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Correspondent:

DR. MARGARET A. SOMERVILLE
Founding Director
McGill Centre for Medicine, Ethics and Law


 
November 10, 1997

Dr. C. Robin Walker
Chief, Division of Neonatology
Children’s Hospital of Eastern Ontario

Dear Dr. Walker,

I have received a copy of your letter of November 5, 1997 to Mr. D ennis H arrison.

First, let me say that I thought your comments on infant circumcision, as reported in the press, were excellent. Some of those in your letter surprise me, however, in view of these press reports.

Second, I would like to explain my use—with which you appear to disagree—of the words criminal and unethical in relation to infant male circumcision. If you read the Ottawa Citizen article, you will see that I said that infant male circumcision undertaken for non-medical reasons was “technically criminal assault”. This is correct. All wounding of one person by another person is prima facie criminal assault (indeed, aggravated criminal assault), but it can become justified—that is, not illegal, not a crime—on certain conditions. The most common and important situation in which wounding is not a criminal assault, is when it is indicated as medically required surgery and it is undertaken with the informed consent of the person on whom it is carried out or, if this person is incompetent, of their legal representative (in the case of children, the parents). The difficulty with infant male circumcision is that when it is not medically indicated—the Canadian Paediatric Society, for instance, has stated it is not medically indicated as a routine procedure—medical justification is not present and, although adults can consent to have a non-therapeutic intervention carried out on themselves provided the intervention is not considered to be contrary to public policy, in general, they may not consent to having such interventions carried out on their children. The exception to this is if the intervention is considered to be what the law calls de minimis, that is, a trifle of which the law will not take notice. Arguably, ear-piercing, especially as it is reversible, falls within this category. However, even the rabbis with whom I talked agreed that male infant circumcision is not de minimis. (For your information I am enclosing copies of correspondence with two Ministers of Justice that set out the above legal analysis in slightly more detail). What we are faced with here then, is the question of whether profound religious belief justifies infant male circumcision within the criminal law. There are examples of religious belief providing justifiable exceptions to the law e.g. Quakers who are pacifists being exempt from conscription. But even if such an exemption is allowed, it would not apply to justify parents consenting to circumcision of their child other than for religious belief.

As to whether it is unethical for a physician to carry out male circumcision, that depends on a medical ethics analysis. I am attaching a copy of a letter which Dr. David Alwin and I wrote to The New England Journal of Medicine, which raises this issue. If, as Taddio et al. state in one of their articles, it is “barbaric” to carry out male infant circumcision without anaesthesia, and it seems a reasonably intrusive intervention in the form of a penile nerve block is required for adequate anaesthesia, is it ethical for physicians to be undertaking such a procedure for non-medical reasons? Moreover, is it ethical for physicians to permanently change the physical integrity of a child who cannot consent for himself, when this is not medically necessary? We also need to keep in mind that the physician has the burden of proof to show that a “wounding” is justified. Therefore, contrary to the statements in your letter that “until there is general agreement throughout the medical profession that the procedure is unwarranted and indeed that the performance of the procedure is inappropriate”, the converse is the case. Physicians should not do this procedure unless they can show it is ethical and legal to do so. Likewise, your statement “[m]oreover, until such time as the law is amended, parents do in Canada continue to have the right to make choices on behalf of their children”, is not correct as I have explained above. The present law would prohibit circumcision on a child unless the persons consenting to this and the physician carrying it out can show that it is justified. In this respect a judgment of the Supreme Court of Canada, in Re Sheena B, is also of interest. The court distinguishes parents’ rights to practice their religion with respect to themselves and with respect to their children. There can be limits imposed in the latter respect that would not apply to the parents’ practice concerning themselves.

As to the comparison between male and female circumcision, you are correct that in the great majority of cases, female genital mutilation is vastly more destructive and harmful than male circumcision. However, from a legal and medical ethics point of view, the same basic issues are raised. Indeed, the reason that I got into a discussion with Sharon Kirkey about infant male circumcision, was that she phoned me to ask about the ethics that governed an obstetrician who had delivered a child from an infibulated woman, who was requesting that the infibulation be reconstituted after the delivery. Apparently, under current Ontario guidelines, it is considered unethical for a physician to reconstruct the infibulation, even for a competent consenting adult woman. Indeed to do so may well fall under the recent amendment to the Criminal Code prohibiting any surgical interference with female genitalia, no matter how minor, except for medical reasons.

Finally, I would point out that as I stated in The New England Journal of Medicine and as I was reported as saying in the Ottawa Citizen article, we have not yet considered whether profound religious belief will by itself constitute a justification for carrying out infant male circumcision. The point is that we should face this question directly and not under the cover of a medical fašade. You are obviously an expert with respect to whether male infant circumcision is medically required, and have far greater knowledge about this than I do, but I am surprised from the research that I have done recently on the medical literature on this topic, that you are as uncertain as you appear to be in your letter to Mr. H arrison as to whether or not routine infant male circumcision is medically indicated.

  Yours sincerely,
   
   [signed]
   
  Margaret A. Somerville, AM, FRSC
  Gale Professor of Law;
  Professor, Faculty of Medicine

enclosure

MAS/ep

cc:  Dr. John R. Williams, Director of Ethics, Canadian Medical Association
  Mr. Dennis C. H arrison, Vancouver, B.C.
 


January 28, 1998

Dr. C. Robin Walker
Chief, Division of Neonatology
Children’s Hospital of Eastern Ontario

Dear Dr. Walker,

Thank you for your letter of December 12, 1997. My delay in replying rises from the fact that I have been in Australia for the last month. As I am sure you will understand, the backlog of work is very heavy, consequently, I will only reply very briefly.

All woundings are criminal assault unless they can be justified. The burden of proof of justification is on the person who causes the wounding. A therapeutic aim is the justification for almost all medical wounding and is an essential justification for those unable to consent to the wounding for themselves. Consequently, a physician would need to show that infant male circumcision was medically necessary before it would be justified. If there is equal doubt as to whether or not it is medically necessary (which seems to me to be the most favourable position that, at present, could be taken in favour of infant male circumcision), then the procedure must not be carried out. In other words, in situations of equal doubt, the person with the burden of proof (the physician) cannot proceed. In short, all woundings that are more than de minimis harms, which circumcision certainly is, are criminal assault unless they are justified and the only possible justification for non-religious infant male circumcision is medical justification. The issue which remains is whether the law will recognize profound religious belief on the part of a child’s parents as a sufficient justification for a non-medical wounding. That question has not been addressed in the courts.

You raise the issue of cosmetic surgery and whether this constitutes criminal assault. Cosmetic surgery can only be carried out provided two conditions are present. First, the intervention must not be contrary to public policy. (You should note that this is also true of therapeutic interventions, but there is a presumption that necessary therapeutic procedures carried out by properly qualified medical practitioners are not contrary to public policy). I have no doubt that adult male circumcision would not be considered contrary to public policy. In other words, it is not something that would, in itself, be prohibited. Second, a non-therapeutic intervention such as cosmetic surgery is only legally justified with the voluntary and informed consent of the person who undergoes the intervention. Infants cannot give such a consent, adults can. Whether “mature minors” can consent to non-therapeutic interventions (they can consent to therapeutic ones) is a debated question. If you wanted to read further about the legitimization of non-therapeutic medical procedures, you could see my 1980 article Medical Interventions and the Criminal Law: Lawful or Excusable Wounding (McGill Law Journal), in which I considered the difficulties that we were facing, at the time, in legitimating the medical intervention that we undertook on live organ donors. Initially, taking, for example, a kidney from a live organ donor, was regarded as a criminal assault. We later justified this on the grounds that the person was a competent, consenting, adult and that the intervention itself, provided that the kidney was to be used to save the life of another person, was not contrary to public policy. It should be noted, however, that say, for instance, one wanted to remove a person’s kidney simply for research purposes, this would not fall within the public policy legitimization (I am assuming here that there is no therapeutic reason for the person involved, to have his or her kidney removed).

I believe that if you re-read the Ottawa Citizen article, you will find that the word “technically” is used in conjunction with the words criminal assault. It was not used in the title, but was used in the body of the article.

Finally, you seem to think that interventions become ethical or unethical according to whether the person carrying them out believes they are or are not acting ethically. That is not correct. While following the dictates of one’s conscience is necessary for good ethics, it is not sufficient. There are many people who believe that female genital mutilation is ethical and yet we Canadians decided very recently to prohibit this using our strongest political and policy tool, the criminal law.

With kind regards.

  Sincerely,
   
   [signed]
   
  Margaret A. Somerville, AM, FRSC
  Gale Professor of Law;
  Professor, Faculty of Medicine

MAS\ep

cc:  Dr. John R. Williams, Director of Ethics, Canadian Medical Association
  Dr. Eileen Marie Wayne, Rock Island, IL, U.S.A.
  Mr. Dennis C. H arrison, Vancouver, B.C.
 


November 9, 1999

Dr. M. VanAndel
Deputy Registrar
College of Physicians & Surgeons of British Columbia

Dear Dr. VanAndel,

Dr. T. Anderson forwarded to me a copy of your letter to him, dated September 28, 1999. I have also seen a copy of a letter that you wrote to Mr. D ennis H arrison. Both of these letters concerned the issue of infant male circumcision.

My reason for writing is the statement in your letter to Dr. Anderson, that "the College has not accepted your [Dr. Anderson's] contention that this [infant male circumcision] is an ethical issue". Any intervention that a physician undertakes on a patient "is an ethical issue", in the broad sense that the intervention must be able to be ethically and legally justified by the physician. It is true, however, that the vast majority of interventions that physicians undertake on patients are easy to justify and do not raise ethical difficulties. Consequently, I read your letter to mean that you do not see infant male circumcision as raising ethical difficulties, rather than its not being an ethical issue. But we may only conclude that there are no ethical difficulties present, when we have taken reasonable care, in any given instance, to assure ourselves that this is the case. In short, a physician undertaking infant male circumcision has the burden of proving that this is ethically acceptable in relation to that patient, and may not simply presume that this is the case. This stance reflects the current approach not only in ethics, but also in law. There is also a further question, for physicians as a collective, and this is: What stance should your College take on the ethics of infant male circumcision?

For what it is worth, I would like to explain my own views on this topic. I would have agreed with you just under 10 years ago, that infant male circumcision does not raise ethical difficulties. This, however, is one of the issues on which I have changed my mind, and I have documented how this change came about. I am enclosing a paper which I presented at Oxford University, which explains why I now believe that infant male circumcision does indeed raise very serious ethical difficulties for all of us who, in one way or another, whether as parents, physicians, hospitals, ethicists, professional corporations such as your College, or law makers, are involved with it. I would welcome any comments that you or your colleagues might have regarding my paper, should you wish to make them. I am not an anti-circumcision advocate in any usual sense of this term. Rather, as you will see from my paper, my stance on this surgical intervention on newborn baby boys comes from my professional work in the fields of medicine, ethics and law.

I hope that you will take this letter in the spirit in which it is intended, one of concern that physicians should be appropriately open to ethical issues and ethical difficulties that are raised in medical practice, and seek to act ethically in deciding the position that they should take whether as a collective or as an individual physician treating an individual patient.

With kind regards.

  Sincerely,
   
   [signed]
   
  Margaret A. Somerville, AM, FRSC

Enclosure (1)

MAS/ep

cc:  Dr. T. Anderson
  Mr. D. H arrison
 


December 3, 1999

Dear Dennis,

Thank you for the copies of letters exchanged between you and the Attorney General of British Columbia, the Honourable Ujjal Dosanjh.

In my respectful opinion, the statement in the second paragraph in Attorney General Dosanjh's letter to you of November 15, 1999, that "criminal charges could not presently be supported for this practice [infant male circumcision] given the requirement of the prosecutor to prove that the medical practitioner intended to cause or was criminally reckless as to whether harm was caused by his or her actions," is not correct.

First, the criminal law of assault applies to physicians in the same way it applies to everyone else. Consequently, if a prosecutor needed to prove that a physician intended to cause harm before the physician could be liable for assault, then the same would be true with regard to any person charged with assault. This is not the case. It is just that physicians are more likely than most people to have available to them a justification for a touching that would otherwise be an assault, based on therapeutic intent, that is, an absence of an intent to do harm.

Second, the Attorney General's statement seems to confuse intent and motive. Intent (mens rea) with respect to assault relates to the act that constitutes the wrongful touching of another, not why (that is, the motive with which) this was done. The motive, if relevant, goes to justification. An absence of a motive to cause harm is not a justification for what would otherwise be an aggravated criminal assault (section 268, Criminal Code). There is no question that a physician carrying out infant male circumcision has an intent to wound the child and this is the only intent needed for aggravated criminal assault. The question, then, is whether or not this wounding can be justified. Motive is relevant in this regard and I will deal with it in a moment. In other words, to repeat, intent would be assessed with respect to the physician's touching of the child, not with respect to the physician's motive (whether or not the physician thought that the touching constituted harm) in undertaking this touching.

We can see the problem with the approach taken in the Attorney General's letter by way of an example. It would mean that, if somebody did not intend to cause harm to a child or was not criminally reckless as to whether harm was caused, conduct that involved wounding the child, that the rest of us would regard as child abuse, would not give rise to criminal liability. This is simply not correct. We all know of cases where parents or certain cult leaders have used disciplinary methods that they believed were not harmful to a child (indeed, beneficial to the child and essential to the child's well-being) that have been prosecuted as criminal assault and child abuse. The same line of reasoning applies with respect to any wounding of a child, which, of course, infant male circumcision constitutes. This cannot be justified simply by an absence of any intention to cause harm, on the part of the physician carrying it out.

Whether the harm that is inflicted is justified depends, first, on concepts of public policy. Harm that falls outside that which is justified under concepts of public policy cannot be consented to whether by competent persons themselves or parents on behalf of an incompetent child. Let us assume the case most favourable to the legality of infant male circumcision, namely, that it is not contrary to public policy. Such an intervention can be justified by the personal informed consent of the person on whom it is carried out. If the person cannot give informed consent (as is true for a child) it can be justified, if it is therapeutically necessary for the child and is carried out with the informed consent of the child's parents. Another way to view the manner in which a therapeutic motive can justify carrying out circumcision on a baby boy, is that this means the wounding is not contrary to public policy when otherwise it would be.

But what is and is not therapeutic is not simply a personal, subjective judgment by either the physician or the parents. It must reflect the considered opinion of reasonable physicians. Moreover, because there is a presumption against justifying the wounding of people unable to consent for themselves, and physicians have the burden of proof of establishing that an intervention should be regarded as therapy, in cases of equal doubt as to whether an intervention is therapeutic, it will not be characterised as therapy. Relatively recently, as a result of a substantial and broad-based range of medical research, we have come to recognise that, in the vast majority of cases, infant male circumcision is not therapeutic. Therefore, in these cases, the parents cannot give their informed consent to it in such a way that their consent alone would validate this procedure. This means that non-therapeutic infant male circumcision is an assault by the physician on the child, unless it can be justified on some basis other than just the consent of the parents. (Although in that case, of course, the parents' consent would still be required.)

I recognise that criminal law authorities, including prosecutors and attorneys general, have a problem in addressing whether infant male circumcision should be regarded as criminal assault, because of the religious, traditional, and cultural factors associated with this intervention. But we all -- especially those of us who are lawyers -- need to be very careful that the analysis which we use to allege that there is no issue of which the criminal law should take cognisance, is correct. With all respect to the Attorney General of British Columbia, that does not appear to be the case from the letter that he sent you.

  Sincerely,
   
   [signed]
   
  Margaret A. Somerville, AM, FRSC
MAS/ep
 

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