(I apologize if I’ve offended anyone with the flip tone of this title –I couldn’t resist the alliteration–but I suspect I’ll offend even more with what I’m about to suggest.) Those of you who follow these things may have heard of the recent attempt of the city of San Francisco to ban circumcision; perhaps fewer of you have heard the recent news stories about Kerry Campbell, the mother who has openly acknowledged (and then denied) injecting her eight-year-old daughter with Botox in order to improve her chances in the cut-throat world of child beauty pageants. The San Francisco circumcision law has apparently been challenged, but it sounds like the challenge is primarily on the grounds that the city lacks authority under state law to pass such a measure.
To me, these two stories raise one common question: what are the limits on parents’ rights to medically and surgically alter their children’s bodies for nontherapeutic reasons, and how may the state intervene to enforce such limits?
Would anyone blink an eye if states banned Botox for minors, even those who have parental consent? Then what is so troubling about the circumcision ban? Let’s put to one side, for now, claims that the anti-circumcision campaign is motivated by anti-semitism. It certainly appears that some of the publicity in support of it is anti-semitic, and I am in complete agreement that this fact would raise serious constitutional issues.
But if we were to assume a non-discriminatory motive, I don’t see the San Francisco law as being obviously aimed at Jews or any other religion. Doctors routinely circumcise newborns at the parents’ request, and I doubt that anywhere near a majority of those circumcisions are driven by religious reasons, as opposed to cultural reasons, custom, and/or perceived health benefits. At the same time, there appears to be little evidence that there is actually any significant medical benefit to be derived from the procedure for most children (except reducing likelihood of transmitting HIV). So, do the constitutional rights of parents to control their children include the right of parents to cut their children’s genitals, with virtually no apparent medical benefit? And if so, why don’t such rights include injecting them with Botox for nontherapeutic reasons? I realize that the intrusion represented by circumcision is relatively minimal, but it is still a medical procedure performed on a child for, in many cases, essentially cosmetic reasons. Thoughts?
Posted by Jessie Hill on July 8, 2011 at 09:38 AM
Comments
“No, I’m not implying “momentary” pain is nonexistent harm. I don’t really see how that follows from what I said.”
Your statement implied that momentary pain cannot be a significant harm. I can think of many forms of momentary pain that constitute significant harm, so I was wondering why you seemed to think dismissing it as “momentary” was enough.
“Millions have had them and from their experience we can determine the minimal amount of harm involved.”
I’m unclear on how exactly we’re supposed to learn about the harms from the distant memories of people who were circumcised in infancy. While long-term effects are relevant, they’re not dispositive (and often difficult to evaluate, given the complex cumulative results of many aspects of childrearing). I’m sure millions of children have been abused in various ways. If that abuse stopped early enough that they don’t remember it, they probably would say they weren’t ‘harmed’ by it if they found out about it later. That wouldn’t tell us that there was no harm.
“In fact, many did get circumcisions later in life, such as in the past when it was required to convert to a certain religion.”
This is actually (partially) the kind of information I was (genuinely) asking for. Do you have sources on the prevalence, experience, and results of adult circumcision? The most I’ve been able to find is the occasional anecdotal account.
“If merely the lack of “choice” is the problem…”
‘Merely’ the lack of choice is not the problem. The problem is damage and pain caused without choice, which is significantly more troubling than either things done without choice that are necessary and probably beneficial, or painful/harmful things chosen later in life.
“…which is under our system of law more problematic.”
I see no reason why it should be and only (at best) tenuous support for the claim that it is. I can, in fact, think of many situations where physical external harm is treated as worse than arguably similar levels of harm caused by things put into the child’s body. Regardless, current law is practically worthless when trying to answer either factual or moral questions.
“The reduction of risk is consistent even if it is not a tipping point except in limited cases. Few things are totally consistent.”
I’m not sure what you’re saying here. But the point is that while of course you can make cost-benefit analyses of Botox and circumcision, and while of course the costs and benefits are going to be difference, your previous comment asserted a kind of in-kind difference that just isn’t extant.
“possible health benefit vs. possible fiscal benefit of a junior miss beauty contest or the happiness from that particular event.”
Of course, one thing that must also be considered is that the “possible health benefit” is equally (I believe — someone with more medical knowledge please correct me if I’m wrong) available from a less morally troublesome procedure: non-infant circumcision performed when the patient is old enough to choose it, but before sexual activity begins. The relevant possible fiscal and mental benefits are more of a one-off thing.
——
I’ve got one simple objective here: I want to learn more about any facts regarding the harms of circumcision. Those who defend the practice tend to minimize them; those who attack it tend to say that it’s an abusive act. Unfortunately, neither side often backs up their claims.
Intuitively, the procedure strikes me as painful and inappropriate, but I don’t know enough about the medical practice to say whether that intuition is correct. That’s why I’m hoping someone will be able to point towards *real, substantive* information on the topic.
Posted by: Andrew MacKie-Mason | Jul 19, 2011 12:11:01 AM
No, I’m not implying “momentary” pain is nonexistent harm. I don’t really see how that follows from what I said.
The “momentary” comment is vague. Do you mean the length of the procedure (my immediate concern in my comment)? The permanence of the result? What? Since both are fairly well known, I don’t know what the point is. It has a slight sarcastic tinge.
The “so yeah” doesn’t help me either. Your ‘tude is duly noted. Millions have had them and from their experience we can determine the minimal amount of harm involved, particularly vis-a-vis the many other things children have no choice over.
In fact, many did get circumcisions later in life, such as in the past when it was required to convert to a certain religion. I’m still waiting for the big harm this resulted in. If merely the lack of “choice” is the problem, then lots of stuff children have to do must be a “big harm” since children don’t have a veto on lots of things.
It’s worse when the child is able to understand what is going on and not just physically feel it (and the right technique can deal with that issue) but mentally process what is going on. They are more able to think about it, before and after the event, while not understanding can make it put a momentary pain no more, no less than anything else.
You didn’t comment on how Botox involves putting something into the body which is under our system of law more problematic.
The reduction of risk is consistent even if it is not a tipping point except in limited cases. Few things are totally consistent. It still remains it is a lot more so than the chance of winning a beauty contest. Then, there is the issue of value judgment — possible health benefit vs. possible fiscal benefit of a junior miss beauty contest or the happiness from that particular event.
Posted by: Joe | Jul 16, 2011 12:51:57 PM
When you say “momentary distress of the procedure,” are you implying that harm to a child is nonexistent if pain is only “momentary”?
(And how long is “momentary”? Do you have information on how long circumcisions last?)
I’m unclear how the fact that “millions of guys had them” is any evidence, since most of those were when the person was unable to choose for themselves. How many people voluntarily have circumcisions as adults?
So, yeah, I’m still waiting on a source.
Re: Botox. How does doing something to a child when they are old enough to understand (and potentially object) make it *worse*? If anything, that’s better.
And the “benefits” of circumcision are not consistent either: they’re decreased *risks* of various things, just like Botox may increase the *chance* of success or happiness in various ways.
Posted by: Andrew MacKie-Mason | Jul 14, 2011 1:39:16 AM
I’m unclear of the “big harm” to circumcision. What is the “big” harm? Reduced sexual satisfaction? The momentary distress of the procedure? What? Millions of guys had them. I don’t see the big harm. I guess the “source” is thousands of years of experience.
I see some clear harm in injecting poison in little children’s faces [the fact it enters the body as compared to be external matters too as it does in 4A law], doing so when they are old enough to truly intellectually aware of what is going on. The “possible” financial (or mental — balanced off the negative effects of Botox, including alternating facial appearance artificially at that age) benefit only helps a few even if Botox is the deciding factor. Circumcision if it benefits does so consistently. It isn’t some sort of fiscal lottery.
I think people are stretching here to find an issue.
Posted by: Joe | Jul 13, 2011 7:22:34 AM
People seem to be assuming that circumcision does “little harm.” What’s the source of that claim?
Re Joe’s last comment: if you’re going to count speculative physical health benefits of circumcision, why aren’t you counting the potential mental health benefits of success in beauty pageants (or even the possible financial benefit to the child)?
Posted by: Andrew MacKie-Mason | Jul 13, 2011 3:17:39 AM
I appreciate the reply and the “emotional” comment wasn’t really addressed to you personally.
As to a set rule, that’s fine, but circumcision has certain limited value (one was listed and I think others are possible) while the Botox example was purely to get ahead in beauty contests. Even if the reason for the former is purely religious (and again, given what is allowed there, I’m unsure why it’s singled out), that trumps the Botox example. And, I’m not sure of the harm of circumcision; at least as compared injecting toxins into a little child’s face.
Posted by: Joe | Jul 12, 2011 8:07:24 PM
I’m sure California already has child protection laws on the books, so if an elective procedure poses a significant health risk and little or no benefit it might already be illegal for parents to have that procedure done. But what about procedures that carry only a small risk? Can parents have their childrens’ ears pierced? Yes, and there doesn’t seem to be much opposition to it. Does it provide a medical benefit, or any other benefit? No. Does it pose any danger? Yes, there is some possibility of an infection developing. So if we allow parents to pierce childrens’ ears, then there must be more than a simple risk analysis when we make these choices, there must also be some degree of deferrence to the choice of the parents, even if there is no benefit and some small risk involved.
Posted by: Larry Ross | Jul 12, 2011 11:21:03 AM
Joe, I didn’t mean to inject an emotional element into a debate that is already pretty emotional. My point is just that I don’t see the reason for treating the two all that differently, especially in the case of circumcision that is not performed for religious reasons. After all, there may be benefits to both procedures – as long as we don’t limit the definition of benefit to medical benefit, and I’m not sure what would be the legal basis for doing so. There are risks as well to both. In the case of the botox mom, she was investigated by authorities for child abuse. If the state can act to punish the mom in that case, it seems it should be able to act to outlaw circumcision as well. Or perhaps it depends on the degree of medical benefit, which I gather was once believed to be much greater in the case of circumcision.
Posted by: Jessie Hill | Jul 12, 2011 10:04:35 AM
Well, there is some evidence that circumcision reduces the risk of acquisition and transmission of HPV. But, so does teaching someone certain behavioral and hygiene patterns.
The remarkable thing about this discussion is that noone has raised bans on female circumcision. A clearer example of parental decision-making about a child’s future sexual conduct could not be found.
Posted by: Ann Marie Marciarille | Jul 12, 2011 10:02:37 AM
Also, as Paul notes, alliteration aside, Botox is not the same as circumcision. The need for limits here is granted, but circumcision doesn’t to me seem to reach that area. The fact it is singled out over many other things is more emotional than philosophically or legally appealing.
Posted by: Joe | Jul 10, 2011 11:23:47 AM
“cut their children’s genitals, with virtually no apparent medical benefit”
We are talking about cutting the foreskin here. Just to specify since some of the language in these discussions come off as pretty emotional and extreme. This is the “cutting” involved.
As noted by others, there is a reasonable claim to be made that SOME medical benefit is involved here. It might be trivial, but who’s to say cutting HIV (sounds curious — no other sexually transmitted disease?) is not enough? Or, some extra degree of cleanliness that might arise.
Meanwhile, a myriad of choices can be made by parents that have permanent or at least long term ramifications, including diet or cosmetic changes that as an adult one might deem wrong (“changing what God gave me”). What specific about circumcision, which does also have religious and cultural implications for many, is so special here?
I personally would think thirteen years of various types of religious instruction can do more harm in many cases than cutting off a bit of foreskin.
Posted by: Joe | Jul 10, 2011 11:18:49 AM
What strikes me about the debate about the potential circumcision bans (and potential litigation to block them) is how little law will have to do with the ultimate resolution of the matter. We can quibble a bit here or there about the wording of the various tests that the courts will use, but the ultimate question on this issue (as on all parental rights matters) will be whether the choice the parents seek to make is one that our society at this moment in time deems to be within the boundaries of “acceptable” or “normal” behavior. That determination will have way more to do with demographic trends, medical evidence, advocacy, politics, prehudices, and the strength of persuasion than anything legal. It is obvious to me that such bans, if they were somehow adopted today, would be struck down, because our constitutional culture still sees circumcision as well within the norm. But, if I needed to guess how such a ban enacted in 2025 or 2050 would do in the courts, all the things I would want to know would be sociological rather than legal.
Posted by: Andrew Siegel | Jul 8, 2011 2:26:48 PM
In my view, the “surgery” question is just one more example of the broader question of parental vs. state control, and especially within the broad area where the costs/benefits are debatable. As you rightly acknowledge, many Americans circumcise children for “perceived” health benefits, which you mostly minimize, but you then acknowledge a small risk-reduction in HIV-transmission. Who’s to say that “small” benefit isn’t worth the small harm?
The HIV example reminds me very much of the debate over mandating the HPV vaccine for young girls (or boys). Both turn on the future sexual activity of young kids, and in both, parents and the State may have different views about their kids’ future sex lives and about the balance of individual risk vs. community gain. For HPV, we’re debating whether to mandate the medical practice (vaccination), and for circumcision, whether to ban it. If both are in debatable range, then to me, both should be left to parents.
More broadly, I don’t see the firm philosophical basis for distinguishing discrete surgeries or vaccinations from health care and nutrition generally. I can harm my child a lot more from 18 years of bad food and no exercise than I can from a circumcision. Yes, the state does trump parents when malnutrition is neglect, but in the broad area between neglect and perfection, we generally back off. Yes, there is pressure to change that, too, but I don’t see that as a good thing.
Posted by: random parent | Jul 8, 2011 11:20:36 AM
Thanks to Paul, Glenn, and Marc. To answer Paul and Marc’s questions, Paul is right that I was trying intentionally (but maybe subtly) to leave aside religious reasons in my phrasing of the question. Personally, I’m not sure I think the answer is terribly clear even when the procedure is sought for religious reasons, but I feel more strongly that it is primarily performed for cultural/aesthetic reasons most of the time and that there is probably a good argument that the state does have the power to forbid such culturally-based circumcision. I think Paul is right that it comes down to a cost-benefit analysis, but I definitely think you can argue that they come out roughly the same in both cases — the benefit is minimal to nil medically, and the intrusion/risk is minimal as well. In addition, with botox, at least the 8-year-old is probably capable of assenting (if not legal consenting) to the procedure.
Posted by: Jessie Hill | Jul 8, 2011 11:00:26 AM
I’m not drawing an especially hard distinction, except perhaps between perceived health benefits and everything else. I think my discussion in The Agnostic Age find something significant about the belief that such practices are compelled by a non-natural source, but at least for purposes of this discussion I’m not insisting on a hard distinction. It just seemed to me that Jessie’s argument left out religious justifications for circumcision, presumably deliberately, and I wanted to confirm that she leaves open the possibility of religiously-based exemptions.
Posted by: Paul Horwitz | Jul 8, 2011 10:50:41 AM
Just a quick question for Jessie and Paul. Jessie raises a distinction between “religious reasons” and “cultural reasons” or reasons of “custom.” Paul appears to endorse that distinction by asking for clarification in his point #1 above that Jessie is not talking about “religious reasons.” Am I right that both of you are making this sort of hard distinction? Aren’t many kinds of religious reasons cultural and customary reasons?
Posted by: Marc DeGirolami | Jul 8, 2011 10:43:02 AM
For a good treatment of these issues, see Alicia Ouelette,Shaping Parental Authority Over Children’s Bodies, 85 Indiana Law Journal 955 (2010), http://ssrn.com/abstract=1365865
Posted by: I. Glenn Cohen | Jul 8, 2011 10:05:10 AM
Jessie, I agree with you that these are interesting questions. And I agree that it’s unfair to attribute the anti-circumcision movement to anti-Semitism, even if it does rear its ugly head (so to speak) from time to time in that movement. But 1) I take it your post says nothing about religious reasons for circumcision — right?, and 2) although it’s probably often undertaken for cosmetic reasons, I assume many parents who opt for it take the position that its benefits, even if marginal, outweigh its (also fairly marginal, from a non-moral standpoint) drawbacks. It’s not clear the cost-benefit calculus is precisely the same in the Botox case. Obviously the cost-benefit analysis is subject to argument in both cases. To the extent the costs and benefits of circumcision are in relative equipoise, however, such that doctors are at least willing to perform the procedure, we might just as well reframe your question and ask, why shouldn’t parents have that right? Given the background understanding of parental control over decisions involving children that do not involve substantial harm to the children, why shouldn’t there be an EC-like margin of appreciation for those decisions?
Which perhaps puts in sharp (again, so to speak) relief the underlying question: at least where the harms do not clearly outweigh the benefits, should parents have any right at all to determine what happens to their children? Do those decisions generally fall within the private sphere of the family? Does the state have authority to engage in and enforce all such cost-benefit analyses with no margin of appreciation for parental wishes? Or is it that children’s autonomy must always override parental rights, if in fact any such rights exist?
Posted by: Paul Horwitz | Jul 8, 2011 10:00:53 AM