Circumcision and Human Rights

...the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. ...

2. A man's limbs, (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty. ...

3. Besides those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his 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....

- Commentaries on the Laws of England (1765-1769) by Sir William Blackstone

PITTSBURGH (August 5, 2002) -- At a ceremony in Pittsburgh attended by N[ational ]R[ight to ]L[ife ]C[ommittee] officials and other pro-life advocates, President Bush signed into law the Born-Alive Infants Protection Act, a bill strongly backed by NRLC.

The law guarantees that every infant born alive enjoys full legal rights under federal law, regardless of his or her stage of development or whether the live birth occurred during an abortion.

"This important legislation ensures that every infant born alive -- including an infant who survives an abortion procedure -- is considered a person under federal law," the President said before signing the bill. ...

7. (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-

...(l) the need to protect the child from any physical or psychological harm that may be caused by-

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; ...

12. (1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being. ...

(3) Genital mutilation or the circumcision of female children is prohibited. ...

(8) Circumcision of male children under the age of 16 is prohibited, except when-

(9) Circumcision of male children older than 16 may only be performed-

(10) Taking into consideration the child's age, maturity and stage of development, every male child has the right to refuse circumcision.

The Associated Press
January 6, 2004

California court rules some inmates can refuse medication

SAN FRANCISCO - California's highest court has ruled that the state cannot force some mentally ill prisoners to take anti-psychotic drugs, a decision that could let hundreds of inmates refuse treatment in limited circumstances.

The California Supreme Court's ruling said a judge - not the state - can authorize the use of drugs only after determining that the inmate is incompetent to refuse treatment and is an immediate danger to himself or others.

The ruling concerns California inmates who have done their time for criminal convictions but have been found to be mentally unfit for release to the community. Those inmates are housed at state mental institutions until they are deemed fit for return to the community.

Justice Carlos Moreno, writing for the 6-1 majority, said the 1985 law authorizing the retention of mentally disordered inmates past their release dates allows the state to administer anti-psychotics against a patient's wishes only when there is a medical emergency or when safety and lives are at risk.

While the court acknowledged the drugs can work wonders for the mentally ill, the medicine also can produce intolerable side effects, including muscle spasms, blurred vision, dry mouth, sexual dysfunction, body rigidity and tremors, among others.

"The basic constitutional and common law right to privacy and bodily integrity is therefore especially implicated by the forced administration of medications with such potential adverse consequences," Moreno wrote.

In dissent, Justice Janice Rogers Brown wrote the ruling goes against the legislative purpose of the 1985 law, which was designed to rehabilitate the mentally ill and safeguard the public. ...

MEDIA RELEASE

DECEMBER 6, 2007

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MALE CIRCUMCISION & HUMAN RIGHTS

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This week is Human Rights Week and Monday the 10th December is Human Rights Day. The Tasmanian Commissioner for Children, Mr Paul Mason, today called on the community to address directly the delicate human rights subject of male circumcision on babies and boys too young to give their own consent.

Other than for medica! reasons the Commissioner argues that to inflict permanent, irreversible, painfui and disfiguring surgery on the most private part of a boy's body when he is too srnai! to resist or understand is a pure and simple breach of his most basic human rights.

"Everyone is entitled to bodily integrity, to protection of their own body from injury by another without their consent," he said. "Everybody is entitled to choose their own religion and that can only be done when they are old enough to explore their spirituality. Everybody is entitled to equal protection before the law without discrimination on the basis of gender, culture or race. One person's human rights cannot be used to deny another person's human rights."

Parents do not have absolute rights to do whatever they like with their chfldren. The High Court of Australia has said in 1992 and since that parental authority is at a/I times subject to the best interests of the child and society reserves the right to say what that welfare requires.

We love our children, but the law requires us to educate, clothe and feed them and prohibits us from abusing, neglecting and injuring them. Recent changes to the law in Tasmania prohibit us from smoking tobacco in cars with our own children and this restriction on "parental rights" is widely accepted Parents are not allowed to cut off any other part of their children's bodies.

Mr Mason says he cannot understand why abuse and wounding children rs illegal but people are reluctant to protect babies and boys from circumcision

"Leave babies and young boys alone. If a boy grows up wanting to change his appearance for whatever reason, knowing all the risks of the surgery and the possible consequences such as desensitisation, then he has the rest of his life to do it when he is old enough. I would be the first to support him in that. It is a question of choice.'

Paul Mason
Commissioner

For further Information, contact the Commissioner for Children's office on 6233 4520.

Cruelty to children must stop. FULL STOP.

National Society for the Prevention of
Cruelty to Children

Weston House
42 Curtain Road
London EC2A 3NH

Telephone: 020 7825 2500
Fax: 020 7825 2525

Dear Supporter

Thank you for your letter regarding the NSPCC's positions in relation to infant/child circumcision in the UK and martial disputes.

Please find our position statement to on infant/child circumcision below:

The NSPCC recognises that there are sometimes compelling medical reasons for circumcising male children, although in very many cases conservative therapeutic practices are effective, carry fewer risks and are less intrusive.

When the decision has been made to circumcise an infant, we recommend that the procedure should be performed under anaesthetic in hygienic conditions, by a paediatric surgeon, a urologist or other experienced and specially trained doctor. All surgical operations carry a slight risk, associated both with the procedure and with the use of anaesthetic, which should be clearly explained to the parents.

The UN Convention on the Rights of the Child established the following rights and obligations in relation to children:

• Children should be protected from 'all forms of physical or mental violence, injury or abuse' (Article 19.2)
• States that 'Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.'(Article 24.3)

The NSPCC recognises that the circumcision of male children has deep religious and cultural significance for many people and communities all over the world. It is, however, a practice capable of causing injury and suffering to infants and children unable to consent to such a procedure. We therefore urge parents and practising communities to take all necessary steps to reduce children's suffering and to consider whether circumcision is desirable or necessary. We would suggest that it may be preferable for young adult males to make an informed choice to be circumcised for cultural, religious or other reasons, rather than be operated on as a non-consenting infant.

I hope this has clarified our positions of these issues and thank you for your continued support.

Yours sincerely

[signed}

Duncan Moore
Publications and Information Officer

The Society's hard-nosed motto takes on a certain ironic tinge in the light of "we would suggest" and "it may be preferable". Are they so hesitant when the children involved are girls?

Resolution 1952 (2013)
Provisional version

Children’s right to physical integrity

Parliamentary Assembly

1. Many legislative and policy measures have been taken by Council of Europe member States in recent decades to improve the well-being of children and their protection against any form of violence. Nevertheless, children continue to be harmed in many different contexts.

2. The Parliamentary Assembly is particularly worried about a category of violation of the physical integrity of children, which supporters of the procedures tend to present as beneficial to the children themselves despite clear evidence to the contrary. This includes, amongst others, female genital mutilation, the circumcision of young boys for religious reasons, early childhood medical interventions in the case of intersexual children and the submission to or coercion of children into piercings, tattoos or plastic surgery. [The only reason "for religious reasons" is specified is that non-religious infant male genital cutting is almost unknown in Europe. If non-religious IMGC were at all common in Europe, as it is in the USA, it would have been included.]

3. According to the United Nations Convention on the Rights of the Child (UNCRC), in all actions concerning children, comprising every person under 18, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration and States are required to take “all appropriate ... measures to protect the child from all forms of physical or mental violence, injury or abuse ... while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” (Article 3).

4. The Council of Europe has been actively promoting children's rights and child protection since 2006 through its Strategy for the Rights of the Child, and in which “Eliminating all forms of violence against children” can be found as one of four strategic objectives.

5. The Assembly itself has adopted numerous texts drawing attention to various forms of violence inflicted upon children in bad faith (sexual violence in different contexts, violence in schools, domestic violence, etc.). It continues to fight against different forms of violence inflicted upon children via different promotional activities and campaigns (domestic violence, sexual violence). However, it has never looked into the category of non-medically justified violations of children’s physical integrity which may have a long-lasting impact on their lives.

6. The Assembly strongly recommends that member States promote further awareness in their societies of the potential risks that some of the above mentionedd procedures may have on children's physical and mental health, and take legislative and policy measures that help reinforce child protection in this context.

7. The Assembly therefore calls on member States to:

REYNOLDS v. UNITED STATES.
SUPREME COURT OF THE UNITED STATES
98 U.S. 145
OCTOBER, 1878, Term

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

... Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? T[o] permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Why there is no religious exemption from the law against polygamy (even with the informed consent of the wives). How much stronger should be a prohibition on religious practices that permanently alter the body of a non-consenting person?

Nursting Standard, Vol 23, no 20
January 21, 2009

REFLECTIONS

Rights of the child

Competence to accept or refuse treatment is not the same as the 'right to die', says Marc Cornock

Thirteen-year-old leukaemia patient Hannah Jones was given the 'right to die' last year. That, at least, is what happened according to some newspaper reports.

Hannah had refused a heart transplant, a decision that could resulr in her premature death. The primary care trust (PCT) treating her had applied for a courr order to enforce the operation. The PCT withdrew the application after a child protection officer interviewed Hannah and found thnr she had the necessary competence to withhold concent.

The Hannah Jones case last November was not abour the 'right to die'. It was about competence and the legal right to consent to treatment or withhold consent.

It is a long-established legal principle that any competent person over the age of 18 has the right to consent to treatment or to withhold their consent, even if it will result in their death.

Children aged 16 were permitted to give consent in 1969. In1985, with rhe Gillick case, that right was extended to children under rhe age of 16 provided they had the necessary competence.

Competence is the ability to understand the nature of the proposed procedure and its possible consequences. Hannah was deemed to be aware of the need for a heart transplant, as well as the consequence of her refusal.

If a child is able to consent then from a legal and ethical perspective, it can be argued he or she should have the right to withhold consent. It was this right that Hannah was exercising - her right to withhold concent for a procedure she did nor believe was in her best interest.

The competence of an individual should be determined by the clinician who is to undertake the proposed treatrnent. If that is a nurse it is a nurse who establishes whether rhe child is competent. Where children refuse treatment, their parent may provide consent on their behalf.

If the PCT had pressed ahead wirh its case, it would have been up to the court to decide if Hannah's parents were acting in her best interests by supporting her refusal of treatment.

The Hannah Jones case is a reminder that a cornpetent patient even one under 16, has the right to reject the advice of healthcare professionals and do what they believe to be in their own best interests.

Marc Cornock is a lecturer in law at the Opcn University Centre for law

Child's Rights International Network
October 21, 2012

International NGO Council raises human rights questions

The International NGO Council on Violence against Children published a report on harmful traditional practices in October 2012.

It considers harmful practices this way:

The overwhelming focus of attention in the UN system has been on harmful traditional practices affecting women and girls, with a strong gender inequality and discrimination perspective. The practices that have received the most attention to date in terms of debate, data collection and challenge through legal and other measures, have been FGM and child marriage.

Some have favoured dropping the word "traditional" because it may offend communities who value their traditions. Highlighting harmful traditions does not in any sense deny the existence of positive, non-harmful traditions but it cannot be denied that many extraordinarily harmful practices affecting children have become hallowed by tradition, which is what makes them so particularly difficult to challenge and eliminate. That, surely, is why the UN system over 50 years and the drafters of the CRC and other instruments have chosen to single out harmful traditional practices for special and urgent attention. Any hesitancy in challenging these practices as human rights violations will delay still further their elimination.

Another quoted reason for dropping "traditional" in this context is that there are contemporary harmful practices, both new and emerging, which cannot accurately be described as "traditional" but are nonetheless condoned within a culture or community. Rather than dropping "traditional," we believe it is more productive to extend the concept of "harmful traditional practices" to "harmful practices based on tradition, culture, religion or superstition" (assuming social is subsumed in cultural). This rewording includes the possibility of new practices unsanctified by tradition but does not lose focus on the task, which is to find the most effective way to eliminate practices that are accepted as conventional and right by many individuals in the child's life.

We emphasise that our reason for seeking urgent and intensified advocacy to prohibit and eliminate the harmful practices based on tradition, culture, religion or superstition that are identified in this report is the persisting and very strong approval of them, often linked to their legality, or assumed legality in direct conflict with their identification as human rights violations. And overall, children's low status in societies and unique developmental vulnerability justifies special attention on the harmful practices that affect them.

What characterises the harmful practices listed in this report is that they remain approved and common in particular communities, states, regions and in some cases globally because of one or more of the following:

• Tradition: the transmission of customs or beliefs from generation to generation;
• Culture: the ideas, customs and social behaviour of a particular people or society;
• Religion: practices required or encouraged in religious texts or teaching, or believed to be so.
• Superstition: widely held but irrational beliefs, not based on reason or knowledge.

The list includes a number of practices perpetrated through false beliefs about child development and the cause and treatment of ill-health. These may stem from religious edict or belief, or from tradition or superstition or in some cases be promoted by health practitioners.

- International NGO Council on Violence against Children. (Oct 2012).
"Violating children's rights: Harmful practices based on tradition, culture, religion or superstition"
pp 6-7

Male circumcision has been largely neglected in mainstream debates on harmful practices because of its strong religious connections, particularly with Judaism and Islam, and its general acceptance in many societies. In some areas, it is also a cultural practice, for example in parts of South Africa and in Zambia among some ethnic groups, where it is associated with rituals initiating boys to adulthood.³⁶

A global review of neonatal and child male circumcision by the World Health Organization (WHO) and UNAIDS, published in 2010, describes it as one of the oldest and most common surgical procedures and estimates that one in three adult males are circumcised, with almost universal coverage in some areas.³⁷ A high proportion of circumcisions are carried out on neonates and very young children with no capacity to consent for themselves. It is almost universal in much of the Middle East, North and West Africa and Central Asia and is common in other countries, including Australia, Bangladesh, Canada, Indonesia, Pakistan, the Philippines, the Republic of Korea, Turkey and the United States. It is also prevalent among certain ethnic groups in central, eastern and southern Africa. According to this review, in some settings such as North Africa, Pakistan, Indonesia, Israel and rural Turkey, the majority of providers are not medically trained. In contrast, circumcision is provided almost exclusively by medically trained personnel in Saudi Arabia and other Gulf States, as well as in Egypt, the Republic of Korea and the United States. Circumcision tends to be practised shortly after birth in parts of West Africa, Israel, the Gulf States and the United States. In contrast, in North Africa, the Middle East and parts of Asia males are circumcised as young boys, and in some regions of east and southern Africa, as adolescents or young adults.

Until recently, male circumcision has generally been challenged only when carried out by non-medical personal in unhygienic settings without pain relief. But a children's rights analysis suggests that non-consensual, non-therapeutic circumcision of boys, whatever the circumstances, constitutes a gross violation of their rights, including the right to physical integrity, to freedom of thought and religion and to protection from physical and mental violence. When extreme complications arise, it may violate the right to life. It is reported that male circumcision can result in numerous physical, psychological, and sexual health problems during the surgery, afterwards, and throughout adulthood, including haemorrhage, panic attacks, erectile dysfunction, infection (in severe forms leading to partial or complete loss of the penis), urinary infections, necrosis, permanent injury or loss of the glans, excessive penile skin loss, external deformity, and in some cases even death.³⁸

There are now substantial established campaigns against non-therapeutic, non-consensual circumcision of boys and growing support to end it, particularly within the medical community. For example, the Royal Dutch Medical Association (KNMG) has publicly taken a children's rights position that: "children must not be subjected to medical proceedings that have no therapeutic or preventative value."³⁹ In addition, in 2011 the then Ombudsman for Children in Norway advocated that boys should not be circumcised for non-therapeutic reasons until they are old enough to give their informed consent and that parents should not be able to consent on behalf of their children.⁴⁰ Most recently, in 2012 a German court ruled that male circumcision constitutes a violation of physical integrity as a child is "permanently and irreparably changed by the circumcision" and that the practice is also in conflict with the child's right to religious freedom.⁴¹

The WHO review quoted three randomized controlled trials suggesting that circumcision reduces the risk of acquiring HIV infection in males. But this potential health benefit does not over-ride a child's right to give informed consent to the practice. The decision to undertake circumcision for these reasons can be deferred to a time where the risk is relevant and the child is old enough to choose and consent for himself.⁴²

- International NGO Council on Violence against Children. (Oct 2012).
"Violating children's rights: Harmful practices based on tradition, culture, religion or superstition"
p 21-22

The International NGO Council on Violence Against Children was formed in 2007 to support strong and effective follow-up to the UN Study on Violence against Children. Its central role today is to work closely with the SRSG to ensure civil society participation in the follow up activities.

The Council is composed of 18 members:
- Nine Members representing international NGOs, and
- Nine Members selected at regional level representing national and regional NGOs.

Current Members:
Jo Becker, Human Rights Watch (Co-Chair)
Peter Newell, Global Initiative to End all Corporal Punishment of Children (Co-Chair)
Arelys Bellorini, World Vision International
Ileana Bello, Defence for Children International
Theo Noten, ECPAT International
Fernanda Santana, World Organization Against Torture (OMCT)
Fiyola Hoosen-Steele, Plan International
Sara Johansson, Save the Children
Veronica Yates, Child Rights International Network (CRIN)
Regional Representatives
North America: Katherine Covell, Children's Rights Centre, Cape Breton University, Sydney, Nova Scotia Canada
South Asia: A.K.M. Masud Ali, INCIDIN Bangladesh
West and Central Africa: Mr MALLY Kwadjo Essediaba, WAO Afrique (Action to stop child exploitation), Lomé, Togo.
Latin America: Milena Grillo, Fundacion PANIAMOR, Costa Rica
The Caribbean: Silvia Mazzarelli, VIS/MDB, Dominican Republic
East and Southern Africa: Judith Mulenga, Zambia Civic Education Association, Zambia
East Asia & Pacific: Irene V. Fonacier-Fellizar, Center for the Promotion, Advocacy and Protection of the Rights of the Child Foundation, Inc., The Philippines
Middle East and North Africa: Thaira Shalan, Arab Council for Childhood and Development (ACCD), Egypt
Europe and Central Asia: Thomas Mueller, Child Helpline International, The Netherlands

References:

36 Le Roux, L. (2006). Harmful Traditional Practices, (Male Circumcision and Virginity Testing of Girls) and the Legal Rights of Children. Masters' Thesis, Unpublished. Retrieved from http:// www.openthesis.org/documents/Harmful-traditional-practicesmale- circumcision-502420.html; CDC. (2012). "Neonatal Herpes Simplex Virus Infection Following Jewish Ritual Circumcisions that Included Direct Orogenital Suction - New York City, 2000-2011." Morbidity and Mortality Weekly Report, 6(22), 405-409. Retrieved from http://www.cdc.gov/mmwr/ preview/mmwrhtml/mm6122a2.htm?s_cid=mm6122a2_w

37 WHO and UNAIDS. (2010). Neonatal and child male circumcision: a global review. Retrieved from http://www.who.int/hiv/ pub/malecircumcision/neonatal_mc/en/index.html

38 Nyaundi, P.M. (2005). "Circumcision and the rights of the Kenyan boy-child." African Human Rights Law Journal, 5, 171-181. Retrieved from http://www.chr.up.ac.za/index.php/ ahrlj-contents/volume-5-no-1-2005.html

39 The Royal Dutch Medical Association (KNMG). (2010). Non-therapeutic circumcision of male minors. Retrieved from http://knmg.artsennet.nl/Publicaties/KNMGpublicatie/ Nontherapeutic-circumcision-of-male-minors-2010.htm

40 The Ombudsman For Children In Norway. (2011). Consultative Response on Ritual Male Circumcision.

41 "German circumcision ban: Is it a parent's right to choose?" BBC News, 12 July 2012, Retrieved from http://www.bbc. co.uk/news/magazine-18793842

42 The Royal Dutch Medical Association (KNMG). (2010). Non-therapeutic circumcision of male minors. Retrieved from http://knmg.artsennet.nl/Publicaties/KNMGpublicatie/ Nontherapeutic-circumcision-of-male-minors-2010.htm

AFRICAN HUMAN RIGHTS LAW JOURNAL (pp171-181)
Volume 5 No 1 2005

Circumcision and the rights of the Kenyan boy-child

by Patricia Mande Nyaundi
Programme Manager, Child Legal Aid Centre; Advocate of the High Court of Kenya

Summary
The adoption of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child strengthened the protection of the rights of children. Although Kenya has ratified both instruments and enacted the Children's Act, all instruments prohibiting practices that are prejudicial to the rights of children, circumcision of the boy-child for purely cultural reasons still takes place in the country, some- times with severe consequences, such as deaths. This article demonstrates that the circumcision of non-consenting boys under the age of 18 violates their basic human rights, particularly the right not to be discriminated against, the right to health, the right to privacy and bodily integrity, and the right not to be subjected to cruel and inhuman treatment. The article concludes that the human rights implications stemming from male circum- cision necessitate positive action against this practice by the government.

5 Conclusion
The provisions of the Children's Act are very clear. A careful reading of its provisions⁴⁷ would appear to prohibit circumcision of boys as a rite of passage into adulthood. It pronounces that a child only becomes an adult on the attainment of the age of 18.⁴⁸ By doing so, it renders incompetent any cultural practices that seek to confer adulthood at an earlier age. Further, the Act provides as follows:⁴⁹ No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child's life, health, social welfare, dignity or psychological development. Clearly as has been suggested above, male circumcision, when per- formed on under-age boys who are unable to give their consent, is in breach of this provision. The government of Kenya is acting illegally in facilitating circumcisions through, for example, public health facilities, and in failing to prevent these violations, whether carried out by public or private actors. So as to fulfil its obligations under human rights treaties that it has ratified and the Act, the Kenyan government must take positive action against male circumcision.

Footnotes:
46 Sec 14 (n 18 above). Sec 20: `Notwithstanding penalties contained in any other law, where any person wilfully or as a consequence of culpable negligence infringes any of the rights of a child as specified in sections 5 to 19 such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine.'
47 As above.
48 Sec 2.
49 Sec 14 (my emphasis).