Dr. Arne Ohlsson
Chair, Fetus and Newborn Committee
Canadian Paediatric Society

Dear Dr. Ohlsson:

I would like to ask questions in regard to the Canadian Paediatric Society's (CPS) position paper on neonatal circumcision.¹ I have been having difficulty reconciling parts of this document with well-established principles of ethics, law, and human rights.

The entire position paper seems to turn on the premise that parents have the moral right and legal authority to consent to circumcision of their newborn sons, regardless of whether or not neonatal circumcision is medically required. This assumption is never made explicit, or critically examined; it is simply taken for granted. Yet my research leads me to believe that such an assumption is unwarranted.

ETHICS

Medical ethics forbid undertaking an invasive surgical intervention without patient consent, unless those advocating the intervention can show it will benefit the patient. It seems to me that if "the benefits of routine neonatal circumcision have not been shown to clearly outweigh the risks and costs,"² then physicians cannot undertake this procedure.

LAW

The courts have set strict limits on proxy decision-making. In Re "Eve,"³ the Supreme Court of Canada dismissed an application by the mother of a retarded woman for the authority to consent to a sterilization operation being performed on her daughter. Justice LaForest commented:

Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised ... The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. [Emphasis added]

Justice LaForest also observed that

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...

The importance of maintaining the physical integrity of a human being is also reflected in the judgment delivered by the Supreme Court in R. v. Stillman.⁴ In this decision, Justice Cory noted that

Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy... the innate dignity of the individual... is, to a large extent, based upon the integrity and sanctity of the body.

HUMAN RIGHTS

Section 7 of the Charter of Rights and Freedoms⁵ provides that

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It seems to me that if the benefits of routine circumcision have not been shown to clearly outweigh the risks and costs, then performing this procedure without consent violates the right to physical integrity guaranteed under Section 7 of the Charter.

In summary, the 1996 CPS position statement on neonatal circumcision appears to rely throughout on the assumption that parents have the authority to consent to the circumcision of their newborn sons. Is this assumption valid if neonatal circumcision does not confer a net medical benefit?

Sincerely,
 
[signed]
 
D ennis H arrison

cc:

Dr. Paul Munk, President, Canadian Paediatric Society
Dr. Lawrence Jardine, Chair, Bioethics Committee, Canadian Paediatric Society
Dr. John R. Williams, Director of Ethics, Canadian Medical Association

REFERENCES

1. Fetus and Newborn Committee, Canadian Paediatric Society. Neonatal Circumcision Revisited. Canadian Medical Association Journal 1996; 154(6): 769-780.

2. Ibid., p. 776.

3. [1986] 31 D.L.R. (4th) 1, reversing 115 D.L.R. (3d) 283.

4. [1997] 1 S.C.R. 607.

5. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
 

Arne Ohlsson, MD, MSc, FRCPC
Director, Evidence Based Neonatal Care and Outcomes Research;
Professor, Department of Paediatrics, Obstetrics and Gynaecology, Public Health Sciences;
Director, Canadian Cochrane Network and Centre

Dear Mr. H arrison,

Thank you for your letter dated September 14, 1999.

Statements from the Fetus and Newborn Committee are regularly considered for updating. I will inform the Committee members about the content of your letter at the next meeting of the Committee.

Sincerely yours,
 
[signed]
 
Arne Ohlsson, MD, MSc, FRCPC
Chair, Fetus and Newborn Committee
Canadian Paediatric Society

cc:

Dr. Paul Munk, President, Canadian Paediatric Society
Dr. Lawrence Jardine, Chair, Bioethics Committee, Canadian Paediatric Society
Dr. John R. Williams, Director of Ethics, Canadian Medical Association
 

Dear Dr. Ohlsson:

Re: Care of Intact Infant Penis; Infant Male Circumcision

I am writing to you because I recently sent an official complaint to my paediatrician, accusing her of violating the standard of care of an intact infant penis (copy enclosed). This is not an accusation that I take lightly, nor was I very happy to have to do it.

As my letter to my paediatrician explained, like most parents, I knew next to nothing about the proper care of intact penises when my son was born. My paediatrician retracted his foreskin fully at 4 months of age, and at the time I didn't know enough to stop her. This action resulted in pain, tearing and bleeding.

Presently I am awaiting a response from my paediatrician. I hope that we will be able to resolve this matter without hard feelings, but the difficulty is: it has already caused me immeasurable stress and grief. You must know that most parents trust their paediatricians implicitly to take proper care of their precious children. I now feel both disappointed and betrayed, and I understand why lots of popular magazines urge parents to become "educated consumers." This didn't seem necessary to me in the past, because I trusted my doctors.

However, my reason for writing is this: since the Canadian Paediatric Society has clearly indicated that routine male infant circumcision is not recommended, what efforts have been taken to educate the paediatricians across the country to this effect? Furthermore, as fewer and fewer males are being circumcised, what efforts has the CPS taken to educate paediatricians as to the proper care of an intact penis? Why should it be up to me, as a parent, to confront my paediatrician on this matter? Why was she not better informed?

My sister had a baby boy here in Winnipeg two weeks ago. No sooner had the umbilical cord been cut when the doctor asked "will you circumcise?" I attended the birth and witnessed this first hand, and was appalled. A few minutes later, I discreetly spoke with a nurse in the hall about the inappropriateness of this question since circumcision is no longer recommended. She responded that the parents have to make their own decision. That is certainly true, however, why aren't doctors providing this information rather than implying they recommend it by asking if the parents desire it? Do not doctors have a responsibility to inform parents of the current standard of care and treatment, rather than just present them with choices assuming they have researched the matter on their own?

While I did not know much about the ethics concerning circumcision at the time my son was born in December 1998, I have learned a lot about it since. Because of this new knowledge, I have become very concerned. A survey of my friends (albeit informal and unscientific) revealed they had all had similar experiences—one friend's paediatrician advised her—just six months ago—to pull back her son's intact foreskin and clean it with a Q-tip every time she changed his diaper. I find this level of ignorance on the part of paediatricians bordering on malpractice, and I have urged my friend to call or write to her paediatrician as I have done.

In any event, I hope to hear from my paediatrician soon regarding my letter. If I am unable to to resolve the matter amicably, I will make a formal complaint to you about her. In the meantime, I would appreciate your assistance in my desire to:

1. educate other parents as to the CPS statement on routine male circumcision
    
2. educate other parents as to the proper care of their son's intact penis (has the CPS published an informational brochure aimed at parents on this subject? If so, please provide me with a copy. If not, why not? What Canadian organization would you recommend I contact for this officially recognized information? Health Canada's website, the Canadian Health Network, referred me to Info-Circumcision in Montreal. Does the CPS recognize this organization as being a reputable authority on circumcision?)
    
3. have information on these two subjects available to every hospital in Manitoba containing a maternity ward

Many thanks for your assistance. Please contact me at [phone no.] if you require further information or would like to speak to me about this matter. I hope to hear from you soon.

Sincerely,
 
[signed]
 
Name withheld
 

Dear Dr. Ohlsson:

I wrote to you on September 14, 1999 to inquire about the ethical and legal principles underpinning the Canadian Paediatric Society's current position statement on neonatal circumcision. To date, I have received no reply. I would appreciate a response at your earliest convenience. I enclose a copy of my previous letter for your ease of reference.

Some people think that since neonatal circumcision is still common in many parts of our country, it must be lawful. This is wrong. Under Canadian law, physicians have the burden of proving that a proposed surgical intervention is justified. This principle was clearly enunciated by the Supreme Court in E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388. In that judgment, Justice LaForest observed:

Since, barring emergency situations, a surgical procedure without consent 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.

The alleged medical benefits from routine circumcision do not satisfy any of these criteria. Consequently neonatal circumcision cannot be justified on medical grounds. In the absence of justification, a surgical intervention is criminal assault, as noted above.

The importance of the right to physical integrity cannot be overestimated. As Justice Cory of the Supreme Court noted in R. v. Stillman, [1997] 1 S.C.R. 607,

Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy.

The fundamental right to personal security should not be infringed any more than is clearly necessary.

For your information, I enclose a copy of a letter I have sent to the College of Physicians and Surgeons regarding a medical study undertaken at the Hospital for Sick Children.

Once again, I would appreciate a response to my letter of September 14, 1999.

Sincerely,
 
[signed]
 
D ennis H arrison
 

Dear Dr. Ohlsson,

Thank you for providing me with the minutes of the recent Fetus and Newborn Committee meeting. It was recorded that

to say "routine circumcision should not be done" is sufficient. Saying "it must not be done" would be going too far.

circumcision of a male newborn must not be performed unless the physician can show the procedure is justified.

I am troubled by the apparent reluctance on the part of the Canadian Paediatric Society (CPS) to state the obvious: that infant male circumcision presents serious ethical and legal difficulties if it is not medically required treatment. Would the interests of Canada's children and the CPS membership not be better served by discussing problematic issues in an open and above-board manner?

Sincerely,
 
[signed]
 
D ennis H arrison

cc: Dr. Christine H arrison, Chair, Bioethics Committee
 

Dear [name withheld],

Thank you for your letter dated March 24, 2000 regarding "care of intact infant penis/infant male circumcision."

At its meeting in February 2000 the Fetus and Newborn Committee (FNC) of the Canadian Paediatric Society reconfirmed its statement on neonatal circumcision, the recommendation being that "circumcision of newborns should not be routinely performed." The minutes of that meeting were approved at the latest meeting of the FNC in June, 2000.

Staff at the Canadian Paediatric Society is working on a "parent handout on circumcision" and it is expected that a draft will be ready for review by the committee members in the fall.

The FNC is very interested in finding ways of assessing the uptake of its recommendations by health care practitioners and parents.

Sincerely yours,
 
[signed]
 
Arne Ohlsson
MD, MSc, FRCPC
Chair, Fetus and Newborn Committee, Canadian Paediatric Society
 

cc:	Colette Laplante, CPS
	Khalid Aziz, Director responsible

Dear Dr. Ohlsson:

I am writing to you in your capacity as Chair of the Fetus & Newborn Committee of the Canadian Paediatric Society. It has come to my attention that the Society is preparing some educational materials on neonatal circumcision. I would like to provide the Society with a paper that I have recently completed as a result of my research on this topic.

The paper was initially written as a result of a meeting I had with Mr. Keith Norton, the Chief Commissioner of the Ontario Human Rights Commission (OHRC). As a result of the revelations in the paper, the OHRC has made changes to the references to infant circumcision it was using in its position paper on female genital mutilation. The paper has also been published in an electronic journal called HealthcareLaw.

Of special concern to me is the lack of congruence between the current CPS position on neonatal circumcision and the CPS statements regarding the pediatrician's requirement to act in the best interests of the child. I note that in the statement regarding neonatal circumcision the CPS states "circumcision of newborns should not be routinely performed" and "our review of the literature leads us to conclude that, for routine neonatal circumcision, the benefits have not been shown to clearly outweigh the risks and costs." Elsewhere in the position paper it states, "when parents are making a decision about circumcision, they should be advised of the present state of medical knowledge about its benefits and harms. Their decision may ultimately be based on personal, religious or cultural factors."

As you are probably aware, the American Academy of Pediatrics Committee on Bioethics states:

Thus "proxy consent" poses serious problems for pediatric health care providers. Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses. Although impasses regarding the interests of minors and the expressed wishes of their parents or guardians are rare, the pediatrician's responsibilities to his or her patient exist independent of parental desires or proxy consent.

The primary concern of physicians caring for children must be the best interests of the individual child...It is important that the decision to use life-sustaining medical treatment or life-prolonging treatment must be guided by the best interests of the child. The latter can be defined as the balance of potential benefit over potential harm or distress resulting from the pursuit of a given line of treatment. No other interests can override those of the child whether they be family stability or well-being, or the well-being of other caretakers.

The position taken by both North American pediatric societies is also supported by the Supreme Court of Canada in several cases. The landmark case titled Re: Eve is clear on the issue of consent and non-therapeutic interventions. On page 295 of this judgment, Justice LaForest commented:

Since, barring emergency situations, a surgical procedure without consent ordinary 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." (Re: Eve, 31 D.L.R. (4th) 1 Reversing 115 D.L.R. (3d) 283.)

This very important issue along with several other areas of law, ethics, and human rights are covered in the enclosed paper. I trust that this will assist the CPS in its efforts.

In the meantime I will await your response to the ethical issue identified in the previous paragraphs. I will place your response in my research file as I continue to accumulate information for my next paper on this issue. Please contact me if I can be of further assistance in this matter. I can be reached at the telephone number provided.

Very truly yours,
 
[signed]
 
Arif Bhimji, MD
 

Dear Dr. Ohlsson,

I am writing to you in your capacity as Chair of the Fetus and Newborn Committee of the Canadian Paediatric Society. I understand the Committee is preparing a brochure on circumcision for distribution to parents. I would like to offer my perspectives.

As you are aware, parents do not have the legal authority to consent to an invasive, irreversible surgical operation being performed on a minor child unless the operation is required for the child's mental or physical health.¹ Neonatal circumcision does not meet this condition.²

Consequently parents, physicians, hospitals, medical personnel or others involved in infant male circumcision may be vulnerable to a lawsuit when the circumcised child reaches the age of majority and can, if desired, sue in a personal capacity.

I trust this fact will be fully disclosed in the Fetus and Newborn Committee's upcoming brochure.

Sincerely,
 
[signed]
 
D ennis H arrison
 

1	E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388.
2	Fetus and Newborn Committee, Canadian Paediatric Society. Neonatal Circumcision Revisited. Canadian Medical Association Journal 1996;154(6):769-780.

cc:	Dr. Christine H arrison, Chair, Bioethics Committee, CPS
	Dr. John R. Williams, Director of Ethics, CMA

Dear Dr. Ohlsson:

It has been almost one year since I last wrote to you. At that time I sent you a copy of a paper I had written and requested that you respond to the issues identified in both the paper, and my accompanying letter.

Unfortunately, to date I have not received a response from you in your capacity as Chair of the Fetus & Newborn Committee of the CPS. I had sent a copy to Dr. Christine H arrison as well and have not received any comments from her either. I am anxiously awaiting your response as I am preparing to write another paper on the issue of circumcision.

I have provided a copy of the letter I wrote and would be pleased to send you a copy of the paper if you do not have it in your possession. I look forward to a definitive response on this issue, at your earliest convenience. Please contact me if I can be of further assistance in this matter. I can be reached at the telephone number provided.

Very truly yours,
 
[signed]
 
Arif Bhimji
 

Dear Dr. Bhimji,

I have forwarded your letter of July 26 to Dr. Keith Barrington, who is the current Chair of the Fetus and Newborn Committee of the Canadian Paediatric Society.

Sincerely,
 
[signed]
 
Arne Ohlsson
MD, MSc, FRCPC, FAAP

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