The Cologne ruling on religious circumcision

Originally published in Daily Maverick

In June this year, a court in the German city of Cologne heard a case involving a four-year-old child from a Muslim family who was admitted to hospital with bleeding following a circumcision. The doctor who performed the circumcision did so at the request of the boy’s parents, and was acquitted of the charge of grievous bodily harm for this reason.

While this particular doctor was acquitted, the court made the general observation that circumcision violated a child’s “fundamental right to bodily integrity”, and that this right outweighed the rights of parents. While leaving room for circumcision to be permissible on medical grounds, the court, in other words, ruled that ritual circumcision amounts to impermissible bodily harm and also constituted a violation of the rights of children.

Contrary to the predictable cries of anti-Semitism that have resulted (and how convenient it is for critics that a German court made the ruling), this is a victory for freedom of religion. Yes, one element of one ritual is outlawed, namely that parents can no longer choose to cut flesh from the penis of their non-consenting child. But why should they ever have had that “right”?

The argument that religion, custom and culture – in and of themselves – are insufficient justification for a practice applies across the board, not simply to examples of such practices that are more anachronistic, bizarre or unfashionable than the ones that happen to still be mainstream in modern societies. We wouldn’t endorse foot-binding on grounds of culture, and we certainly don’t endorse female genital cutting.

Foot-binding would of course not be possible at a later age, or it would at least be far less effective. But you can be circumcised at any age, once you determine that you independently desire to identify with a certain culture or religion. That should be a choice, and not the choice of the parents – this is surely what freedom of religion means. An infant might have Muslim or Jewish parents, but we should wait to hear from the child itself before performing irreversible surgery on them.

Informed consent is a fundamental principle of modern medicine. Exceptions do of course exist, such as when consent cannot be given for whatever reason, and an intervention is held to have significant benefits for the patient. But it’s only contingently the case that we happen to accept male circumcision as exempt from this principle – it has a weight of history and privilege (the privilege that is accorded to religion generally) behind it.

If we were to instead engage in the thought experiment of enquiring whether – in the absence of that history and privilege – male circumcision would be considered permissible, the conversation would revolve around costs and benefits, and whether any benefits could be accrued at lower costs.

In the case of female genital mutilation, the answer is clear – the costs far outweigh very dubious benefits. In general, it’s therefore not very useful or justified to compare that practice with male circumcision (except as examples of cultural artefacts, as I do above. Or, if we were to follow the Jewish scholar Maimonides, we might think them comparable in that both are aimed at a “decrease in sexual intercourse and a weakening of the organ in question, so that this activity be diminished and the organ be in as quiet a state as possible”).

For male circumcision, the fact that it comes at a small physical cost (relative to most instances of female circumcision) is presented as part of the justification for why it should be permissible. But any cost is too great, if it doesn’t come with benefits that can’t be accrued more cheaply. What we should not do is make the mistake of asking adult circumcised men whether they think harm was done to them. They’re not in a position to entertain any counterfactuals – both in terms of their physical state, and also because the majority of them would have grown up in a culture where male genital cutting was acceptable. It would be unsurprising that they found it unproblematic, as it would be just as normal as being uncircumcised would be to other men.

The point is that by that time, the opportunity for choice has passed. A non-religious child has had non-essential surgery performed on it by a religious parent, on the assumption that the child will eventually choose to belong to that religion. And of course, they are more likely to make that choice after having (non-volitionally) embraced the commitment-device of circumcision.

How much stronger would their commitment be, one wonders, if they instead choose to get circumcised as a teen or adult? If circumcision involves a sacred covenant with God, that covenant seems strengthened through being voluntary – and parents should not be free to make that covenant on behalf of their infant in cases where doing so involves cutting the infant’s flesh.

Religious parents in the 21st century are surely aware of these concerns, and do appear to struggle to justify what is at least a prima facie rights violation. So, they sometimes turn to information that wouldn’t have been available to Maimonides – the purported health benefits of circumcision. While it’s repeated so frequently as to seem axiomatic, the evidence that circumcision reduces HIV infection is not as clear-cut (pdf) as many think it is.

Likewise, the claim that circumcision reduces cervical cancer is also more suspect than many realise, as the reported headline findings give little indication as to the dearth of quality data underlying those findings. The key trial held to justify that conclusion is a meta-analysis of 7 different studies in 5 countries, where none of the individual studies found any correlation between circumcision and cervical cancer.

That’s not necessarily a problem, as meta-analyses can sometimes reveal data that isn’t clear in individual trials. In this case, though, the meta-analysis only revealed a correlation with human papillomavirus (HPV), a factor in the development of around 90% of cases of cervical cancer. But while HPV is almost always a factor in cervical cancer, it doesn’t necessarily lead to cervical cancer.

You can of course show that it tends to do so, but note that we’re talking about two degrees of separation from circumcision here, so establishing a sufficiently strong correlation (to even suspect that there might be causation) between circumcision and cervical cancer would require a mountain of data. Instead, what we have in this meta-analysis  is a relatively small sample (for the control group), a suspect methodology, and virtually no controlling for other cervical cancer risk-factors, such as smoking or poverty.

In other words, the evidence of benefits from circumcision is not entirely clear. And against these possible benefits, we also need to weigh costs – for example, the cost of reduced penile sensitivity. Or, perhaps the cost of increased rather than decreased HIV infection, seeing as the South African National Communication Survey on HIV/AIDS in 2009 found that 15% of adults thought that circumcision eliminated the need to use condoms.

I don’t necessarily think that all ethical dilemmas can be resolved by empirical evidence, even if many of them can be. But even if circumcision does come with the benefits of reducing HIV infection or instances of cervical cancer, there’s no obstacle to men of a sexually-active age choosing to be circumcised. If the data were clear I’d happily endorse their doing so, because it’s sensible to reduce risk where possible, and where the reduction comes at an acceptable cost.

But it should be a choice. And while surgical interventions can sometimes be approved by someone other than the patient, this should never be the case for non-essential surgery. So to my mind, the Cologne court made what is unquestionably the correct decision on health grounds, and one which also happens to protect freedom of religion. That is, the freedom of the infant to later choose a religion, or to choose to not have one.

Also worth reading:
Religion is no excuse for mutilating your baby’s penis, by Brian D. Earp

And here’s a lunatic rant from Brendan O’Neill:
The rebranding of circumcision as ‘child abuse’ echoes the ugly anti-Semitism of medieval Europe

By Jacques Rousseau

Jacques Rousseau teaches critical thinking and ethics at the University of Cape Town, South Africa, and is the founder and director of the Free Society Institute, a non-profit organisation promoting secular humanism and scientific reasoning.