Circumcision, Public Health, Genital Autonomy and Cultural Rights

Matthew Johnson, Megan O'Branski

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351571838
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

Circumcision is one of the oldest and most common surgical processes, being practised, for a range of medical, social and religious reasons, on up to 30% of males worldwide. It is currently being promoted by a range of health bodies as a means of tackling HIV in developing countries. Yet, there is significant concern about sexual, physiological and psychological effects and complications and its prophylactic effectiveness. In examining a case in which a failed circumcision was performed for religious reasons, the Regional Court in Cologne decided that the practice contravened the bodily autonomy of minors and was subject to the same legislation used to classify female genital cutting as assault. This, understandably, aroused serious concerns among various religious communities who practise circumcision. At the same time as religious groups seek to protect circumcision from comparisons with female genital cutting, there is a trend, particularly in post-colonial thought in the US, to revise negative understandings of female genital cutting by making cautious, positive comparisons with circumcision. This collection considers the apparent contradictions and complications of the contemporary status and deployment of the many forms of genital cutting, raising a serious, wide-reaching question: what scope should society have to impose physically invasive rites on people? This book was originally published as a special issue of Global Discourse.

Infant male circumcision in the public square: applying the public reason of John Rawls

Robert Van Howe

Department of Pediatrics and Human Development, College of Human Medicine, Michigan State University, Marquette, MI, USA

John Rawls is perhaps the most influential political philosopher of the twentieth century. His philosophy is based on the idea of justice as fairness and emphasizes the importance of basic liberties, including the right to bodily integrity and the use of rationality in making ethical determinations. His political philosophy addressed the challenges a secular society faces when its citizens adhere to a variety of comprehensive doctrines and religious beliefs yet requires social cooperation for the benefit of all. Public policy is determined through ‘public reason’ in which reasonable proposals are considered and compromises made. Using the decisional approaches that Rawls developed, this article explores how the process of public reason would consider the reasonableness of surgically altering the genitals of male minors for non-therapeutic ends. It will incorporate the issues of the basic liberties of minors and the weaknesses of a utilitarian defense of this practice.

Why circumcision?

Circumcision of male infants and minors is a divisive cultural practice that is ubiquitous in the United States and common among Jewish, Muslim, and other communities throughout the world. It involves the amputation of the foreskin from the penis, leaving the child with a permanent scar. This practice was introduced into Anglophone societies by the medical profession at a time when foundational doctrines in bioethics such as the needfulness of informed consent had not been developed. The practice has persisted long after its initial quasi-medical indication – that is, the prevention of masturbation – evaporated as either a medical or a moral concern and despite the fact that subsequent medical indications have either been dismissed or recognized as insufficient to warrant recommending the procedure (Hodges 1997; Darby 2005; AAP 2012). Since the medicalization of circumcision in the late nineteenth century, women have been enfranchised, infants and children have been recognized as having full moral standing (Convention on the Rights of the Child 1989), and the autonomy of the patient has been recognized as the driving force of bioethics (O’Neill 2002). By contrast, the notion that monarchs, religious leaders, slave owners, or parents have the sovereignal freedom to exercise power over another individual is fading as the Enlightenment principle of individual freedom takes wider hold (Patterson 1991). This shift has not taken place without conflict. Parents have traditionally enjoyed broad authority to do as they pleased with their children; but in modern, secular, pluralistic societies, a parental right to beat, coerce, or mark children as members of a cultural or religious group¹ is no longer recognized because the child is considered to have full moral standing. The ethical issue posed by circumcision² is whether it is morally permissible, considering that it ignores the welfare interests and autonomy of the child and that there are less harmful means of achieving the objective of raising responsible citizens.

In 2012, the Cologne regional court ruled that circumcision violated a child’s right to bodily integrity and freedom of religion (Landgericht Köln 2012). This judgment exposed the tension between human rights interests and that of the adherents of religions that mandate circumcision of children. A heated debate ensued in which Germany’s official pediatric association denounced circumcision (Hartman 2012), while defenders of the practice declared the ruling ‘fatal to the future of religion’ (Raftery 2012). Eventually, this debate resulted in legislation (Jordans 2012) that sought to clarify the legality of circumcision, but which may yet be found unconstitutional (Walter 2012).

With the Cologne ruling, the circumcision debate has entered the public square. In this article, I explore the issue by applying the philosophy of John Rawls, which is the most comprehensive approach to handling the conflicts over values that are inevitable in modern, pluralistic societies.³ I begin with a critique of A. M. Viens’s (2004) defense of circumcision and use this to show how Rawls intended ‘public reason’ to be used.

Justice as fairness

Rawls believed that a conception of rights should be a set of principles that is ‘general in form and universal in application’ and publicly recognized as a method of ordering conflicting claims (Rawls 1971, 135). Rawls developed the principles of justice as fairness to repudiate the limitations of utilitarianism (Rawls 1971, 27).⁴ Although he redirects attention to the individual (missing from utilitarianism), individuals must coexist with others. To address this, he formulated a structure called political liberalism. Because no society can embrace all ways of life, a secular community must allow citizens with different cultural backgrounds and belief structures to live together (Rawls 2001, 154). Rawls notes that although factions of the public have reasonable disagreements (Rawls 2001, 35), an aim of moral philosophy is to seek areas of agreement where none seem to exist (Rawls 1971, 582). Questions and policy should be disputed in the public square with ‘public reason’, in the hopes of creating a reasonable pluralism:

citizens are to conduct their fundamental discussions within the framework of what each regards as a political conception of justice based on values that the others can reasonably be expected to endorse and each is, in good faith, prepared to defend that conception so understood. (Rawls 2005, 226)

Using public reason, the merits of public policy are determined by reasonableness:

The values of public reason not only include the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in abiding by the criteria and procedures of commonsense knowledge and accepting the methods and conclusions of science when not controversial. (Rawls 2005, 139)

In the process, each comprehensive doctrine or system of moral beliefs (philosophical or theological) explains how its idea of the reasonable connects with its concept of truth, and a reasonable attempt is made to formulate a consensus that accommodates the diversity.

Circumcision is ‘reasonable’

Viens appeals to Rawls’s public reason approach to demonstrate that circumcision is indeed reasonable. The question posed is whether a parental right to determine their children’s best interests and to raise them in their chosen religion gives them the power to have their son circumcised. He answers in the affirmative, not because parents are necessarily the best arbiters of their child’s best interest, but because parents should be allowed this freedom.⁵ This question should not be approached using any one person’s concept of the good, but by means of a different justificatory class: whether the practice is reasonable using public reason. The aim is to advance a policy that no one could reasonably reject.

Viens notes that the traditional justifications for circumcision are religious, that the law allows it, and that it is based on parental concepts of the good. It is not clear whether he is abandoning these justifications or believes they contribute to his overall argument, but he argues that what matters most is whether circumcision is reasonable. The onus is thus placed on those who oppose circumcision to demonstrate that it is unreasonable, ‘unequivocally harmful’, that the ‘majority’ of circumcised males are harmed, or that there is a compelling interest in protecting boys that outweighs parental wishes. He concludes that anticircumcision proponents fail on all accounts.⁶

In making his case for the reasonableness of circumcision, Viens cites the importance of preserving parental rights; he notes that national medical organization consider the procedure to be justified; he lists positive non-medical factors; and he argues that the procedure is performed with ‘optimal’ pain measures, that the complication rate is low, that the harm (which he admits is a highly subjective measure) has not been demonstrated, that international human rights documents either do not apply to circumcision or do not apply to children, that parental interests in having their sons circumcised and the child’s interest in bodily integrity are either not in conflict or parental interests outweigh the child’s, and that prohibition of circumcision would be opposed by religious organizations and result in more procedures generating serious complications.

Applying the philosophy of John Rawls

Viens’s arguments allow us to show how Rawls’s philosophy integrates with the process of public reason and how he would approach the issue of circumcision. The thrust of Viens’ argument is unclear. Does he believe circumcision is reasonable because circumcision opponents are unable to demonstrate that the practice is unreasonable⁷ or because of the reasons he provides? By addressing the latter, I will also address the former.

Analysis of Viens’s arguments

(1) Preserve parental rights.

Viens repeatedly states that circumcision is reasonable because of the importance of preserving parents’ right to define their child’s best interest and ‘the freedom to raise their children under the tenets of a particular religious doctrine or community’ (Viens 2004, 242). These unsupported assertions have several problems, most notably the circular nature of the argument. Viens assumes that parents have this right to demonstrate the importance of this right to parents, families, and society. But the concept of parental rights has been questioned, with some describing it as a dead or a zombie dogma (Dwyer 2006; Van Howe 2013). Dwyer argues that parents do not need a ‘right’ to be responsible for the protection of the rights and interests of their children (Dwyer 1994, 2006). Viens must justify his claim that parents have these rights without an appeal to religious dogma, an appeal to laws,⁸ or an appeal to tradition, but he makes no attempt to do so.⁹

Rawls advocates a different approach to how parents should treat their children. Society places an enormous burden on the shoulders of parents, who are given moral and social authority to nurture a child (Rawls 2001, 163) and provide an ‘orderly production and reproduction of society and of its culture from one generation to the next’ (Rawls 2001, 162). Their reproductive labor is socially necessary as it provides for the raising of and caring for children and ensures their moral development, education, and assimilation into the wider culture (Rawls 2001, 162–163).

Children are initially subjected to the authority of their parents, with the understanding that the parents’ love will translate into proper care (Rawls 1971, 463). Within the family, children recognize the parents’ love as being based on the parents’ assurances of the children’s worth as persons. Consequently, they are aware that they are appreciated for their own sake by, what to them are, the most powerful persons in the world (Rawls 1971, 464). While it is hoped that parents will have the motivation and the skills to properly care for their children, there is no empirical evidence that they are uniquely qualified to do so. The child has little opportunity to negotiate. He is subject to the authority of his parents and is not in the position to assess the validity of their decisions. Because he lacks the knowledge, understanding, and opportunity to challenge them, he cannot doubt the proprietary nature of parental injunctions (Rawls 1971, 463). Any calculus of the power structure between parents and children must acknowledge the intrinsic imbalance when those in a position of strength can advance their interests unjustly without being shown to be out of bounds (Rawls 1971, 320). This runs counter to one of our societal ideals – that no one takes unfair advantage of human weakness (Rawls 1971, 515). While political principles do not apply directly to the internal life of the family, Rawls argues that they impose constraints on the family not to violate the basic rights, liberties, and fair opportunities of all its members (Rawls 1997, 468–470, 2001, 164, 166). If one accepts the reality of parental rights, it is apparent that these are fettered by the duties parents owe their children. As trustees for their children, parents have a duty to respect their basic rights (Dwyer 1994; Rawls 2001, 11, 102).

There is also a wide gap between Viens’s view that parents have the right to make decisions o...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• Introduction: Circumcision, public health, genital autonomy and cultural rights
• 1. Infant male circumcision in the public square: applying the public reason of John Rawls
• 2. Infant male circumcision in the public square: applying the public reason of John Rawls (a reply to Robert Van Howe)
• 3. How reasonable is intactivism?: a reply to Van Howe
• 4. Promoting genital autonomy by exploring commonalities between male, female, intersex, and cosmetic female genital cutting
• 5. Discourses on sexual pleasure after genital modifications: the fallacy of genital determinism (a response to J. Steven Svoboda)
• 6. Critiquing circumcision: in search of a new paradigm for conceptualizing genital modification
• 7. A reply to “Critiquing circumcision: in search of a new paradigm for conceptualizing genital modification”
• 8. New lives for old: modernity, biomedicine, traditional culture and HIV prevention in Lesotho
• 9. New lives for old: modernity, biomedicine, traditional culture and HIV prevention in Lesotho (a response to Nicola L. Bulled)
• 10. The production of sexual mutilation among Muslim women in Cairo
• 11. A reply to ‘The production of sexual mutilation among Muslim women in Cairo’, by Maria Frederika Malmström
• Symposium on German Court ruling on Circumcision
• Review symposium on The New Politics of Male Circumcision: HIV/AIDS, Health Law and Social Justice by Marie Fox and Michael Thomson
• Index