Correspondent:

DEAN OF LAW
MCGILL UNIVERSITY

I am writing to ask your professional opinion on the human rights issues raised by the practice of infant male circumcision. I am not a lawyer or an ethicist, but I have done considerable research on the subject of male and female circumcision.

Below is a brief summary of relevant information:

1. In the early 1970s about 50 percent of baby boys in Canada and 90 percent of baby boys in the USA were being circumcised. Today the figures are about 20 percent in Canada and 60 percent in the USA.
    
2. Medical research has shown that circumcision removes specialized sexual tissue. Both male and female circumcision were introduced into the practice of medicine in English-speaking countries about a century ago for the express purpose of impairing normal function.
    
3. In 1996 the Canadian Paediatric Society (CPS) issued a policy statement recommending that "circumcision of newborns should not be routinely performed." This policy statement reaffirmed earlier statements issued by the CPS in 1975 and 1982. In 1999, the American Academy of Pediatrics concluded that any potential medical benefits from circumcision were "not compelling enough...to recommend routine newborn circumcision." 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 justified.
    
4. Circumcision can have devastating results. At least two normal Canadian boys have been "reassigned" as girls after their penises were completely destroyed in botched circumcisions. A medical study undertaken at the University of Alberta in 1997 for the purpose of measuring pain responses in infants undergoing circumcision was halted prematurely after one of the infants vomited, went into shock, and stopped breathing for 25 seconds.
    
5. Leading Canadian ethicists such as Dr. Margaret Somerville (Founding Director of the McGill Centre for Medicine, Ethics and Law) and Dr. Eike-Henner Kluge (Founding Director of the Department of Ethics and Legal Affairs at the Canadian Medical Association) have stated that circumcision of healthy children presents serious ethical and legal difficulties.
    
6. Except in a medical emergency or with statutory authorization, no one can intrude on another person's body without that person's consent. Since children are not legally capable of giving consent, "substituted consent" is given on their behalf by parents or, if necessary, by a court. However, the Supreme Court of Canada affirmed in E. (Mrs.) v. Eve [1986] 2 S.C.R. 388 that a parent can consent to a surgical intervention on a child only if the intervention has a therapeutic aim. In Eve, the court dismissed an application by a mother for the authority to have her mentally disabled daughter sterilized. The court found that the proposed sterilization was not necessary for the daughter's mental or physical health. Since circumcision is not necessary for a baby's mental or physical health, it would seem (on the basis of the Eve case) that a parent cannot legally give the consent necessary to perform it.
    
7. The courts have placed limits on the ability of parents to make decisions regarding medical treatment of their children, even when the parents are motivated by deep-felt religious beliefs. In M.(R.E.D.) v. Alberta (Director, Child Welfare Act) (1986), 32 D.L.R. (4th) 394, 4 R.F.L. (3d) 363, [1987] 1 W.W.R. 327, 47 Alta. L.R. (2d) 380, 74 A.R. 23, 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.

Despite the lack of medical indication and the ethical and legal difficulties, circumcision continues to be a common procedure in Canada and the USA. In some parts of the United States, more than 90 percent of male infants are being circumcised today, usually without even the benefit of anaesthesia.

As a former Director of Human Rights for the Council of Europe, you have extensive experience in the application of human rights principles. You have described the right to security of the person as a "seriously neglected right." I would be grateful for any assistance you could offer in understanding the human rights implications of circumcising healthy children.

For your information, I enclose the following background material:

• an article entitled "Female circumcision: When medical ethics confronts cultural values," by Dr. Eike-Henner Kluge;
   
• a letter dated November 10, 1997 from Dr. Margaret Somerville to Dr. Robin Walker, who at the time was a member of the Fetus and Newborn Committee of the Canadian Paediatric Society;
   
• a paper entitled "Infant Male Circumcision: A Violation of the Canadian Charter of Rights and Freedoms," by Dr. Arif Bhimji. This paper has been published in a new electronic journal called HealthcareLaw.

Thank you for considering this matter. I look forward to your reply.