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Circumcised Boys May Sue
Health Law Update (Australia)
vol. 1, no. 4, p.1-2, February 23, 1996
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Circumcision may violate baby boys' human rights and circumcised boys may be able to sue doctors and parents for their circumcision.
Neville Turner, Professor of Law at Melbourne's Monash University and president of Oz Child, is calling for Australia-wide legislation banning circumcision.
"Doctors and nurses who perform circumcision on infants relying on the consent of parents are taking a grave risk," he warns.
"For if it is ultimately declared to be a void consent, then it will have constituted an assault, and they could be civilly and criminally liable."
Professor Turner explains circumcision is contrary to article 24(3) of the United Nations Convention on the Rights of the Child which maintains "States parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children."
The procedure is unnecessary, painful, dangerous and barbarous," Professor Turner says.
"How can people perform this on little children who are screaming?"
The ethical consequences of male circumcision are highlighted in a letter in the latest edition of the British Medical Journal from 20 circumcised men claiming circumcision harmed them and it violates their human rights.
The men write "the United Nations Convention on the Rights of the Child states that children have rights to self determination, dignity, respect, integrity and non-interference and the right to make informed personal decisions".
"Unnecessary circumcision violates these rights." The men also cite the European charter for children in hospital which states that every child must be protected from unnecessary medical treatment.
The Queensland Law Reform Commission's 1993 research paper on circumcision confirms the possibility of circumcised boys suing doctors and parents.
It finds that on a strict interpretation of the assault provisions of the Queensland Criminal Code, routine circumcision would be regarded as a criminal act".
"Consent by parents to the procedure may be invalid in light of the common laws restrictions on the ability of parents to consent to non-therapeutic treatment of children."
The paper states a child's ability to sue for circumcision "would ... be dependent on the absence of real consent."
Professor Turner says a High Court case ruling in 1992 (re Marion) - that parents do not have the right to authorise non-therapeutic, irreversible operations for their child - could possibly be applied to male circumcision.
The High Court ruled that parents of an intellectually handicapped child do not have the right to consent to the child's sterilisation, and only the Family Court of Australia can consent to to such operations (except in NSW and SA where special procedures apply).
Even though the High Court case concerns only sterilisation, Professor Turner says "there are plenty of comments in the judgment to suggest the same principle could extend to other operations not designed to preserve a child's health".
Professor Peter Phelan, President of the Australian College of Paediatrics, released a statement earlier this month acknowledging the potential legal and human rights implications of male circumcision but he refused to condemn or support the procedure.
Dr. Keith Woollard, chairman of the AMA's ethics committee has "no doubt" male circumcision is a growing legal and ethical problem.
"Having looked at both sides of the argument, my own view is that there not sufficient evidence to justify it as a routine surgical procedure on otherwise healthy people.
"The QLD Law Reform Commission report raised the possibility of men suing their doctors and parents for their circumcision. If the medical profession believes there are no good medical implications for this procedure, then where is the legal basis for doing it?"
Dr. Woollard says there has been an enormous shift in the number of boys circumcised today compared with decades ago when it was the norm. It is believed around 40 per cent of boys were circumcised in Australia in 1980. Today, less than 20 per cent are circumcised.
"The medical profession themselves have walked away from it. Dr.Woollard says.
According to Professor Turner "there is evidence that many men suffer negative psychological effects and possibly long lasting psychological damage".
Male circumcision is still commonly practised by Muslim and Jewish communities. But Dr. Woollard cautions the debate "mustn't degenerate into some sort of criticism of Jewish and Muslim faiths".
It is only when it is performed for non-religious reasons that we need to be discussing it at the moment, he says.
The 20 men urge British Paediatric urologists to produce guidelines advising how foreskin problems can be managed.
"Preferably," they write, "circumcision should not be done until the patient or adult is old enough to understand what is intended; then he has a right to a full, illustrated explanation of the nature of the operation and the reasons for it in advance, with the opportunity to ask questions, and help in coming to terms with the alteration of his anatomy afterwards."
Contact: Professor Neville Turner (03) 9695 2200.
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