Circumcision as Child Abuse: The Legal and Constitutional Issues Information Pages Circumcision Information Pages Information for parents Anatomy of the penis Mechanics of intercourse Foreskin restoration Rationales for routine circumcision Cultural and religious issues Female circumcision Declaration of the First International Symposium on circumcision Reviews Readers' feedback Resources Reference Library Circumcision Reference Library General Policy statements The penile prepuce Adult penile anatomy Foreskin sexual function Complications of circumcision Deaths from circumcision Pain Psychological aspects Effects of circumcision Proper penile hygiene Conservative treatment of penile problems Prevention of disease and infections Circumcision procedure History of circumcision Cultural and religious documents Bioethics and human rights index Anthropology and sociology of circumcision Legal references Circumcision statistics Circumcision reversal Research Ridged Band Abstract Anatomy Function News Pictures Questionnaire Links FAQ News Literature Circumcision as Child Abuse: The Legal and Constitutional Issues Journal of Family Law (University of Louisville School of Law), Volume 23, Issue 3, 1984-1985. by William E. Brigman* I. INTRODUCTION The maltreatment of children is as old as recorded history. Infanticide, ritual sacrifice, exposure, mutilation, abandonment, brutal discipline and the near slavery of child labor have existed in all cultures at different periods, and have been justified by disparate beliefs - that they were necessary to placate a god, to expel spirits, to maintain the stability of a race or simply to inculcate learning. Practices viewed today as victimizing children were accepted for long periods in civilized communities as "in the best interest" of society. The Spartans with their exposure of infants, the English and New England owners of factories partly "manned" by children of eight or ten, the Southern slave owners, were all convinced that their treatment was beneficial to the community and perhaps to the children themselves.1 Despite the great concern about child abuse among scholars and legislators in the past twenty years, the same type of cultural astigmatism which prevented past generations from perceiving their actions as child abuse prevent contemporary Americans from perceiving or acknowledging the most widespread form of child abuse in society today: child mutilation through routine neonatal circumcision of males. In a society in which over 89% of all males are circumcised within a few hours of birth, it may be difficult to conceive of circumcision as mutilation. However, from the perspective of a neutral outsider, neonatal circumcision is as barbarous as female circumcision, the removal of earlobes, fingers or toes, the binding of infant female feet or other disfiguring practices around the world. Since circumcision is not medically warranted, has no significant physiological benefits, is painful because it is performed without anesthesia and leaves a wound in which urinary salts burn, carries a significant risk of surgical complications, including death, and deforms the penis, it would seem that as a nonaccidental physical injury, it is properly included in the definition of child abuse. This paper will examine the medical and psychological case against routine neonatal circumcision and will discuss the potential legal and constitutional barriers to treating the practice as child abuse. II. HISTORY AND PRACTICE OF CIRCUMCISION Male circumcision has three forms 1) simple circumcision, which involves only the removal of the foreskin or prepuce; 2) subincision (also known as ariltha), found among the Australian aborigines, which involves longitudinally cutting the urethra from the glans to the scrotum and opening the urethral canal, giving the penis a flat and sometimes bifurcated appearance; and 3) superincision, used in Polynesia, which involves cutting the preputium from the upper surface and extending the cut to the pubic region.2 While male circumcision is a relatively common practice, female circumcision of various types is not so widespread; it is not surprising that such mutilation is normally found only in preliterate societies.3 Circumcision may be the oldest form of surgery.4 The Egyptians, who probably acquired the practice from African tribes, practiced circumcision as early as 4000 B. C. In the Jewish religion, the origin of circumcision is attributed to Abraham, who established a "blood covenant" with God through circumcision. The practice is also part of the pre-Islamic Arabic tradition and became a near prerequisite to becoming a Moslem. The practice is very widespread and is unknown only to Indo-Germanic people, the Mongols, and non-Moslem Finno-Ugrian races. Circumcision, although known, is not widely practiced in India.5 Anthropologists,6 psychologists, and psychiatrists7 have offered a variety of explanations for the practice: enhanced or decreased sexual performance, societal prestige, sacrifice to fertility gods, tribal signs, tests for endurance, reincarnation, and hygienic reasons. However, with the exception of Jews, for whom circumcision has long been a tribal sign, widespread circumcision in the United States appears to be largely a late nineteenth century development. For non-Jews, it serves neither as a means of tribal integration, or separation and identification, non as an initiation to establish male identity. The customary justification for the mutilation is hygienic, but it seem to have been primarily grounded in the anti-masturbation hysteria of the late 1800s. It was feared that the boy with a foreskin which had to be pulled back while cleaning would learn to masturbate - a practice widely believed to lead to insanity and numerous other illnesses.8 With the blessing and active cooperation of the medical profession, removal of the foreskin of newborns became part of standard hospital practice. The exact number of neonatal circumcisions performed each year is unknown since there is no systematic record is kept of ritual, religious or medical circumcisions. However, informed estimates are that 80% to 90% of all male infants are routinely circumcised. For example, George Washington University Medical Center reported that 79% of male infants were circumcised between 1978 and 1980;9 the largest hospital in Salt Lake County, Utah, reported an average circumcision rate of 92% from 1975 to 1979;10 and a survey of physicians in 1981 found that 80% of them believed that over 90% of their male patients were circumcised.11 III. THE CASE AGAINST ROUTINE NEONATAL CIRCUMCISION Although physicians were early proponents of circumcision for hygienic reasons, the preponderance of medical opinion today is opposed to the practice. A major development in the move away from routine circumcision occurred in 1949 when The British Medical Journal published a study by Dr. Douglas Gairdner which informed physicians that it was perfectly normal for an infant's prepuce to be nonretractable for up to four years and that nonretractability of the foreskin was therefore not a justification for circumcision.12 Not only is routine surgery unwarranted, but an article published in 1966 in The Canadian Medical Association Journal reported a complication rate running as high as 55% for hospital performed routine neonatal circumcisions.13 Other studies showed that approximately 10% of all circumcisions had to be repeated.14 While most of the surgical complications were minor, Dr. Robert L. Baker, writing in a 1979 issue of Sexual Medicine Today calculated that 229 infants died in the United States as a result of circumcision.15 In 1970 the Journal of the American Medical Association published a well-documented study entitled Whither the Foreskin? which concluded that "circumcision of the newborn is a procedure that should no longer be considered routine."16 The following year the Committee on the Fetus and the Newborn of the American Academy of Pediatrics concluded that there were no valid medical reasons for routine neonatal circumcision. That position was reaffirmed by its Ad Hoc Task Force on Circumcision.17 The British Medical Journal, which had give birth to the movement with its 1949 article, officially stated The Case Against Circumcision in May 1979. It pointed out that while over 80% of American males are circumcised, only 6% of male infants in England and Wales undergo the practice and that circumcision is virtually unknown in Scandinavia, with no adverse effects seen in the unshorn.18 Amazingly, it has been argued that the infant suffers little or no pain in the circumcision process. The evidence which is offered is that in the ritual Jewish circumcision, the infant, who is given an alcohol teat during surgery, cries little and almost immediately goes to sleep. That argument shows an ignorance of the effects of alcohol on infants and fails to acknowledge that "sleep" may be response to pain. Studies of infants circumcised in hospitals show that the surgery is physiologically stressful. Talbert and others examined adrenal-cortical response to circumcision and found responses congruent with severe stress.19 Three studies of non-REM sleep patterns following circumcision of infants lead to the same conclusion.20 Although there is some disagreement as to the effect of the intervening variable of wakefulness (itself a stress indicator), the studies clearly demonstrate a pattern of sleep disorganization consistent with major stress. The potential long-term physiological and psychological consequences of circumcision are not known. This lack of information is particularly troubling, since the human brain is especially vulnerable to both exogenous and endogenous influences during the interval from the latter part of pregnancy to about 18 months of age. Since animal studies reveal long-term behavioral, physiological, anatomical and neuro-pharmacological effects of minor events in early life, the effects of circumcision on newborns should not be considered short-lived in the absence of evidence to the contrary.21 There are no adequate studies of the effect of circumcision on later sexual performance and attitudes. In a 1959 study, Dr. Winkelmann of the Mayo Clinic contended that the foreskin itself is a specific type of erogenous zone and that its removal was significant: [T]he specific type of erogenous zone is found in the mucocutaneous regions of the body. Such specific sites of acute sensation in the body are the genital regions, including the prepuce, penis, clitoris, and external genitalia of the female, and the perianal skin, lip nipple and conjunctiva. It is the special anatomy of these regions that requires the use of the term "specific" when one speaks of erotic sensations originating in the skin. This anatomy favors acute perception. Similarly, Dr. Foley argues that "after circumcision when the glans is exposed to soiled diapers and rough clothing, this membrane becomes ten times thicker, and the free nerve-endings disappear. The surface becomes covered with an adherent layer of dead cells, rough dry and insensitive."23 To the contrary, however, Masters and Johnson found no significant differences in sensitivity of thirty-five non-circumcised and thirty-five circumcised males of similar ages. "Routine neurologic testing for both exterceptive and light tactile discrimination were conducted on the ventral and dorsal surfaces of the penile body with particular attention directed toward the glans. No clinically significant difference could be established between the circumcised and uncircumcised glans...."24 Even if the findings of Masters and Johnson are accepted as conclusive, they merely establish that later sensitivity of the glans is not diminished. Their findings do not reach the critical objection that routine circumcision at birth is an unwarranted cruelty. IV. CONSTITUTIONAL AND LEGAL ISSUES Since circumcision is medically unwarranted mutilation and disfigurement, it would appear to be a clear case of child abuse. A literal reading of criminal statutes gives that impression since mayhem, assault and battery, even when committed by parents or physicians are punishable crimes in every state criminal code. Furthermore, child abuse, commonly defined as the intentional, non-accidental use of physical force that result in injury to a child., is universally proscribed by state law. The California law is typical: " `[C]hild abuse' means a physical injury which is inflicted by other than accidental means on a child by another person."25 The code goes on to state: [A]ny person who wilfully inflicts upon any child ... injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for 2, 3, or 4 years or in the county jail for not more than one year.26 However, before it can be concluded that the state can, should, or has already outlawed the practice of circumcision through the adoption of general criminal statutes or child abuse statutes, the contemporary state of child abuse law and the social and religious views toward circumcision necessitate analysis of several major constitutional and legal issues, including the constitutional rights of parents, the nature of the family, and the right to privacy. A. The Constitutional Rights of Parents and Family Autonomy Parental rights to the custody and control of their minor children are as old as civilization itself. Thomas Aquinas used the education of one's offspring as one of the most obvious examples of the operation of natural law.27 Modern judges refer to parents' custodial rights as "sacred," as a matter of natural law," 28 and as inherent natural rights, for the protection of which, just as much as for the protection of the rights of the individual to life, liberty, and the pursuit of happiness, our government is formed."29 Because the right to bear children is so basic, some believe it antedates the state. Our political system is superimposed on and presupposes a social system of family units, not just of isolated individuals. No assumption more deeply underlies our society than the assumption that is the individual who decides to raise a family, with whom to raise a family, and, in broad measure, what values and beliefs to inculcate in the children who will later exercise the rights and responsibilities of citizens and heads of families. ... ...[T]he family unit does not simply co-exist with our constitutional system; it is an integral part of it. In democratic theory as well as practice, it is the family that children are expected to learn the values and beliefs that democratic institutions later draw on to determine group directions. The immensely important power of deciding about matters of early socialization has been allocated to the family not the government.30 For this reason, as well as because of the historical exclusion of family matters from the concern of the state, there has been great reluctance on the part of the courts to become involved in family governance. The position is well stated by the New York Court of Appeals: The court cannot regulate by its processes the internal affairs of the home. Disputes between parents when it [sic] does not involve anything immoral or harmful to the welfare of the child must be left to the conscience, patience, and self restraint of the father and mother. No end of difficulties would arise should judges try to tell parents how to bring up children. Only when moral, mental and physical conditions are so bad as to seriously affect the health and morals of children should the courts be called upon to act.31 The rights of parents to the care and custody of their children is not expressly stated in the Constitution. However, the United States Supreme Court has upheld the fundamental rights of family integrity and recognized that there exists a private realm of family life beyond state control. Significantly, the Court has not yet decided a case which it perceived as presenting a clear conflict between the rights of the parent and the child. Many of the cases which uphold parental rights are based upon a preference for traditional parent-controlled family life and involve parental rights to control the education of the their children. The first major case was Meyer v. Nebraska32 in which the Court, in striking down a law prohibiting the teaching of German in the public schools, specifically addressed the rights of parents to control their children's education. The Court held that the due process clause of the fourteenth amendment included the right to "marry, establish a home, and bring up children."33 Two years later in Pierce v. Society of Sisters,34 the Court struck down an Oregon compulsory school- attendance law which effectively outlawed private schools. Justice McReynolds, speaking for the Court, argued that "the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."35 In one of the few non-education, non-religious cases touching on parental rights, May v. Anderson,36 the Supreme Court stated that one of the most fundamental rights in the "immediate right to the care, custody, management and companionship of minor children."37 Using this logic, the Court held that a sister state did not have to honor an ex parte Wisconsin divorce decree. In Ginsberg v. New York38 a majority of the Court justified a law prohibiting the sale of pornography to a minor on the grounds that the law supplemented parental guidance which was not always present. In clear obiter dicta it stated that "[c]onstitutional interpretation has consistently recognized the parents claim to authority in their own household to direct the rearing of their children is basic to the structure of society."39 Since the Court could have easily upheld the law without reference to parental authority, the dicta serve as an indication of the depth of judicial feeling on the subject of parental rights. Perhaps the strongest statement by the Supreme Court is found in Stanley v. Illinois40 which struck down a state law depriving fathers of the custody of their illegitimate children after the death of the mother. The Court noted that it had frequently emphasized the importance of the family. The rights to conceive and raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390,399 (1923). "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and "[r]ights far more precious ... than property rights," May v. Anderson, 345 U. S. 528, 533 (1953). "It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary obligations the state can neither supply nor hinder." Prince v. Massachussetts, 321 U.S. 158, 164 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541, and the Nineteenth Amendment, Griswold v. Connecticut, 381 U. S. 479, 496 (1965) (Goldberg, J. concurring).41 Stanley made it very clear that the mere assertion of a parens patriae interest in the protection of the child was insufficient to warrant abridgement of parental rights unless the potential harm to the child was significant. The opinion in Griswold v. Connecticut,42 which gave married couples access to contraceptive devices and information, is based on the constitutional status of the family as well as the right to privacy: Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence from the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw … truncated (30,966 more characters in archive)