From "The Ethical Canary" by Margaret Somerville
1: Benefits and risks
A common error made by those who want to justify infant male circumcision on the basis of medical benefits is that they believe that as long as some such benefits are present, circumcision can be justified as therapeutic, in the sense of preventive health care. This is not correct. A medical-benefits or "therapeutic" justification requires that overall the medical benefits sought outweigh the risks and harms of the procedure required to obtain them, that this procedure is the only reasonable way to obtain these benefits, and that these benefits are necessary to the well-being of the child. None of these conditions is fulfilled for routine infant male circumcision. If we view a child's foreskin as having a valid function, we are no more justified in amputating it than any other part of the child's body unless the operation is medically required treatment and the least harmful way to provide that treatment.
2: With no pressing medical need, the parents' choice?
There has been some confusion about the ethical and legal effect of this lack of a medical justification for routine infant male circumcision, particularly on the part of medical associations who seem to be concerned not to speak out against the practice. For instance, the American Academy of Pediatrics recognizes that the potential medical benefits of this procedure do not outweigh its risks to a degree that it can be recommended to parents as a routine procedure. But they then conclude that the decision about circumcision should be left to the parents in consultation with their physician. In my opinion, this conclusion is wrong both ethically and legally. Unless the potential and actual medical benefits of a surgical intervention on a child unable to consent for himself clearly outweigh its risks (and the academy has found that in the case of routine circumcision they do not), then it cannot be ethically or legally justified just on the basis of the parents' consent and, therefore, the physician must not undertake it unless he or she has some other justification for doing so. The question therefore is how should we balance respect for baby boys' rights to physical integrity and parents' responsibilities and rights with regard to their children and to their freedom of conscience and religion?
3: Resistance to new ideas
It is very difficult to believe that a person, especially a physician, could understand the new knowledge about circumcision and believe that it did little or no harm to the baby boys on whom it is carried out. And yet my experience has been that many physicians, especially those who are older and have performed very large numbers of circumcisions, are unwilling to accept this evidence or, it seems, even to give it open-minded consideration. In by far the majority of cases, this resistance is not connected with physicians' own religious beliefs, although it could, of course, be connected with concern that recognizing the harms involved in infant male circumcision could interfere with others' religious beliefs or traditional or cultural practices.
4: Sex discrimination
Under the Canadian Charter of Rights and Freedoms as is true under most codes of human rights discrimination on the basis of sex is prohibited. Legislatures must not pass laws that protect people of one sex but not the other when both are in similar situations. People who oppose infant male circumcision argue that the provision in the Canadian Criminal Code that specifically prohibits genital mutilation only on females is discriminatory in that it protects the "right to security of the person" of girls but not of boys and that this failure to protect boys is unconstitutional.
5: Legal liability
Physicians who undertake infant male circumcision could be legally liable for medical malpractice (civil liability in battery or negligence), which can result in an award of damages simply for carrying out the circumcision even if it was competently performed. They could also, as explained, be charged with criminal liability for assault. In both ethics and law, a physician has a primary obligation of personal care to the patient. This obligation requires the physician both to place the patient first and to first do no harm. Physicians who undertake surgery on patients must prove that it is justified. The usual justification is that the surgery is necessary therapy and that the patient or if incompetent, the patientís legal representative gave informed consent to the surgery. In general, parents cannot authorize non-therapeutic interventions that is, routine circumcision on their children. A competent adult man could consent to non-therapeutic circumcision on himself, but this does not mean he may consent to it on his son. If the parents' consent to the circumcision of their son was held to be legally inoperative, the physician would be liable.
Moreover, if, in the light of new medical evidence, a reasonably careful and competent physician would not consider it medically necessary to undertake circumcision on a child, to do so could result in legal liability regardless of the parents' consent. Such liability is even more likely if a reasonably careful and competent physician would consider it not just unnecessary but contrary to a reasonable standard of medical care to undertake circumcision on a particular child in given circumstances. A long-recognized example of such a situation is when the child suffers from haemophilia, a condition that could cause him to bleed to death from circumcision. But as our knowledge of the risks and harms of circumcision expands, the range of circumstances in which undertaking routine circumcision on any child is a breach of a reasonable standard of medical care also expands. To summarize, it seems to me clear that, certainly outside the religious context, recent medical research on routine infant male circumcision shows that this operation cannot be ethically or legally justified on the basis of its potential medical benefits.
[And possibly within the religious context...]
6: The law and religious circumcision
The assault provisions in the current [Canadian] Criminal Code could be used to stop infant male circumcision, but this route is probably neither the most ethical nor the most effective way to approach a situation that involves long-standing, deeply held social, cultural and religious beliefs. In particular, we have to start from a basis of deep respect for religious belief and a requirement of very strong justification for any interference with the expression of this belief.
[It is at least debatable whether that should be our starting point. Who decides what is a religious belief? Not all religious beliefs especially other people's are worthy of respect. Devil worship, human sacrifice and many another are self-evidently not. We do not hesitate to interfere with the expression of religious belief when it harms children in more obvious ways.]
From The Ethical Canary:
Science, Society and the Human Spirit
by Margaret Somerville.
Toronto, 2000: Viking
(published by the Penguin Group)
Hardcover 344 pages
Available online from Chapters:
(Sale price: Can$23.79, about US$16)
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From the Convocation Spring 96:
Dr. Margaret Somerville is the director of the McGill Centre of Medicine, Ethics and Law. She holds professorships in both the Faculty of Law and the Faculty of Medicine at McGill University, Montreal. She is Gale Professor of Law (as such, she is the first woman in Canada to hold a named Chair in Law) and the founding director of the McGill Centre for Medicine, Ethics and Law. She plays an active role in the world-wide development of bioethics and the study of the wider legal and ethical aspects of medicine and science. Professor Somerville has a background in science as well as in law. She graduated with distinction in pharmacy from the University of Adelaide, Australia (1963); in law, with First Class Honours and the University Medal from the University of Sydney, Australia (1973) and was awarded a Doctorate in Civil Law by McGill University (1978). She has received honorary doctorates in law from the University of Windsor, Ontario, and Macquarie University, Sydney, Australia. She was elected a Fellow of the Royal Society of Canada. She is the recipient of many honours and awards including the Distinguished Service Award of the American Society of Law and Medicine; the Pax Orbis ex Jure Gold Medal of the World Jurist Association for support and dedication to the cause of world peace through law and the Order of Australia awarded in recognition of her international contribution to law and bioethics. Professor Somerville has an extensive publishing and speaking record. She is a consultant to governments and non-government bodies. She is currently chairperson of the National Research Council of Canada Ethics Committee, a member of the Board of Directors of the Canadian Centre for Drug-Free Sport and of the American Society of Law, Medicine and Ethics.