Older minors and circumcision: Questioning the limits of religious actions

Medical Law International

Volumn 9, Issue 4, 2008, Pages 283-310

  Fox, Marie ^a   Thomson, Michael ^a  

^a KEELE UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 62749139511     PISSN: 09685332     EISSN: None     Source Type: Journal    
DOI: 10.1177/096853320800900402     Document Type: Article

References (134)

1. Re J (Specific Issue Orders: Muslim Upbringing & Circumcision) [1999] 2 FLR 678 [Family Division];
2. Re J (A Minor) (Prohibited Steps Order: Circumcision), sub nom Re J (Child's Religious Upbringing and Circumcision) and Re J (Specific Issue Orders: Muslim Upbringing & Circumcision) [2000] 1 FLR 571 [Court of Appeal];
3. Re S (Specific Issue Order: Religion: Circumcision) [2005] 1 FLR 236 [Family Division];
4. S (Children) [2004] EWCA Civ 1257 [CA].
5. per Butler Sloss P in Re J [CA] id at 577.
6. British Medical Association, The Law and Ethics of Male Circumcision: Guidance for Doctors (London: BMA, 2006) (unpaginated) available at www.bma.org.uk/ap.nsf/Content/matecircumcision2006 (last accessed 19 August 2008).
7. Ibid. Id.
8. M. Fox and M. Thomson 'A Covenant with the Status Quo?: Male Circumcision and the new BMA Guidance to Doctors', (2005) 31 Journal of Medical Ethics 463-9;
9. 'Short Changed? The Law and Ethics of Male Circumcision', (2005) 13 International Journal of Children's Rights 161-81;
10. 'Reconsidering 'best interests': male circumcision and the rights of the child' in M. Milos (ed) Human Rights and Circumcision (Springer, 2008).
11. S. Colb, 'Divorce, Religion, and Circumcision: What A Conflict Tells Us About Parental Rights' Find law: Legal News and Commentary, 28 November 2007 (unpaginated).
12. See S. Elliston, The Best Interests of the Child in Healthcare (London: Routledge-Cavendish, 2007).
13. See D. Buss, 'The Christian Right and the International Rights of the Child' in J. Bridgeman & D. Monk (eds) Feminist Perspectives on Child Law (London: Cavendish, 2000) for the argument that the US failure to sign this document has been motivated in part by Christian Right fears that it will undermine parental rights by allowing the state (or the UN) to intervene in families, thereby undermining parental rights, as well as by broader concerns regarding threats to US sovereignty.
14. per Wall J in Re J [FD] supra. n. 1 at 699.
15. Id at 697.
16. Id. at 688..
17. Boldt and Boldt, 344 Ore. 1; 176 P.3d 388 (2008).
18. S. Gey, 'Why is Religion Special?: Reconsidering the Accommodation of Religion under the Religion Clauses of the First Amendment?' (1990) 52 University of Pittsburgh Law Review 1549-95.
19. For a consideration of legal responses to bodily interventions and embodied choices see R. Fletcher, M. Fox and J. McCandless, 'Legal Embodiment: Analysing the Body of Healthcare Law' (2008) 16 Medical Law Review 321-45.
20. We shall argue below that the decision to circumcise may differ in significant ways from other contexts, such as organ transplantation, blood donation or sterilisation, in which English courts have, at least to a limited extent, confronted the older child's right to decide for him or herself.
21. P. Alderson, 'Who Should Decide and How?' in E. Parens (ed) Surgically Shaping Children: Technology, Ethics and the Pursuit of Normality (Baltimore: John Hopkins University Press, 2006), 157-175, at 157.
22. Boldt, supra n. 12 at 391.
23. Id at 393.
24. Id.
25. Id at 394.
26. Id.
27. A.S. Green, 'U.S. Supreme Court rejects Oregon's circumcision, abortion cases' The Oregonian 7 October 2008. Both petitions are on file with the authors.
28. See, for instance, Newdow v. United States Congress, Elk Grove Unified School District, et al, 542 U.S. 1 (2004).
29. See note 27 below for an indication of the reasoning underpinning disputed health choices, which seems to indicate that this failure to consult Misha may be characteristic of the practice in US courts.
30. On the central value of autonomy see, for instance, M. Brazier, 'Do no harm - do patients have responsibilities too?' (2006) Cambridge Law Journal 397-422;
31. D. Morgan, 'Where Do I Own My Body and How' in his Issues in Medical Law (London: Cavendish, 2001) 83-104.
32. See D. Buss, "How the UN Stole Childhood': The Christian Right and the International Rights of the Child' in J. Bridgeman & D. Monk (eds) Feminist Perspectives on Child Law (London: Cavendish, 2000) 271-94.
33. J.D. v. Vaughan Clinic, P.C. 572 So. 2d 1225 (Ala., 1990).
34. Dicta to similar effect are to be found in Feldman v. Feldman 378 NJ Super 83, 874 A2d 606 (2005) at 611
35. and Bencomo v. Bencomo 112 Ha 511, 147 P3d 67 (2006) at 72. Unsurprisingly these authorities are relied on by the father in Boldt in his petition to the US Supreme Court.
36. Supra n. 7 at 75.
37. The landmark House of Lords ruling in Gillick v. West Norfolk and Wisbeck Area Health Authority [1985] 3 All ER 402 held that parental rights to decide should yield to the rights of a child who possessed sufficient maturity and understanding to appreciate the implications of the decision.
38. per Lord Scarman in Gillick, id at 424.
39. Id at 423.
40. S. Lee, 'Towards a Jurisprudence of Consent' in J. Bell and J. Eekelaar (eds) Oxford Essays in Jurisprudence 3rd Series (Oxford: OUP, 1987).
41. On the test for adults see s.1 Mental Capacity Act 2005.
42. Re R (A Minor)(Wardship: Medical Treatment) [19921 1 F.L.R. 190;
43. Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1992] 2 F.C.R. 785;
44. South Glamorgan County Council v. W and B [1993] 1 F.L.R.;
45. Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 F.L.R. 386;
46. Re S (A Minor) Medical Treatment) [1994] 2 F.L.R. 1065;
47. Re L (Medical Treatment: Gillick Competency) [1998] 2 EL.R 810
48. Re M (child: refusal of medical treatment) [1999] 2 F.C.R. 577;
49. Re P (Medical Treatment: Best Interests) [2004] 2 F.L.R. 1117.
50. For discussion of the retreat from Gillick and limits to the parental power to consent see J. McHale and M. Fox, Healthcare Law: Text and Materials 2nd edn (London: Sweet and Maxwell, 2007) at 451-77.
51. M. Freeman, 'Re-thinking Gillick' (2005) 13 International Journal of the Rights of the Child 211-17 at 211.
52. per Baron J. in Re S [FD] supra n. I at 256.
53. E.g. L. Hammond et al, Children's Decisions in Health Care and Research (London: Institute of Education, 1993).
54. P. Alderson and J. Montgomery, Health Care Choices: making decisions with children (London: Institute for Public Policy Research, 1996).
55. Re J supra n. 1.
56. Supra n. 3.
57. Re S, supra n. 1.
58. For citations supra see n. 33.
59. Re P supra n. 33 at 1120.
60. Re E, supra. n. 33 at 389.
61. M. Somerville, The Ethical Canary: Science, Society and the Human Spirit (Toronto:Viking/Penguin Canada, 2000) at p. 192 (discussing the case of Tyrell Dueck, a thirteen year old boy who was refusing chemotherapy on the basis of his Christian beliefs.)
62. Supra n. 5.
63. G.P. Miller, 'Circumcision: Cultural-Legal Analysis', (2002) 9 Virginia Journal of Social Policy and the Law 497-537 at 502-3.
64. In terms of the historically persistent claim that neonatal circumcision protects from sexually transmitted infections see N.P. Dickson, T. van Roode, P. Herbison, C. Paul, 'Circumcision and risk of sexually transmitted infections in a birth cohort' (2008) 122(3) Journal of Pediatrics 383-7. This study concluded that its findings were consistent with recent population-based cross-sectional studies in developed countries, which found that early childhood circumcision does not markedly reduce the risk of the common STIs in the general population in such countries.
65. Boldt supra n. 12 at 391.
66. Id.
67. See Miller, supra n. 46.
68. Critics of routine circumcision have noted the tendency to characterise circumcisions performed for social, cultural or religious reasons as therapeutically indicated: see, for example, R. Derby and J. S. Svoboda, 'A Rose by Any Other Name? Rethinking the Similarities and Differences between Male and Female Genital Cutting' (2007) 21 Medical Anthropology Quarterly 301-23 at 304.
69. See J. Bridgeman, 'Old Enough to Know Best?' (1993) 13 Legal Studies 69.
70. Re W and Re R, supra n. 33.
71. Supra n. 7 at 80.
72. Re B (A Minor)(Wardship: Sterilisation) [1988] 1 A.C. 199.
73. In Re P (a minor) (1981) L.G.R. 301.
74. Supra n. 3. Similarly in recently issued guidance the GMC emphasizes that [i]f you are asked to circumcise a male child, you must proceed on the basis of the child's best interest and with consent': GMC, Personal Beliefs and Medical Practice March 2008, para. 14.
75. BMA, Consent, rights and choices in health care for children and young people (London: BMJ Books, 2001).
76. The remaining relevant criteria that are listed are: • the patient's physical and emotional needs; • the risk of harm or suffering for the patient; • the views of parents and family; • the implications for the family of performing, and not performing, the procedure; • relevant information about the patient's religious or cultural background; and • the prioritizing of options which maximise the patients future opportunities and choices.
77. Attempts at foreskin restoration are enduring: see S. Gilman, Making the Body Beautiful: A Cultural History of Aesthetic Surgery (Princeton, New Jersey: Princeton University Press, 1999) at 137-44;
78. but have not proven successful: see Section 6 'Foreskin Restoration: Historical and Contemporary Considerations' in G. C. Dermiston, F. M. Hodges and M. F. Milos (eds) Male and Female Circumcision: Medical, Legal and Ethical Considerations (New York: Kluwer/Plenum, 1999).
79. The Tattooing of Minors Act 1968, s. 1
80. The Female Genital Mutilation Act 2003, s.1(1).
81. N. Sullivan, '"The Price to Pay for our Common Good": Genital Modification and the Somatechnologies of Cultural (1n)Difference' (2007) 17 Social Semiotics 395.
82. See V Groskop, 'My body is wrong' The Guardian 14 August 2008.
83. Indeed even the less invasive option of administering puberty-suppressing drugs remains highly controversial, and in the UK is not available to those under 16: S. Giordano, 'Lives in a chiaroscuro. Should we suspend the puberty of children with gender identity disorder?' (2008) 34 Journal of Medical Ethics 580-4.
84. For a discussion of the tensions that exist in legal responses to 'Female Genital Mutilation' and cosmetic genital surgery see Sullivan, supra n. 63.
85. On the inadequate regulation of cosmetic surgery more generally see M. Latham, 'The Shape of Things to Come: Feminism, Regulation and Cosmetic Surgery' (2008) 16 Medical Law Review 437-57.
86. See Consent in the Criminal Law, Consultation Paper 139 (London: Law Commission, 1995).
87. Notwithstanding the wide-ranging nature of the consultations and the considerable academic literature it spawned - see for instance, D. Ormerod and M. Gunn, 'Second Law Commission Consultation Paper on Consent: Consent - a second BashT [1996] Criminal Law Review 694-703 - no proposals for legislation in the field have emerged. In the minutes of a Law Commission meeting on 'Consent as a Defence' on 28 May 1998 it was noted that 'The responses to the consultation papers were highly polarised, particularly on the issue of consent for non-sexual offences, and no consensus emerged. Bearing in mind the matters we have already reported on, the amount of work that would be required to reach conclusions on the very difficult and sensitive issues involved and the urgency attaching to our work, we have decided that it would not be worthwhile for us to produce any further report on this topic' [copy on file with authors].
88. However it should be noted that the GMC guidance to doctors stipulates only that 'if parents cannot agree and disputes cannot be resolved informally, you should seek legal advice about whether you should apply to the court' supra n. 57, para 14.
89. While complication rates from routine circumcision are low, the chances of these complications being mutilatory, infective or haemorrhagic are high: N. Williams and L. Kapila, 'Complications of Circumcision' (1993) 80 Br.J. Surg 1231-6;
90. E.W. Gerharz and C. Haarmann, 'The first cut is the deepest? Medicolegal aspects of male circumcision' (2000) 86 BJU International 332-8.
91. Indeed, complications are potentially catastrophic, since death, gangrene, and total or partial amputation are known adverse outcomes: F.M. Hodges, J.S. Svoboda, R.S. Van Howe, 'Prophylactic interventions on children: Balancing human rights with public health' (2002) 28 Journal of Medical Ethics 10.
92. For a recent reported instance of death as a result of circumcision in the UK see S. Moyes, '7-Day-Old Died After Circumcision' Daily Mirror 15 February 2007.
93. In this regard it is interesting that advocates of neonatal male circumcision tend to argue - despite evidence to the contrary - that new-borns do not experience pain: M. Benatar and D. Benatar, 'Between Prophylaxis and Child Abuse: the Ethics of Neonatal Male Circumcision' (2003) 3 American Journal of Bioethics 35-48 at 37-8 and accompanying references;
94. F. Warnock and D. Sandrin, 'Comprehensive description of newborn distress behavior in response to acute pain (newborn male circumcision)' (2004) 107 Pain 242-55.
95. J. Dwyer, 'Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights' (1994) 82 California Law Review 1371-47, at 1377.
96. Boldt, supra n. 12 at 393.
97. Id.
98. C. D. Herrera, 'Disputes between State and Religion over Medical Treatment for Minors' (2005) 47 Journal of Church and State 823-39 at 824.
99. See e.g. Jehovah's Witnesses v. King County Hospital 390 U.S. (1968).
100. See e.g. Wisconsin v Yoder 406 U.S. 205 (1972).
101. Supra n. 74 at 823.
102. J. G. Dwyer, 'The Children We Abandon: Religious Exemption to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors' (1996) 74 North Carolina Law Review 1321 at 1322.
103. R.D. Silverman and T. May, 'Private Choice versus Public Health: Religion, Morality and Childhood Vaccination Law' (2001) 1 Margins 505-21 at 505-6.
104. In a UK context see Re C (Welfare of Child: immunisation) [2003] 2 F.L.R. 1095.
105. C. Bridge, 'Religion, Culture and the Body of the Child' in A. Bainham, et al. (eds) Body Lore and Laws (Oxford: Hart, 2002) 265-87 at 284.
106. Supra n. 78 at 1398.
107. Id at 1403.
108. In similar vein, Paula Monopoli writes that 'Children in this country [the US] are still being martyred on the alter of their parents' religious beliefs', 'Allocating the costs of parental free exercise: striking a new balance between sincere religious belief and a child's right to medical treatment' (1991) 18 Pepperdine Law Review 319-52 at 319.
109. K. O'Donovan, 'The Child as Legal Object' in Family Law Matters (London: Pluto, 1993).
110. See her 'Altering Baby Boy's Bodies: The Ethics of Infant Male Circumcision' in The Ethical Canary, op. cit. n. 44 at 202-19.
111. id at 212.
112. The law governing assault in the Canadian Criminal Code is similar in relevant respects to the definitions of assault under the Offences against the Person Act 1861, as is the prevalence of the best interests test.
113. Supra n. 85 at 212.
114. Not only are the boundaries of such exemptions difficult to police, but they have been attacked as undermining the entire principle of child welfare/protection in other contexts such as education: see Monopoli, supra n. 83.
115. Supra n. 85 at 216-7.
116. See Gey, supra. n. 13.
117. H. Gilbert, 'Time to reconsider the lawfulness of ritual male circumcision' [2007] European Human Rights Law Review 279-94 at 291.
118. See C. Zabus, Between Rites and Rights: Excision in Women's Experiential Texts and Human Contexts (California: Stanford University Press, 2007) at 35-7.
119. Alderson, supra, 16 at 157.
120. Id at 170.
121. Per Baron J. in Re S, [FD] op. cit. n.2 at 256.
122. Ibid
123. A. Domurant Dreger, 'What to expect when you have the child you weren't expecting', pp. 523-66 in E. Parens (ed) supra n. 16 at 259.
124. J. Fortin, Children's Rights and the Developing Law 2nd edition, London: Butterworths, 2005 at pp. 329-32,
125. Elliston, supra. n. 7 at pp. 98-99;
126. G. Hinchley, 'Is infant male circumcision an abuse of the rights of the child?' (2007) 335 BMJ 1180.
127. Hinchley, id;
128. R. Goldman, Questioning Circumcision: A Jewish Perspective (Boston: Vanguard Publications, 1998).
129. See for a fuller discussion, R. West, Caring for Justice (New York, New York University Press, 1997)
130. and Fox and Thomson, 'Short Changed?' Supra n. 5.
131. Alderson supra, n. 16 at 170.
132. Darby and Svoboda have argued that the 'most obvious and universally experienced harm of all [is] the deprivation off an integral, visually prominent, and erotically significant feature of the penis': supra n. 51 at 304.
133. T. Hammond, 'A preliminary poll of men circumcised in infancy or childhood' (1999) 83 (supp 1) BJU International 85.
134. See also, R. Darby and L. Cox, 'Objections of a sentimental character: The subjective dimension of foreskin loss' (2007) unpublished paper (copy on file with authors).