Correspondent:

COLLEGES OF PHYSICIANS & SURGEONS

(Identical letter sent to College in each province by Dr. Arif Bhimji)

Over the past two years I have been researching the subject of routine infant circumcision. I have reviewed the medical, ethical, human rights, legal, and religious aspects of this practice. After studying the subject thoroughly, I find that I must now turn to the College for professional guidance in this matter. At issue is how I as a medical doctor can best serve the public in a manner consistent with the College's regulations and policies.

In 1996 the Canadian Paediatric Society reaffirmed an earlier statement recommending that "circumcision of newborns should not be routinely performed." In March 1999, the American Academy of Pediatrics made a similar recommendation. No national medical organization in the world currently advocates neonatal circumcision as a routine measure. Clearly there is now a high level of consensus in the medical community that neonatal circumcision is not medically necessary.

Canadian ethicists such as Dr. Margaret Somerville (Founding Director of the McGill Centre for Medicine, Ethics and Law) and Dr. Eike-Henner Kluge (Chair, Department of Philosophy, University of Victoria, and a former Director of Ethics and Legal Affairs at the Canadian Medical Association) have questioned the ethics of this practice.

With respect to consent for non-therapeutic procedures I have reviewed medico-legal cases such as Re "Eve", Supreme Court of Canada, 31 D.L.R. (4th) 1, reversing 15 D.L.R. (3d) 283. In this landmark case, Justice La Forest found:

Since, barring emergency situations, a surgical procedure without consent ordinarily constitutes battery, it would be obvious that the onus of proving the need for the procedure is on those who seek to have it performed. And that burden, though a civil one, must be commensurate with the seriousness of the measure proposed. In conducting these procedures, it is obvious that a court must proceed with extreme caution....

It would appear that parents do not have an unfettered right to provide consent on behalf of their children. It is also evident that the responsibility of the physician is greater to the child, who is their patient, than to the parents.

To address the issue of medical procedures and religious beliefs, I referred to Re S.E.M.; M. and M. v. Director Of Child Welfare and Children's Guardian, CCH DRS 1987 P21-799, [1987] 1 W.W.R. 327, 74 A.R. 23, 4 R.F.L. (3d) 363, 32 D.L.R.(4th) 394. The presiding Justice ruled:

...that with regard to s. 7 of the Charter, the Act did not deprive the child S of the right to life: it protected that right. Assuming that the parents had a right under the same Charter provision to be free from state intervention, there had to be a balancing of protected but competing rights. The child's right to life took precedence over any competing right of the parents. The right to freedom of religion guaranteed by s. 2 of the Charter was not without qualification, despite its fundamental nature.

These two cases, along with the current wording of Section 268 of the Criminal Code and the rulings provided in many similar cases, go to the heart of the issue on which I am requesting the College's guidance.

On the basis of my studies, I have concluded that there are no longer any reasonable medical grounds for performing routine newborn circumcision. It is also apparent that the practice raises ethical and human rights issues, as identified by prominent Canadian academics. The legal implications of the landmark court cases are obvious. It is also not unreasonable to suggest that Section 268, which prohibits non-therapeutic interference with female genitalia, could be applied by extension to routine infant circumcision. Section 15 of the Charter requires any law to benefit both sexes equally.

In light of the current state of medical knowledge, I request the College's guidance in determining the proper course of action for a physician to take in this matter. I believe that this can best be achieved by framing the potential issues as questions to which the College can then respond.

1. Should physicians follow the Canadian Paediatric Society's recommendation that "circumcision of newborns should not be routinely performed"?
    
2. Given the concerns raised by prominent Canadian ethicists, does the College believe that physicians performing "routine" or non-therapeutic infant circumcision are violating human rights principles?
    
3. Can the College provide assurances that it would not conduct disciplinary hearings into a physician's practice if the physician's practice were alleged to violate human rights?
    
4. Can the College assure physicians that "routine" or non-therapeutic infant circumcision is ethical?
    
5. Can the College provide assurances that the physician is not guilty of misconduct, negligent behaviour or other violation of the College's guidelines in failing to obtain consent for neonatal circumcision from the court (through the parens patriae provisions), given that there are clear limitations on parental authorization for non-therapeutic interventions as per Re "Eve"?
    
6. In the event that an adult male could prove he had suffered harm from a well-performed infant circumcision, and the physician who had done the circumcision was found civilly or criminally responsible (under s. 268 of the Criminal Code), can the College provide assurance that it would not conduct disciplinary hearings against the physician?
    
7. Type 1 female genital mutilation (FGM) is comparable to male circumcision in terms of the type of tissue removed. Given the strong stance the College has taken against any form of FGM, can the College provide assurance that it would not proceed with disciplinary hearings if a complaint were received from the general public regarding a well-performed "routine" non-therapeutic infant circumcision that was authorized by the parents?
    
8. Given the new information now available about routine infant circumcision, and the concerns raised by Canadian ethicists, when can I anticipate the College will provide formal guidance to its members on this issue? If the College has no plans to provide such guidance, please explain why.

I feel that as a member of the medical profession, I have an obligation to provide the very best of care to the public, while adhering to the highest ethical standards. I trust that in order to guide my fellow physicians and myself, the College will provide detailed responses to the questions I have raised.

Please contact me at the address and telephone number provided should you require further information about my request.

Sincerely yours,

[signed]

Arif Bhimji
 
 

Replies
 
[ B.C.| Alta.| Sask.| Man.| Ont.| Que.| N.B.| P.E.I.| N.S.| Nfld.]
 
— BRITISH COLUMBIA —

No reply was received from the College of Physicians & Surgeons of British Columbia.
 
 

— NEW BRUNSWICK —

On January 13, 2000, Dr. Bhimji received a photocopy of a letter dated November 1, 1999 from the College to Professor Ron MacDonald.
 
 

— PRINCE EDWARD ISLAND —

January 18, 2000

[Same as letter of November 9, 1999 to Professor Ron MacDonald.]