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Suit claims N.D. genital mutilation law biased
Fargo Forum, June 7, 1996
When Kevin and Donna Fishbeck had a son last year, they faced a decision parents of male infants routinely confront in America: whether doctors should circumcise their newborn.
The couple from Mandan, N.D. were divided. Kevin wanted Jonathan to be circumcised; Donna did not. Their physician followed Kevin's wishes.
Now Donna and her infant son are among a group of plaintiffs challenging North Dakota's law prohibiting female genital mutilation - and arguing male children should be granted the same protection from routine circumcision.
A lawsuit will be filed today in U.S. District Court in Fargo asking that the North Dakota Female Genital Mutilation Law, passed last year, be declared unconstitutional.
The lawsuit is believed to be the first of its kind in the nation and is expected to draw national and international attention, while providing a legal forum in which the practice can be debated.
"Our position is that the medical community should not be doing routine surgery on otherwise healthy genital tissue without medical indication," says Zenas Baer, a lawyer from Hawley, Minn., who represents the plaintiffs.
Removal of the male's foreskin - an age-old practice common in America but rare in most western, industrialized countries - has come under increasing attack in recent years by opponents who argue there is no medical basis for the procedure.
The long-standing controversy surrounding male circumcision has been given added attention recently with the spate of new laws protecting females from genital mutilation. North Dakota was the first state to outlaw female mutilation; Minnesota passed a similar law and last month the U.S. Senate acted.
Opponents of routine circumcision say male circumcision is equivalent to female mutilation - with cultural tradition being the only difference. Most Americans regard female genital mutilation as barbaric, while most give little thought to circumcision.
"The reason is because we are immune to our own cultural traditions," says Jody McLaughlin, an active circumcision opponent from Minot and a plaintiff in the lawsuit. "The Europeans say that we are barbarians for doing this."
Figures indicate 60% of male newborns are circumcised in the United States, or more than 1.25 million annually, at a cost of $250 million, according to one estimate. As recently as 1980, about 90 percent had the procedure. The lawsuit estimates the incidence of circumcision in North Dakota at 80 percent to 90 percent.
Jewish and Islamic males around the world are circumcised, but the practice is uncommon in most western countries: 20 percent in Canada, 15 percent in Australia, less than 1% in Denmark, according to the lawsuit.
Routine circumcision gained prominence in the United States in the late 1800s to curb masturbation, and was credited with helping to prevent numerous illnesses, including mental illness and tuberculosis.
Proponents today argue the practice helps prevent penile cancer, urinary tract infections and various sexually transmitted diseases. Both sides cite contradictory medical studies, and the pros and cons are debated among medical professionals. The North Dakota Medical Association has not taken a position on circumcision.
The lawsuit argues routine circumcision is done for cultural reasons. "Not only is it not necessary, it is harmful," McLaughlin says. "It would be like someone telling you, you really don't need the tip of your tongue. You don't need the taste buds."
During a circumcision, 30 percent to 50 percent or more of the sensitive foreskin is removed, diminishing sensation in mature males. Female genital mutilation is performed in some cultures to promote chastity of young women and to discourage married women from straying from their husbands.
"The fundamental reason for this is to diminish sexuality," says plaintiff Duane Voskuil of Bismark, who equates male circumcision with female genital mutilation. "It's a controlling thing. It's the same kind of reason for men."
McLaughlin says, "Physicians say they're doing this because parents request it. The parents say they do it because the physicians recommend it. If anybody asks the babies they say no, by screaming."
The North Dakota law makes it a felony to "knowingly separate or surgically alter normal, healthy, functioning tissue of a female minor."
McLaughlin, who pushed for the law and testified in its support, originally sought a bill that was gender neutral, protecting male and female children from genital mutilation. The bill was rewritten to exclude male circumcision in order to overcome widespread opposition.
By protecting only females, the law violates the Fourteenth Amendment's equal protection clause, the plaintiffs contend. They argue it also violates the Fifth Amendment, because it allows for the permanent injury of a minor male without due process.
The lawsuit does not seek to outlaw circumcision for adult males. Baer says a court likely would grant exemptions for Jews and Muslims, whose religious practices are protected under the First Amendment.
If successful, the lawsuit might prompt legislation requiring a legal guardian to look out for the interests of the child if his parents want the infant to be circumcised, Baer says.
"This raises significant human rights issues," he says. "That individual child is considered to be a human being that is to be free of unnecessary punishment, the right to life, liberty, and the pursuit of happiness."
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