp procedure and it's effects on an infant in a series of photographs); ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA 162-69 (1985) (diagramming both procedures and including a series of photographs showing the Gomco clamp method); EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 198-210 (1980) (describing both procedures with diagrams). Then either a Plastibell device or a Gomco clamp is used to guide the amputation of the foreskin. Id. For many decades, and sometimes still today, no pain control was used. Id.
2. See The Associated Press, Anesthesia Complications Killed Baby: Three-Week-Old Boy Dies At Local Hospital (visited Nov. 2, 1998) 〈http://www.newsnet5.com/news/stories/news-981020- 051123.html〉 (relating the story of Dustin Evans, Jr.'s death, but omitting from the headline any reference to the circumcision complications that necessitated the corrective surgery and, thus, anesthesia); James F. McCarty, Reaction to Anesthesia Killed Baby Boy, Report Says (visited Nov. 2, 1998) 〈http://www.cleveland.com/news/pdnews/metro/crainbow.phtml〉 (relating the story of Dustin Evans, Jr.'s death, with a similar omission from the headline). Both articles reflect the interviewed physicians' decision to assert that a rare reaction to anesthesia was at fault and to discount any possibility that circumcision as a medical practice had any role in the patient's death. Routine circumcision of infant boys usually takes place during the first two days of life, before the infant is returned home with his mother. The child is immobilized, by being strapped down on a formed plastic board, and a physician proceeds to tear the foreskin from the glans with a thin flat metal probe inserted between the two attached structures. See ANNE BRIGGS, CIRCUMCISION: WHAT EVERY PARENT SHOULD KNOW 24-31 (1985) (displaying the Gomco clamp procedure and it's effects on an infant in a series of photographs); ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA 162-69 (1985) (diagramming both procedures and including a series of photographs showing the Gomco clamp method); EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 198-210 (1980) (describing both procedures with diagrams). Then either a Plastibell device or a Gomco clamp is used to guide the amputation of the foreskin. Id. For many decades, and sometimes still today, no pain control was used. Id.
3. See The Associated Press, Anesthesia Complications Killed Baby: Three-Week-Old Boy Dies At Local Hospital (visited Nov. 2, 1998) 〈http://www.newsnet5.com/news/stories/news-981020- 051123.html〉 (relating the story of Dustin Evans, Jr.'s death, but omitting from the headline any reference to the circumcision complications that necessitated the corrective surgery and, thus, anesthesia); James F. McCarty, Reaction to Anesthesia Killed Baby Boy, Report Says (visited Nov. 2, 1998) 〈http://www.cleveland.com/news/pdnews/metro/crainbow.phtml〉 (relating the story of Dustin Evans, Jr.'s death, with a similar omission from the headline). Both articles reflect the interviewed physicians' decision to assert that a rare reaction to anesthesia was at fault and to discount any possibility that circumcision as a medical practice had any role in the patient's death. Routine circumcision of infant boys usually takes place during the first two days of life, before the infant is returned home with his mother. The child is immobilized, by being strapped down on a formed plastic board, and a physician proceeds to tear the foreskin from the glans with a thin flat metal probe inserted between the two attached structures. See ANNE BRIGGS, CIRCUMCISION: WHAT EVERY PARENT SHOULD KNOW 24-31 (1985) (displaying the Gomco clamp procedure and it's effects on an infant in a series of photographs); ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA 162-69 (1985) (diagramming both procedures and including a series of photographs showing the Gomco clamp method); EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 198-210 (1980) (describing both procedures with diagrams). Then either a Plastibell device or a Gomco clamp is used to guide the amputation of the foreskin. Id. For many decades, and sometimes still today, no pain control was used. Id.
4. See The Associated Press, Anesthesia Complications Killed Baby: Three-Week-Old Boy Dies At Local Hospital (visited Nov. 2, 1998) 〈http://www.newsnet5.com/news/stories/news-981020- 051123.html〉 (relating the story of Dustin Evans, Jr.'s death, but omitting from the headline any reference to the circumcision complications that necessitated the corrective surgery and, thus, anesthesia); James F. McCarty, Reaction to Anesthesia Killed Baby Boy, Report Says (visited Nov. 2, 1998) 〈http://www.cleveland.com/news/pdnews/metro/crainbow.phtml〉 (relating the story of Dustin Evans, Jr.'s death, with a similar omission from the headline). Both articles reflect the interviewed physicians' decision to assert that a rare reaction to anesthesia was at fault and to discount any possibility that circumcision as a medical practice had any role in the patient's death. Routine circumcision of infant boys usually takes place during the first two days of life, before the infant is returned home with his mother. The child is immobilized, by being strapped down on a formed plastic board, and a physician proceeds to tear the foreskin from the glans with a thin flat metal probe inserted between the two attached structures. See ANNE BRIGGS, CIRCUMCISION: WHAT EVERY PARENT SHOULD KNOW 24-31 (1985) (displaying the Gomco clamp procedure and it's effects on an infant in a series of photographs); ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA 162-69 (1985) (diagramming both procedures and including a series of photographs showing the Gomco clamp method); EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 198-210 (1980) (describing both procedures with diagrams). Then either a Plastibell device or a Gomco clamp is used to guide the amputation of the foreskin. Id. For many decades, and sometimes still today, no pain control was used. Id.
5. See The Associated Press, Anesthesia Complications Killed Baby: Three-Week-Old Boy Dies At Local Hospital (visited Nov. 2, 1998) 〈http://www.newsnet5.com/news/stories/news-981020- 051123.html〉 (relating the story of Dustin Evans, Jr.'s death, but omitting from the headline any reference to the circumcision complications that necessitated the corrective surgery and, thus, anesthesia); James F. McCarty, Reaction to Anesthesia Killed Baby Boy, Report Says (visited Nov. 2, 1998) 〈http://www.cleveland.com/news/pdnews/metro/crainbow.phtml〉 (relating the story of Dustin Evans, Jr.'s death, with a similar omission from the headline). Both articles reflect the interviewed physicians' decision to assert that a rare reaction to anesthesia was at fault and to discount any possibility that circumcision as a medical practice had any role in the patient's death. Routine circumcision of infant boys usually takes place during the first two days of life, before the infant is returned home with his mother. The child is immobilized, by being strapped down on a formed plastic board, and a physician proceeds to tear the foreskin from the glans with a thin flat metal probe inserted between the two attached structures. See ANNE BRIGGS, CIRCUMCISION: WHAT EVERY PARENT SHOULD KNOW 24-31 (1985) (displaying the Gomco clamp procedure and it's effects on an infant in a series of photographs); ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA 162-69 (1985) (diagramming both procedures and including a series of photographs showing the Gomco clamp method); EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 198-210 (1980) (describing both procedures with diagrams). Then either a Plastibell device or a Gomco clamp is used to guide the amputation of the foreskin. Id. For many decades, and sometimes still today, no pain control was used. Id.
6. Associated Press, supra note 1.
7. See American Academy of Pediatrics Task Force on Circumcision, Report of the Task Force on Circumcision, 84 PEDIATRICS 388, 390 (1989) [hereinafter AAP 1989] ("The exact incidence of postoperative complications is unknown . . . .").
8. See ANNE BRIGGS, supra note 1, at 7-10 (1985) (discussing historical aspects of circumcision); ROSEMARY ROMBERG, supra note 1, at 97-99 (1985) (same); EDWARD WALLERSTEIN, supra note 1, at 32-40 (1980) (tracing the development of circumcision in order to control masturbation and "sexual excess," which were thought to cause many diseases, including syphilis and other sexually transmitted diseases, as well as various abnormal mental and physical conditions).
9. See BRIGGS, supra note 1, at 10-11 (citing the beginnings of theories based on a scientific understanding of the origins of disease); ROMBERG, supra note 1, at 108, 114, 235 (same); WALLERSTEIN, supra note 1, at 20, 27, 93 (same).
10. See Douglas Gairdner, Fate of the Foreskin, BRIT. MED. J. 1433, 1437 (Dec. 24, 1949) (concluding the scientific evidence in support of circumcision was "not convincing," and that even if it might someday become convincing, proper hygiene could accomplish the same level of protection without the surgical risks).
11. Id.
12. See WALLERSTEIN, supra note 1, at 28, 214-17 (citing M.P.M. Richards et al., Early Behavioral Differences: Gender or Circumcision, 9 DEVELOPMENTAL PSYCHOBIOLOGY 90 (1976)). As Wallerstein notes, although the British National Health Service has kept very accurate census records for what is now a rare surgery there, Richards et al. had to "quer[y] 18 American teaching hospitals," out of an approximate total of 7000 American hospitals, and construct a "not very reliable" estimate of the overall circumcision rate. Id. at 28.
13. See WALLERSTEIN, supra note 1, at 214-17 (estimating U.S. rates based on various samples of various size, over the course of the last century).
14. American Academy of Pediatrics, Committee on Fetus and Newborn, Report of the Ad Hoc Task Force on Circumcision, 56 PEDIATRICS 610, 611 (1975) [hereinafter AAP 1975] (concluding that there are no clear medical benefits from neonatal circumcision).
15. See id. at 611 (noting that good hygiene "would offer all the advantages of routine circumcision without the attendant surgical risk").
16. Cf. Hugh C. Thompson, The Value of Neonatal Circumcision: An Unanswered and Perhaps Unanswerable Question, 137 AM. J. OF DISEASES OF CHILDREN 939, 940 (1983) [hereinafter Hugh C. Thompson] (relating his experience chairing the 1975 task force and explaining how the ambiguous language was purposely designed to allow individual physicians to continue to perform circumcisions while it admitted that the value of the surgery was debatable and unknown).
17. AAP 1989, supra note 3, at 388.
18. See id. (introducing these rationales in the second paragraph of the report).
19. See infra Parts I(C)-(D) (noting the findings of of the 1989 AAP report on circumcision, STD's, and UTI's).
20. See DAVID L. FAIGMAN, DAVID H. KAYE, MICHAEL J. SAKS & JOSEPH SANDERS, MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY, Scientific Method: The Logic of Drawing Inferences from Empirical Evidence § 2-1.1 (1997): To real scientists a finding of fact is only as good as the methods used to find it. . . . Well designed methods permit observations that lead to valid, useful, informative answers to the questions that had been framed by the researcher. . . . Methodology - the logic of research design, measures and procedures - is the engine that generates knowledge that is scientific. . . . While for lawyers and judges credibility is the key to figuring out which witnesses are speaking truth and which are not, for scientists the way to figure out which one of several contradictory studies is most likely correct is to scrutinize the methodology. (emphasis added).
21. AAP 1989, supra note 3, at 389.
22. See generally K.J.S. Anand & P.R. Hickey, Pain and Its Effects in the Human Neonate and Fetus, 317 NEW ENG. J. MED. 1321, 1326 (1987) (reviewing over 200 published research papers concerning the effects of pain on neonates). The authors explained: Apart from excellent studies in animals demonstrating the long-term effects of sensory experiences in the neonatal period, evidence for memories of pain in human infants must, by necessity, be anecdotal. . . . [C]urrent knowledge suggests that humane considerations should apply as forcefully to the care of neonates and young, nonverbal infants as they do to children and adults in similar painful and stressful situations. Id. at 1326. See also Anthony DeCasper & Melanie J. Spence, Prenatal Maternal Speech Influences Newborns' Perception of Speech Sounds, 9 INFANT BEHAV. & DEV. 133 (1986) ("[P]renatal auditory experience can influence postnatal auditory preferences."); Bertil Jacobson et al., Perinatal Origin of Adult Self-destructive Behavior, 76 ACTA PSYCHIATRICA SCANDINAVICA 364, 370 (1987) (finding that among 412 deaths due to suicide, alcoholism, and drug abuse, the chosen mechanism of self-destructive behavior was statistically correlated to a similar type of trauma at birth). The authors explained: The striking resemblance between conditions at birth and eventual adult behavioral disorders makes it necessary to consider the former as possible causative factors. . . . [Salk et al.] suggest that the increasing rates of suicides in the United States are due to a decline in infant mortality rates . . . [because] infants who survived adverse perinatal conditions would be more vulnerable to environmental conditions eliciting suicide. Our results may suggest a somewhat different interpretation. . . . [I]t seems more likely that varying obstetric procedures caused iatrogenic [i.e., medically caused] injuries leading to eventual self-destructive tendencies. Id. at 370; Lee Salk et al., Relationship of Maternal and Perinatal Conditions to Eventual Adolescent Suicide, LANCET, March 16, 1985, at 624, 627 ("The findings of this study provide evidence that perinatal experience influences the risk of suicide in adolescence.").
23. See generally K.J.S. Anand & P.R. Hickey, Pain and Its Effects in the Human Neonate and Fetus, 317 NEW ENG. J. MED. 1321, 1326 (1987) (reviewing over 200 published research papers concerning the effects of pain on neonates). The authors explained: Apart from excellent studies in animals demonstrating the long-term effects of sensory experiences in the neonatal period, evidence for memories of pain in human infants must, by necessity, be anecdotal. . . . [C]urrent knowledge suggests that humane considerations should apply as forcefully to the care of neonates and young, nonverbal infants as they do to children and adults in similar painful and stressful situations. Id. at 1326. See also Anthony DeCasper & Melanie J. Spence, Prenatal Maternal Speech Influences Newborns' Perception of Speech Sounds, 9 INFANT BEHAV. & DEV. 133 (1986) ("[P]renatal auditory experience can influence postnatal auditory preferences."); Bertil Jacobson et al., Perinatal Origin of Adult Self-destructive Behavior, 76 ACTA PSYCHIATRICA SCANDINAVICA 364, 370 (1987) (finding that among 412 deaths due to suicide, alcoholism, and drug abuse, the chosen mechanism of self-destructive behavior was statistically correlated to a similar type of trauma at birth). The authors explained: The striking resemblance between conditions at birth and eventual adult behavioral disorders makes it necessary to consider the former as possible causative factors. . . . [Salk et al.] suggest that the increasing rates of suicides in the United States are due to a decline in infant mortality rates . . . [because] infants who survived adverse perinatal conditions would be more vulnerable to environmental conditions eliciting suicide. Our results may suggest a somewhat different interpretation. . . . [I]t seems more likely that varying obstetric procedures caused iatrogenic [i.e., medically caused] injuries leading to eventual self-destructive tendencies. Id. at 370; Lee Salk et al., Relationship of Maternal and Perinatal Conditions to Eventual Adolescent Suicide, LANCET, March 16, 1985, at 624, 627 ("The findings of this study provide evidence that perinatal experience influences the risk of suicide in adolescence.").
24. See generally K.J.S. Anand & P.R. Hickey, Pain and Its Effects in the Human Neonate and Fetus, 317 NEW ENG. J. MED. 1321, 1326 (1987) (reviewing over 200 published research papers concerning the effects of pain on neonates). The authors explained: Apart from excellent studies in animals demonstrating the long-term effects of sensory experiences in the neonatal period, evidence for memories of pain in human infants must, by necessity, be anecdotal. . . . [C]urrent knowledge suggests that humane considerations should apply as forcefully to the care of neonates and young, nonverbal infants as they do to children and adults in similar painful and stressful situations. Id. at 1326. See also Anthony DeCasper & Melanie J. Spence, Prenatal Maternal Speech Influences Newborns' Perception of Speech Sounds, 9 INFANT BEHAV. & DEV. 133 (1986) ("[P]renatal auditory experience can influence postnatal auditory preferences."); Bertil Jacobson et al., Perinatal Origin of Adult Self-destructive Behavior, 76 ACTA PSYCHIATRICA SCANDINAVICA 364, 370 (1987) (finding that among 412 deaths due to suicide, alcoholism, and drug abuse, the chosen mechanism of self-destructive behavior was statistically correlated to a similar type of trauma at birth). The authors explained: The striking resemblance between conditions at birth and eventual adult behavioral disorders makes it necessary to consider the former as possible causative factors. . . . [Salk et al.] suggest that the increasing rates of suicides in the United States are due to a decline in infant mortality rates . . . [because] infants who survived adverse perinatal conditions would be more vulnerable to environmental conditions eliciting suicide. Our results may suggest a somewhat different interpretation. . . . [I]t seems more likely that varying obstetric procedures caused iatrogenic [i.e., medically caused] injuries leading to eventual self-destructive tendencies. Id. at 370; Lee Salk et al., Relationship of Maternal and Perinatal Conditions to Eventual Adolescent Suicide, LANCET, March 16, 1985, at 624, 627 ("The findings of this study provide evidence that perinatal experience influences the risk of suicide in adolescence.").
25. See generally K.J.S. Anand & P.R. Hickey, Pain and Its Effects in the Human Neonate and Fetus, 317 NEW ENG. J. MED. 1321, 1326 (1987) (reviewing over 200 published research papers concerning the effects of pain on neonates). The authors explained: Apart from excellent studies in animals demonstrating the long-term effects of sensory experiences in the neonatal period, evidence for memories of pain in human infants must, by necessity, be anecdotal. . . . [C]urrent knowledge suggests that humane considerations should apply as forcefully to the care of neonates and young, nonverbal infants as they do to children and adults in similar painful and stressful situations. Id. at 1326. See also Anthony DeCasper & Melanie J. Spence, Prenatal Maternal Speech Influences Newborns' Perception of Speech Sounds, 9 INFANT BEHAV. & DEV. 133 (1986) ("[P]renatal auditory experience can influence postnatal auditory preferences."); Bertil Jacobson et al., Perinatal Origin of Adult Self-destructive Behavior, 76 ACTA PSYCHIATRICA SCANDINAVICA 364, 370 (1987) (finding that among 412 deaths due to suicide, alcoholism, and drug abuse, the chosen mechanism of self-destructive behavior was statistically correlated to a similar type of trauma at birth). The authors explained: The striking resemblance between conditions at birth and eventual adult behavioral disorders makes it necessary to consider the former as possible causative factors. . . . [Salk et al.] suggest that the increasing rates of suicides in the United States are due to a decline in infant mortality rates . . . [because] infants who survived adverse perinatal conditions would be more vulnerable to environmental conditions eliciting suicide. Our results may suggest a somewhat different interpretation. . . . [I]t seems more likely that varying obstetric procedures caused iatrogenic [i.e., medically caused] injuries leading to eventual self-destructive tendencies. Id. at 370; Lee Salk et al., Relationship of Maternal and Perinatal Conditions to Eventual Adolescent Suicide, LANCET, March 16, 1985, at 624, 627 ("The findings of this study provide evidence that perinatal experience influences the risk of suicide in adolescence.").
26. American Academy of Pediatrics Task Force on Circumcision, Circumcision Policy Statement, 103 PEDIATRICS 686, 691 (1999) [hereinafter AAP 1999].
27. See generally infra Parts II(A)-II(H) (delineating the AAP's failures to evaluate and weight evidence according to methodological soundness and its failures to investigate pertinent concerns raised in research findings).
28. See AAP 1999, supra note 19, at 691 ("In the case of circumcision, in which there are potential benefits and risks, yet the procedure is not essential. . . [i]t is legitimate for parents to take into account cultural, religious and ethnic traditions.").
29. See THOMAS J. RITTER & GEORGE C. DENNISTON, SAY NO TO CIRCUMCISION § 36-1 (2d ed. 1996) (noting that most circumcisions are performed by obstetricians and general practitioners, but it is generally pediatricians who engage in follow-up care of male infants and children).
30. See AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 103 (3d ed. 1992) (basing the recommendation on the 1989 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 93-94 (2d ed. 1988) (adopting the recommendation of the 1975 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 87 (1st ed. 1983) (same); see also Edward Wallerstein, Circumcision: The Uniquely American Medical Enigma, 12 Urologic Clinics of N. Am. 123, 124 (1985) (citing to the jointly authored AAP and ACOG Guidelines for Perinatal Care, which abbreviate the most recent AAP task force position statements).
31. See AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 103 (3d ed. 1992) (basing the recommendation on the 1989 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 93-94 (2d ed. 1988) (adopting the recommendation of the 1975 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 87 (1st ed. 1983) (same); see also Edward Wallerstein, Circumcision: The Uniquely American Medical Enigma, 12 Urologic Clinics of N. Am. 123, 124 (1985) (citing to the jointly authored AAP and ACOG Guidelines for Perinatal Care, which abbreviate the most recent AAP task force position statements).
32. See AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 103 (3d ed. 1992) (basing the recommendation on the 1989 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 93-94 (2d ed. 1988) (adopting the recommendation of the 1975 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 87 (1st ed. 1983) (same); see also Edward Wallerstein, Circumcision: The Uniquely American Medical Enigma, 12 Urologic Clinics of N. Am. 123, 124 (1985) (citing to the jointly authored AAP and ACOG Guidelines for Perinatal Care, which abbreviate the most recent AAP task force position statements).
33. See AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 103 (3d ed. 1992) (basing the recommendation on the 1989 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 93-94 (2d ed. 1988) (adopting the recommendation of the 1975 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 87 (1st ed. 1983) (same); see also Edward Wallerstein, Circumcision: The Uniquely American Medical Enigma, 12 Urologic Clinics of N. Am. 123, 124 (1985) (citing to the jointly authored AAP and ACOG Guidelines for Perinatal Care, which abbreviate the most recent AAP task force position statements).
34. RESTATEMENT (SECOND) OF TORTS § 324A (1965); see also infra Part III(D) (laying out the text of section 324A of the Restatement).
35. Id.
36. 676 A.2d 1036 (N.J. 1996).
37. Id. at 1038.
38. Id. at 1048.
39. See id. at 1048-49 (stating that foreseeability of harm implies a duty of care).
40. Id. at 1049, 1055.
41. See WALLERSTEIN, supra note 1, at 62, 65 (offering definitions of the term); AAP 1989, supra note 3, at 388 (same).
42. AAP 1989, supra note 3, at 388. If a foreskin is removed, possible conditions of the foreskin will not occur. However, this justification holds for any body organ or part. It would be more prudent to inquire into the incidence of foreskin conditions, their severity, alternative therapies, and the complication rates of each therapy, in order to render judgment as to the utility of any one therapy.
43. See WALLERSTEIN, supra note 1, at 62-66 (arguing that phimosis is over-diagnosed in American infants and children).
44. See id. at 63-64; Gairdner, supra note 6, at 1433-34 (presenting analysis of then-existing research).
45. Gairdner, supra note 6, at 1435.
46. The term, "intact," will be used throughout this Note to refer to "uncircumcised" individuals, because it more accurately reflects the fact that having a foreskin is the natural and, therefore, truly "normal" condition for men. The term "uncircumcised" carries with it an implication that to be circumcised is natural and normal.
47. See WALLERSTEIN, supra note 1, at 64 (citing Jakob Oster, Further Fate of the Foreskin, 43 ARCHIVES OF DISEASES OF CHILDHOOD 200 (April 1968)).
48. See WALLERSTEIN, supra note 1, at 64 (citing Oster).
49. See WALLERSTEIN, supra note 1, at 64 (citing Oster's study). As will be demonstrated in Part I(E), this percentage is less than the likely percentage of complications attendant to circumcision.
50. Id.
51. AAP 1975, supra note 10, at 610.
52. See AAP 1989, supra note 3, at 388 (implying that circumcision should be done as a preventative on infants instead of as a curative for the few cases of phimosis which can only be diagnosed later in life).
53. Id. at 388, 391 (citing Gairdner, supra note 6).
54. The 1989 AAP task force cites Wallerstein's article, Circumcision: The Uniquely American Medical Enigma, supra note 23, in which Wallerstein cites at least three times to Oster. See supra note 37. The task force was also most likely aware of Wallerstein's book, CIRCUMCISION: AN AMERICAN HEALTH FALLACY, supra note 1, wherein Oster is cited repeatedly.
55. The 1989 AAP task force cites Wallerstein's article, Circumcision: The Uniquely American Medical Enigma, supra note 23, in which Wallerstein cites at least three times to Oster. See supra note 37. The task force was also most likely aware of Wallerstein's book, CIRCUMCISION: AN AMERICAN HEALTH FALLACY, supra note 1, wherein Oster is cited repeatedly.
56. See AAP 1975, supra note 10, at 610-11 (declining to recommend circumcision for the prevention of cancer).
57. See Jean Aitken-Swan & D. Baird, Circumcision and Cancer of the Cervix, 19 BRIT. J. OF CANCER 217, 226-27 (1965) (finding no correlation between the circumcision status of husbands and the cervical cancer rate of their wives); see also Milton Terris et al., Relation of Circumcision to Cancer of the Cervix, 117 AM. J. OF OBSTETRICS AND GYNECOLOGY 1056 (1973) ("No significant differences were found in the circumcision status of marital partners of cases and controls.").
58. See Jean Aitken-Swan & D. Baird, Circumcision and Cancer of the Cervix, 19 BRIT. J. OF CANCER 217, 226-27 (1965) (finding no correlation between the circumcision status of husbands and the cervical cancer rate of their wives); see also Milton Terris et al., Relation of Circumcision to Cancer of the Cervix, 117 AM. J. OF OBSTETRICS AND GYNECOLOGY 1056 (1973) ("No significant differences were found in the circumcision status of marital partners of cases and controls.").
59. See generally WALLERSTEIN, supra note 1, at 95, 96, 99 (citing international epidemiological data that do not support the hypothesis that an intact penis is more likely to cause cervical cancer in female sexual partners).
60. Compare AAP 1989, supra note 3, at 389 (stating without attribution that "[t]he strongest predisposing factors in cervical cancer are a history of intercourse at an early age and multiple sexual partners. The disease is virtually unknown in nuns and virgins."), with WALLERSTEIN, supra note 1, at 99 (stating with attribution to sources critical of a circumcision correlation to cervical cancer, that "[n]uns rarely develop the disease, while prostitutes usually have a very high incidence rate").
61. See AAP 1989, supra note 3, at 390 (emphasis added) (leaving it to the reader to note that circumcision status may be irrelevant due to the presence of the virus, while implying that circumcision status is the root cause of cervical cancer).
62. Id. at 389 (admitting growing evidence linking viral STD infection to cervical cancer).
63. Id. (emphasis added).
64. See infra Part I(D) (delineating how all of the studies cited by the 1989 AAP task force finding higher STD rates among intact males were also found by the task force to be methodologically unsound).
65. See AAP 1989, supra note 3, at 389 (citing D.J. McCance et al., Human Papillomavirus Types 16 and 18 in Carcinomas of the Penis from Brazil, 37 INT'L J. CANCER 55, 57 (1986)).
66. See AAP 1989, supra note 3, at 389 (beginning the paragraph which cites the McCance article with, "[f]actors other than circumcision are important in the etiology of penile cancer").
67. See AAP 1989, supra note 3, at 389 (characterizing any linkage as inconclusive).
68. Id. at 388.
69. See id. (citing Elliot Leiter & Albert M. Lefkovits, Circumcision and Penile Carcinoma, 75 N.Y. ST. J. MED. 1520 (1975)). Leiter and Lefkovits stated, "[t]hat circumcision in infancy virtually guaratees immunity from penile carcinoma is a well known fact." Id. at 1520.
70. See Leiter & Lefkovits, Circumcision and Penile Carcinoma, 75 N.Y. ST. J. MED. 1520, 1520 (1975) ("We should like to report a sixth case of carcinoma of the penis in a Jewish male circumcised eight days after birth.").
71. See AAP 1989, supra note 3, at 388 (citing Mosze Kochen & Stephen McCurdy, Circumcision and the Risk of Cancer of the Penis, 134 AM. J. DISEASES CHILDREN 484 (1980)).
72. See Kochen & McCurdy, supra note 59, at 484 ("We assumed that virtually all of the reported cancers occurred in uncircumcised males. We therefore adjusted the rates for the estimated fraction of the population that was uncircumcised in each age group.").
73. See AAP 1989, supra note 3, at 388-89 (citing Wallerstein, supra note 23, at 126-27, for his international epidemiological evidence).
74. See WALLERSTEIN, supra note 1, at 111-12 (demonstrating outright misstatements of numerical figures as well as unsupported assertions by circumcision advocates); see also id. at 96-97 (discussing studies concerning smegma); Wallerstein, supra note 23, at 127 (citing a horribly flawed study in the medical literature which purported to prove that smegma was carcinogenic).
75. See generally WALLERSTEIN, supra note 1, at 108-09 (relating the successive reporting in medical literature of no penile cancer among neonatally circumcised men). Cf. AAP 1989, supra note 3, at 388 (citing Abraham L. Wolbarst, Circumcision and Penile Cancer, LANCET, Jan. 16, 1932, at 150, for the conclusion that "[c]ancer of the penis does not occur in Jews circumcised in infancy. There is no case on record."); Leiter & Lefkovits, supra note 57, at 1520-21 (1975) (same). Both the 1989 AAP report and Leiter and Lefkovits cite to Wolbarst's statement, even after Leiter and Lefkovits reported six such cases.
76. See AAP 1975, supra note 10, at 610 ("There is presently no convincing scientific evidence to substantiate the assertion that circumcision reduces the eventual incidence of cancer of the prostate.").
77. See generally WALLERSTEIN, supra note 1, at 100-04 (tracing the development of the theory and the scientific flaws in the research done on prostate cancer).
78. AAP 1989, supra note 3, at 388.
79. Id. at 389.
80. See generally Robert S. Thompson, Routine Circumcision in the Newborn: An Opposing View, 31 J. FAM. PRAC. 189, 189-92 (1990) (delineating flaws in studies by Thomas E. Wiswell et al., Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 75 PEDIATRICS 901 (1985); Thomas E. Wiswell & John D. Roscelli, Corroborative Evidence for the Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 78 PEDIATRICS 96 (1986); Thomas E. Wiswell et al., Declining Frequency of Circumcision: Implications for Changes in the Absolute Incidence and Male to Female Sex Ratio of Urinary Tract Infections in Early Infancy, 79 PEDIATRICS 338 (1987)).
81. See generally Robert S. Thompson, Routine Circumcision in the Newborn: An Opposing View, 31 J. FAM. PRAC. 189, 189-92 (1990) (delineating flaws in studies by Thomas E. Wiswell et al., Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 75 PEDIATRICS 901 (1985); Thomas E. Wiswell & John D. Roscelli, Corroborative Evidence for the Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 78 PEDIATRICS 96 (1986); Thomas E. Wiswell et al., Declining Frequency of Circumcision: Implications for Changes in the Absolute Incidence and Male to Female Sex Ratio of Urinary Tract Infections in Early Infancy, 79 PEDIATRICS 338 (1987)).
82. See generally Robert S. Thompson, Routine Circumcision in the Newborn: An Opposing View, 31 J. FAM. PRAC. 189, 189-92 (1990) (delineating flaws in studies by Thomas E. Wiswell et al., Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 75 PEDIATRICS 901 (1985); Thomas E. Wiswell & John D. Roscelli, Corroborative Evidence for the Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 78 PEDIATRICS 96 (1986); Thomas E. Wiswell et al., Declining Frequency of Circumcision: Implications for Changes in the Absolute Incidence and Male to Female Sex Ratio of Urinary Tract Infections in Early Infancy, 79 PEDIATRICS 338 (1987)).
83. See generally Robert S. Thompson, Routine Circumcision in the Newborn: An Opposing View, 31 J. FAM. PRAC. 189, 189-92 (1990) (delineating flaws in studies by Thomas E. Wiswell et al., Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 75 PEDIATRICS 901 (1985); Thomas E. Wiswell & John D. Roscelli, Corroborative Evidence for the Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 78 PEDIATRICS 96 (1986); Thomas E. Wiswell et al., Declining Frequency of Circumcision: Implications for Changes in the Absolute Incidence and Male to Female Sex Ratio of Urinary Tract Infections in Early Infancy, 79 PEDIATRICS 338 (1987)).
84. Robert S. Thompson, supra note 68, at 191.
85. See AAP 1989, supra note 3, at 388 (stating that "[s]ince the 1975 report . . . [p]reliminary data suggest the incidence of urinary tract infection in male infants may be reduced [by neonatal circumcision]"); see also Robert S. Thompson, supra note 68, at 189 (claiming that "[l]argely because of these [UTI studies'] data, the [AAP] convened a task force on circumcision" to revise the statement of the 1975 task force).
86. See Robert S. Thompson, supra note 68, at 189-92 (delineating problems involving failures "to control for age, race, education, or income," to control for "differences in the health-care-providing behavior of physicians," and the dropping of data which did not fit the researchers' hypotheses).
87. See AAP 1989, supra note 3, at 389 nn.5, 25, 26 (citing three separate studies conducted by Wiswell and co-authors, supra note 68, resulting in a hypothesis that the foreskin provides a site for bacterial colonization leading to UTI).
88. See Wallerstein, supra note 23, at 128 (citing studies showing only 3-49% of physicians in the early 1980s were aware that the foreskins of infants should not be forcibly retracted). Additionally, over 50% of physicians were unaware that the newborn's non-retractable foreskin is normal. Id. 74. Unfortunately, a significant percentage of pediatricians still attempt to forcibly retract the foreskin. See National Organization of Circumcision Information Resource Centers, Survey Reveals Need for Pediatrician Education, NOCIRC ANNUAL REPORT 1, 8 (Spring 1999). According to NOCIRC, an informal survey of pediatricians at the 1999 AAP national convention revealed that 22% did not know the proper care of the foreskin. Id. See also David J. Llewellyn, Legal Remedies for Penile Torts, THE COMPLEAT MOTHER, Winter 1995, at 13 (relating how that author's wife had to pull her son away from a pediatrician who was attempting to forcibly retract the boy's foreskin); Amanda Schneider, My Son Clayton (visited March 4, 1999) 〈http://weber.u.washington.edu/~gcd/DOC/clayton.html〉 (relating the forcible retraction attempt by a nurse practitioner and a subsequent $100 small claims default judgment against the nurse). One instance of a medical practitioner's ignorance is well known to the author of this Note. While his nephew was at the office of a pediatrician in Texas, the pediatrician attempted to forcibly retract the nephew's foreskin. Thanks to the swift action of the boy's mother, the pediatrician was not successful and no harm was done.
89. See Wallerstein, supra note 23, at 128 (citing studies showing only 3-49% of physicians in the early 1980s were aware that the foreskins of infants should not be forcibly retracted). Additionally, over 50% of physicians were unaware that the newborn's non-retractable foreskin is normal. Id. 74. Unfortunately, a significant percentage of pediatricians still attempt to forcibly retract the foreskin. See National Organization of Circumcision Information Resource Centers, Survey Reveals Need for Pediatrician Education, NOCIRC ANNUAL REPORT 1, 8 (Spring 1999). According to NOCIRC, an informal survey of pediatricians at the 1999 AAP national convention revealed that 22% did not know the proper care of the foreskin. Id. See also David J. Llewellyn, Legal Remedies for Penile Torts, THE COMPLEAT MOTHER, Winter 1995, at 13 (relating how that author's wife had to pull her son away from a pediatrician who was attempting to forcibly retract the boy's foreskin); Amanda Schneider, My Son Clayton (visited March 4, 1999) 〈http://weber.u.washington.edu/∼gcd/DOC/clayton.html〉 (relating the forcible retraction attempt by a nurse practitioner and a subsequent $100 small claims default judgment against the nurse). One instance of a medical practitioner's ignorance is well known to the author of this Note. While his nephew was at the office of a pediatrician in Texas, the pediatrician attempted to forcibly retract the nephew's foreskin. Thanks to the swift action of the boy's mother, the pediatrician was not successful and no harm was done.
90. See Wallerstein, supra note 23, at 128 (citing studies showing only 3-49% of physicians in the early 1980s were aware that the foreskins of infants should not be forcibly retracted). Additionally, over 50% of physicians were unaware that the newborn's non-retractable foreskin is normal. Id. 74. Unfortunately, a significant percentage of pediatricians still attempt to forcibly retract the foreskin. See National Organization of Circumcision Information Resource Centers, Survey Reveals Need for Pediatrician Education, NOCIRC ANNUAL REPORT 1, 8 (Spring 1999). According to NOCIRC, an informal survey of pediatricians at the 1999 AAP national convention revealed that 22% did not know the proper care of the foreskin. Id. See also David J. Llewellyn, Legal Remedies for Penile Torts, THE COMPLEAT MOTHER, Winter 1995, at 13 (relating how that author's wife had to pull her son away from a pediatrician who was attempting to forcibly retract the boy's foreskin); Amanda Schneider, My Son Clayton (visited March 4, 1999) 〈http://weber.u.washington.edu/∼gcd/DOC/clayton.html〉 (relating the forcible retraction attempt by a nurse practitioner and a subsequent $100 small claims default judgment against the nurse). One instance of a medical practitioner's ignorance is well known to the author of this Note. While his nephew was at the office of a pediatrician in Texas, the pediatrician attempted to forcibly retract the nephew's foreskin. Thanks to the swift action of the boy's mother, the pediatrician was not successful and no harm was done.
91. See AMERICAN ACADEMY OF PEDIATRICS, BROCHURE NO. HE 0023R, NEWBORNS: CARE OF THE UNCIRCUMCISED PENIS (1992) (stating that "external cleansing with soap and water is all that is required . . . retracting the foreskin and cleaning beneath it during his bath or shower").
92. See BRIGGS, supra note 1, at 46 (quoting personal correspondence with Dr. William Mitchell, M.D.).
93. See id. (quoting personal correspondence with Dr. William Mitchell, M.D.).
94. See id. (relating how Dr. Mitchell retrospectively concluded that daily soaping of the inner foreskin irritated it and allowed infections to occur).
95. See Paul M. Fleiss, The Case Against Circumcision, MOTHERING, Winter 1997, at 41 ("The best way to care for a child's intact penis is to leave it alone. After puberty, males can gently rinse their glans and foreskin with warm water."). This information mirrors the common knowledge among many women that a daily scrubbing with soap in the recesses of the female genitalia can be counter-productive.
96. See BRIGGS, supra note 1, at 46 (relating the conclusions of Dr. William Mitchell concerning his foreskin problems and proper hygiene).
97. AAP 1989, supra note 3, at 389.
98. See id. at 389 (citing S.W. Parker et al., Circumcision and Sexually Transmitted Disease, 2 MED. J. AUSTL. 288 (1983); R.A. Wilson, Circumcision and Venereal Disease, 56 CAN. MED. ASS'N J. 54 (1947)).
99. See id. at 389 (citing S.W. Parker et al., Circumcision and Sexually Transmitted Disease, 2 MED. J. AUSTL. 288 (1983); R.A. Wilson, Circumcision and Venereal Disease, 56 CAN. MED. ASS'N J. 54 (1947)).
100. See AAP 1989, supra note 3, at 389 (citing the studies of Parker, supra note 82, and Wilson, supra note 82, as methodologically flawed).
101. AAP 1989, supra note 3, at 389.
102. See id. (listing every study with a finding of a benefit from circumcision as also having methodological flaws).
103. See id. (citing G.L. Smith et al., Circumcision as a Risk Factor for Urethritis in Racial Groups, 77 AM. J. PUB. HEALTH 452 (1987), and not citing it for methodological flaws, unlike every other source cited in the STD section of the report).
104. AAP 1989, supra note 3, at 390.
105. Id.
106. See Jacqueline M. Scurlock & Patrick J. Pemberton, Neonatal Meningitis and Circumcision, 64 MED. J. AUSTL. 332, 332-34 (1977) (describing the events and indications surrounding four circumcised boys admitted to the hospital for meningitis over a four-year period); see also Johnson Flora, Johnson Flora: Alaska Law Firm Settles Lawsuit With Family of Brain-Damaged Boy: Betrayed by Doctors and Lawyers in Alaska, Sweets Find Justice Through Seattle Malpractice Attorney (visited Mar. 9, 2000) 〈http://biz.yahoo.com/prnews/000308/ wa_johnson_1.html〉 (publicizing the settlement of the case of Jacob Sweet who suffered seizures and brain damage following an infected circumcision). This press release notes that the parents fought a 13-year legal battle starting on January 25, 1986, the day their nine-day old son suffered seizures while under hospital care. Id. The parents lost the original medical malpractice suit when their attorney improperly handled the presentation of the evidence that the hospital had lost the medical records. Id. They finally received some compensation in their legal malpractice case. Id.
107. See Jacqueline M. Scurlock & Patrick J. Pemberton, Neonatal Meningitis and Circumcision, 64 MED. J. AUSTL. 332, 332-34 (1977) (describing the events and indications surrounding four circumcised boys admitted to the hospital for meningitis over a four-year period); see also Johnson Flora, Johnson Flora: Alaska Law Firm Settles Lawsuit With Family of Brain-Damaged Boy: Betrayed by Doctors and Lawyers in Alaska, Sweets Find Justice Through Seattle Malpractice Attorney (visited Mar. 9, 2000) 〈http://biz.yahoo.com/prnews/000308/ wa_johnson_1.html〉 (publicizing the settlement of the case of Jacob Sweet who suffered seizures and brain damage following an infected circumcision). This press release notes that the parents fought a 13-year legal battle starting on January 25, 1986, the day their nine-day old son suffered seizures while under hospital care. Id. The parents lost the original medical malpractice suit when their attorney improperly handled the presentation of the evidence that the hospital had lost the medical records. Id. They finally received some compensation in their legal malpractice case. Id.
108. See ROMBERG, supra note 1, at 198-234 (1985) (detailing the range of complications that can result from circumcision); id. at 200 ("Meatal Ulceration" - urine burns that occur around the meatus because the foreskin is no longer there to protect it); id. at 204 ("Meatal Stricture" - the narrowing of the meatus resulting from recurrent meatal ulceration); id. at 206 ("Hemorrhage" - bleeding that can be minor or severe); id. at 208 ("Infection" - which can be minor or severe); id. at 211 ("Concealed Penis" - a rare occurrence where the penile shaft retreats into the body requiring further surgery to correct); id. at 214 ("Urethral Fistula" - an abnormal hole on the urethra which is not the meatus); id. at 217 ("Urinary Retention" - blockage of urine flow usually the result of an overtight bandage); id. at 219 ("Injury or Loss of the Glans" - usually due to mistakes in cutting); id. at 219 ("Excessive Skin Loss" - resulting from the excision of too much foreskin); id. at 221 ("Skin Bridge" - a condition which results from the circumcision wound healing and adhering onto the glans); id. at 222 ("Vomiting and Apnea" - trouble breathing); id. at 223 ("Laceration of Penile or Scrotal Skin"); id. at 223 ("Preputial Cysts" - a fluid-filled sack on what remains of the foreskin); id. at 226 ("Keloid Formation" - thick red scar tissue); id. at 226 ("Lymphedema" - swelling of lymph vessels); id. at 228 ("Loss of Penis" - in two cases the remedy chosen was penile reconstruction, in two other cases gender reassignment was chosen) (emphasis added).
109. AAP 1975, supra note 10, at 611 (emphasis added).
110. See AAP 1989, supra note 3, at 390 (failing to note that reported complications and deaths do not equal the real incidence of these adverse outcomes).
111. See American Academy of Pediatrics Committee on Bioethics, Informed Consent, Parental Permission, and Assent in Pediatric Practice, 95 PEDIATRICS 314, 315 (1995) (discussing a statement of principles). This statement of principles would imply that parents should be told of all the adverse outcomes - such as those listed by ROMBERG, supra note 90 - and also should be informed of the protective functions the foreskin would continue to provide with the option of no treatment.
112. AAP 1975, supra note 10, at 610.
113. AAP 1989, supra note 3, at 390.
114. See Thomas J. Metcalf et al., Circumcision: A Study of Current Practices, 22 CLINICAL PEDIATRICS 575, 577 (1983) (listing 14 complications for 361 neonates, a 4% complication rate).
115. See id. at 577 (listing delayed complications of neonatal circumcisions such as "[f]oreskin adhesions," "[p]oor hygiene," "[m]eatitis," and "[s]urgical revision," for a total of 13% of a subject pool of 230). The complication category of "poor hygiene" is problematic. It appears to be simply parental dissatisfaction with the eventual appearance and the irrational fear of smegma. Id. at 578. Even subtracting this category from the complications list would leave a late complication rate of 10%. See id. at 577 tbl.3 (subtracting the 3% for "poor hygiene" from the table yields 10%).
116. See AAP 1989, supra note 3, at 390 (citing William F. Gee & Julian S. Ansell, Neonatal Circumcision: A Ten-Year Overview: With Comparison of the Gomco Clamp and the Plastibell Device, 58 PEDIATRICS 824 (1976)). Gee and Ansell state that out of 5882 infants, "[o]nly 14 complications (0.2%) are considered really significant - one life-threatening hemorrhage, four systemic infections, eight circumcisions of infants with hypospadias, and one complete denudation of the penile shaft." Gee & Ansell at 827. Complications included in the results which totaled 1.8%, but which were not accounted for in this "really significant" list, included: hemorrhage at four to seventy-two hours after surgery requiring medical intervention; infection requiring care, and in four cases antibiotics; dehiscence, "[c]omplete separation of the penile skin from the mucous membrane" which had to be "repaired with fine chromic gut"; partial denudation (excessive loss) of penile skin in two cases which were left to heal up on their own; edema (swelling) and cyanosis (bluing from lack of oxygenated blood), resulting from incorrectly performed Plastibell circumcisions; urinary retention; and "superficial" laceration of the glans. Gee & Ansell at 825-26.
117. See AAP 1989, supra note 3, at 390 (characterizing complications as local infection and bleeding, after stating the complication rate at 0.2-0.6%).
118. See supra note 98 and accompanying text (enumerating the complications that Gee and Ansell chose not to include in arriving at the figure of 0.2%).
119. Gee & Ansell, supra, note 98, at 826 (emphasis in original).
120. See AAP 1989, supra note 3, at 390 (listing citations for complication rates).
121. See id. at 390 (citing Thomas E. Wiswell, 79 PEDIATRICS 649, 650 (1987) (letter to the editor) (estimating a complication rate of 0.3% for 175,000 births)).
122. See Robert S. Thompson, supra note 68, at 194 (citing Thomas E. Wiswell & D.W. Geschke, Risks from Circumcision During the First Month of Life Compared with Those for Uncircumcised Boys, 83 PEDIATRICS 1011 (1989) (reporting a complication rate of 0.19% for 100,000 infants)).
123. Robert S. Thompson, supra note 68, at 194 (noting that Wiswell's low overall complication rate of 0.19% reflected "the stringency of the criteria and recording practices of physicians involved").
124. See AAP 1989, supra note 3, at 390 (citing Kenneth L. Harkavy, 79 PEDIATRICS 649 (1987) (letter to the editor) (relating a 0.6% rate of "notifiable complications")).
125. Compare AAP 1989, supra note 3, at 390 (citing only to information obtained in the U.S.), with George W. Kaplan, Complications of Circumcision, 10 UROLOGIC CLINICS OF N. AM. 543, 545 (1983) (citing to articles from Australia, Canada, and the U.K.).
126. See WALLERSTEIN, supra note 1, at 135-44 (tracing the attitudes of many medical practitioners and medical sources, who downplayed or even denied that infants felt pain or that the pain had significance); Anand & Hickey, supra note 18, at 1321 (stating the fact that for many years there existed "a widespread belief in the medical community that the human neonate or fetus may not be capable of perceiving pain").
127. Compare AAP 1989, supra note 3, at 389 (stating authoritatively that infants experience pain and that circumcision does cause pain), with AAP 1975, supra note 10, at 610-11 (recommending that the surgery not be routinely performed, but failing to mention anywhere that pain is a consideration in the equation).
128. See AAP 1989, supra note 3, at 389 (citing Anand & Hickey, supra note 18).
129. AAP 1989, supra note 3, at 389. The 1989 report cited Richard E. Marshall et al., Circumcision: II. Effects upon Mother-Infant Interaction, 7 EARLY HUM. DEV. 367, 373 (1982), for the proposition that experimentally measured feeding intervals and infant availability scores reverted to pre-circumcision levels by 24 hours after surgery.
130. AAP 1989, supra note 3, at 390.
131. Anand & Hickey, supra note 18, at 1325-26.
132. See DeCasper & Spence, supra note 18, at 142-48 (relating their results).
133. See id. at 143, 148 (concluding that the subjects amazingly had learned the acoustical characteristics of their target stories, not just the voice of the storyteller).
134. See Nancy Angrist Myers et al., When They Were Very Young: Almost-Threes Remember Two Years Ago, 10 INFANT BEHAV. & DEV. 123, 123 (1987) ("The pursuit of such questions requires versatility and ingenuity in methodology, to say nothing of fortuity in opportunity.").
135. See Salk et al., supra note 18, at 625, 627 (detailing the results of a study on the relationship between perinatal factors and suicide).
136. See Fran Lang Porter et al., Newborn Pain Cries and Vagal Tone: Parallel Changes in Response to Circumcision, 59 CHILD DEV. 495, 495, 502 (1988) (discussing alterations in "vagal tone," as measured by comparing heart period with breaths per minute (see id. at 498-99 n.2) during circumcision and finding the patterns comparable to those exhibited by "medically compromised infants").
137. See Jacobson et al., supra note 18, at 367-68, 370 (tying the type of birth complication to later methods of suicide).
138. See id. at 369 (admitting that "self-destructive behavior has many roots. Here perinatal factors only are considered."); Salk et al., supra note 18, at 627 (noting "[m]any babies survive adverse perinatal conditions, and therefore we do not suggest a direct relationship between perinatal adversity and eventual suicide").
139. See BRIGGS, supra note 1, at 102 (quoting AMERICAN ACADEMY OF PEDIATRICS, CARE OF THE UNCIRCUMCISED PENIS (Newborn Series, 1984)): The glans at birth is delicate and easily irritated by urine and feces. The foreskin shields the glans; with circumcision, this protection is lost. In such cases [i.e., when circumcision is performed], the glans and especially the urinary opening (meatus) can become irritated or infected, causing ulcers, meatitis, (inflammation of the meatus) and meatal stenosis (a narrowing of the urinary opening). Such problems virtually never occur in uncircumcised penises. The foreskin protects the glans throughout life. Id.
140. See AMERICAN ACADEMY OF PEDIATRICS, BROCHURE NO. HE0023R, NEWBORNS: CARE OF THE UNCIRCUMCISED PENIS, GUIDELINES FOR PARENTS (1992) (omitting the paragraph from the 1984 AAP pamphlet quoted supra note 121). This revised pamphlet was published after the 1989 AAP report on circumcision.
141. See AAP 1989, supra note 3, at 388-89 (admitting, in the section of the report devoted to local infections, that "[m]eatitis is more common in circumcised boys," and in the section devoted to STDs, admitting "a higher incidence of nonspecific urethritis in circumcised men").
142. See id. at 389 (providing these two examples).
143. Dr. Gairdner observed that: [I]t is often stated that the prepuce is a vestigial structure devoid of function. However, it seems to be no accident that during the years when the child is incontinent the glans is completely clothed by the prepuce, for, deprived of this protection, the glans becomes susceptible to injury. . . . Meatal ulcer is almost confined to circumcised male infants. Gairdner, supra note 6, at 1434.
144. See Fleiss, supra note 79, at 40-41 (noting the immunologically significant presence of lysozyme and immunoglobulins, the scientifically interesting presence of estrogen receptors and apocrene glands for the production of pheromones, the protective functions served through coverage and lubrication of the glans, and the lubricant preserving function of having the shaft of the penis move more within its own skin than having the penile skin move in and out of the female exposing her lubricant to drying in the air).
145. J.R. Taylor et al., The Prepuce: Specialized Mucosa of the Penis and its Loss to Circumcision, 77 BRIT. J. OF UROLOGY 291, 295 (1996).
146. See AAP 1989, supra note 3, at 388 (stating simply that the foreskin "is the fold of skin covering the glans").
147. See AMERICAN ACADEMY OF PEDIATRICS, BROCHURE NO. HE0154, TONSILS AND ADENOIDS: GUIDELINES FOR PARENTS (1994) (observing first that "having tonsils and adenoids removed was quite popular," but later observing that now physicians know "[b]oth the tonsils and adenoids make antibodies to help fight infections").
148. See id. ("Nowadays, doctors know more about when this surgery is really needed and when it should not be done. . . . These days, the American Academy of Pediatrics considers surgery absolutely necessary only under the following conditions [of abnormal breathing, swallowing, and speech]."). The AAP's challenge to the old established practice on this other "non-essential" but functional, normal, and healthy tissue should likewise have influenced the 1989 circumcision task force approach.
149. See Robert S. Thompson, supra note 68, at 189-92 (describing the change in the AAP policy in response to Wiswell's findings on UTIs as the motivation for his risk-benefit review).
150. See id. at 194 tbl.3 (comparing the possible nine per one thousand spared a UTI, according to Wiswell's conclusions, against an immediate complication rate of two per one thousand and late complication rate of ten per one thousand, using the data of Metcalf). For Metcalf's data, see supra notes 96-97 and accompanying text.
151. See Theodore G. Ganiats et al., Routine Neonatal Circumcision: A Cost-Utility Analysis, 11 MED. DECISION MAKING 282, 288 (1991) ("For routine neonatal circumcision, however, these advantages and disadvantages cancel each other."); see also Frank H. Lawler et al., Circumcision: A Decision Analysis of Its Medical Value, 23 FAM. MED. 587, 590 (1991) ("In none of the analyses did circumcision yield a shorter theoretical life span than the noncircumcision strategy. In most of the analyses, cost considerations favored the noncircumcision strategy.").
152. See Theodore G. Ganiats et al., Routine Neonatal Circumcision: A Cost-Utility Analysis, 11 MED. DECISION MAKING 282, 288 (1991) ("For routine neonatal circumcision, however, these advantages and disadvantages cancel each other."); see also Frank H. Lawler et al., Circumcision: A Decision Analysis of Its Medical Value, 23 FAM. MED. 587, 590 (1991) ("In none of the analyses did circumcision yield a shorter theoretical life span than the noncircumcision strategy. In most of the analyses, cost considerations favored the noncircumcision strategy.").
153. AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (3d ed. 1992) [hereinafter AAP GUIDELINES 1992]; AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (2d ed. 1988) [hereinafter AAP GUIDELINES 1988]; AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (1st ed. 1983) [hereinafter AAP GUIDELINES 1983].
154. AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (3d ed. 1992) [hereinafter AAP GUIDELINES 1992]; AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (2d ed. 1988) [hereinafter AAP GUIDELINES 1988]; AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (1st ed. 1983) [hereinafter AAP GUIDELINES 1983].
155. AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (3d ed. 1992) [hereinafter AAP GUIDELINES 1992]; AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (2d ed. 1988) [hereinafter AAP GUIDELINES 1988]; AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE (1st ed. 1983) [hereinafter AAP GUIDELINES 1983].
156. Compare AAP GUIDELINES 1988, supra note 134, at 94 (stating that "there is no absolute medical indication for circumcision in the neonatal period"), with AAP GUIDELINES 1983, supra note 134, at 87 ("There is no absolute medical indication for the routine circumcision of the newborn."), with AAP 1975, supra note 10, at 611 ("There is no absolute medical indication for routine circumcision of the newborn.").
157. AAP GUIDELINES 1988, supra note 134, at 93-94. One can only assume that the drafters of the 1988 guidelines were aware of continued debate regarding the efficacy of circumcision. In view of the demonstrated risks attendant to any surgery, as well as occasional severe complications reported in the medical literature, the drafters must have determined that the responsible course of action in lending advice to practitioners, and subsequently parents, would be to claim medical benefits for this elective surgery only if the 1989 AAP circumcision task force found research data that clearly supported such a claim. Until then, the guideline drafters decided to adhere to the established policy that the uncertainty of the data supported.
158. See AAP GUIDELINES 1992, supra note 134, at 103 ("Circumcision may also result in a reduced incidence of urinary tract infection, although prospectively collected data in this regard are lacking."). The AAP 1992 guidelines classify circumcision as an elective procedure. Id. UTI prevention is the only benefit mentioned in the paragraph on circumcision contained in the guidelines. Yet, this uncertain benefit, reported by the 1989 task force, supra notes 66-72 and accompanying text, somehow qualified as the "conclusively" demonstrated value that the 1988 guidelines professed to require of the 1989 task force report in order to change the AAP and ACOG's policy.
159. See AAP 1999, supra note 19, at 686, 691 (stating findings).
160. Id. at 691.
161. Id.
162. Id. at 690-91.
163. Id.
164. See Christopher Maden et al., History of Circumcision, Medical Conditions, and Sexual Activity and Risk of Penile Cancer, 85 J. NAT'L CANCER INST. 19, 20-22, tbl.6 (1993) (surveying 110 penile cancer cases in the Pacific Northwest).
165. Id. at 24.
166. Id. at 21-22.
167. Id. at 22 tbl.6.
168. See AAP 1999, supra note 19, at 690-91 (addressing the possible link between penile cancer and circumcision status and citing Maden et al., supra note 143). Additionally, the 1999 task force received a letter from two Vice Presidents of the American Cancer Society. See Fathermag.com, Letter from the American Cancer Society (visited Mar. 9, 2000) 〈http://www.fathermag.com/health/circ/acs/〉 (relating a public letter from Hugh Shingleton, M.D., National Vice President Detection & Treatment, American Cancer Society, and Clark W. Heath, Jr., M.D., Vice President Epidemiology & Surveillance Research, American Cancer Society, to Dr. Peter Rappo, Committee on Practice & Ambulatory Medicine, American Academy of Pediatrics (Feb. 16, 1996)). The letter stated: Portraying routine circumcision as an effective means of prevention distracts the public from the task of avoiding the behaviors proven to contribute to penile and cervical cancer: especially cigarette smoking, and unprotected sexual relations with multiple partners. Perpetuating the mistaken belief that circumcision prevents cancer is inappropriate. Id.
169. See AAP 1999, supra note 19, at 690 (mentioning penile cancer rates obtained from Denmark, Brazil, and India).
170. Compare 4 INTERNATIONAL AGENCY FOR RESEARCH ON CANCER AND INTERNATIONAL ASSOCIATION OF CANCER REGISTRIES, CANCER INCIDENCE IN FIVE CONTINENTS 751 (1982) (listing available incidences of penile cancer in Finland at 0.5 to 0.6 per 100,000 men, in Norway at 0.6 to 0.7 per 100,000 men, and in Sweden at 0.9 per 100,000 men), with AAP 1989, supra note 3, at 388 (providing a incidence of penile cancer in the United States at 0.7 to 0.9 per 100,000 men).
171. Compare 6 INTERNATIONAL AGENCY FOR RESEARCH ON CANCER AND INTERNATIONAL ASSOCIATION OF CANCER REGISTRIES, CANCER INCIDENCE IN FIVE CONTINENTS 974 (1992) (listing Israel's incidence of penile cancer at 0.2 to 0.9 per 100,000 men and Japan's at 0.4 to 0.7 per 100,000 men), with AAP 1999, supra note 19, at 690 (listing the U.S. incidence of penile cancer at 0.9 to 1.0 per 100,000 men).
172. AAP 1999, supra note 19, at 691.
173. See id. ("In addition, there is a substantial body of evidence that links noncircumcision in men with risk for HIV infection.") (citations omitted).
174. See Isabelle de Vincenzi & Thierry Mertens, Male Circumcision: A Role in HIV Prevention?, 8 AIDS 153 (1994) (analyzing studies asserting a linkage between circumcision status and HIV transmission in Africa).
175. Id. at 156.
176. Id. at 157.
177. Id.
178. Id.
179. See de Vincenzi & Mertens, supra note 153, at 159 (stating that "[a]s the safety, expected benefits, feasibility and acceptability of mass circumcision are all questionable . . . [neither circumcision nor controlled studies would] be defensible options before there is stronger evidence from observational studies in different settings that show lack of male circumcision may be a genuinely independent risk factor for the transmission of HIV").
180. See Edward O. Laumann et al., Circumcision in the United States: Prevalence, Prophylactic Effects, and Sexual Practice, 277 JAMA 1052, 1054-55 (1997) (finding statistical significance that 26 cases of chlamydia occurred in 1033 circumcised men, but none occurred in 353 intact men).
181. See AAP 1999, supra note 19, at 691 (citing only generally to Laumann et al., supra note 159).
182. See AAP 1999, supra note 19, at 689 (citing the results of Teresa To et al., Cohort Study on Circumcision of Newborn Boys and Subsequent Risk of Urinary-Tract Infection, 352 LANCET 1813 (1998)); see also supra notes 67-71 and accompanying text (delineating the flaws of the Wiswell research).
183. See To et al., supra note 161, at 1813 (delineating the findings and methodology of this study); see also id. at 1815 tbl.2 (comparing the relative risk figures of their own research to figures obtained by other researchers, including Wiswell).
184. See id. at 1815 (analyzing the data on outpatient UTIs of boys from physician-billing records).
185. Id.
186. See id. (noting that no study has addressed any possible difference in severity between the UTIs in the two groups).
187. See AAP 1999, supra note 19, at 688 (noting that general anesthesia becomes a normal procedure when performing a circumcision beyond the neonatal period).
188. See id. at 689-90 (noting possible methodological problems).
189. Id. at 689 (citing Alfredo Pisacane et al., Breastfeeding and Urinary Tract Infection, 120 J. PEDIATRICS 87 (1992)).
190. See AAP 1999, supra note 19, at 689 (downplaying the results of Piscane et al. unnecessarily). Italy does not engage in routine infant circumcision. Pisacane et al.'s entire subject pool was then presumably intact. One could compare the effect of breastfeeding intact boys against the effect of circumcising intact boys. One would not have to compare the effect of breastfeeding or not breastfeeding on intact and circumcised boys, as the 1999 task force was apparently suggesting.
191. See David Alwin, The Urinary Tract Infection Myth Revealed (visited Apr. 30, 1999) 〈http://infocirc.org/top.htm?uti2.htm〉 (assuming the 3.7 relative risk factor established by To et al., supra note 161).
192. See AAP 1999, supra note 19, at 688 (admitting that the complication rate can only be roughly estimated and citing complication rates obtained by Harkavy, supra note 106, and Gee & Ansell, supra note 98).
193. See supra note 98 and accompanying text (relating the discounted complications); Gee & Ansell, supra note 98 at 825-27 (reporting the full range of complications at 2% within their graph and reporting the 0.2% figure as reflecting what the authors termed "really significant" complications).
194. See Metcalf et al., supra note 96, at 577 (obtaining an immediate complication rate of 4% for a sample of 361 circumcised neonates, but also noting a 13% rate for later complications).
195. Compare Metcalf et al., supra note 96, at 577, 578 tbl.3 (finding an immediate complication rate of 4%, including surgical problems at 1%, and a late complication rate of 13%, including foreskin adhesions (skin bridges) at 8%, meatitis at 1%, and surgical revision at 1%), with AAP 1999, supra note 19, at 688 (listing skin bridges, meatitis, urinary retention, and major surgical problems, etc., as "isolated case reports"). Dustin Evans, Jr.'s problem surely would have to be classified as a complication: at least urinary retention or a major surgical problem, not to mention his death. See supra notes 1-2 and accompanying text (relating Dustin Evans, Jr.'s story).
196. See N. Williams & L. Kapila, Complications of Circumcision, 80 BRIT. J. SURGERY 1231 (1993) (finding "a realistic figure [for circumcision's complication rate] is 2-10 percent").
197. Id.
198. AAP 1999, supra note 19, at 691.
199. See Robert S. Thompson, supra note 68, at 194 (demonstrating that even accepting the faulty 0.2% circumcision immediate complication rate and Wiswell's faulty ten-fold relative risk of UTIs for remaining intact, medical utility is lacking for circumcision). With the more correct assumption of a 2-4% immediate complication rate and only a four-fold relative risk from being intact (this still ignores the 1.7 relative risk obtained by To et al., supra note 163 and accompanying text, in examining outpatient billings), the deficit of using routine circumcision as a treatment for UTIs is even more pronounced.
200. AAP 1999, supra note 19, at 691.
201. See generally Charles A. Nelson, The Nature of Early Memory, 27 PREVENTIVE MED. 172 (1998) (detailing the method of his research).
202. See id. at 172 (relating the experimental results of Carolyn Rovee-Collier, Development of Memory in Infancy, in THE DEVELOPMENT OF MEMORY IN CHILDHOOD (N. Cowan ed., 1996)).
203. Nelson, supra note 180, at 179 (emphasis in original).
204. Id.
205. See AAP 1999, supra note 19, at 688 (citing Anna Taddio et al., Effect of Neonatal Circumcision on Pain Response During Subsequent Routine Vaccination, 349 LANCET 599 (1997)).
206. See Taddio et al., supra note 184, at 601-02 (finding that during vaccinations at four and six months of age, neonatally circumcised infants had a significantly stronger pain response than intact infants).
207. See id. at 599, 602 (noting that lidocaine-prilocaine 5% - Emla - cream only partially diminished the heightened pain response during later vaccinations and theorizing that aside from the fact that the Emla cream did not eliminate circumcision pain, it could not reduce post-operative pain while the wound healed in the following week).
208. See AAP 1999, supra note 19, at 688-89 (discussing the effectiveness of various pain measures but progressing to a conclusion that does not address the problem of long-term behavioral effects implicated in the results of Taddio et al., supra note 184).
209. See AAP 1999, supra note 19, at 688-89 (citing the findings of Taddio et al., supra note 184, and following the citation with a lengthy description of the available pain measures, but failing to examine the significance of infant memory for pain and its behavioral effects, known and unknown).
210. See generally Jacobson et al., supra note 18 (demonstrating that later suicide cases chose methods similar to the type of distress experienced perinatally).
211. AAP 1999, supra note 19, at 687.
212. See Robert S. Van Howe, Cost-effective Treatment of Phimosis, 102 PEDIATRICS 966, abstract e43 (1998) (abstracting the results of a study on treatments for phimosis); see also Robert S. Van Howe, Cost-effective Treatment of Phimosis (visited Mar. 9, 2000) 〈http://www.pediatrics.org/cgi/content/full/102/4/e43〉 (relating the full text of the article, abstracted in 102 Pediatrics, and comparing the cost effectiveness of methods of treating phimosis).
213. See Robert S. Van Howe, Cost-effective Treatment of Phimosis, 102 PEDIATRICS 966, abstract e43 (1998) (abstracting the results of a study on treatments for phimosis); see also Robert S. Van Howe, Cost-effective Treatment of Phimosis (visited Mar. 9, 2000) 〈http://www.pediatrics.org/cgi/content/full/102/4/e43〉 (relating the full text of the article, abstracted in 102 Pediatrics, and comparing the cost effectiveness of methods of treating phimosis).
214. See Robert S. Van Howe, Cost-effective Treatment of Phimosis (visited Mar. 9, 2000) 〈http://www.pediatrics.org/cgi/content/full/102/4/e43〉 (finding topical therapy to produce a "75% savings compared with circumcision").
215. See AAP 1999, supra note 19, at 687 (noting that Taylor's study "suggests that there may be a concentration of specialized sensory cells in specific rigid areas of the foreskin but not in the skin of the penile shaft"). This statement misapprehends Taylor's clearly stated results. See Taylor et al., supra note 127 and accompanying text (finding that the presence of nerve endings similar to those in the finger-tips "firmly separate[s]" foreskin from true skin).
216. American Academy of Pediatrics, Circumcision: Information for Parents (visited July 25, 1999) 〈http://www.aap.org/family/circ.htm〉 [hereinafter AAP 1999 online brochure].
217. See id. (providing a ten-fold risk figure); but cf. To et al., supra note 161 and accompanying text (providing a relative risk figure of 3.7).
218. AAP 1999 online brochure, supra note 194.
219. See infra Part III(G) (listing groups of physicians, nurses, lawyers, and others working to oppose routine neonatal circumcision).
220. AAP 1999 online brochure, supra note 194.
221. See supra note 121 and accompanying text (relating information contained in a 1984 AAP brochure on caring for the uncircumcised penis).
222. Compare AAP 1999, supra note 19, at 687 (observing that "circumcised infant boys had a significantly higher risk of penile problems (such as meatitis)"), with AAP 1999 online brochure, supra note 194 (putting a spin on the statements that circumcision increases the risk of meatitis and meatal stenosis by leading with the word "belief").
223. See AAP 1999 online brochure, supra note 194 (closing with a paragraph on female circumcision).
224. See RONALD GOLDMAN, CIRCUMCISION: THE HIDDEN TRAUMA 73-74 (1997) (comparing and contrasting the attitudes held by defenders of male and female circumcision, listing as justifications notions of cleanliness and health); Abbie J. Chessler, Justifying the Unjustifiable: Rite v. Wrong, 45 BUFF. L. REV. 555 (1997) (same).
225. See RONALD GOLDMAN, CIRCUMCISION: THE HIDDEN TRAUMA 73-74 (1997) (comparing and contrasting the attitudes held by defenders of male and female circumcision, listing as justifications notions of cleanliness and health); Abbie J. Chessler, Justifying the Unjustifiable: Rite v. Wrong, 45 BUFF. L. REV. 555 (1997) (same).
226. American Academy of Pediatrics Committee on Bioethics, Female Genital Mutilation, 102 PEDIATRICS 153 (1998).
227. See id. at 153, 155 (referring to Department of Defense Omnibus Appropriations Act, 18 U.S.C.A.§116 (1998)). The text of § 116 is as follows: (a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both. (b) A surgical operation is not a violation of this section if the operation is-(1) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or (2) performed on a person in labor who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place of its performance as a medical practitioner, midwife, or person in training to become such a practitioner or midwife. (c) In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is performed of any belief in the part of that person, or any other person, that the operation is required as a matter of custom or ritual.
228. American Academy of Pediatrics Committee on Bioethics, Informed Consent, Parental Permission, and Assent in Pediatric Practice, 95 PEDIATRICS 314, 314 (1995).
229. Alan R. Fleischman et al., Caring for Gravely Ill Children, 94 PEDIATRICS 433, 433 (1994). The author further stated, "[T]he authority society gives parents to control their children's lives is not absolute. Because children are no longer considered the property of their parents, and society recognizes that children may have interests independent of their families, limits to parental authority are justified when necessary to protect a child's well-being." Id. at 434 (citation omitted).
230. See AAP 1999, supra note 19, at 686 (citing the 1996 reports of the Australian College of Paediatrics, the Australian Association of Paediatric Surgeons, and the Canadian Paediatric Society).
231. See Fetus and Newborn Committee, Canadian Paediatric Society, Neonatal Circumcision Revisited, 154 CANADIAN MED. ASS'N J. 769, 775-76 (1996) (devoting two pages of the report to cost-benefit analysis and citing numerous cost-benefit analyses including those of Ganiats et al., supra note 133, Lawler et al., supra note 133, and Robert S. Thompson, supra note 68).
232. Fetus and Newborn Committee Canadian Paediatric Society, Neonatal Circumcision Revisited, 154 CANADIAN MED. ASS'N J. 769, 769 (1996).
233. The principle was best stated by Justice Learned Hand: There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission. The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (emphasis added). There may also come a time when an entire industry or profession has lagged in not abandoning a practice or device.
234. For example, see Nowatske v. Osterloh, 543 N.W.2d 265 (Wis. 1996), which explained the standard of care as follows: The standard of care applicable to physicians in this state can not be conclusively established either by a reflection of what the majority of practitioners do or by a sum of the customs which those practitioners follow. It must instead be established by a determination of what it is reasonable to expect of a professional given the state of medical knowledge at the time of the treatment in issue. . . . In most situations physicians, like other professionals, will revise their customary practices so that the care they offer reflects a due regard for advances in the profession. An emphasis on reasonable rather than customary practices, however, insures that custom will not shelter physicians who fail to adopt advances in their respective fields and who consequently fail to conform to the standard of care which both the profession and its patients have a right to expect. Id. at 272.
235. See id. (quoting the Amicus Curiae brief for the State Medical Society of Wisconsin: "Plaintiffs can always, if appropriate, present evidence regarding the 'state of medical science' to show that a professional custom is obsolete or unreasonable.").
236. Troyen A. Brennan, Practice Guidelines and Malpractice Litigation: Collision or Cohesion?, 16 J. HEALTH POL., POL'Y & L. 67, 67 (1991).
237. Id.
238. See Arnold J. Rosoff, The Role of Clinical Practice Guidelines in Health Care Reform, 5 HEALTH MATRIX 369, 392 (1995) (proposing theories for possible liability).
239. See id. at 392 (listing this as an obvious theory of liability).
240. Id.
241. Id.
242. See id. at 392 n.66 (inferring this after analyzing the reasoning in cases such as Washington v. Washington Hosp. Center, 597 A.2d 177 (D.C. 1990), (holding a hospital and physicians liable for not following new treatment studies that contravened conventional wisdom)).
243. See Brennan, supra note 213, at 78 (expressing it as "doubtful that courts would find individual physicians paralyzed or rendered powerless by guidelines issued by medical or research institutions"). However, this argument does not address a physician's possibly reasonable reliance on the analysis of his professional organization.
244. See id. at 79 (noting that "[e]xtending the duty to care to these third parties would chill their interest in an activity that benefits the general welfare," and that "product standard setting groups, can have duties to care," but, "there is usually some direct relationship between the third party and the product, as for instance when the third party inspects a specific product which later causes injury").
245. Id.
246. See id. at 80 (citing guidelines issued by the National Institute of Health as an example).
247. 676 A.2d 1036 (N.J. 1996).
248. See id. at 1038 (providing the background which showed an overwhelming likelihood that Mr. Snyder contracted HIV from contaminated blood provided during his surgery).
249. See id. at 1038 (explaining that no direct test for HIV transmission through contaminated blood existed in 1984).
250. See id. at 1039-48 (tracing the development of the theory that AIDS was spread by exposure to contaminated blood and the development of the rationales for the use of surrogate testing).
251. See Snyder, 676 A.2d at 1048 (relating how the AABB rejected use of the surrogate test to screen blood contending that it would result in the rejection of too many healthy blood donors and cost too much). Basically, the AABB rejected the surrogate test on a hasty and not fully informed cost-benefit analysis, even though studies had been published in the medical literature essentially proving that AIDS could be transmitted though donated blood. See id. at 1049 (stating that the AABB knew of the risk of AIDS).
252. Id. at 1048; see also Brennan, supra note 213, at 78 (discussing the possible use of the treating physician defense).
253. Snyder, 676 A.2d at 1048 (citations omitted).
254. See id. at 1048 (reasoning that fairness and policy allow liability because the "AABB [had] sought and cultivated . . . responsibility for the safety of blood and blood products," which induced treating physicians to rely on AABB standards).
255. See id. at 1041 (describing the overwhelming adherence to AABB standards by organizations supplying blood and blood products).
256. AAP GUIDELINES 1992, supra note 134, at ii; see also AAP GUIDELINES 1988, supra note 134, at ii (using the same language of disclaimer); AAP GUIDELINES 1983, supra note 134, at ii (using the same language of disclaimer).
257. Cf. Kimberly J. Todd, Snyder v. American Association of Blood Banks: Expansion of Trade Association Liability-Does It Reach Medical Societies?, 29 U. TOL. L. REV. 149, 174 (1997) (arguing that Snyder allows a court to go beyond the treating physician's liability if the treatment decision was made based on the standard of care set by the dominant source of information in that industry).
258. See id. at 173 & n.173 (comparing the foreseeability language in Snyder to the fact that patients and physicians rely on published guidelines to establish the standard of care). Further, she asserted that: The courts' deference to practice parameters indicates a belief that the medical societies which develop the parameters have a high level of influence over their members. . . . [A]ny medical society that places itself in a position in which others rely heavily on its standards (to ensure the safety of their treatment) should have a duty to act with due care when producing those standards. Id. (citations omitted).
259. See id. Todd cites Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 364 (Tex. 1987) and Boyd v. Louisiana Med. Mut. Ins. Co., 593 So.2d 427, 429-30 (La. Ct. App. 1991) for the use of AAP practice parameters and reports in an inculpatory mannner and cites Parker v. Southwest La. Hosp. Ass'n, 540 So.2d 1270, 1274 (La. Ct. App. 1989) for the use of AAP practice parameters in an exculpatory manner.
260. See Brennan, supra note 213, at 79 (expressing the concern that liability "would chill [the medical associations'] interest in an activity that benefits the general welfare"). However, such activities can hardly benefit the general welfare if they are not conducted under the usual scientific protocols for evaluating data.
261. Snyder, 676 A.2d at 1050.
262. Id.
263. See Todd, supra note 234, at 175 (noting that the rule adopted in Snyder weighs the probability and importance of risk of injury against the policy of facilitating scientific debate).
264. American Academy of Pediatrics, AAP Fact Sheet (visited Jan. 24, 2000) 〈http://www.aap.org/visit/facts.htm〉.
265. AAP 1989, supra note 3, at 390 (choosing to facilitate parental concerns); see also AAP 1999, supra note 19, at 691 (same). Over the last century, the medical profession created this parental tradition, largely under discredited theories of causation. The AAP, in disregard of scientific method, is now maintaining that parental cultural tradition through failing to expose the flimsiness of circumcsion's benefits and by placing this tradition above the health interests of infant boys.
266. See Brennan, supra note 213, at 79 (relating the concern for penalizing a medical society for choosing the wrong stance on a medical uncertainty). However, the efficacy of routine circumcision is only an uncertainty because the profession as a whole, and the AAP in particular, has failed to responsibly and thoroughly investigate after more than a century of performing it.
267. Snyder, 676 A.2d at 1049.
268. Id.
269. See supra notes 83-86 and accompanying text (emphasizing the fact that each study used by the 1989 AAP report to support the hypothesis that circumcision conferred a benefit in preventing STDs was flawed); cf. FAIGMAN ET AL., supra note 16, at 48 (noting the fundamental scientific principle that for any scientific analysis of contradictory studies, methodology is central to evaluating the worth of the findings of each study).
270. Compare Snyder, 676 A.2d at 1051-54 (relating the defendant's assertions of qualified immunity based on the AABB's relationships with the federal Food and Drug Administration and the New Jersey Department of Health), with Brennan, supra note 213, at 80 (discussing immunity defenses).
271. See Snyder, 676 A.2d at 1052-54 (implying that privity of contract between the AABB and a governmental agency would be necessary for immunity).
272. Id. at 1054.
273. See American Academy of Pediatrics, Committee on Medical Liability (visited Jan. 27, 1999) 〈http://www.aap.org/visit/coml.htm〉 (outlining the duties of this committee).
274. Snyder, 676 A.2d at 1055.
275. Id. (emphasis added).
276. 659 N.Y.S.2d 395 (N.Y. Sup. Ct. 1997).
277. See Weigand v. Univ. Hosp. of New York Univ. Med. Ctr. 659 N.Y.S.2d 395, 400 (N.Y. Sup. Ct. 1997) (citing the reasoning in Snyder as persuasive in imposing a duty of care toward a 1983 recipient of contaminated blood on the AABB).
278. See id. at 401 (addressing the allegations of the plaintiff).
279. See id. (dismissing the informed consent causes of action by finding that the facts did not meet the requirement of "a special relationship between the parties, frequently involving an existing or potential economic benefit to the defendant").
280. AMERICAN ACADEMY OF PEDIATRICS, BROCHURE NO. HE0175, CIRCUMCISION: PROS AND CONS (1995) [hereinafter AAP 1995 brochure].
281. See Llewellyn, supra note 74, at 13 (relating an award of $65,000 for the loss of a foreskin without informed consent).
282. RESTATEMENT (SECOND) OF TORTS § 324A (1965).
283. Ralph G. Wellington & Vance G. Camisa, The Trade Association and Product Safety Standards: Of Good Samaritans and Liability, 35 WAYNE L. REV. 37, 39-45 (1988) (citing cases which did not require absolute necessity for the imposition of a duty of care).
284. See id. at 39-40 (quoting Martinez v. Perlite Inst., 120 Cal. Rptr. 120, 125 (1975)).
285. See id. at 42-43 (citing Clark v. Employers Mut., 297 F. Supp. 286, 289 (E.D. Pa 1969)).
286. See Todd, supra note 234, at 164. She notes: [T]he fact that the standards promulgated by a trade association are based on a voluntary consensus of its members, does not, as a matter of law, absolve the trade association of a duty to exercise reasonable care when it undertakes to promulgate standards for the "needs of the consumer." The [trade association's] standards explicitly mentioned that they were for the "needs of the consumer" and that safety was one of the primary considerations for which they were formulated. This, the court reasoned, made it foreseeable to [the trade association] that injury to consumers could result from its failure to act with reasonable care, thus creating a duty. Id. (quoting King v. Nat'l Spa and Pool Inst., Inc., 570 So.2d 612 (Ala. 1990) (other citations omitted)).
287. See Todd, supra note 234, at 164 (citing the King court's observation that the trade association professed to create the standards to guide consumers).
288. See id. (citing the King court's finding of a duty of care).
289. JERALD A. JACOBS, ASSOCIATION LAW HANDBOOK 157 (3d ed. 1996).
290. See RESTATEMENT (SECOND) OF TORTS,§ 324A cmt. d (1965) (stating that "a managing agent who . . . agrees with [the owner to maintain a building] . . . is therefore subject to liability . . ."). Illustrations 2 and 3 to Comment d both involve employer-employee contracts.
291. See id. § 324A(a) (noting that the failure to exercise care must increase the risk of harm).
292. See Wellington & Camisa, supra note 260, at 48 (1988) (quoting Kohr v. Johns-Manville Corp., 534 F. Supp. 256, 258 (E.D. Pa. 1982)).
293. See RESTATEMENT (SECOND) OF TORTS, §324A(c) (noting that reliance can satisfy causality).
294. Wellington & Camisa, supra note 260, at 57.
295. See AAP 1995 brochure, supra note 257 (listing the purchasing terms for the brochure).
296. See American Academy of Pediatrics, Periodic Survey #37: Attitudes and Experiences Regarding Counseling on Circumcision (visited Jan. 23, 2000) 〈http://www.aap.org/research/ ps37exs1.htm〉 (outlining the results of a recent survey of physician attitudes and experiences, without examining the influence of AAP material either supplied by physicians to parents or obtained by parents directly).
297. AAP 1995 brochure, supra note 257.
298. See THOMAS J. RITTER, M.D., SAY NO TO CIRCUMCISION 25-1 (1992) (noting that circumcision is performed in Judaism strictly for religious reasons); see also supra Parts I(E)-(F), and II(D)-(F) (delineating risks of circumcision and why parents must carefully consider their choice).
299. AAP 1995 brochure, supra note 257.
300. See RITTER, supra note 275, at 16-1 (comparing the number of countries that do and do not perform routine "medical" circumcisions).
301. AAP 1995 brochure, supra note 257.
302. Cf. RITTER, supra note 275, at 21-1 (citing a National Center for Health Statistics report that the 1990 U.S. rate of circumcision was dropping to 59%).
303. AAP 1995 brochure, supra note 257.
304. See supra Parts I(E)-(G) (citing to material explaining circumcision's potential for harm versus the alternative of not circumcising and its lack of proven risk).
305. See Doctors Opposing Circumcision (visited Jan. 27, 1999) 〈http://faculty.washington. edu/gcd/DOC/〉 (delineating the views of the organization); Nurses For the Rights of the Child (visited Jan. 27, 1999) 〈http://www.cirp.org/nrc/#Picture〉 (outlining the activities of this organization); Betty Katz Sperlich et al., R.N. Conscientious Objectors to Infant Circumcision: A Model for Nurse Empowerment (visited Jan. 27, 1999) 〈http://www.cirp.org/nrc/ R.N._Conscientious_Objecto.html〉 (relating the fact that in 1995 the Registered Nurses Association of British Columbia passed a resolution condemning routine circumcision and that, through mediation, about half (24) of the Maternal-Child nursing staff at St. Vincent's Hospital in Santa Fe, New Mexico, won conscientious objector status to routine circumcision from the hospital, thus exempting them from being present during a circumcision); see also National Organization of Circumcision Information Centers (visited Jan. 27, 1999) 〈http://nocirc.org〉 (providing the organization's mission statement and information about circumcision).
306. Compare N.N.V. v. Am. Ass'n of Blood Banks, 89 Cal. Rptr. 2d 885, 892-93 (Cal. App. 4th 1999) (relating the facts surrounding N.N.V.'s surgery and use of HIV contaminated donor blood), with Snyder v. Am. Ass'n of Blood Banks, 676 A.2d 1036, 1038 (relating the facts surrounding Snyder's surgery and use of HIV contaminated donor blood).
307. See N.N. V., 89 Cal. Rptr. 2d at 892-93 (relating the facts surrounding the surgery).
308. Id. at 893.
309. Id. at 909.
310. Id. at 910-11.
311. Id. at 896.
312. N.N.V., 89 Cal. Rptr. 2d at 896.
313. See id. at 898 (recasting the factual basis for the plaintiff's claim).
314. See id. (listing the procedures and tests which the plaintiff claimed the AABB should have used to screen the blood supply).
315. See id. at 899 (finding no studies to support either screening method).
316. See Snyder v. Am. Ass'n of Blood Banks, 676 A.2d 1036, 1041-48 (N.J. 1996) (detailing at length the history of the scientific research and debate over AIDS, blood products, and surrogate testing up through August 23, 1984); see also N.N.V., 89 Cal. Rptr. 2d at 890-92 (relating a similar history through December 6, 1984).
317. See Snyder, 676 A.2d at 1044-46. (quoting the testimony of Dr. Donald Francis of the CDC AIDS Task Force). Dr. Francis perceived the AABB's resistance to surrogate testing, and to the acknowledgment of blood a medium for AIDS, as "ridiculous" and "alarming". Id. at 1045. The court's opinion also took note of internal AABB memos authored by Dr. Joseph Bove, chairman of the AABB Committee on Transfusion Transmitted Disease, one of which warned that "additional transfusion related cases . . . [of AIDS] will surface." Id. at 1046.
318. Compare id. at 1049 (ruling that "ample evidence supported the conclusion that blood transmitted the AIDS virus"), with N.N.V. v. Am. Ass'n of Blood Banks, 89 Cal. Rptr. 2d 885, 910 (Cal. App. 4th 1999) (finding that conflicting evidence did not make it reasonably foreseeable to the AABB that surrogate testing of blood would have lessened the transmission of AIDS).
319. See N.N.V., 89 Cal. Rptr. 2d at 900-01 (ruling that N.N.V. had only engaged in the assumption, without evidence, that these procedures would have shielded him from AIDS).
320. Id.
321. Id.
322. See AAP 1999, supra note 19, at 687-88 (noting that the Gomco clamp, the Mogen clamp, and the Plastibell device are all commonly used, and not mentioning any concern over differences in these devices, only concern that the persons using each be skilled); AAP 1989, supra note 3, at 389 ("Clamp techniques (e.g., Gomco or Mogen clamps) or a Plastibell give equally good results."); id. (citing also to Gee & Ansell, supra note 98, at 827, for a lack of meaningful difference in complication rates between the two devices); see also RITTER, supra note 275, at § 2-4 (focusing on the harm of circumcision regardless of the device used).
323. N.N.V., 89 Cal. Rptr. 2d at 901.
324. See id. at 902 ("We conclude the AABB conduct in recommending against direct questioning, directed donations and surrogate testing warrants no moral blame.").
325. See id. (finding the mere existence of a debate among scientists, especially when the defendant represented the majority opinion at the time, sufficient to negate an objective of preventing future harm); id. at 903 (finding the burden of litigation too onerous to place upon the AABB for making the wrong decision in a debate among scientists).
326. Id. at 904 (quoting Osborn v. Irwin Mem. Blood Bank, 7 Cal. Rptr. 2d 101, 125(1992)).
327. See N.N.V., 89 Cal. Rptr. 2d at 901 (quoting the brief of appellant N.N.V.: "Rather than institute measures to protect patients, . . . the AABB elected to pursue a course of action to merely diminish the perception of the danger of AIDS and reduce questioning about the safety of the blood supply.").
328. 509 U.S. 579, 595 n.11 (1993) (finding FED. R. EVID. 702 applicable to established as well as novel scientific techniques).
329. See N.N.V., 89 Cal. Rptr. 2d at 903 ("[A]n expert is not permitted to 'second guess an entire profession' as to what the standard of care should have been."). But see supra notes 210-12 and accompanying text (allowing challenges to the standard of care of an entire profession).
330. See N.N.V., 89 Cal. Rptr. 2d at 909 (choosing to address the issue of a breach of the standard of care only after already ruling that the AABB owed no duty of care to N.N.V.).
331. Id. at 909-10.
332. See infra Part III(F) (presenting evidence that motivations other than the health of infant boys have influenced the AAP circumcsion task forces and pro-circumcision researchers).
333. See N.N.V., 89 Cal. Rptr. 2d at 917 (Amos, J., concurring and dissenting) (concurring that the AABB did not breach a duty of care, but dissenting with the majority's finding that no standard of care should apply to the AABB in this case).
334. See id. at 917 (Amos, J., concurring and dissenting) (extrapolating a hypothetical result under the majority's refusal to impose a duty of care).
335. Id.
336. See Hugh C. Thompson, supra note 12, at 940 (exposing the internal conflict that occurred on the committee). Thompson wrote: The ad hoc committee was sharply divided in its opinions, and the resulting statement was a compromise that stated there was "no absolute medical indication for routine circumcision of the newborn." The words absolute and routine were meant to convey a different impression from the conclusion of the [1971] AAP Committee on the Fetus and the Newborn. Id.
337. See AAP 1975 report, supra note 10, at 611 (1975) ("There is no absolute medical indication for routine circumcision of the newborn. . . . Therefore, circumcision of the male neonate cannot be considered an essential component of adequate total health care.").
338. Dr. Schoen crafted this poem as follows: Ode to the Circumcised Male We have a new topic to heat up our passions - the foreskin is currently top of the fashions. If you're the new son of a Berkeley professor, your genital skin will be greater, not lesser. For if you've been circ'ed or are Moslem or Jewish, you're outside the mode; you are old-ish not new-ish. You have broken the latest society rules; you may never get into the finest of schools. Noncircumcised males are the "genital chic" - if your foreskin is gone, you are now up the creek. It's a great work of art like the statue of Venus, if you're wearing a hat on the head of your penis. When you gaze through a looking glass, don't think of Alice; don't rue that you suffered a rape of your phallus. Just hope that one day you can say with a smile that your glans ain't passe; it will rise up in style. Id. Edgar J. Schoen, Letter to the Editor, 141 AM. J. DISEASES CHILDREN 128 (1987).
339. See id. (using labels and terms such as "Berkeley professor," "society rules," "genital chic"). Dr. Schoen seems ignorant of the fact that, considering the lack of a solid medical foundation for performing circumcision, if anything could be termed a fashion, it would be the alteration of infant male genitalia to suit the cultural (i.e. cosmetic) tastes of many American parents. He seems further ignorant of the fact that if there is now a cultural preference for circumcision among parents in the United States, it is largely the result of decades of erroneous assurances of medical justifications disseminated to the public by the medical profession. This is an error that his poem and his chairmanship of the 1989 AAP task force have perpetuated.
340. See generally supra Part I (explaining how the 1989 AAP task force omitted findings and used sentence structure in an apparent effort to obscure results that questioned the utility of circumcision).
341. John D. Ayres, The Use and Abuse of Medical Practice Guidelines, 15 J. LEGAL MED. 421, 436 (1994).
342. Id. at 442.
343. Id. at 438.
344. Betsy A. Lehman, The Age - Old Question of Circumcision, BOSTON GLOBE, June 22, 1987, at 41 (quoting Dr. Wiswell).
345. See supra notes 201-06 and accompanying text (discussing ethical considerations in general and as applied to female genital mutilation).
346. See supra note 281 and accompanying text.
347. See Attorneys for the Rights of the Child (visited Jan. 27, 1999) 〈http://www.noharmm.org/ARC.htm〉 (presenting the views of this organization).
348. See id. (presenting legal strategies for the organization and legal practitioners willing to take on circumcision medical malpractice cases against individual physicians and hospitals); see also Chessler, supra note 202, at 573-75 (drawing similarities between the cultural justifications given for female genital alterations in other countries and those given for infant male circumcision in this country). The author then proposes constitutional and international human rights legal attacks upon physicians and hospitals for any alteration of any child's genitals and analyzes the potential utility of each. Id. at 586-603.
349. See Llewellyn, supra note 74 (relating the story of the $65,000 award of total damages for the removal of a baby boy's foreskin without the consent of his parents).
350. Id.