Bioethicists, human rights advocates and criminal lawyers are watching another outbreak of the “circumcision wars”, after yesterday’s decision by a provincial court in Cologne, Germany, that circumcision of male infants is illegal.
The decision resulted in expressions of concern from Germany’s Muslim and Jewish communities. It will almost certainly be appealed to Germany’s highest constitutional courts (and thence, if necessary) to the European Court of Justice, on the basis of human rights.
It will revive the debate in Australia and elsewhere about the legality of non-therapeutic surgery on minors – that is, people who cannot consent to a body modification that, in practice, is irreversible and not necessary immediately after birth in order to save their life.
In essence, non-therapeutic circumcision involves a conflict in human rights law.
Opponents of infant circumcision refer to the law about assault, characterising the surgery as something that would otherwise be dealt with as a crime. They also regard it as a denial of the infant’s human rights, a body modification that is akin to the female genital mutilation, which is criminalised in Australian law.
Previous articles about circumcision on this site demonstrate that opponents are often deeply committed to those views.
Proponents, on the other hand, claim that infant circumcision is a fundamental aspect of membership of ethno-religious communities, a practice that is ordained by God (evident, for example, in Genesis 17:1-27). And that underpins the person’s psychological well-being from childhood through to the grave. Criminalisation of non-therapeutic circumcision, in that view, is inconsistent with Australia’s respect for cultural diversity and religious belief.
It’s likely that around one in ten newborn Australian males are circumcised each year, typically outside public hospitals.

Australian law regarding non-therapeutic circumcision is unclear and likely to remain so, with governments proving reluctant to grasp the hot potato. The Tasmanian Parliament has not, for example, embraced the 2009 state Law Reform Institute’s issues paper on Non-Therapeutic Male Circumcision.
Neither statute nor case law explicitly bans infant circumcision and it’s not prohibited by the leading international human rights agreements. In principle, circumcising an infant could be regarded as assault, an offence under state or territory criminal law. Assault on an infant often carries a stronger penalty than that on an adult, reflecting the minor’s vulnerability.
Assault involves intentional application of force, and opponents of circumcision argue that the cutting can be construed as the offences “wounding” or “causing grievous bodily harm”. That harm is typically identified as a bodily injury that endangers, or is likely to endanger, life or cause serious injury to health.
Much medical treatment of course involves wounding and the infliction of pain; it is lawful to engage in surgery to remedy or treat an existing disease, illness or deformity of the body.
The law also permits some injury and pain in the course of sport, such as football and boxing, and body modification such as tattooing and piercings (in the genitals, nose, tongue or ears). And it’s increasingly grappling with questions about consensual sado-masochism that ranges from spanking through to stigmatized activity, such as branding.
For many people infant circumcision is contentious purely because it is non-therapeutic and involves infants rather than because it involves pain and the excision of flesh.

An adult or teenager has autonomy in decision-making. They can consent and may well choose to modify their bodies, possibly in ways they’ll later regret (evident in the market for tattoo removal). An eight-day-old boy cannot consent. The decision has been made for the child.
Some communities consider that “belonging” requires the parents to act for the child. That action reflects a sense of the paramount interests of the child, a principle that underlies Australian family law.
From that perspective, debate about infant circumcision involves differing perspectives on what’s best for the child, for example, bodily integrity versus participation in a covenant that’s embedded in rich cultural and religious values.
There are no easy answers and it’s regrettable that much of the debate is so shrill. As a society we do allow – and even expect – parents to make decisions on behalf of their offspring. Is circumcision the right decision? Should the state intervene? Are we going to override the beliefs and values of Australia’s Muslim and Jewish communities?
One German jurist is reported as commenting, “After the knee-jerk outrage has faded away, hopefully a discussion will begin about how much religiously motivated violence against children a society is ready to tolerate."
If we are going to have a principled discussion about “violence”, we might want to think about the violence inherent in the stigmatisation of ethno-religious groups and of gay people. The greatest harm experienced by many people is to be unloved, unwanted or marginalised rather than have to undergo surgery.
Peter Fox
Peter Fox is a Friend of The Conversation.
Medical doctor
"The greatest harm experienced by many people is to be unloved, unwanted or marginalised rather than have to undergo surgery"
Are you still suggesting that mutilation without consent is justified in order to "belong" to your community? (as you have previously opined on the Conversation - http://theconversation.edu.au/unethical-and-harmful-the-case-against-circumcising-baby-boys-1543 ).
But, of course, if all the "unloved, unwanted" people in the world only had their penis mutilated, perhaps they would be able to belong to a community and all would be well...
Rahim Hankin
Researcher
Makes no sense. What about surgery? What about medicine that has adverse affects? Circumcision prevents many urinal problems that might develop because less urine remains after urination. <a href="http://freelancedesignerblog.wordpress.com/2012/05/31/outsource-a-freelancer">outsource a freelancer</a> Furthermore what about cosmetic surgery? You are consenting to being greviously harmed by someone else for non-medical reasons. You might even turn out worse than you started after surgery!
Dan Smith
Network Engineer
Removing all your teeth helps prevent tooth decay, but it kinda comes with some drawbacks. Circumcision's benefits to lowering UTI rates is miniscule; from the conclusions of a metanalysis (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1720543/?tool=pmcentrez):
"Circumcision reduces the risk of UTI. Given a risk in normal boys of about 1%, the number-needed-to-treat to prevent one UTI is 111. In boys with recurrent UTI or high grade vesicoureteric reflux, the risk of UTI recurrence is 10% and 30…
Read morealigatorhardt
logged in via Twitter
The foreskin has nothing to do with retaining urine in the urinary tract. If proponants had legitimate reasoning, we might be convinced, but to use verifiable false information shows that the source cannot be trusted.
Mark Amey
logged in via Facebook
'Circumcision prevents many urinal problems that might develop because less urine remains after urination.'
We could apply the same logic to infant mastectomy, I mean the breast cancer rate in women is enormously high, between 9 and 11% in Western countries. This could be prevented with an east 'snip' in the first week of life.
Of course we don't do this, it's complete nonsense, just as the circumcision/UTI debate. Strangely enough young boys learn to wash under their foreskins just as they learn to was behind their ears (well, eventually from my experience!).
Mark Amey
logged in via Facebook
an east 'snip'
Try easy snip.
Sorry.
David Daly
Data Analyst
Violence against children?! I can't see that judge having much of a future. There are medical benefits to circumcision and its 'violence'? And unnecessary cosmetic surgery or tattooing is on the otherhand ok? What about sports where people can die? Foolish decision.
Philip Dowling
IT teacher
Female genital mutilation is increasing rapidly rapidly in Australia.
We even had surgeons suggesting that some version of it might be OK.
Australia is less pro-active in trying to stop the practice than many in Africa are.
At least there , it is admitted as an evil practice.
In Australia, feminists are concerned about being on company boards, but not on this issue.
Philip Dowling
IT teacher
I note that my comment has been rather negatively received.
Read moreWhenever I attempt to raise it as an issue it is met with censorship or is completely ignored.
Of course, this doesn't happen in Australia, does it?
At least the home secretary of the UK has finally admitted that it occurs there.
http://www.dailymail.co.uk/health/article-2097615/Theresa-May-Shocking-number-girls-undergoing-female-genital-mutilation-UK.html
Kenya is also open about it as a problem.
http://www.gender.go.ke/index.php…
Joel B
Boilermaker
I am making the assumption that the majority of men in favour of circumcision have been circumcised at an early age themselves.
I am also assuming that the majority of people who practise religion have been raised to follow their particular religion from an early age.
I am fortunate that the only thing thrust upon me by my parents was to follow Rugby League instead of Rugby Union or AFL.
Just because your family has followed a religion and/or the barbaric, symbolic practise of circumcision…
Read moreBruce Moon
Bystander!
Joel Be
My initial reaction was akin to yours.
But, then...
There is this 'human rights' notion that communities ought be allowed to live as their community wishes. And, that other groups / communities / societies ought not impose their views on that community.
Examples include the Pa Dong women wearing neckrings or the Mursi women with extended lower lips (in both cases, first undertaken when very young).
While these communities are remote, and thus outside our general attention…
Read moreJoel B
Boilermaker
A valid point, Bruce.
Duly noted.
Respect.
PS: I bloody LOVE this website.
aligatorhardt
logged in via Twitter
Even Jewish doctors admit that circumcision is unnecessary .http://www.doctorsopposingcircumcision.org/pdf/sorrells_2007.pdf
http://www.jewsagainstcircumcision.org/
Chris Booker
Research scientist
All of the issues raised by the possibility of banning male circumcision have already been addressed in terms of eliminating female circumcision. It's one of things that makes the ongoing tolerance of male circumcision a strange cultural anomaly.
For example, the issue of religious freedom of parents or 'belonging' to a community (be it ethnic or religious community) were obvious issues with the elimination of female circumcision. The response of the WHO and multiple other international agencies…
Read moreGil Hardwick
Anthropologist
Surely, the simple solution to this purported dilemma is wait until the person is old enough to ask.
In suggesting that I do appreciate degrees of legal consent from birth through to one's majority, though to balance that argument it is always the case that at whatever age informed consent always requires due consultation.
Regardless, when all is said and explained and justified and a small boy still resolutely refuses to allow his willy to be snipped, and we will never know that until he is…
Read moreMark Amey
logged in via Facebook
Mate, I can't see too many blokes lining up for a circ!!
Sean Mitchell
logged in via Facebook
Go to Rwanda... saw and did about 4 a day when I was there as a medical student.
Ned Young
management consultant
I think this is a storm in a teacup in Australia, if this is correct:
"It’s likely that around one in ten newborn Australian males are circumcised each year, typically outside public hospitals."
When I was a kid, 'helmuts' outweighed 'socks' in the boys locker rooms by about 20 to 1. It seems that this issue has taken care of itself without the State having to get involved. And for the love of god, please keep human rights gnomes in Geneva well away from our penises! Anybody who claims that clitoridectomy is equivalent to male circumcision really needs a dressing down.
Alex Cannara
logged in via Facebook
Seems hypocritical -- Germany circumcises its nukes.
;]
David Elson
logged in via Facebook
Removing a purely religious procedure from a publicly funded secular hospital would seem like a step in the right direction.
And disallowing female circumcision should be a given!
Mark Amey
logged in via Facebook
No one in NSW public hospitals will conduct a circumcision, except for clinical reasons!
David Elson
logged in via Facebook
Wasn't there a push a while ago were some Sydney doctors were advocating that female circumcision be conducted in a clinical environment (read public hospitals) as certain people would have these done irregardless and if banned from hospitals would seek to undertake backyard surgeries/unlicensed doctors?
Daniel Burton
Medical Student
One further factor not mentioned in this article is the small but real risk of serious complications from circumcision surgery. As a medical student I will never forget being seeing a few pictures of circumcisions gone wrong, including one, done in a major hospital, where the boy lost his entire penis due to the diathermy not being turned down from the previous operation.
From my point of view, in addition to the ethical questions raised above, there is a further one, as a doctor whose first priority is to do no harm, and that is: "what reason do I have to subject this child to a small but real risk of devastating lifelong disability as a result of performing a procedure with no medical indication?"
Barry Calderbank
logged in via Facebook
We live in a secular state. Surely that means if a religious practice is in conflict with the core values, then the latter trumps the former.
Except on the rare occasions when circumcision is medically warranted, it's an assault. That it's done on a child by an adult, at the instigation of another adult, makes it worse, not better. An infant, by definition cannot consent.
I find it hard to believe that here in the 21st century there is any serious debate about this.
Michael Glass
Teacher
Circumcision certainly is a hot potato. I would like to suggest five legal changes that would help to stop abuses.
1 The law should insist that no child is circumcised against the wishes of a parent. If one parent wants circumcision and the other does not, then the decision should be delayed until the owner of the foreskin is a man, and can decide the issue for himself.
2 If a child is circumcised against the wishes of a parent, then the persons involved should be charged with sexual assault…
Read more