Male Circumcision and
the Rights of the Child
`Indoctrination can harm the child,
by effectively closing off the alternatives
for the adult the child will become. An individual
can choose only among the options of which she
is both aware and can consider seriously.
If parents limit the child's exposure to religious
and moral views identical to their own, the child
will see only one option and choose it:
she will likely hold the same beliefs
when she becomes an adult.'1
In this article, I will address the issue of male circumcision relating
to the rights of the child. In most countries the issue is hardly discussed
or even ignored. In the Netherlands, only rarely male circumcision is the
subject of debate. The Netherlands Government worries more about the safety
and hygiene of the circumcisions taking place, resulting, inter alia, in
subsidising education for circumcisers.2 This is in sharp contrast
to the intensive debate on genital mutilation of girls, which took place
in 1992 and 1993.3 This discussion formed the direct reason for
a study carried out by the Netherlands
Institute of Human Rights (SIM).4 In the latter study, the
only explicit mentioning of male circumcision concerned the fact that genital
mutilation of girls frequently goes further than mere circumcision, a small
incision or the removal of the prepuce of the clitoris. The only form of
female genital mutilation which is anatomically comparable with the circumcision
of boys is that form of circumcision in which the clitoral prepuce is cut
away. This form, however, occurs very rarely.5
The choice to make a dissociation between the
two practices was at that time a pragmatic, political decision, related
to the vehemently discussion in the Netherlands,6 and because
the fight against female genital mutilation would be more difficult if
male circumcision were also to be challenged. The main conclusion of the
study was that female genital mutilation is a harmful traditional practice
in the sense of Article 24(3) of the UN
Convention on the Rights of the Child and that the States Parties
accordingly should take all effective and appropriate measures to abolish
In discussing the results of the research with
Peter Baehr, he asked me whether the conclusions drawn in the report would
also apply to male circumcision. Although the issue of male circumcision
was not dealt with in the research on female genital mutilation, it was
frequently mentioned in the literature and other material studied at that
time.9 I take this opportunity to address the issue of male
circumcision, using mainly the material collected for the study on female
genital mutilation. Studying additional literature on male circumcision,
I learned that this custom has been as much the subject of extreme controversy
as is the case with female genital mutilation and that the debate on routine
neonatal male circumcision is intensifying, particularly, but not only
in the USA.10
After a description of male circumcision in
section 1, section 2 will give some examples of what authors on female
genital mutilation have said about male circumcision. Sections 3 and 4
will deal with the human rights and legal aspects of male circumcision.
Finally, some concluding observations will be made.
1. A Description of Male Circumcision
History and Prevalence
Male circumcision is probably one of the oldest of all surgical procedures.11
Male circumcision preceded female genital mutilation, both operations existed
long before Judaism and Islam were introduced.12 In the absence
of any historic, medically confirmed documentation, the origins of the practices
have provided much room for speculation but have revealed very few facts.
Although the origin of the practice is not entirely clear, it almost certainly
began as a religious rite.13 In all societies where female genital
mutilation is practised, male circumcision is also performed.14
But throughout history the male operation has existed in many more societies
than operations on females.15 Currently, approximately one-fifth
of the world's male population is circumcised, particularly on religious
grounds. In Western society, mostly in the Anglo-Saxon countries like Australia,
Canada, the United Kingdom and especially the USA, circumcision is usually
performed for non-religious, `medical' reasons. There is, however, enormous
variation between the circumcision rate in the UK (5-6 percent) and that
in the USA (60 percent). In Britain neonatal circumcision declined from
an incidence of around 30 percent in the 1940's to a very low level at present.
Still, it remains a common operation, with over 30.000 procedures annually.16
To compare, it is estimated that there are between 85 and 115 million girls
and women throughout the world whose genitals have been mutilated.17
One can distinguish several types of male circumcision
of which the simple or routine infant circumcision, which is the removal
of the foreskin or prepuce, is most commonly practised.18 In
most cases, no anaesthesia is used. In general, the operation is perceived
by the medical staff as a relatively minor procedure, with no or hardly
any risks for the child.19 Regarding the risks of male circumcision,
some authors have reported a complication rate as low as 0.06 percent,
while at the other extreme rates of up to 55 percent have been quoted.
This reflects the differing and varying diagnostic criteria employed.
A realistic figure seems to be 2-10 percent.20 Although haemorrhage
(bleeding) and sepsis (infection) are the main causes of morbidity, the
variety of complications is enormous. The literature abounds with reports
of morbidity and even mortality as a result of circumcision. Other complications
mentioned in the literature are, inter alia, psychological and
possible sexual complications.21
Religious Reasons for Male Circumcision
In the Jewish community circumcision (brit milah) is a religious
ritual and is usually performed on the child's eight day22
of life by a Mohel. The rite of circumcision is one of the most
ancient practices of Judaism. The commandment to circumcise male children
was given to Abraham in the Torah (Genesis 17:7-14).23 Circumcision
is (in general) a common denominator among movements: Reform, Conservative,
Re-constructio-nist, Orthodox, all circumcise their male children and
require male converts to undergo some form of circumcision.24
Anaesthetic is not used.
In the United States, the Jewish community has
begun to question the practice, using arguments based on the religion.
For instance, according to Jewish law, it is forbidden to hurt living
things. Even the necessary causing of pain is considered cruel in Judaism.
Also the fact that circumcision involves the surgical alteration of a
perfectly natural God's given part of the body, which stems from Jewish
thought plays a role. The opinions range from supporting the view that
a carefully considered decision against circumcision can be reconciled
within Jewish tradition to the statement that `the ritual of circumcision
is one of the mistakes Judaism carries within it and should be considered
not differently from the way they are considered by society in general,
no matter how centrally important they seem to Jewish culture'.25
Bringing a Jewish boy into the covenant symbolically in a ceremony officiated
by a rabbi is an alternative proposed by some authors.26
Religious circumcision is also practised by
Muslims: the procedure is performed between the ages of four and 13 years.
Curiously, however, the Koran contains no specific ordinance on this subject.27
However, according to the Sunnah (sayings and practices of the Prophet)
`circumcision is a sunnah for men and excision an honour for women'.28
In the literature, also medical reasons are mentioned (removal of the
prepuce under which impurities may gather and allow germs to spread and
cause infection),29 and historic, pragmatic reasons.30
Also within the Islamic doctrine, arguments against circum-ci-sion can
be found, either based on the Koran itself,31 or on the Sunnah.
However, these arguments are, to my knowledge, only used against female
Within Christianity, male circumcision has no
religious significance.32 Other religions and cultures practice
male circumcision especially as a requirement for `manhood' within certain
Non-Religious Reasons for Circumcision
Male circumcision evolved from a religious ritual or puberty rite into
routine surgery for health reasons in the Anglo-Saxon countries. During
the existence of the non-religious circumcision different reasons have
been adopted ranging from prevention from masturbation, which, it was
believed, caused blindness and/or insanity (mid 19th Century), to most
recently HIV prevention. Initially, it was also advocated as a cure to
prevent alcoholism, asthma, hernia and, for instance, headaches. Since
the turn of the century, other reasons have been given to perpetuate the
practice: hygiene, avoidance of sexually transmitted diseases,
prevention of penile cancer and of cervical cancer, protection against
urinary tract infections in infancy, and decreasing the risk of AIDS.
Until today, male circumcision remains in the medical literature a very
controversial issue. Many advantages for circumcision have been claimed,
but as one is disproved and discarded, others are found.
The medical debate centres around the controversy
whether male circumcision can be regarded as harmless. With regard to
whether or not routine neonatal circumcision has health benefits, the
medical literature contains contradictions35 and also the professional
groups find it difficult to reach a conclusion.36 A good example
is the American
Academy of Pediatrics (AAP) which issued several statements on routine
neonatal circumcision, contradicting one another.37 Also, mainly
in the United Kingdom, controversy exists on whether too many circumcisions
are being performed to manage minor foreskin (phimosis) problems in childhood,
which could be managed conservatively.38
Especially in the United States, where neonatal
circumcision in 90 percent of the cases is performed as a routine medical
procedure, numerous activist groups have emerged in the past decade, in
response to the demand by parents for more accurate information in order
to have the possibility of an informed choice on circumcision.40
The similarity with the grassroots level organisations in Africa, which
are in the forefront in the fight against female genital mutilation, is
striking.41 Most of the organisations are of the opinion that,
whilst the consequences of the circumcision of boys and the circumcision
of girls differ, the violence involved is the same.42
2. Authors on Female Genital Mutilation about Male Circumcision
`As the clitoris is regarded as the masculine element in the [girl] child,
it is believed that the foreskin on the penis which is regarded as the female
element in a male should be removed.'43 From a biological and
health view the operations on girls are not the counterpart of male circumcision.44
However, although perhaps the extent and also the complications of the operation
are different, the fact remains that healthy tissue is removed from a healthy
person without his or her consent.
In addition, there are many parallels between
female genital mutilation and male circumcision, especially with regard
to the background (religious requirement or tribal tradition) and the
reasons and justifications given to perform the operation. According to
`[c]hildhood genital mutilations are anachronistic
blood rituals inflicted on the helpless bodies of non-consenting children
of both sexes. The reasons given for female circumcision in Africa and
for routine male circumcision in the U.S. are essentially the same. Both
falsely touch the positive health benefits of the procedures. Both promise
cleanliness and the absence of “bad” genital odours, as well as greater
attractiveness and acceptability of the sex organs. The affected individuals
in both cultures have come to view these procedures as something that
was done for them and not to them.'45
Toubia wrote: `The unnecessary removal of a functioning body organ in
the name of tradition, custom, or any other non-disease related cause
should never be acceptable to the health profession. All childhood circumcisions
are violations of human rights, and a breach of the fundamental code of
`It is self-evident that any deliberate physical
mutilation especially of the female genital organs is a violation of this
person's integrity and her human right to health as much as the mutilation
of male genital organs is. The excision of the penis which is equivalent
of excision of the clitoris is instantly recognized as a severe physical
genital mutilation with permanent consequences and is a criminal offense.
The same is true of what is done to female children resulting in permanent
health and psychological trauma. Both are human rights violations.'
3. Human Rights and Legal Aspects of Male Circumcision
From the literature, it becomes apparent that there are two opposite sides
in the debate on routine male circumcision. One side advocates the practice,
primarily on a preventative health basis or on religious grounds (see supra).
The other side opposes the practice, primarily on human rights and preservation
of bodily integrity grounds. In the remaining of this article, I will elaborate
on the arguments presented by the latter group.48
A number of rights are raised in the legal discussion concerning the phenomenon
male circumcision: the rights of the child in general, the right to health,
wherein legal-ethical arguments with regard to the actions of the medical
profession play a role, the right to physical integrity, the right of
parents to bring up their children according to their own traditions and
culture and, as the continuation of that, the right to cultural self-determination.
The Rights of the Child in General
Taking as a basis the Universal
Declaration of Human Rights and the Declaration
on the Rights of the Child, male circumcision can be conceived as
being a breach of the universally accepted human rights and rights of
the child.49 The Universal Declaration of Human Rights,50
which is nowadays generally accepted as customary international law, prohibits
in Article 5 acts of torture and inhuman treatment. Article 12 provides
for a right to privacy and Article 3 reads: `Everyone has the right to
life, liberty and security of person.'
on the Rights of the Child, in Article 19(1) provides that the States
party to the Convention
`shall take all appropriate legislative, administrative,
social and educational measures to protect the child against every form
of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse, while
in the care of parent(s), legal guardian(s) or any other person who has
the care of the child.'
Article 37 provides that the States shall ensure that a child is not
subjected to torture or other cruel, inhuman or degrading treatment or
punishment. For present purposes, Article 24(3) of the Convention is the
most important. This paragraph reads:
`States Parties shall take all effective and
appropriate measures with a view to abolishing traditional practices prejudicial
to the health of children.'
This part of Article 24 was extensively discussed during several meetings
of the Working Group.51 During these discussions, it was proposed
that the subject of female genital mutilation be included explicitly in
the article, in order to clarify the content of the article and to indicate
that it concerned practices `of a serious nature'.52 However,
also restraint with regard to subjects which imply differences in cultural
values was advocated.53 Finally, agreement was reached on the
condition that the term `traditional practices' would encompass all those
practices that are included in the 1986 report of the Working Group on
Traditional Practices Affecting the Health of Women and Children.54
A last attempt from the Netherlands to refer explicitly to female genital
mutilation within this article failed.55
Veerman considers the Convention
on the Rights of the Child to be innovative, for, among other things,
`[I]t will be the first binding instrument that specifically states that
“traditional practices” such as female circumcision (...) are harmful.'56
It is, according to Veerman, generally known that the `traditional practices'
named in Article 24(3) refer in the first place to female genital mutilation,
and that these vague terms are used in order to avoid problems.57
The question is whether the article is also applicable to male circumcision.
If one considers the latter procedure not `an infringement upon the health
or rights of boys and young men as it implies no permanent damage to health,'58
then Article 24(3) is not relevant. However, given the fact that male
circumcision is painful and can have harmful implications, one could also
argue that this custom also falls under the definition, especially because
of the vague terms used.
Regional human rights instruments,59
to which in this context reference can be made, are the African
Charter on Human Rights and Peoples' Rights,60 and the
Charter on the
Rights and Welfare of the African Child.61 The latter Charter
refers in Article 1(3) specifically to `[A]ny custom, tradition, cultural
or religious practice that is inconsistent with the rights, duties and
obligations contained in the present Charter shall to the extent to such
inconsistency be null and void.' Article 14 deals with physical, mental
and spiritual health. There is no mention in this article of traditional
practices; however Article 21(1) is dedicated wholly to traditional practices.
The paragraph reads:
`States Parties to the present Charter shall
take all appropriate measures to abolish customs and practices harmful
to the welfare, normal growth and development of the child and in particular:
a) those customs and practices prejudicial to the health or life of the
child, and b) those customs and practices discriminatory to the child
on the grounds of sex or other status.'
The Right to Life
Male circumcision is also conceived by some authors as a threat of the
right to life. The operation can lead to medical complications, which
occasionally result in death.62
The Prohibition of Discrimination
One could also argue that male circumcision constitutes a violation of
Convention on the Elimination of All Forms of Racial Discrimination.63
Article 5(b) contains an explicit reference to personal security, stating
`In compliance with the fundamental obligations
laid down in Article 2 of this Convention, States Parties undertake to
prohibit and to eliminate racial discrimination in all its forms and to
guarantee the right to everyone, without distinction as to race, colour,
or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights: (...) (b) The right to security of
person and protection by the State against violence or bodily harm,
whether inflicted by government officials or by any individual group or
As circumcision is perceived as inflicting bodily harm, this article
could be applicable.
The Prohibition of Torture
Male circumcision can be conceived as a form of cruel, inhuman or degrading
treatment, in view of the way in which it often takes place and in view
of the pain which accompanies it. In the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment65
it is stated that: `The States party to this Convention undertake to take
all effective legislative, administrative, judicial or other measures
for the prevention of and eventual punishment for torture.' The States
also may not deport or return a person to his native country if there
are grounds to believe that that person shall run the risk of torture.
In addition, Article 16(1) expressly provides that each State party undertakes:
`to prevent in any territory under its jurisdiction other acts of cruel,
inhuman or degrading treatment or punishment which do not amount to torture
as defined in Article 1, when such acts are committed by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in official capacity (...)'
The Right to Health
A number of the documents on international human rights, including the
of Human Rights, the International
Covenant on Economic, Social and Cultural Rights and the Convention
on the Rights of the Child, contain provisions which lay down the
right to health. If one adheres to the opinion that male circumcision
is medically unnecessary, and that consequently the procedure carries
an unnecessary danger of complications, certainly where this takes place
under unhygienic conditions, it can be argued that the procedure forms
a threat to the health of the child. Because of the procedure, without
any necessity the natural anatomy and physiology of the child is changed,
and this can lead to life-threatening health problems.66
>From a legal perspective, parents carry the primary responsibility
for the health of their child, and must take decisions in these matters
on the basis of the fact that the child is not yet capable of doing so
because of his `diminished capacity'.67 Parental consent is
required for all forms of medical treatment. However, there is also the
parental right to refuse medical treatment, on religious grounds, for
example. Just as in the case of male circumcision, the parents are, in
refusing medical treatment of the child on religious grounds, convinced
that their decision is in the interest of the child. In this latter case,
it is argued that the decision to adhere to a religion and to accept the
consequences thereof suggests a degree of intellectual adulthood. Children
are not in a position to take this decision, so parents take this decision
for them. When the health consequences of refusing medical treatment are,
for instance, threatening the life of a child, in practice it can happen
that parents are divested of their parental authority during the period
of the medical procedure.68 One of the arguments for this action
is that the child has no choice in a matter which concerns his health,
welfare and physical existence. The child has no say in the matter. This
argumentation is also employed by various authors in respect of male circumcision
and female genital mutilation.69 According to them, the decision
to undergo the operation can better be postponed until the individual
is able to make its own choice, that is, when it has reached adulthood.
The situation changes when an adult, after having been informed of the
consequences, decides to follow tradition and undergo the operation.70
It is also advocated that parents should be fully informed about the functions
of the foreskin,71 the pain, complications and possible disadvantages
of the procedure, in order to be able to make a more carefully considered
decision on whether or not to circumcise their child.72 When
the necessary information is given, it is ultimately the responsibility
of parents to knowingly put their children at risk.
The Right to Physical Integrity
The right to physical integrity has two components: protection against
violation of and offenses against the body by others, thus from outside,
and the right to determine over one's own body, the right to self-determination.
The right to physical integrity is one of the fundamental civil rights.
It is a right to `freedom'. The government should therefore refrain from
interference. However, the government also has a relevant duty of care,
namely the stimulation of a climate in which civil rights can achieve
a substantive form.
In activist literature in particular, male circumcision
is seen as a violation of the right of self-determination of the child
over its own body.
The Right of Parents to Bring Up their Children According to their
Own Traditions and Culture
Parents have the right to bring up their children according to their own
traditions and culture. Parents have the desire to give their children
the best possible upbringing, an upbringing in `the best interests' of
their child, independent of governmental interference. These interests
can be in bringing the child up according to their own culture and traditions,
or can be influenced by economic, social and cultural advantages, as well
as by strong social and cultural pressures.73 One problem with
genital mutilation is that the parents do not carry out the practice in
order to hurt or abuse their child. Consequently, the parents do not see
it as a form of child abuse. The procedure is carried out because it is
judged to be in the `best interests of the child', socially or physically.
The rights of the child can conflict with the right of parents to bring
up their children according to their own traditions and culture. Most
cultures are in agreement that it is not good to endanger the health or
welfare of people who cannot make their own decisions. It is generally
accepted that a harmful and disfiguring practice may not be carried out
upon someone who has no capacity to consent. Children do not judge independently
or expertly, there is no question of `permission'.74 There
is no question of free will. This last argument can be a reinforcement
in respect of the contention that the operation can better be postponed
until the individual is able to make his or her own choice, that is, when
he or she has reached adulthood.
The Right to Cultural Self-Determination Versus Universally
Accepted Human Rights
It would be going too far within the framework of this article to make
an indepth examination of the possible controversy between the right to
cultural self-determination and universally-accepted human rights. However,
it is important to make a number of remarks about this subject, since
this can clarify the dilemma facing some cultures.
The practice of male circumcision and female
genital mutilation is part of an intricate and complex cultural system.
The elimination of the practice could mean the disturbance of the cultural
balance, and the attempts of outsiders to alter or eliminate the practice
are often seen as an irresponsible interference in a people's culture
and as moral imperialism. The question is, however, whether a community
has the right to maintain a tradition, simply because it is a tradition.
When is the `tradition' a violation of human
rights which justifies the pressures of others to end it? When is a practice
sufficiently harmful or dangerous to warrant being called a violation
of human rights? Does male circumcision fall within this description?
All these questions are concerned with the controversy between cultural
self-determination and human rights. One of the most important aspects
in determining whether a cultural practice can be deemed to be a violation
of human rights is the extent to which innocent people are wounded or
killed as a result of that practice.75 At the same time, an
important consideration is the extent to which the `victim' participates
at his or her own free will.
The controversy can be brought back to that
between tradition and children's rights: the right to maintain a tradition
versus the right to physical integrity and the right of children to be
protected from unnecessary pain, complications to their health, permanent
disfigurement of their bodies, and even death. What should prevail and
how would this be determined, and by whom?
This last question raises the issue as to whether
the concept of human rights is a Western concept, and whether there are
universal human rights, which could be applied without cultural value
judgment? Here one can, in general terms, again distinguish two trends.
Firstly, that of cultural relativism, in which it is said that there are
many different cultures in the world and that it is impossible to apply
one and the same set of values to them.76 The other conception
demonstrates that a universal standard is not only possible, but indeed
necessary, basing this on the idea that the concept of human rights is
not just a western ideology, but that human rights are `inalienable, entitled
to all human beings, and cannot be denied by a state or government'.77
Countries cannot withhold these rights from their subjects or deprive
them of these rights, and it is the duty of governments to implement and
uphold these rights.
4. Legal Measures
The demand for a legal prohibition of all forms of male circumcision as
well as of female genital mutilation is a very tricky point of discussion.
This is because a number of opponents of legal measures are of the opinion
that such measures would only force the custom to go `underground', increasing
the health risks. The problem with laws and regulations, particularly in
the case of a deeply-rooted practice is that, without clear enforcement
mechanisms and without the support of education, information and consciousness-raising,
no clear effects can be expected from the law. Laws forbidding behaviour
which is deeply rooted in a culture will neither receive extensive support
nor bring about much change.78 If effective legislative action
is to be achieved, the following prerequisites must be fulfilled. On one
side there must be active, consistent support for the legislation, followed
by governmental enforcement of the laws. On the other side, the laws must
be concurrent with other activities, such as education and information.
In this context, it is interesting to note,
that two countries in which non-religious routine neonatal male circumcision
frequently takes place have adopted strict laws against female genital
mutilation. Both laws explicitly, in almost the same wording, state that
in order to determine whether an operation is necessary for the health
of the person `no account shall be taken of the effect on the person on
whom the operation is to be performed of any belief on the part of that
or any other person that the operation is required as a matter of custom
At what point should a practice be deemed dangerous enough to be a violation
of human rights, in this case the rights of the child, worthy of freedom
from external interference? How is this determined and by whom? Comparing
male circumcision and female genital mutilation, in my opinion, the severity
of the operation should not be an issue.80 Fact is that in all
cases healthy tissue from a person without the consent of that person is
removed. The focus must be placed on the children who are forced to suffer
without consent. Male circumcision is, like female genital mutilation, a
`harmful traditional practice' and as such in violation with the rights
of the child. It is necessary to advocate full respect for these human rights
for all children, boys and girls alike. By condemning one practice and not
the other, another basic human right, namely the right to freedom from discrimination,
is at stake. Regardless whether a child is a boy or a girl, neither should
be subject to a harmful traditional practice.
The attitude of Western societies to oppose
to female genital mutilation, but not to condemn male circumcision (perhaps
because they are afraid that they will be considered as anti-semitic81),
suggests a double standard of the acceptance82 and implies
(racial) discrimination of circumcised boys (Jewish and Moslem) by not
trying to protect them against useless pain as is the case with girls
and non-circumcised boys.
As was stated in the study on female genital
mutilation, moral condemnation is not the best solution to the problem.
International and domestic legislation are not enough to stop all forms
of harmful traditional practice. The problem with laws and regulations,
particularly in the case of a deeply-rooted practice, is that, without
clear enforcement mechanisms and without the support of education and
information, no clear effects can be expected. Laws forbidding behaviour
which is deeply rooted in a culture will neither receive extensive support
nor bring about much change. Laws can, however, play a supportive role,
alongside information and education. These measures must be combined with
efforts to raise the level of awareness.
It is questionable whether, in the majority
of cases of routine neonatal circumcision, the parents are fully informed
as to the function of the foreskin, and the pain, possible complications
and risks and consequences of the operation. It is the responsibility
of doctors and health care professionals involved as well as religious
leaders and practitioners to inform the parents.
In my view, the best way to do justice to the
rights of the child is to do no harm, to let it enjoy life in every aspect
and to protect it against influences not asked for. Regardless of whether
a child is a boy or a girl, neither should be subject to a tradition which
is harmful. When the child is of consenting age, fully informed about
all possibilities which lay ahead of him or her, it can make up his or
her own mind and choose the way he or she thinks is best.
* Researcher at the Netherlands Institute of Human Rights (SIM), Utrecht.
`Freedom of Religion and Children', Public Affairs Quarterly,
No. 3, 1989, pp. 75-87 (84), as cited by Piet van der Ploeg, `Moet besnijdenis
mogen?' [Should circumcision be allowed?], Comenius, Vol. 17,
No. 3, 1997, pp. 117-129 (122).
See on the
policy of the Dutch Government relating to male circumcision, for instance,
Trudy Veerman, Aart Hendriks, Jacqueline Smith, `Recht doen aan gezondheid(sbelangen)
van kinderen' [To do Justice to the Health (Interests) of Children],
in: Recht en kritiek, Vol. 21, No. 2, 1995, pp. 136-165 (154-158).
cause for the discussion was the publication of a report by K. Bartels
and I. Haaijer, 's Lands wijs, 's lands eer?: Vrouwenbesnijdenis
en Somalische vrouwen in Nederland [When in Rome, do as the Romans
do?; Circumcision of women and Somali women in the Netherlands], Centrum
Gezondheidszorg Vluchtelingen, The Hague, 1992.
Smith, Visions and Discussions on Genital Mutilation of Girls: An
International Survey, Defence for Children International, Section
The Netherlands, Amsterdam, 1995. This study was carried out on behalf
of Defence for Children International, Section The Netherlands, at the
request of the Netherlands Ministry of Foreign Affairs, Directorate
General for International Cooperation.
p. 2 and p. 10. See also the Inter-African Committee on Traditional
Practises Affecting the Health of Women and Children, Report on the
Regional Conference on Traditional Practises Affecting the Health of
Women and Children, 19-24 November 1990, Addis Ababa, Ethiopia;
Berhane Ras-Work, Activities Concerning Traditional Practises Affecting
the Health of Women and Children and Profile of Non-Governmental Organisations
Involved in this Issue, WHO, Geneva, 1989.
an extensive description of this discussion, Smith, op.cit. (note
4), pp. 161-165.
the Report of the UN Seminar related to Traditional Practices affecting
the Health of Women and Children, Ouagadougou, Burkina Faso, 29 April-3
May 1991, `As regards the strategy for combatting female circumcision,
it was recommended that efforts should be made to separate, in people's
minds, male circumcision, which has a hygienic function, and female
circumcision, which is a grave attack on the physical integrity of women.'
(UN Doc. E/CN.4/Sub.2/1991/48, p. 6, para. 27)
on 20 November 1989 by the General Assembly of the United Nations and
entered into force on 2 September 1990, UN Resolution 44/25 (1989),
UN Doc. A/44/736. 191 countries are at present (May 1998) party to this
instance, Hanny Lightfoot-Klein, Prisoners of Ritual: An Odyssey
into Female Genital Circumcision in Africa, Harrington Park Press,
New York, 1989; Fran P. Hosken, The Hosken Report; Genital and Sexual
Mutilation of Females, 4th Rev. WIN News, Lexington, 1993; Nadia
Toubia, `Women and health in Sudan', in: Women of the Arab World,
London, Zed Press, 1988, pp. 98-109; and Nadia Toubia, International
Journal of Gynecology and Obstetrics, 46, 1994, pp. 127-135.
because the American Academy of Family Physicians and the American Academy
of Pediatrics are currently reviewing their position statement on circumcision.
The fact that in the SIM study on female genital mutilation, it was
stated that the two customs - female genital mutilation and male circumcision
- are technically incomparable and of a different background and nature
provoked several reactions, especially from activist groups from the
USA, who are advocating the right to physical integrity and the right
to individual self-determination of all children, including boys.
For an extensive
description, see, inter alia, E. Wallerstein, Circumcision,
an American Health Fallacy, Spinger Publishing Company, New York,
1980 and F. Bryk, Die Beschneidigung bei Man und Weib: Ihre Geschichte,
Psychologie und Ethologie, Neubrandenburg, 1931.
op.cit. (note 9), p. 71.
Williams and L. Kapila, `Complications of Circumcision', British
Journal of Surgery, Vol. 80, October 1993, pp. 1231-1236 (p. 1231).
For an extensive
overview of the prevalence of genital mutilations, see, for instance,
`The Geography of Genital Mutilations', paper presented at the First
International Symposium on Circumcision, 1-3 March 1989, Anaheim, California,
published in The Truth Seeker, July/August 1989, pp. 9-13.
op.cit. (note 9), p. 71.
and Kapila, loc.cit. (note 13) and Wallerstein, op.cit.
Organization, Information Kit, WHO, Geneva, July 1994. See also
the numbers compiled by NOHARMM from various sources, which indicate
that worldwide about 500 million males are circumcised.
forms mentioned in the literature, see, inter alia, Wallerstein,
op.cit. (note 11); William
E. Brigman, Circumcision as Child Abuse: The Legal and Constitutional
Issues, Journal of Family Law, Vol. 23, No. 3, 1984, pp. 337-357;
Abbie J. Chessler,
`Justifying the Unjustifiable: Rite v. Wrong', Buffalo Law Review,
Vol. 45, 1997, pp. 555-613 (564-566).
it is likely to be delegated to a junior surgeon. Kapila
and Williams, loc.cit. (note 13), p. 1231, relate the complication
rate directly to the operator's inexperience.
A reliable account is given by ibidem, p. 1231.
for the requirement that the operation be done at the eighth day, it
is given that before that day the baby is too tender and later the father
might not be able to bring himself to do it. Some doctors have said
that afterwards, the baby develops too much and circumcision would actually
be a more serious matter. After the eighth day the nervous system becomes
more developed (especially after puberty).
is, inter alia, available on http://www.landfield.com/faqs/judaism/faq/12-kids,
containing frequently asked questions on Jewish Childrearing: Why are
Jewish boys circumcised?
does not practice female circumcision.
Rothenberg, `Ending Circumcision in the Jewish Community?', paper
presented at the Second International Symposium on Circumcision, 30
April-3 May 1991, San Francisco, California.
Braver Moss, `The Jewish Roots of Anti-Circumcision Arguments',
paper presented at the Second International Symposium on Circumcision,
30 April-3 May 1991, San Francisco, California; and Rothenberg, loc.cit.
Aldeeb Abu-Sahlieh, `Islamic Law and the Issue of Male and Female Circumcision',
in Third World Legal Studies, 1994-1995, pp. 73-101 (77). Hosken
states, however, that for Moslems the removal of the foreskin is an
absolute religious requirement demanded by the Koran, Hosken, op.cit.
(note 9), p. 33. In this context, curious enough no mention is made
by the author of the Jewish tradition.
Al Nagger, Islam and Female Circumcision, translation of a communication
presented at the Inter-African Committee Workshop on Traditional Practices,
at the Nairobi Forum, 12 July 1985 (on file with the author), p. 7.
Within the Islam, no obligation is mandatory unless it is supported
by a provision or a verse in the Koran or a valid reliable saying of
the Prophet, or an unanimous agreement of scholars. With regard to the
latter, the Ijtihad (opinions and deductions of religious leaders) `which
we may follow if they do not harm us or disagree if they do', there
is disagreement between scholars of four Moslem sects regarding circumcision
of males (ibidem, p. 8). See also Aldeeb Abu-Sahlieh, loc.cit.
(note 27), pp. 78-80.
Nagger, loc.cit. (note 28).
p. 4. Rahman Al Nagger mentions as a reason that Moslems are circumcised
that their bodies may be recognized if they are killed in battle, so
that prayers may be said for them and their bodies buried in Moslem
instance, the references made by Aldeeb Abu-Sahlieh, loc.cit.
(note 27), pp. 80-81 and Nawal El Saadawi, The Hidden Face of Eve;
Women in the Arab World, Zed Press, London, 1980, p. 42.
instance, Maurice Assad, Christianity and Circumcision (on file
with the author), who refers to the New Testament, First letter to the
Corinthians (7:17-20) dealing with male circumcision of the non-Jews
who became Christians. There it is stated; `Let him not seek circumcision.
For neither circumcision counts for anything nor uncircumcision, but
keeping the commandments of God. Every one should remain in the state
in which he was called.' See also Chessler, loc.cit. (note 18),
throughout tribal Africa, see DeMeo, loc.cit. (note 14); and
Hosken, op.cit. (note 9), p. 33.
study challenged this notion again, stating that not only do circumcised
boys need more care than children with an intact penis during the first
3 years of life, they also are far more likely to develop (minor) penis
problems, such as swellings and skin adhesions, than their intact counterparts.
See R.S. van Howe, `Variability in penile appearance and penile findings:
a prospective study', British Journal of Urology, Vol. 80, No.
5, November 1997, pp. 776-782.
For an overview
of the debate on health benefits, see, amongst others, Marilyn
Fayre Milos and Donna Macris, `Circumcision; A Medical or a Human
Rights Issue?', Journal of Nurse-Midwifery, Vol. 37, No. 2 (Supplement),
March/April 1992, pp. 87S-96S. See also Dr. Benjamin Spock, writer of
`Baby and Child Care', who recommended in earlier editions of his book
that boys should be circumcised. He changed his mind, stating that `We
now know that it is not the only choice, nor is it agreed that it is
the most sensible choice. My own preference, if I had the good fortune
to have another son, would be to leave his little penis alone', Circumcision
- It's Not Necessary, Redbook, April 1989.
instance, the statement
by J. Fred Leditschke, President of the Australasian Association
of Paediatric Surgeons, A.A.P.S., which does not support the routine
circumcision of male neonates, infants or children in Australia: `It
is considered to be inappropriate and unnecessary as a routine to remove
the prepuce, based on the current evidence available.' The Australian
College of Paediatrics states that routine male circumcision should
not be performed prior to 6 months of age. In addition, it considers
that, `neonatal male circumcision has no medical indication. It is a
traumatic procedure, performed without anaesthesia to remove a normal
functional and protective prepuce'. The British
Medical Association (BMA) Guidelines advise: `The BMA opposes unnecessarily
invasive procedures being used where alternative, less invasive techniques,
are equally efficient and available'.
statement that `There is no absolute medical indication for routine
circumcision of the newborn' (AAP Ad Hoc Task Force Committee on Circumcision,
American College of Obstetricians and Gynecologists concurred, Guidelines
for perinatal care, Washington DC, 1983), p. 87 and the 1984 pamphlet
stating that the foreskin shields the glans; with circumcision, this
protection is lost (AAP pamphlet `Care
of the Uncircumcised Penis', AAP, Elk Grove Village, 1984). In 1986,
the AAP revised its publication, excluding this paragraph. In 1989,
a new position
of the AAP was issued, stating that newborn circumcision has potential
medical benefits and advantages as well as disadvantages and risks (Report
of the Ad Hoc Task Force on Circumcision, AAP, Elk Grove Village, 1989,
p. 3) Recently, the AAP has appointed a new ad hoc Task Force Committee
on Circumcision to revise the AAP position.
Gordon and J. Collin, `Save the Normal Foreskin', BMJ 1993, 306,
pp. 1-2 and Williams
and Kapila, loc.cit. (note 13), p. 1231. Already in 1949, Douglas
Gairdner declared in 1949 that the foreskin is normal, healthy tissue,
and its adherence to the glans serves the important function of protecting
the glans from urine and faeces in infancy and early childhood. Subsequently,
the British National Health Service discontinued payment for the surgery
and the practice ceased. See D.
Gairdner, `The Fate of the Foreskin', British Medical Journal, Vol.
2, 1949, p. 1433, cited in Milos and Macris, loc.cit. (note 35), p.
Canada, the debate over routine male circumcision is intensifying. See,
for instance, the recent statement of Dr. Margaret Somerville, director
of the McGill Centre for Medicine, Ethics and Law, that non-medical
infant male circumcision is technically criminal assault, 'Circumcising
baby boys “criminal assault”', Ottawa Citizen Online, 17 October
1997. The Canadian
Pediatric Society issued recently a statement saying there is no
valid medical reason to justify routine infant male circumcision and
recommending that: `Circumcision of newborns should not be routinely
can be made of: the National Organization of Circumcision Information
Resource Centres (NOCIRC); Doctors
Opposing Circumcision (D.O.C.);
Brothers United for Future Foreskins (BUFF); National Organization of
Restoring Men (NORM); National Organization
to Halt the Abuse and Routine Mutilation of Males (NOHARMM);
Nurses for the Rights of the Child (NRC);
Parents of Intact Sons; Uncircumcising Information and Resources Center
op.cit. (note 4), pp. 103-141.
instance, the Declaration
of the First International Symposium on Circumcision, which condemned
all forms of circumcision on the grounds of the violation of physical
integrity and the consequences for physical and mental health. For the
text of the Declaration, see The Truth Seeker, Vol. 1, No. 3,
1989, p. 52. See also NOCIRC Newsletter, Vol. 8, No. 1, 1994.
op.cit. (note 9), p. 31.
p. 32: `But what is done to girls has a different purpose and results:
a healthy and most sensitive organ is removed. From a biological viewpoint
the genital mutilations performed on females are the equivalent of the
amputation of part or all of the penis - with very similar physical
and sexual results and quite different from what is done to boys. With
boys the foreskin is cut, though both operations may result in deadly
infection.' `The equivalent of removing the tip of the clitoris (sunna
circumcision) is the same as the removal of the glans of the penis -
both are most sensitive and full of nerve endings', ibidem, p.
47. Hosken in her fight against female genital mutilation even goes
further in proposing to have the excision of the penis introduced as
a means to sexual control of males, instead of female genital mutilation
(ibidem, p. 47). On the differences between male circumcision
and female genital mutilation, see also Assaad, op.cit. (note
32), p. 14, who states that there is a `principle difference between
male circumcision and female circumcision. In male circumcision no parts
of the male sex organs are being mutilated, only the foreskin - the
outer cover of the male sex organs - is being removed, without touching
the male sex organ itself.'
op.cit. (note 9), p. 193. See also by the same author, `Erroneous
Belief Systems Underlying Female Genital Mutilation in Sub-Saharan Africa
and Male Neonatal Circumcision in the United States; A Brief Report
Updated', paper presented at the Third International Symposium on
Circumcision, 22-25 May 1994, Maryland. See also Chessler, loc.cit.
(note 18), pp. 573-586.
loc.cit. (note 9), pp. 127-135.
op.cit. (note 9), p. 18.
As a frame
of reference the same categories are used as in the study on female
genital mutilation. See Smith, op.cit. (note 4), pp. 20-24.
as to whether human rights are also children's rights, see, inter
alia: E. Verhellen, Convention on the Rights of the Child; Background,
Motivation, Strategies, Main Themes, Garant, Leuven, 1994, pp. 35-56.
More general see, for instance, Målfrid Grude Flekkøy,
`Children as Holders of Rights and Obligations', in: Donna Gomien (ed.),
Broadening the Frontiers of Human Rights, Essays in Honour of Asbjørn
Eide, Scandinavian Press, Oslo, 1993, pp. 97-120 and Philip Alston
(ed.), The Best Interests of the Child; Reconciling Culture and Human
Rights, UNICEF, Clarendon Press, Oxford, 1994.
and promulgated by the General Assembly of the United Nations on 10
an overview of the discussion, Smith, op.cit. (note 4), pp. 42-43.
of the United States, UN Doc. E/CN.4/1987/25, para. 35.
E/CN.4/1987/25, para. 29.
E/CN.4/1987/25, para. 38.
Veerman, The Rights of the Child and the Changing Image of Childhood,
Martinus Nijhoff, Dordrecht, 1992, pp. 184-185.
Lee, `Female Genital Mutilation - Medical aspects and the rights of
children', International Journal of Children's Rights, Vol. 2, No. 1,
1994, pp. 35-44 (35). However, she also admits that `[c]ontrary to popular
belief in various parts of the world, as for example in the United States,
male circumcision has no health or sexual advantages either.' See also
Geraldine van Bueren, The International Law on the Rights of the
Child, Martinus Nijhoff, The Hague, 1995, p. 307.
regional documents, which status is until now uncertain, could be of
relevance. The Charter of the Rights of the Arab Child, promulgated
by the Arab League of which the exact date of its acceptance by the
Council of Ministers of the Arab League is not clear. See Veerman, op.cit.
(note 56), pp. 260-263. Text of the Charter in idem, pp. 517-526.
The Charter does not contain an explicit reference to harmful traditional
practices. However, it is included in the fundamental rights that the
States `confirm and guarantee the right of the child to have State protection
from abuse and exploitation both physically and psychologically even
if it were from members of his family'. In June 1992, the European Parliament
discussed and approved the Draft European Charter on the Rights of the
Child. See minutes of the Assembly of 8 July 1992, European Parliament,
p. 13 and pp. 29-38. Article 19 of this Draft contains the right of
every child to physical and moral integrity: `No child shall be subjected
to torture, inhuman, cruel or degrading treatment by any public or private
person.' Article 25 stipulates the right of every child to have his
own culture, to practise his own religion or belief and to use his own
by the 18th Meeting of the Heads of State and Government Leaders of
the Organisation of African Unity on 27 June 1981 in Nairobi. The Charter
entered into force on 21 October 1986.
was prepared within the Organisation of African Unity. The draft was
approved by the 26th Meeting of the Heads of State and Government of
the Member States of the OAU. It will become effective when the 15 Member
States have ratified the Charter or have acceded to the Charter. A large
number of articles are the same as the provisions in the UN Conven-tion
on the Rights of the Child; however, the African Charter contains a
number of provisions which are specifically directed toward the African
Slack, `Female Circumcision: A Critical Appraisal', Human Rights Quarterly,
No. 4, 1988, pp. 437-486 (451-452).
by the General Assembly of the United Nations on 21 December 1965 and
entered into force on 4 January 1969, Resolution 2106 (XX) (1965).
by the author. See also Hosken, op.cit. (note 9), p. 9: `Human rights
are indivisible, they apply to every society and culture and continent.
We cannot differentiate between black and white, rich and poor, male
and female, or between North and South, the industrialized or developing
countries, if the concept of human rights is to mean anything at all.'
by the General Assembly of the United Nations on 10 December 1984 and
entered into force on 26 June 1987, Resolution 39/46 (1984).
for the applicability of Article 24(3) of the Convention on the Rights
of the Child.
in the case of children whose parents are Jehovah's witnesses.
reference to parental consent in the case of routine neonatal male circumcision,
see, inter alia|, Charles
A. Bonner and Michael J. Kinane, `Circumcision; The Legal and Constitutional
Issues', paper presented at the Second Symposium on Circumcision, 30
April-3 May 1991, San Francisco; J.P. Warren, `Circumcision and the
abuse of medical power' (copy on file of author). See also Les Haberfield,
`Responding to “Male Circumcision: Medical or Ritual?”', Journal
of Law and Medicine, Vol. 4, No. 4, May 1997, pp. 379-385. The author
states that parents and doctors are not acting unreasonably while some
medical justification can be shown for the procedure. With regard to
female genital mutilation, see El Saadawi, op.cit. (note 31); Inter-African
Committee, op.cit. (note 5); United Nations, Review of Further Developments
In Fields Which the Subcommission has been concerned. Study on Traditional
Practises Affecting the Health of Women and Children, Final Report
by the Special Rapporteur, Mrs. Halima Embarek Warzazi, E/CN.4/Sub.2/1991/6,
5 July 1991.
views on `informed consent' and whether one can speak of freedom of
will in the case of adult female circumcision, see, inter alia,
Slack, loc.cit. (note 62), pp. 470-472; Asma El Dareer, Woman,
why do you weep: Circumcision and its Consequences, Zed Press, London,
loc.cit. (note 35), Gordon
and Collin, loc.cit. (note 38) and Warren, loc.cit.
should be fully informed of the possible benefits and the potential
of the Ad Hoc Task Force on Circumcision, AAP, Elk Grove Village,
1989, p. 3. See also Kapila and Williams, loc.cit. (note 13),
p. 1235; and Les
Haberfield, `Informed consent and infant male circumcision', paper
presented at the Australasian Law Teachers Association Conference in
Sydney, Australia, 3 October 1997, stating that doctors may be at risk
of litigation, where they perform a circumcision procedure without giving
appropriate information (including the risks of the procedure) to parents
to enable them to give an informed consent.
`Female Circumcision: Challenges to the Practice as a Human Rights Violation',
Harvard Women's Law Journal, Vol. 8, 1985, pp. 155-177 (166-167); Slack,
loc.cit. (note 62), p. 467.
see, concerning this, inter alia, Boulware-Miller, loc.cit. (note 73);
Slack, loc.cit. (note 62); Lightfoot-Klein, op.cit. (note 9).
examples are: the burning of widows in India, burying live babies of
the female sex in the Arabian lands, prior to the time of Mohammed.
alia, Jack Donnelly, `Cultural Relativism and Universal Human Rights',
Human Rights Quarterly, Vol. 6, 1984, pp. 400-419; Rhoda Howard,
`Women's Rights in English-Speaking Sub-Saharan Africa', in: Claude
E. Welch (ed.), Human Rights and Development in Africa, Albany,
1984, pp. 66-68; Alison Dundes Renteln, `The Unanswered Challenge of
Relativism and the Consequences for Human Rights', Human Rights Quarterly,
Vol. 7, 1985, pp. 514-540; and idem, International Human Rights;
Universalism Versus Relativism, Sage Publications, London, 1990,
cit. (note 62), p. 474. See also the Vienna Declaration of 1993,
inter alia, paragraph 1, UN Doc. A/Conf.157/23, 12 July 1993. See also
Peter R. Baehr, `Human Rights: A Common Standard of Achievement?', Netherlands
Quarterly of Human Rights, Vol. 9, No. 1, 1991, pp. 5-18; and Peter
R. Baehr, `Universaliteit van Mensenrechten: Is het, kan het, moet het?'
[Universality of Human Rights: are they, can they, do they have to?],
in: N.J.H. Huls (ed.), Grenzen aan Mensenrechten [Limits to Human
Rights], Stichting NJCM-Boekerij, Leiden, 1995, pp. 45-56.
to Lightfoot-Klein, op.cit. (note 9), pp. 43-45 a law can have some
potential in the strife for change where the desire to abandon the practice
already exists. Ogiamen advocates an approach which supports a gradual
abolition, by means of a process of official recognition of the practice.
According to him, the legal considerations should shift from the negative
approach (prohibition) to the positive approach (regulation). Tony B.E.
Ogiamen, `Legal Aspects of Female Circumcision', in: Female Circumcision.
Strategies to bring about change. Proceedings of the International Seminar
on Female Circumcision, AIDoS/SWDO, 13-16 June 1988, Mogadisho,
1988, pp. 57-69 (57).
added. In Great Britain a law, proscribing genital mutilation, entitled
of Female Circumcision Act' became effective on 16 July 1985. For
the United States, see the Federal
Prohibition of Female Genital Mutilation Act, passed in June 1995
by the United States House of Representatives and signed by President
Clinton on 30 September 1996, Bill H.R. 3247, which was included in
the Minority Health Initiatives Act, H.R. 3864, 18 U.S.C. 116, 1996,
amending the United States Code, Chapter 7 of Title 18 by adding a new
section on `female genital mutilation'. See also WIN News, Vol.
23, No. 2, Spring 1997, pp. 46-47 and Vol. 23, No. 4, Autumn 1997, p.
the idea in the 1992 Dutch report, op.cit. (note 3) of making a small
incision in or perforation of the clitoris, suggesting that such a procedure
is `symbolic' and would not be mutilation, provoked criticism.
Aldeeb Abu-Salieh, loc.cit. (note 27), p. 101.
Not only in the USA, but also, for instance, in the Netherlands. In
March 1993, the Dutch Government issued an official statement condemning
all forms of female genital mutilation. At the outset, it was again
stressed in this statement that female circumcision is a practice contrary
to the prevailing attitudes in the Netherlands on the equality of women
and their place in society: `It is viewed here as a form of repression,
and as Dutch policy aims to combat the repression of women, it opposes
all forms of female circumcision. (...) With regard to the recommendation
that policy should draw a distinction between mutilating and non-mutilating
forms of female circumcision, we have ascertained that this leads to
confusion, as the concepts are vague, and that to distinguish between
the two forms is no simple matter.' See letter from the Ministry of
Welfare, Health and Culture, No. GGb/HIZ/931029, 16 March 1993; see
also WIN News, Vol. 19, No. 2, Spring 1993, p. 45.
[Note: This report was prepared under the auspices
of the Netherlands Institute of Human Rights, University of Utrecht,
Utrecht, The Netherlands.]
This report was first published:
- Jacqueline Smith. Male Circumcision and the Rights of the Child.
In: Mielle Bulterman, Aart Hendriks and Jacqueline Smith (eds.), To
Baehr in Our Minds: Essays in Human Rights from the Heart of the Netherlands.
Netherlands Institute of Human Rights, University of Utrecht, Utrecht,
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