Is circumcision legal? Does it matter?

Does the law protect the right of every adult, child, or infant to bodily integrity?

There is mounting evidence that this is so, has been argued by Mike Buchanan of Justice for Men and Boys, and now also by Peter Adler’s “Is Circumcision Legal?”

To answer the question, I’ll discuss Adler’s work and also discuss aspects of the well-known Chase Heronimus lawsuit to prevent the forced circumcision of 4 yr. old Chase against his mother’s will.

First, an excerpt from “Is Circumcision Legal?,” italics mine:

Origins of circumcision

Almost all mammals have foreskins. The male and female genitalia,
which are identical in early gestation, have evolved to function together
during sexual intercourse over sixty-five to one hundred million years.
Male and female circumcisions have been practiced for thousands of
years, usually for religious, cultural, and personal reasons. Male
circumcision has been performed as a religious ritual, a painful obligatory
rite of passage, to mark or brand slaves and members of religious or tribal
groups, and to suppress sexuality. American physicians introduced the practice in the late 1800s in an unsuccessful effort to prevent masturbation. For the following century, American physicians claimed that circumcision prevented or cured a long list of diseases such as epilepsy, paralysis, hip-joint disease, bad digestion, inflammation of the bladder, and tuberculosis; in fact, an uncircumcised penis was “seen as the cause of most human diseases and socially unacceptable behaviours.”

Legal Issues

The fact that circumcision is commonplace, asserted by proponents of
circumcision in legal briefs, is not in and of itself a valid legal argument.
Slavery was once commonplace, as was drilling holes in the brain to cure
epilepsy and mental disorders, the use of leeches to remove blood, and
the use of unsterile instruments in surgery. In addition, even if
circumcision has potential or actual medical benefits (which is debated), it
does not necessarily follow that it is a legal practice. Removing any body
part, if removed to prevent it from becoming diseased, would be medically
beneficial, yet this would not justify amputating a leg, for example, to
prevent an infection that could be treated with antibiotics. Physicians do
not routinely remove healthy body parts from children other than the male
foreskin. The fact that there is legislation against cutting girls’
genitals but not boys’ genitals also does not resolve whether or not male
circumcision is legal.

Circumcision raises one principal issue for its opponents: do boys, like
girls, have a right to genital integrity, and, if so, where is the right found?
The surgery raises many troublesome legal issues for proponents. Is
invasive surgery on boys’ genitals legal when cutting girls’ genitals is a
federal crime? How can it be legal to remove boys’ foreskins to reduce
the risk of penile cancer, but not girls’ breasts, which are many times
more likely to become cancerous? Can physicians lawfully endanger and
harm boys without benefiting most of them? Do physicians have the right
to operate on healthy boys, against their own recommendation, at the
request of parents for reasons having nothing to do with medicine,
usually without fully informing parents of the risks? Is it lawful to
circumcise healthy boys when intact men rarely choose it for
themselves? Do parents have the right to make the circumcision decision
for religious reasons or any reason?

Wow. Here we get to the heart of the matter:

Do Boys Have a Right to Genital Integrity?

The question should be stated more broadly: does every American
citizen – whether young or old, male or female – have a right to personal
security or bodily integrity and hence to genital integrity? If boys do not,
adults and girls do not, either. Congress stated in banning non-therapeutic
female genital cutting that it “infringes upon the guarantees of rights
secured by Federal and State law, both statutory and constitutional.”

What are those laws?

The Common Law

In 1791, the United States passed a constitutional amendment that
adopted British common law. The first chapter of Blackstone’s
Commentaries, “Of the Absolute Rights of Persons,” states that the rights of
the people are to be preserved inviolate.

a. The Right to Personal Security

The principal purpose of the law, Blackstone wrote, is to protect the right
of all people to personal security:

1. The right of personal security consists in a person’s legal and
uninterrupted enjoyment of his life, his limbs, his body, his health… 2.
[Man’s rights] include a prohibition not only of killing, and maiming, but
also of torturing… and… no man shall be forejudged of life or limb contrary
to… the law of the land…. 3. [A man’s] person or body is also entitled, by
the same natural right, to security from the corporal insults of menaces,
assaults, beating, and wounding; though such insults amount not to
destruction of life or member. 4. The preservation of a man’s health from
such practices as may prejudice or annoy it.”

From “Constitutional Law:”

The Bill of Rights to the United States Constitution was adopted to
protect individuals. As the Supreme Court has stated, “[c]onstitutional
rights do not mature and come into being magically only when one attains
the state-defined age of majority. Minors, as well as adults, are protected
by the Constitution and possess constitutional rights.” Constitutional
rights are “fundamental” and “may not be submitted to vote.”
Accordingly, legislation that violates constitutional rights is legally
invalid. Since Congress found non-therapeutic female genital cutting to
violate girls’ federal and state constitutional rights, what are the rights to
which the Supreme Court was referring? It should be asked first, though, whether boys have a right to the same protection against genital cutting as girls?

Which brings us to “The Right to Equal Protection:”

Shea Lita Bond addressed this issue in her 1999 article, State Laws
Criminalizing Female Circumcision: A Violation of the Equal Protection
Clause of the Fourteenth Amendment. Congress and sixteen states have
banned female genital cutting except when medically necessary. The
American Academy of Pediatrics briefly recommended that its physicians
perform a ritual pinprick of a girl’s genitals if that might prevent more
harmful genital cutting, even though this would have violated federal
law. This ignited a storm of protest, and the policy was quickly
retired. Thus, even a pinprick of girls’ genitals is a federal crime.
Physicians likewise cannot cut adults’ genitals without their consent (an
adult subjected to this could use force in self-defense, call the police, or
successfully bring suit).
The Fourteenth Amendment to the United States Constitution prohibits
states from enforcing laws that “deny to any person… equal protection of
the laws”. State constitutions also contain equal protection clauses.
Bond concluded in her article that state statutes protecting females but not
males from genital cutting violate the constitutional guarantee that similarly
situated males and females should be treated equally before the law

The essence of these legal protections, whether in the Constitution or Common Law, is that by law, the state protects bodily integrity from involuntary injury by others such as stabbing, shooting, assault, or amputation, and if those rights are granted to infant girls, they must also be granted to infant boys.

Go to “Is Circumcision Legal?” to get the legal analysis of these other insightful topics:

The Right to Privacy

The Right to Life, Liberty, Property, and the Pursuit of Happiness

The Right to Freedom of Religion

The Child Abuse Statutes

Criminal Assault

Human Rights law

Do Physicians Have the Legal Right to Circumcise Healthy Boys?

Physicians Cannot Discriminate Against Boys

Physicians Cannot Lawfully Operate on Healthy Boys

Healthy Boys Are Not Patients

Circumcision Is Not Within the Scope of Medicine

Unnecessary Surgery on Children Is Unlawful

Physicians Cannot Endanger or Harm Boys Unnecessarily

A Physician’s Legal Duty Is to the Patient

Circumcision Violates the Best Interests Rule

Is Circumcision a Fraud and an Unfair and Deceptive Act and
Practice?

Do Parents Have the Right to Make the Circumcision Decision?

Boys’ Rights to Genital Integrity Supersede Their Parents’ Rights

Parents Have a Legal Duty to Protect Their Children From Harm

Parents Have No Religious or Other Right to Order Circumcision

Parents Can Only Consent to Medical Care
Just as physicians cannot perform unnecessary surgery on children,
parents cannot consent to it. In 1979, a Texas appeals court considered
whether parents could consent to remove and transplant a kidney from a
daughter to a son to save his life, and held that they could not.

Is It Lawful to Use Medicaid to Pay For Circumcision?

Is It Lawful For Companies to Buy and Sell Boys’ Foreskins?

So, what can be done, and what are our goals? Under “Remedies”, we see:

Rights

As shown, circumcision violates the rules of medical ethics and
numerous provisions of law. Boys and men are entitled to full redress.
First, as the American Medical Association has stated, regulatory agencies
are required to take allegations of unethical conduct very seriously.
Unnecessary surgery on children is a serious ethical violation.
Physicians who circumcise should lose their licenses to practice medicine.
Second, the federal and state child abuse statutes protecting children from
harm and the criminal assault laws must be enforced. The penalty for
violating these laws is imprisonment. Third, the federal and state statutes
protecting girls from non-therapeutic circumcision must be extended to boys.

Reality
The reality is that regulatory, criminal, administrative, and legislative
remedies have not been forthcoming for properly performed circumcision.
Newborn boys cannot speak or vote, while physicians’ associations and
religious organizations can (and do) lobby legislators, contribute to
campaigns, and put pressure on Medicaid officials. 

CONCLUSION
This article has addressed whether circumcision is legal, and has shown
that it is not. To summarize the law, boys, like girls and adults, have
absolute rights under the common law to personal security and bodily
integrity, and to freedom or the autonomy to make important and
irreversible decisions about their bodies that can be delayed, like
circumcision, for themselves. It is unconstitutional to protect girls from
unnecessary genital cutting without extending equal protection of the law to
boys. In addition, boys and girls are protected from circumcision by the
criminal child abuse statutes, tort law, and human rights law.
One therefore does not reach the argument that physicians have the right
to circumcise boys for religious, cultural, or personal reason, but if one did,
it does not pass the blush test. A physician’s legal duty is to provide
competent medical care to pediatric patients independent of their parents’
desires. Thus, physicians cannot take orders from parents to operate on
children for reasons having nothing to do with medicine.

A famous case of forced circumcision involved 4 yr. old Chase Hironimus whose father sought to have him circumcised against the wishes of his mother and himself. Tragically, he was eventually circumcised by a foreign doctor.

The lawsuit to prevent this forced circumcision highlights all the human rights that are involved and how they apply to baby boys. I’ve included portions of the lawsuit to show how the case was built to protect Chase and other infants like him. These excerpts are rich in legal, physical, and ethical reasons not to circumcise:

10. C.R.N.H. was born on October 31, 2010 and is now approximately 4 ½ years old.
12. C.R.N.H. expressed that he does not want circumcision.
13. C.R.N.H. expressed that he is afraid of circumcision.
14. C.R.N.H. is in constant fear of circumcision being forced upon him pursuant to
the court’s order.
15. C.R.N.H. does not have any medical condition that would make circumcision
medically necessary.
16. Under the circumstances of this case, circumcision is not medically necessary.
17. Under the circumstances of this case, circumcision is non-therapeutic, elective,
cosmetic surgery.
18. Under the circumstances of this case, circumcision is invasive, irreversible,
painful, and will cause C.R.N.H physical and psychological harm.
19. Under the circumstances of this case, circumcision results in permanent physical
alteration of one of C.R.N.H.’s most private body parts at an age when C.R.N.H. is aware of
what his body looks like and will be traumatized by it.
20. Circumcision at C.R.N.H.’s age results in the loss and/or disfigurement of a
normal, healthy, functional, valuable body part.
21. Circumcision at C.R.N.H.’s age will result in severe and permanent psychological
damage.
22. Circumcision at C.R.N.H.’s age does not provide medical benefits.

26. Under the circumstances of this case, circumcision is not “medical treatment”
because there is no diagnosis of any condition which would make it medically necessary.

34. There is no compelling, important, or legitimate reason why the procedure cannot be postponed until C.R.N.H. reaches the age of 18 and can seek to have it performed upon himself if he so desires at that time.

38. The American Academy of Pediatrics’ Bioethics Committee has declared that a
minor’s input into surgical decisions must be heard and considered.

43. Under the circumstances of this case, forcing circumcision on C.R.N.H.
constitutes assault, aggravated assault, battery, aggravated battery, and/or child abuse under
Florida law.

56. Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress…

59. Defendants’ application of Florida law to impose unnecessary, elective, cosmetic
circumcision upon C.R.N.H. at the age of 4 ½ years old for no religious reason violates
C.R.N.H.’s fundamental right to privacy and bodily integrity secured by the Due Process Clause
of the Fourteenth Amendment to the United States Constitution.

60. Defendants’ application of Florida law to impose unnecessary, elective, cosmetic
circumcision upon C.R.N.H. at the age of 4 ½ years old for no religious reason violates the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution, in that it sets
out impermissible classifications. First, Title 18 United States Code section 116 prohibits female
circumcision and C.R.N.H. has been impermissibly denied equal protection under this law
because of his age and gender.

63. Defendants have conspired to deprive C.R.N.H. of equal protection of the laws
and equal privileges and immunities guaranteed by the Constitution and laws of the United States
by force, intimidation and threats.

As thorough and legally sound as this is, this lawsuit failed, as do many seemingly open-and-shut cases of obvious human rights violations. Why?

Some things are slow to change because they are so ingrained in us and the law that they have powerful opponents, like abortion, legalizing pot, men’s reproductive rights, circumcision, and drafting women. “No-brainers” such as civil rights and anti-FGM were more easily won.

As in the tale “The Emperor’s New Clothes,” it seems that we ultimately say and do what others are doing without regard for the law, ethics, or common sense. Just as “The Milgram Experiment” found, people generally go along with what authority or those with ‘white coats’ do and say.

You may say ‘so what if it’s illegal, no one seems to care,’ and you’d be right.

Unless a precedent-setting legal case makes clear that circumcision is illegal, it doesn’t seem to matter to doctors, hospitals and anyone else what the Constitution and human rights law say about it – this still goes on.

So, if the law won’t stop it, it’s up to intactivists and the public to talk about the elephant in the room.

Join an intactivist group and protest.  

Tell friends and family about the human right to genital integrity and ask if they’d have a baby girl cut.

Phrase questions to expectant parents something like “will you keep your son intact?”

Sorry, but politeness and avoiding uncomfortable conversation is trumped by protecting the life and human rights of vulnerable infants.

In closing, here’s part of Adler’s conclusion that sums up our dilemma:

Circumcision, one of the most common surgeries in American hospitals,
will continue until public opinion has turned completely against it, or until courts rule, as in Germany, that circumcision is unlawful. The constitutional right of access to the courts guarantees every American speedy, adequate, effective, and meaningful judicial remedies. Judges
are sworn to uphold the Constitution and to grant those remedies. The 2012
German decision, this article, and those it cites, provide a blueprint for
courts to hold physicians, hospitals, and parents liable to men for properly
performed circumcisions.

 

Gary Costanza

Gary Costanza

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