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Revision as of 02:35, 14 January 2005
History
Religious laws pertaining to circumcision are ancient. The Hebrew Bible commands the Jews to perform the operation on their male child's eighth day of life and also to circumcise their slaves Genesis 17:11-12. See Brit milah (the Hebrew name for ritual circumcision).
Laws banning circumcision are also ancient. The ancient Greeks prized the foreskin and disapproved of the Jewish custom of circumcision. Thus, banning circumcision may have been enacted as much to stop what the Greeks regarded as an abuse as for a deliberately anti-Jewish purpose.
King Antiochus IV, of Syria, the occupying power of the Holy Land in 170 B.C. decreed that circumcision was unlawful and punishable by death. According to the Historia Augusta, the Roman emperor Hadrian issued a decree banning circumcision in the empire, triggering the Jewish Bar Kokhba revolt of A.D. 132. The Roman historian Cassius Dio, however, made no mention of such a law, and blamed the Jewish uprising instead on Hadrian's decision to rebuild Jerusalem as Aelia Capitolina, a city dedicated to Jupiter.
Hadrian's successor, Antoninus Pius, permitted Jews to circumcise their own sons, but forbade them (upon penalty of death or banishment) from circumcising non-Jews. Genesis 17:12 commands that Jews must circumcise their slaves; this law prohibited that practice, as well as making it illegal for a man to convert to Judaism. Antoninus Pius also excepted the Egyptian priesthood from the otherwise universal ban on circumcision.
Modern Law
Circumcision has traditionally been presumed legal under British law. One 1999 case, Re "J" (child's religious upbringing and circumcision) (see ) said that circumcision in Britain required the consent of all those with parental responsibility, or the permission of the court, acting for the best interests of the child, and issued an order prohibiting the circumcision of a male child of a non-practicing Muslim father and non-practicing Christian mother with custody. The reasoning included evidence that circumcision carried some medical risk; that the operation would be likely to weaken the relationship of the child with his mother, who strongly objected to circumcision without medical necessity; that the child may be subject to ridicule by his peers as the odd one out and that the operation might irreversibly reduce sexual pleasure, by permanently removing some sensory nerves, even though cosmetic foreskin restoration might be possible. The court did not rule out circumcision against the consent of one parent. It cited a hypothetical case of a Jewish mother and an agnostic father with a number of sons, all of whom, by agreement, had been circumcised as infants in accordance with Jewish laws; the parents then have another son who is born after they have separated; the mother wishes him to be circumcised like his brothers; the father, for no good reason, refuses his agreement. In such a case, a decision in favor of circumcision was said to be likely. The passage of the Human Rights Act 1998 has caused some to speculate that the lawfulness of the circumcision of male children is unclear.
In the United States, circumcision is not specifically unlawful, however, when performed on a child, some believe that the act violates general laws enacted for the protection of children. Doctors who still perform circumcisions on chidren must take care that all applicable rules regarding informed consent are satisfied. If consent is invalid, then a circumcision is a battery.
In the United States, the parents' right to raise their child in their religious faith is protected by the First Amendment to the United States Constitution. Although no case has addressed the point precisely, the relative commonness of the procedure for medical, cultural, and hygienic reasons would indicate that preventing circumcision in the context of a religious practice would not pass constitutional muster in the United States. Although parents are given wide latitude in child rearing, parental discretion is not unlimited in religious matters. The United States Supreme Court has ruled that, "arents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." (Prince v. Massachusetts, 321 U.S. 158 (1944) Furthermore, the United States Supreme Court has ruled that laws of general application may restrict religious practice. (Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990))
A non-binding research paper of the Queensland Law Reform Commission (Circumcision of Male Infants) concluded that "On a strict interpretation of the assault provisions of the Queensland Criminal Code, routine circumcision of a male infant could be regarded as a criminal act", and that doctors who perform circumcision on male infants may be liable to civil claims by that child at a later date. No prosecutions have occurred in Queensland, and circumcisions continue to be performed.
Courts have not supported these interpretations of the law. An attempt to have circumcision ruled illegal was rejected by the Israeli Supreme Court. The North Dakota Supreme Court rejected a mother's attempt to prosecute her doctor for circumcising her child with her permission. The Jackson County Circuit Court, and later Appeals Court refused a bid by Camile Azar to block the circumcision of her son.
Anti-circumcision groups have attempted in various jurisdictions to persuade legislatures to ban circumcision, in a variety of jurisdictions. These have not been successful. However, having considered the issue, but the circumcision of minors in Sweden may only be performed under anaesthesia and, unless performed by a physician, must be performed within the first two months of life.
A parliamentarian in the Netherlands has called for the circumcision of male children to be made unlawful.
Recently, a man in Clark County, Washington, was convicted of second degree child assault after he circumcised his son with a hunting knife. He has been sentenced to serve three years in jail.
External links
- Gregory J Boyle, J. Steven Svoboda, Christopher P Price, J Neville Turner. Circumcision of Healthy Boys: Criminal Assault? 7 Journal of Law and Medicine 301 (2000). The authors are leading anti-circumcision campaigners.
- Peter W Edge, Male circumcision after the human rights act 1998. 5 J Civil Liberties 320 (2000).
- British Medical Association The law & ethics of male circumcision - guidance for doctors March 2003