Should Iceland Ban Circumcision? A Legal and Ethical Analysis

 

By Lauren Notini and Brian D. Earp

*Note: this article also appears on the Practical Ethics Blog, and a condensed version titled “Iceland’s Proposed Circumcision Ban” is being cross-published at Pursuit.

For a small country, Iceland has had a big impact on global media coverage recently, following its proposed ban on male circumcision before an age of consent.

Iceland’s proposed legislation seeks to criminalise circumcision on male minors that is unnecessary “for health reasons,” stating individuals who remove “part or all of the sexual organs shall be imprisoned for up to 6 years.”

The bill claims circumcision violates children’s rights to “express their views on the issues [concerning them]” and “protection against traditions that are harmful.”

According to bill spokesperson Silja Dögg Gunnarsdóttir, a key reason for the bill is that all forms of female genital cutting (FGC), no matter how minor, have been illegal in Iceland since 2005, but no similar legislation exists for males.

“If we have laws banning circumcision for girls,” she said in an interview, then for consistency “we should do so for boys.” Consequently, the bill is not specific to male circumcision, but adapts the existing law banning FGC, changing “girls” to “children.”

There is much to unpack here. We first discuss self-determination and informed consent, before addressing claims about potential health benefits and harms. We then explore the religious significance of circumcision for some groups, and ask what implications this should have.

Self-determination and informed consent

Circumcision supporters often argue that young children are incapable of giving or withholding informed consent to decisions affecting them.

This may be true, but a child’s temporary inability to make informed decisions about their body does not create a blank cheque for parents to authorise whatever permanent bodily modifications they choose.

Where should the limits of parental decision-making lie?

Non-therapeutic genital cutting deprives the child, and the adult they will become, of the opportunity to remain genitally unmodified (or intact). Plausibly, the person whose ‘private parts’ will be permanently affected by the cutting should get a chance to weigh in on whether that is what they desire, in light of their longer-term preferences and values.

This doesn’t mean that one must defer to the child for all actions that affect their body. Distinctions need to be drawn. For example, if a procedure is clearly in a child’s best interests and cannot be postponed until the child is competent to consent (e.g., urgent appendectomy), performing it is ethically permissible.

However, the less clear it is that a bodily encroachment is in fact in the child’s best interests—considering the child’s strong interest in being able to autonomously make important self-affecting decisions in the future—”the more likely it is that the child’s bodily integrity rights are being impermissibly violated.”

Giving a child a haircut, a vaccination, or even an ear-piercing (comparisons that are often raised) are morally different from removing part of a child’s genitals. The status of the latter as being compatible with a child’s best interests is far more controversial.

Unlike, say, participating in sports (another common comparison), circumcision does not merely introduce a risk of some bodily injury or another. Rather, it is by its nature a bodily injury. Moreover, it is one that is guaranteed to affect the most psychosexually significant and emotionally charged part of the child’s body: his genitals. The risk is not ‘spread out’ and the ‘injury’ does not heal: the loss of valuable and functional tissue is permanent.

Clearly, the circumcision debate needs to move beyond a simplistic ‘children’s rights’ versus ‘parents’ rights’ dichotomy. Parents are permitted to authorise certain actions affecting their children, but not others. In our view, removing a healthy, functional component of a child’s most intimate bodily organ should fall in the latter category. But because the youngest of children are pre-autonomous and cannot consent to any intervention that affects them, simple appeals to self-determination will not be sufficient for such arguments to succeed.

Potential health benefits versus harms

Silja Dögg Gunnarsdóttir has stated that Iceland’s bill “is fundamentally about not causing unnecessary harm,” acknowledging while some boys do not experience surgical complications from being circumcised, “some do and one is too many if the procedure is unnecessary.”

The issue of complications is worth exploring. First, it is not only the likelihood, but also the magnitude of a surgical risk that is morally important. When the target is a non-consenting person’s healthy genitals, even a small chance of something going wrong should loom large: the consequences of a mistake on this part of the body may be devastating.

In other words, a small likelihood of certain complications multiplied by a large magnitude for at least some of them amounts to an ethically significant risk.

Circumcision supporters cite various potential health benefits of circumcision which they believe outweigh this risk of surgical complications, thus making the surgery permissible (see Box 1). But even this assumes that the only harms involved are possible complications. Given that the foreskin is erogenous tissue, and the most sensitive part of the penis to light touch, it has value in and of itself. Thus, its sheer removal is a harm, even if there are no complications.

Whether this harm (among others) is ‘worth’ the purported benefits of the surgery is something the individual himself has an interest in deciding. A person can always choose to have their genitals cut later on in life, if that is what they want, but those who resent being cut cannot reverse the operation.

 

Box 1. How compelling are the health benefits associated with childhood male circumcision? Box adapted from Earp and Steinfeld (2017).

Health benefits that have been attributed to male circumcision include a reduction in the risk of acquiring a urinary tract infection (UTI) in early childhood, some sexually transmitted infections (STIs) after sexual debut, and penile cancer later in life. With respect to UTIs, boys with normally developing anatomy have a low risk of infection regardless of circumcision status—far lower than the risk for girls after the first few months of life—and these can typically be cured with antibiotics, just as they are for girls. Penile cancer is rare in developed countries, such that, according to the American Academy of Pediatrics (AAP), it would take between 909 and 322,000 circumcisions to prevent a single case. Most of the reliable evidence suggesting a reduced risk of STIs comes from studies of adult, voluntary circumcision in third world countries whose applicability to circumcision of infants in other contexts is unclear. Moreover, STIs are not a relevant health risk to children who are not sexually active. In light of alternative, less invasive means of achieving the above-mentioned health benefits, including basic hygiene and the adoption of safe sex practices, relevant health authorities worldwide generally agree that the potential medical advantages of non-voluntary childhood circumcision in developed countries are not sufficient to offset the costs, harms, and other disadvantages associated with the surgery in those contexts, some of which may be subjective in nature and therefore difficult to quantify. Thus, none of the paediatric or other medical bodies that have issued formal policies on routine neonatal circumcision consider the health benefits of the surgery to exceed the risks, regardless of the metric used. The sole exception to this is the AAP, whose 2012 policy is now expired. After considerable international criticism from experts in epidemiology and children’s health, including heads and representatives of national medical societies in England, mainland Europe, and Canada, a representative from the AAP Circumcision Task Force acknowledged significant problems with the AAP findings and methodology.

 

Religion and circumcision

Most practicing members of Jewish and Muslim communities regard male circumcision as central to their faiths. Circumcision is traditionally performed on the eighth day in the Jewish faith and at 10 years (with considerable variance) in the Muslim faith. Understandably, Iceland’s bill has been criticised by many spokespeople for Jewish and Muslim groups, with some labelling it “a dangerous attack on freedom of religion.”

Thus, two competing rights claims are at stake—children’s rights to bodily integrity and protection from unnecessary harm, and parents’ rights to practice their religion.

Parental religious rights are not unlimited. Consider a Jehovah’s Witness parent who, given their religious beliefs, refuses life-saving blood for their child. Most laws internationally permit healthcare professionals or courts to administer blood despite the parents’ refusal, even if parents believe they are acting in their child’s best spiritual interests.

The aim of this legislation is not to threaten the Jehovah’s Witness faith (indeed, adults in the community who refuse life-saving blood transfusions for themselves routinely have their wishes followed), but to protect children, who cannot defend themselves, from harm.

The relevant question, then, is not whether parents’ decisions are religiously motivated, but whether they fall within reasonable limits. So what counts as a reasonable decision and who should get to decide?

Ethics scholar Akim McMath has stated that, in the case of circumcision, “[p]eople disagree over what constitutes a harm and what constitutes a benefit.” Given this, some have concluded that the circumcision decision should rest with the parents.

However, an alternative conclusion could be drawn. As McMath notes, “the child will have an interest in living according to his own values, which may not reflect those of his parents.” Therefore, “if disagreement over values constitutes a reason to let the parents decide, it constitutes an even stronger reason to [not perform circumcision before] the child himself can decide.”

In the context of female genital cutting or FGC, parents’ decisions are almost universally not regarded to fall within reasonable limits, even if they are religiously motivated and the cutting is less severe than male circumcision.

This is demonstrated by the attempted “Seattle Compromise” of the 1990s, where a Seattle hospital received requests from Somalian mothers to circumcise their daughters and sons. The doctors agreed to circumcise the boys, but initially refused to cut the genitals of the girls. However, concerns were raised that the mothers might take their daughters elsewhere for a more severe procedure.

The hospital, worried about harms associated with these more severe forms of FGC, negotiated with the mothers to perform a symbolic ‘nick’ instead, which would draw blood but not involve scarring or removing tissue. Opponents of FGC, however, campaigned against the hospital and the compromise did not proceed, suggesting the bar for (relatively) acceptable harm is set extremely low in cases of FGC.

Non-religious circumcision

So far, in the media-driven debate regarding Iceland’s bill, most articles have focused on religiously-motivated circumcision. Indeed, some have interpreted the bill as applying only to religious circumcisions. For example, in an opinion piece, one writer claimed “[w]hen religion is out of the picture, the reasons for male circumcision tend to go out the window.”

This view is misinformed. If not in Iceland, at least in other countries—primarily, the USA—circumcision is regularly requested for non-religious reasons. In fact, most circumcisions in the USA are performed for social or cultural reasons having nothing to do with religion, and yet the surgery is widely treated as permissible even in those cases.

A common reason provided by American parents requesting circumcision is they want their son to “look like dad.” Other reasons include concerns their son will be teased if not circumcised, and mistakenly believing a circumcised penis is easier to clean. Similar findings have been reported in surveys of Canadian parents.

Finally, according to another survey, most Jews identify as non-religious. Clearly, if religious motivations are required to justify non-therapeutic alteration of children’s genitals, far fewer circumcisions should be permitted than currently occur.   

Are parents’ reasons ethically significant?

This raises important questions about the ethical significance (if any) of parents’ reasons. Should these reasons be considered when deciding whether parents’ circumcision requests should be followed?

Silja Dögg Gunnarsdóttir suggests no, claiming that it is not about the “intention” of circumcision; “it’s about the children.” Conversely, South Africa’s Children’s Act 2005 bans non-medical circumcision of males under 16, but makes an exception for religious motivations, suggesting parents’ reasons do matter.

Some may argue Iceland should adopt a similar ‘middle-ground’ approach and permit only religiously-motivated circumcisions before an age of consent. But if circumcision is in fact harmful, such an exception may send a confusing signal.

Specifically, it could be taken to imply that children of religious parents are less worthy of being protected from harm than children of non-religious parents (or parents with non-religious reasons for genital cutting).

Consider again the Jehovah’s Witness example. All parental refusals of life-saving blood are treated the same, even if they are motivated by religious reasons. The focus is on potential harm to the child, not parents’ motivations.

In any case, reasons can be multifactorial, complex, and difficult to tease apart. In some cases, parents’ actual reasons for requesting circumcision may be different to reasons they disclose to providers. In other cases, parents may be unaware of their true motivations. Furthermore, assessing parents’ motives would be challenging in practice.

Moving forward

This question about the moral significance of parents’ reasons highlights an important limitation of Iceland’s bill. While the bill concerns circumcisions not performed for “health reasons,” it does not define the term ‘health.’ This is an oversight, as the term is not self-evident. Rather, this term is value-laden and invokes complex ideas about the proper goals of healthcare.

Some define ‘health’ broadly. For example, the World Health Organization defines health as “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.” Some parents may therefore claim they are requesting circumcision for these broader ‘health reasons,’ seeing circumcision as promoting the social or spiritual aspects of their son’s well-being.

If pivotal terms such as ‘health’ are not clearly defined in legislation, too much remains open to interpretation. Parents and practitioners are left to apply their own discretion about whether a circumcision is requested for ‘health reasons,’ effectively rendering even the most well-intentioned legislation moot.

 

Lauren Notini, Research Fellow in Biomedical Ethics, Melbourne Law School, University of Melbourne and Honorary Fellow, Biomedical Ethics Research Group, Murdoch Children’s Research Institute, Parkville, Victoria, Australia

Brian D. Earp, Research Fellow, The Oxford Uehiro Centre for Practical Ethics, University of Oxford; Associate Director, Yale-Hastings Program in Ethics and Health Policy

 

Key readings from the authors

Carmack, A., Notini, L., & Earp, B. D. (2016). Should surgery for hypospadias be performed before an age of consentThe Journal of Sex Research53(8), 1047-1058.

Earp, B. D. (2015). Female genital mutilation and male circumcision: toward an autonomy-based ethical framework. Medicolegal and Bioethics, 5(1), 89-104.

Earp, B. D. (2017, August 15). Does female genital mutilation have health benefits? The problem with medicalizing morality. Quillette Magazine. Available at http://quillette.com/2017/08/15/female-genital-mutilation-health-benefits-problem-medicalizing-morality/.

Earp, B. D., & Darby, R. (2017). Circumcision, sexual experience, and harm. University of Pennsylvania Journal of International Law, 37(2–online), 1–57.

Earp, B. D., Hendry, J., & Thomson, M. (2017). Reason and paradox in medical and family law: shaping children’s bodies. Medical Law Review, 25(4), 604-627.

Earp, B. D., & Shaw, D. M. (2017). Cultural bias in American medicine: the case of infant male circumcision. Journal of Pediatric Ethics, 1(1), 8–26.

Earp, B. D., & Steinfeld, R. (2017). Gender and genital cutting: a new paradigm. In T. G. Barbat (Ed.), Gifted Women, Fragile Men. Brussels: ALDE Group-EU Parliament.

Earp, B. D., & Steinfeld, R. (2018). Genital autonomy and sexual well-beingCurrent Sexual Health Reports, 10(1), 7-17.

Frisch, M., & Earp, B. D. (in press). Circumcision of male infants and children as a public health measure in developed countries: a critical assessment of recent evidence. Global Public Health, 13(5), 626-641.

McDougall, R. J., & Notini, L. (2014). Overriding parents’ medical decisions for their children: A systematic review of normative literature. Journal of Medical Ethics40(7), 448-452.

Notini, L. (2016). The ethics of performing elective appearance-altering procedures to alleviate or prevent psychosocial harms to the child: the case of paediatric otoplasty. In McDougall, R., Delany, C., & Gillam, L. (Eds.), When Doctors and Parents Disagree: Ethics, Paediatrics and the Zone of Parental Discretion (pp. 190-206). Sydney, NSW: Federation Press.

Shahvisi, A., & Earp, B. D. (in press). The law and ethics of female genital cutting. In Creighton & L.-M. Liao (Eds.), Female Genital Cosmetic Surgery: Interdisciplinary Analysis & Solution. Cambridge: Cambridge University Press.

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