Circumcision lies at the crossroads of religion, custom, human rights, health, commerce, harm, and ethics. From high-profile court battles overseas to its recent inclusion on Channel Ten’s provocative Can of Worms, it’s clear that its regulation is a most divisive issue.
Male circumcision has many features attracting regulation and controversy. It’s invasive, involving blood loss, pain and the removal of genital tissue. It has an inherent risk of harmful complications and is performed in a variety of circumstances by medical professionals, trained ritual circumcisers, and laypersons alike.
Circumcisers usually profit from performing circumcision and often perform it on people too young to express an opinion on whether it’s in their interests. Individuals are also liable to request circumcision on the basis of insufficient, inaccurate or inadequately contextualised information.
People can and do disagree about the merits of circumcising. Indeed, the circumcision debate is characterised by conflicts between claims that are equally absolute, and ends that are equally ultimate.
Legislatures and courts can’t frame the law to please both circumcision abolitionists and Orthodox Jewish Mohels. And they can’t promote every culturally significant way of circumcising while trying to maximise the health standards of every circumciser. This puts law reform bodies in an unenviable position.
Although it has the kind of features that give rise to the disputes brought before courts every day, circumcision has until recently avoided close legal scrutiny in Australia. There is no Circumcision Act. There has not been a significant test case. In many instances, it’s not clear how criminal and private law regulate circumcision.
Even the basic requirements of lawful authorisation to perform circumcision are uncertain. The shadow cast by the law’s uncertainty provides cover for questionable acts, and ominously follows those acting commendably. This uncertainty in the law provides ample impetus for reform.
A way forward
An attempt at reform has been made by the Tasmanian Law Reform Institute, which recently released a report titled Non-Therapeutic Male Circumcision. The report recommends reforming the legal framework governing circumcision in Tasmania, and provides the most comprehensive formal law reform analysis of circumcision ever undertaken.
The Institute outlined its approach to reform in the report to encourage critical consideration of its recommendations; it adopted a pluralistic path deeply concerned with legal, political, and evidential reality.
It recommended Tasmania provide a clear legislative basis for the legality of circumcision in some circumstances. But it didn’t consider each of the many rationales for circumcision to be equally deserving.
It recommended reform to allow adults and older minors the freedom to determine both their own circumcision status and the circumstances of the performance of their circumcision.
Due to the significant and entrenched acceptance of religious and ethnic circumcision globally, and the ardent support of its proponents, the Institute recommended reform to accommodate circumcision performed on young boys for established religious and ethnic circumcising reasons.
Because it assessed the secular social rationales for circumcising (such as improved appearance, family tradition and familiarity) as rightfully controversial, weakly established, and tenuously linked to the child’s interests, the Institute recommended the prohibition of circumcision performed on young children for the sake of secular social reasons.
Weighing the benefit of its putative prophylactic health effect (offering potential benefits of no real significance to the vast majority of Australian males) against the harm of potentially significant costs (and the possibility of other costs with potential consequences ranging from negligible to truly dire), the Institute recommended the prohibition of circumcision performed on young children for preventative health reasons.
The Institute made several supporting recommendations to:
• protect the interests of children by requiring court authorisation when parents cannot agree about the merits of circumcising their child;
• improve access to justice for those harmed by circumcision as a child by improving their access as an adult to legal remedies;
• ensure no minor be put at an unnecessarily high risk of suffering from a circumcision by enacting clear minimum health standards for all circumcisers; and
• improve decision-making by requiring clear standards in regard to the quality of information about circumcision provided to the community.
Those who perform or instigate a circumcision do so without knowing the full extent of their exposure to civil and criminal liability. By reforming the law, Tasmania may spare itself the pain of hosting the kind of legal battles making headlines in Europe.