A regional court in Cologne, Germany has effectively banned the circumcision of young boys, subject only to medical exception. Such a position has been proposed by various individuals and groups throughout the Western world, and can be refuted along several lines.
For instance, neither the right to security of the person nor to gender equality should operate in such a way as to proscribe male circumcision on the grounds that it is comparable to the justifiably prohibited custom of female genital mutilation (FGM).
FGM is sometimes termed female circumcision, but this is a misnomer as it implies a minor operation equivalent to male circumcision. According to Doriane Coleman, a Duke University law professor whose expertise is children and the law, "This analogy can and has been rejected as specious and disingenuous, as the traditional forms of FGM are as different from male circumcision in terms of procedure, physical ramifications, and motivation as ear piercing is to a penilectomy."
The World Health Organization is also clear that:
"FGM has no health benefits, and it harms girls and women in many ways. It involves removing and damaging healthy and normal female genital tissue, and interferes with the natural functions of girls' and women's bodies."
The immediate and long-term consequences of FGM are too numerous to catalog here, but include severe pain; shock; hemorrhage (which can be so severe as to cause death); tetanus or sepsis; infertility; and an increased risk of childbirth complications and newborn deaths. In a 1997 joint statement, the WHO, UNICEF and UNFPA declared "FGM to be universally unacceptable, as it is an infringement on the physical and psychosexual integrity of women and girls and is a form of violence against them."
What, then, does the WHO have to say about male circumcision?
That it "is one of the oldest and most common surgical procedures worldwide, and is undertaken for many reasons: religious, cultural, social and medical. There is conclusive evidence from observational data and three randomized controlled trials that circumcised men have a significantly lower risk of becoming infected with the human immunodeficiency virus (HIV)."
Dr. Kirsten Patrick acknowledges in her 2007 British Medical Journal article that while male circumcision carries a complication rate somewhere between 0.2 per cent and 3 per cent, the procedure carries little risk if capably performed. She also notes its health benefits and draws a comparison to standard childhood immunizations, "a procedure for which the infant cannot give consent and which carries the risk of adverse events ranging from fever to anaphylaxis and aseptic meningitis."
In the absence of strong and non-conflicting medical evidence that male circumcision regularly causes substantial harm to young boys, the arguments against the procedure are severely weakened. Since male circumcision and FGM are simply incomparable, gender equality should not demand the banning of the former just because the latter is illegal. And while the right to security of the person is certainly implicated by circumcision, the low risk of harm (and the fact that most complications are extremely minor) means that this right should be balanced against other compelling rights, such as religious freedom.
It is well known that the circumcision of baby boys is mandated by the Jewish religion. In fact, this ritual is so essential to Jewish peoplehood and covenantal identity that a former professor of mine specializing in minority rights once suggested that preventing Jews from circumcising their sons could amount to genocide. Such an argument elicits particular discomfort given that a German court has outlawed the procedure. Male circumcision within the first few years of boy's life is also strongly encouraged by the Islamic faith. Perhaps the only positive outcome of the German ruling is that Jews, Muslims, and even Christians have united to protest the profound infringement on their religious freedom. They were not alone: the UN's Special Rapporteur on religious freedom, Heiner Bielefeldt, and German foreign minister Guido Westerwelle also added their voices to the criticism.
According to the German court, the right to religious freedom "would not be unduly impaired" because the child could later decide for himself whether to have the circumcision. Aside from the court's interference with a religious precept that the ritual must take place long before adulthood, the judgment could ironically cause greater harm to one's bodily integrity because circumcision for adolescents and adults, as compared to infants, is more complicated and has a higher rate of adverse effects.
Here in Canada, a court could evaluate the right to security of the person as provided by section 7 of the Charter not only in the context of section 2(a) of the Charter, which guarantees freedom of religion, but also section 27, which provides that the "Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."
Indeed, the German ruling makes for a compelling argument in favour of Canada's multiculturalism policies, which are essentially grounded in the notion that individual rights are not always enough to protect a minority group's traditions and values, and that the recognition of special group rights is therefore necessary.
In other words, failing to recognize the fundamental importance of male circumcision to both Jewish and Muslim religious traditions may be qualitatively different than undermining an individual parent's right to make choices on behalf of his/her child.
Of course, the protection of minority rights must have limits. Inherently harmful minority customs like FGM and honour killings can never be justified. But male circumcision does not belong in that category so long as both parents consent to the procedure and, most importantly, it is performed competently.
Multiculturalism policies, when instituted properly, can enhance a society's security by making minority groups feel welcome and accepted, rather than disenfranchised and disconnected from the state. Yes, lines must be drawn somewhere. But there are insufficient medical, legal, and moral grounds to draw that line at male circumcision.
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