Brief Synopsis: The German court in Cologne has recently made circumcision in Cologne illegal. This has led to surgeons being worried and ceasing to perform such operations for non-medical reasons. It has also led to religious minorities feeling alienated and affronted by such a ruling. The ruling may change for political reasons from pressure from above. Merkel might invoke a parliamentary law legalizing circumcision.
My first thought was that making the practice of male circumcision illegal would create greater harms than keeping the practice legal because it would likely expose the infants to a greater risk of harm through more amateur forms of circumcision carried out at home without the availability of medical aids like anaesthetic etc and it would lead to alienating small religious communities that see this practice as integral to their religious identity.
In this respects male circumcision might be analogous to prohibition regarding sex. Presumably making sex under a certain age illegal does not work stop teenagers having sex or getting pregnant. In the case of sex there is an innate drive and a strong desire to copulate which makes prohibition fail. In the case of male circumcision there does not seem to be any innate drive to circumcise infants but there is a strong desire to do so in order to maintain a tradition that is associated with one’s religion. Hence presumably the strong desire to maintain the practice will continue even if the practice is outlawed and surgeons and/parents prosecuted for carrying it out. It is likely that surgeons will be the most likely to refrain from the practice as they will be the most easily caught infringing the law and have most to lose but parents and communities will go undetected or unpunished.
So the argument against making the practice illegal is that the legal strictures would only prevent circumcision being carried out by registered surgeons but it would not prevent parents carrying out the practice from within a particular cultural or ethnic community.
It may be tempting to think that the argument we have just considered that it is wrong to make circumcision illegal because it would lead to the practice being carried out within the ethnic community where the risks of harm are greater then the same argument can be applied to making the practice unavailable on the NHS because making the practice unavailable on the NHS leads to the same consequence we have been considering.
However this would be a mistake because when the NHS directs its resources to any particular area such as circumcision, resources are taken from other areas such as heart surgery. Circumcision undertaken for religious or ritualistic reasons that provide little or no medical benefit would constitute a harm as it would involve diverting resources away from areas that provide far greater medical benefit than circumcision.
A simple solution for Germany would be to make the practice available only at a cost which is pretty much how it is in the UK at present. The idea being better have the practice carried out legally where it can be monitored than have it carried out illegally where it cannot be monitored.
The privatisation of the practice is in accord with the British Medical Association council’s advice which is that there is insufficient evidence to warrant circumcision for medical reasons, the BMA believes, parents should be entitled in this case “to make choices about how best to promote their children’s interests.” This remark cannot sensibly be read as supposing parents can know what medical procedure would best promote their children’ medical interests so the interests here must refer to things like how well the children will fit in with other family members (yes I had to mention the other members) .
However not everyone is happy with such a response and they claim that double standards are at work here. Female circumcision is illegal in the UK on pretty much the same grounds that the German court rules male circumcision illegal – it involves a medical operation removing healthy tissue for non medical reasons and so constitutes a harm.
Iain Brassington at the Journal of Medical Ethics blog agrees that despite the worry that the practice will continue unmonitored the parallels with female circumcision look to favour a ban:
“But we tend to take the attitude that it is better yet that it not be done at all, and the law is directed to that end. If such policy makes sense in respect of female circumcision, then it’s not obvious why it couldn’t make sense in respect of the male version. Yes: if parents are going to have their sons cut, it’s better that they do so in as safe a way as possible. But the “if” is important, and the German court denied that they should be able to have their sons cut. And that’s the morally important bit.”
Now it seems to be straightforward that if the moral principle upon which male circumcision is objected to is the same as that which female circumcision is objected to, and the consequences in terms of benefit/harms are comparable in both cases, then if the one is made illegal then the other should too. It would be hypocritical to support the one and not the other.
So the argument that the practice should remain legal needs to do more than throw in the worry that the practice might go unmonitored an involve more harms than otherwise. Those in favour of maintaining the legality of the practice will need to try and distance male circumcision from female circumcision to be persuasive.
Catherine Bennett at the Guardian also argues for the double standards in attitudes to male circumcision and female circumcision as she says:
“Parental rights have not, opponents of male circumcision often point out, been allowed to trump those of young girls in the case of its related barbarity – female genital mutilation – which is officially banned and denounced, even in its least-devastating manifestations, as an inexcusable assault on a child’s physical integrity. Neither the prevalence of FGM nor the argument that prohibition will only force it underground has dissuaded the World Health Organisation from unequivocal condemnation. “FGM,” it says, “is recognised internationally as a violation of the human rights of girls and women.”