The Circumcision Decision
American childcare books tell parents that, if they are going to have a baby boy, they have this big bad decision to make: the circumcision decision.
What may come as a surprise to Americans is that, in most societies, there is no decision to make.
In most societies the presumption will be that a child who has no disease needs no treatment. Circumcision will not normally enter the parents' minds. There is simply no decision to make.
There are of course communities in which the religion of the parents will tell them they must circumcise their sons, in which case they will for the most part comply. A few will not. Again there is usually no decision to make.
So why is it that American parents face this big bad decision?
Originally, the push for male child circumcision came from the doctors. The war between midwives and obstetricians for the control of childbirth had been won by the obstetricians and birth in hospital became the norm.
In maternity units run by doctors who favoured circumcision, it became routine. This may have affected other cultures at the time, but it became a particularly common practice in the US because of the funding model.
Where doctors are paid for each procedure they do, and the hospital adds its markup, there is an incentive to perform additional procedures. The circumcision is a part of the birth package and insurers pick up the bill.
The paternalistic model of doctors knowing best started to change during the 20th century. There was a growing recognition that medical and surgical procedures involved actions that would otherwise be regarded as a criminal assault and that only one thing made them legal: informed consent.
In the case of Schloendorff v Society of New York Hospital 105 NE 92 at 93 (1914) (NY Ct of Apps) Judge Cardozo introduces the principle of autonomy and the need for consent: “Every human being being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”
Thus the point about consent is that it respects a person's right to autonomy - the right of theirs to be protected from something they did not want to suffer. It is perhaps unfortunate that Cardozo included the words being being of adult years and sound mind of which more later.
American doctors came to recognise that circumcision could not be routine in the sense of being performed automatically without consent. They needed to get consent. By this time the practice of circumcision was well accepted in American society and it is tempting to speculate that the financial incentives for circumcision might have been too much to give up the practice easily. So doctors were told they must get consent for the circumcision. They sought consent from the parents. But is the consent of the parents valid for unnecessary circumcision?
There are two important legal cases on the rights of parents to give consent to medical treatment, on from the UK and one from Australia:-
- Gillick v West Norfolk & Wisbeck Area Health Authority  AC 112
- Department of Health and Community Services (NT) v JWB (Marion’s Case) (1992) 175 CLR 218
In the UK case of Gillick, Lord Templeman held that having regard to the reality that a child became increasingly independent as it grew older and that parental authority dwindled correspondingly, the law did not recognise any rule of absolute parental authority until a fixed age. Instead, parental rights were recognised by the law only as long as they were needed for the protection of the child and such rights yielded to the child's right to make his own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind.
Marion's Case in Australia concerned a 14 year old girl with a severe intellectual disability. Her parents wanted her to be sterilised. The court held that this was not a procedure that parents could consent to. Reaffirms the principle of autonomy, personal inviolability and the right to bodily integrity.
Thus we can see that parental rights are something of a myth. Parents do not have control over their children's lives, but have a duty to protect and care for the child until the child can make his own autonomous decisions.
Returning to the circumcision decision, American doctors and hospitals will lose out on the circumcision if parents don't make the right decision. There are lots of anecdotes about the pressure that American parents come under to give consent to the circumcision.
Those seeking consent will at best tell them of the many medical benefits of circumcision and the risks of not circumcising. Parents are certainly not told of the harms of circumcision. There are also anecdotes of parents being pursued retrospectively for a circumcision that has already happened.
At 15Square we take the view that taking consent for circumcision from the parents misses the point. The purpose of consent is to respect the right of the person, as an adult of sound mind to decide for themselves the fate of there own body.
Not to put too fine a point on it, American parents are duped: first that there is a decision to make, second that it is their's to make.