EXAMINING NONTHERAPEUTIC CIRCUMCISION.

Author:Munzer, Stephen R.
 
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  1. INTRODUCTION II. NATURE OF THE INQUIRY III. CIRCUMCISION AND POSSIBLE HARMS IV. BODILY INTEGRITY AND AUTONOMY V. A TISSUE LOSS ARGUMENT VI. A GENITAL SALIENCE ARGUMENT VII. A PERMANENT MODIFICATION ARGUMENT VIII. A GENDER EQUALITY ARGUMENT IX. ASSERTED MEDICAL BENEFITS OF NEONATAL CIRCUMCISION X. QUALIFYING THE RIGHT NOT TO BE CIRCUMCISED: LIMITATIONS, EXCEPTIONS, BALANCING, AND FACT-SENSITIVITY A. Limitations B. Exceptions, Balancing, and Fact-Sensitivity XI. EVALUATION OF SOME ARGUMENTS FAVORING CIRCUMCISION BY SOME GROUPS A. Freedom of Religion: Toleration and Multiculturalism B. Longevity C. Social Meaning 1. Committed Traditionalists (Judaism) 2. Accommodators (Judaism) 3. Resisters (Judaism) 4. Sunnah Conservatives (Islam) 5. Secular Liberals (Islam) 6. One Spectrum or More? 7. Social Meaning and Underlying Practice D. And Yet XII. Why Legal Interference with Nontherapeutic Circumcision IS NOW III ADVISED XIII. Conclusion I. INTRODUCTION

    Do male minors have a moral right not to be circumcised without a medical indication? This question has become urgent in moral, political, and legal debate over the last several decades. An affirmative answer could have a serious impact on Jews and Muslims across the globe and potentially disrupt the frequency of secular circumcisions in the United States.

    This Article argues that male minors have a moral anticipatory right-in-trust not to be circumcised without a medical indication. Based on norms of autonomy and bodily integrity, this Article's treatment of children's rights, parental rights, religious freedom, and tolerance offers arguments accessible to readers of many ethical, political, and intellectual persuasions. Three direct arguments rest on (1) the loss of nonrenewable functional tissue, (2) genital salience, and (3) limits on a parental right to permanently modify their sons' bodies. This Article also compares circumcision to a rare form of female genital cutting; the comparison contains the seed of an argument sounding in (4) gender equality. In current circumstances, however, it is unwarranted to treat nontherapeutic circumcision as a crime or subject it to burdens under tort, family, or administrative law.

    Throughout I use interchangeably the phrases "nontherapeutic circumcision" and "circumcision without (a) medical indication." Unless otherwise stated, "circumcision" is the removal of the foreskin along with the thin mucous membrane that covers the head (glans) of the penis and the fold of mucous membrane (frenulum) that runs from the undersurface of the glans to the deep undersurface of the foreskin. (1)

  2. Nature of the Inquiry

    This Article is a study in moral, political, and legal philosophy. It concentrates heavily on moral philosophy. But it also tackles issues of political philosophy, such as freedom of religion, tolerance and multiculturalism, and issues of legal philosophy, such as sanctions based on tort or administrative law, and the availability of exemptions for some religious groups.

    Is it morally permissible to circumcise male minors without a medical indication? I do not frame this question in terms of moral justifiability because that might intimate that circumcision, if it is justifiable, is the morally right thing to do--or that one has a moral obligation to do it. Further, even if it is morally permissible, it might not be the only relevant morally permissible action, or even a prudent action. Here I understand morality as secular morality built on Aristotelian, Kantian, utilitarian, or other foundations. A medical indication is a good medical reason for a particular test, medication, procedure, or surgery. Ritual circumcision is common, perhaps nearly universal, among Jews and Muslims. (2) Secular neonatal circumcision is common in the United States, though not in most other parts of the world.

    I suggest that it is harder to show that circumcision of male minors without medical indication is morally permissible than is often thought or assumed. In support of this suggestion, I appeal to moral norms of autonomy and bodily integrity. Under these norms I deploy three specific arguments--from tissue loss, genital salience, and permanent bodily modification--that make a provisional case against the moral permissibility of the nontherapeutic circumcision of male minors. Later, I test the power of my case by considering some counter-arguments: reparability, net benefits that arguably outweigh the right, tolerance and the freedom of religion, and the longevity and social meaning of the practice of circumcision in Judaism and Islam.

    A significant issue is whether a minor child has any anticipatory moral rights that parents and others ought to respect prior to their child attaining majority (or some advanced sub-majority age, such as fourteen or sixteen). My arguments are--in a way clarified later--fact-sensitive. I do not claim that my arguments are decisive, that parents who have their male minors circumcised are morally blameworthy, or that social sanctions should be imposed on these parents. Nor am 1 arguing that the state should prohibit or interfere with religiously-based or socially-supported circumcisions. (3) I invite those who believe that there is nothing morally wrong with nontherapeutic circumcision to reconsider their belief.

    Not all persons who think deeply about circumcision try to evaluate its moral permissibility. Some persons might believe that God has made a law that male minors belonging to some groups be circumcised. This law, some believe, comes from God's wisdom and rests on a divine rationality that is superior to human rationality. They might reject the idea that a secular explanation or defense of this law exists or is even relevant. They might also reject the idea that male minors have a moral right not to be circumcised. I invite readers who may hold these views to consider whether it makes any difference to their beliefs and practices to think of circumcision in terms of moral permissibility or impermissibility.

    To say that male minors have a moral right not to be circumcised without medical indication is not to say that every parent who has them circumcised is morally blameworthy. Suppose a society routinely circumcises male infants. It has never occurred to parents in this society that there might be anything morally wrong about doing so. In my view, these parents would be morally blameless because they are unaware that male newborns have a moral right not to be circumcised. The situation would be different if, for example, parents became aware that some forms of circumcision were dangerous for male minors.

    For whom is this Article intended? It is intended for educated parents who are deciding whether to circumcise their male child. For moral philosophers who are interested in biomedical ethics. For medical doctors and other circumcisers who are reexamining their views on the moral rights of male minors. For medical doctors from different medical cultures who are open to evidence and dialogue. For Jews and Muslims who might learn more about their religious traditions of circumcision. For Jews and Muslims who are predisposed to follow their religious traditions but wonder how other ways of thinking might assess these traditions. For readers who are untroubled by nontherapeutic circumcision and resistant to worrying about it. For those who speculate whether ancient practices have a place in a world increasingly shaped by human rights. For those who would tolerate potentially harmful practices in the name of multiculturalism. For scholars of gender and society who worry about the differential treatment of boys and girls. For those who are responsible for the health and the moral and religious upbringing of male children.

  3. CIRCUMCISION AND POSSIBLE HARMS

    To many people, circumcision could seem a matter of parental choice. If a male minor has a medical indication for the procedure, doctors would explain to the parents why circumcision would be desirable. The most common medical indications include unretractable foreskin (phimosis), constriction of the glans by an unduly tight foreskin (paraphimosis), and inflammation of the glans (balanitis). (4) In the absence of these or other indications, doctors in the United States often defer to parental wishes. Secular circumcisions are common in the U.S. Jewish and Muslim parents across the globe almost always seek circumcision--sometimes from doctors, sometimes from ritual circumcisers--for their male minors. (5)

    Given this background, it might surprise some that circumcision could be a moral issue, let alone a vigorously contested moral issue. One reason for the contestation lies in the possible harms of circumcision. Following Feinberg in part, I define a harm as a setback to interests. (6) I treat harm as comparative and counterfactual for present purposes. (7) Here, I mention four classes of harm: pain, medical complications, adverse psychosexual effects, and functional impairments. Circumcising a person causes pain either from the procedure or during the recovery, or both. (8)

    Medical sources often separate early (acute) complications from late complications. (9) Early complications, in alphabetical order, include chordee, death, destruction (ablation) of the penis, glanular amputation, glanular necrosis, hemorrhage, iatrogenic hypospadias, penile skin bridge, redundant foreskin, and surgical site infection. (10) Late complications, in alphabetical order, include buried penis, chordee, epidermal inclusion cysts, excessive skin removal, meatal stenosis, meatitis, penile adhesions, phimosis, sepsis, and urethrocutaneous fistula. (11)

    Because authors differ over what counts as a complication, it is not possible to give a definite complication rate even for medical doctors, let alone ritual circumcisers. (12) Some persons report adverse psyehosexual effects from being circumcised. (13) Examples include distress over the appearance of their circumcised...

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