A German Court Bans Circumcision

Posted in: International Law

Last month, a regional appellate court in Cologne, Germany, published its ruling that non-therapeutic circumcision of male children, even with the consent of their parents, violates the criminal law.  The decision has predictably stirred up a great deal of controversy, locally as well as internationally, because of the centrality of child circumcision in both the Jewish and the Muslim faiths, and because of Germany’s particular history of anti-Semitic genocide.  In this column, I will examine the ruling and consider the circumstances under which a government might legitimately prohibit a longstanding and cherished religious practice.

The Facts

The German case that came before the court in Cologne involved a Muslim family.  The parents, observant Muslims, arranged to have their four-year-old son circumcised.  After the procedure, the boy suffered some post-operative bleeding, and a local prosecutor pressed charges against the doctor who had performed the circumcision.  The trial court dismissed the charges, but the appellate court reversed the dismissal on appeal.  After weighing the family’s religious freedom against the child’s interest in bodily integrity, the appellate judges determined that non-therapeutic circumcision of children inflicts bodily harm and impermissibly violates the child’s bodily integrity as well as his interest in deciding, later in life, to which religion he wishes to belong.

Outraged Reactions From German Jews and Muslims

Jews and Muslims living in Germany reacted swiftly and angrily to the ruling.  For a German official to issue a decree banning religious circumcision less than 70 years after the end of the Holocaust struck many as an exhibition of shocking audacity (or perhaps more appropriately, of tremendous chutzpah).

Furthermore, because circumcision has formed an important part of both Jewish and Muslim identity for well over a thousand years, the ruling appeared to represent a frontal assault on two minority religious groups in Germany, neither of which has experienced an unambiguously friendly reception in its country of residence.

Considering an Alternative Perspective: Sympathy, Rather Than Prejudice?

Let us assume for the moment, however, that the German judges who issued the ruling felt no antipathy toward Jews or Muslims.  And let us assume further that the court was sincerely sensitive to the history of Jewish people in Germany and to the challenges that members of minority groups, including Jews and Muslims, face in adhering to their respective religions in a majority-Christian country.  Assuming these facts to be true for argument’s sake, why might the German court have ruled as it did?

The judges may have felt sympathy for a young child who undergoes circumcision.  The procedure, as readers are likely aware, involves the surgical removal of the foreskin of the boy’s penis.  The foreskin contains many nerve endings, and its removal is therefore quite painful.  If the procedure is performed in infancy, moreover, as Jewish law requires, it is unsafe to use general anesthesia on the boy.  As someone who has attended quite a few Jewish circumcision ceremonies, I can attest to the sudden, piercing cries of a very young baby undergoing the procedure.  Witnessing a circumcision can be quite heartrending for some members of the audience, particularly the baby’s mother.

Some people have argued that the procedure is not only painful for the baby but also harmful to adult male sexuality, contending that the foreskin plays an important role in a man’s ability to fully experience sexual pleasure.  Others respond that this claim is unfounded and that circumcised men have as much sexual joy as their uncircumcised counterparts.

Clitoridectomy, by contrast, indisputably detracts from adult female sexual pleasure.  This practice involves surgically removing a female’s clitoris, and it has the same kind of impact on female sexual joy as slicing off a male’s entire penis (while preserving an exit for urine) would have for the male.  As I discussed in a column here, it is accordingly inaccurate to suggest that circumcising boys is truly comparable to clitoridectomy.  Laws in the United States and elsewhere have properly banned the latter practice. But bans on male circumcision are, and ought to be, far more controversial.

Beyond its being much less injurious than female genital mutilation (FGM), however, can anything affirmative be said in favor of circumcising males?  In modern times, after all, we do not ordinarily permit parents to inflict pain or harm on their children, in the absence of some good reason for doing so, even if the harm is far less extreme than that associated with FGM.  If male circumcision is simply a relic of earlier times in which parents could injure their children with impunity, then, the reader might ask, was the German court not right to attempt to put an end to the practice?

Is Circumcision Unique?

To defend the German court’s decision in the face of Jews’, Muslims’, and others’ objections is at least in part to argue that the practice of circumcision represents a qualitative departure from what parents are ordinarily allowed to do to their children.  But is such an argument sound?

In the United States and presumably in Germany as well, many parents pierce the ears of their baby daughters so that the girls can wear earrings.  Parents do this for some mix of aesthetic and cultural reasons, and the law allows it.  Many baby girls cry when their ears are pierced, just as young boys do when they are circumcised.

If ear-piercing seems to effect only a trivial harm, consider the fact that many parents in the United States who have no allegiance to either Islam or Judaism nonetheless ask a doctor to circumcise their newborn sons.  At least some number does so for a variant on the reasons for which parents choose to pierce a baby girl’s ears:  An uncircumcised penis just does not look right to them, because it is not what they are accustomed to seeing.  Some fathers will acknowledge that they want their sons’ penises to resemble their own.  Circumcising a boy in the absence of medical necessity is accordingly no departure from the norm, at least in the United States.

Does the fact that many people in the United States do something make it ipso facto the right thing to do?  Of course not.  As an ethical vegan, I reject that view that if “everyone” engages in some activity, it follows that the activity must be legitimate.

The fact that we find circumcision well outside the religious communities that either require or encourage the practice does, however, indicate that circumcision is not simply a relic of an earlier time, when babies and children had no rights, much as nonhuman animals have no rights today.  The practice of circumcision instead falls within the mainstream of behavior that we see from parents who otherwise dote on their sons and exhibit no claim of entitlement to hurt them.

The Under-inclusiveness of the Court’s Ruling

The hypocrisy of a critic is not, alone, reason to dismiss the substance of what the critic says.  What hypocrisy does, though, is expose under-inclusiveness in the critic’s judgment and attitudes.  We can see this clearly if we examine some of what followed the German court’s decision.

The decision specified that non-therapeutic child-circumcisions are prohibited.  In response to the ruling, a Jewish hospital in Berlin, fearing that prosecutions might extend beyond the jurisdiction of the regional court in Cologne, will reportedly refrain from performing the procedure for religious or ethnic reasons, but will continue to do circumcisions for medical and hygienic reasons.  According to a spokesperson for the hospital, religious people may, however, manage to have their sons circumcised under the “medical and hygienic” rubric.

If this hospital’s understanding of the German court’s ruling is correct, then the term “therapeutic” appears to refer to the actors’ motives, rather than to any objective medical need for the procedure.  A law like this is quite different from one that might, for example, prohibit the amputation of a person’s hand for other than medical reasons, where a medical reason would have to be something akin to gangrene or a malignancy.  The German law may be one that permits circumcisions under a given set of circumstances if the desire for the circumcision arises from a secular motive, but prohibits the same circumcision under the same set of circumstances if the desire arises from only a religious motive.  If so, then the rule in place targets religious intentions, rather than conduct, and thus falls squarely within what even the United States Supreme Court would deem discrimination against religion.

Medical Reasons for Circumcision

To give a fair hearing to the issue of circumcision, it is important to acknowledge the medical benefits that may be associated with the procedure.  First, the female sexual partners of circumcised men appear to experience lower rates of cervical cancer than do women whose sexual partners are uncircumcised.  Circumcised men also evidently suffer a significantly lower rate of female-to-male transmission of HIV, the virus that causes AIDS, than do uncircumcised men.  For this reason, public health authorities have promoted circumcision in sub-Saharan Africa, where the rate of HIV infection is especially high.  Finally, an uncircumcised penis requires greater hygienic care and attention than its circumcised analogue.

By listing these benefits that circumcision can bestow, I do not mean to suggest that one ought to circumcise one’s sons.  I do think, however, that the medical benefits of circumcision make it far less appropriate than it might otherwise be for the government to prohibit a religious ritual that people wish to perform on male children whom they are otherwise presumed to love and treasure.  From examining such practices as ear-piercing and non-religious circumcision, we can see that ritual religious circumcisions do not represent a deviant parental practice.

It is thus proper for us—and for the governments that exercise power over us—to permit ritual circumcision of boys by their parents to continue.  To do otherwise would be to validate charges of hypocrisy and under-inclusiveness, the sort of behavior that closely approaches the anti-Jewish and anti-Muslim sentiment that some have already attributed to the judges on the regional appellate court of the Landgericht in Cologne.