ARC's Legal Advisor Submits Response to AAP News Article

Attorney Peter Adler, ARC's Legal Advisor, submitted to the American Academy of Pediatrics' AAP News a response to Jeffrey L. Brown's recent article published in the April 2013 issue, "Medical-legal risks associated with circumcision of newborn males: need for revised consent." Brown's article somewhat remarkably suggests that physicians should inform all parents of the "benefits" of circumcision in order to avoid potential legal liability.

The text of Peter's article appears below.

Steven Svoboda
Attorneys for the Rights of the Child


April 23, 2013

Peter W. Adler, Esquire
Legal Advisor, Attorneys For the Rights of the Child

Reply to Jeffrey L. Brown, "Medical-legal risks associated with circumcision of newborn males: need for revised consent", AAP News 2013;34;1. DOI: 10.1542/aapnews.2013344-1.

Dr. Brown argues that in order to avoid legal liability, physicians should inform all parents of the 2012 opinion of the AAP's Task Force on Circumcision that circumcision prevents UTIs, penile cancer, and some STDs including HIV, and that these benefits outweigh the associated risks. 

In fact, physicians risk civil and criminal liability for every circumcision, whether negligently or properly performed.  Following Dr. Brown's advice would also invite suits for misrepresentation.

First, telling parents that they have the right to make the circumcision decision for religious, cultural, or personal reasons misleads them.  Parents cannot risk harming or harm their children for religious reasons.[1]  In any event, licensed health care professionals cannot ethically or legally operate on children for reasons having nothing to do with medicine.[2]

Second, telling parents that circumcision prevents diseases and that the benefits outweigh the risks, like immunizations, further misleads them.  No randomized controlled trials link UTIs to circumcision status, and UTI incidence does not seem to be lower in the United States than in Europe.  Circumcision has not prevented HIV in the United States,[3] and sexually active men must still practice safe sex.  Physicians therefore must inform parents that circumcision is very unlikely to benefit their son at all.

Third, physicians must inform parents that circumcision is painful, risks many injuries, and that the extent of the injuries is unknown.  Not disclosed by the TFOC, circumcision can be fatal and is always harmful.  For example, it is invasive, disfiguring, prevents normal sexual function, and removes the most sensitive parts of the penis.[4]  Fully informed parents are unlikely to consent to the operation.

Finally, American courts could rule at any time that non-therapeutic circumcision is illegal.  Children have the absolute right under many provisions of American and international human rights law to personal security, autonomy, and equal protection of the law.  Circumcision also violates the best interests rule, which prohibits physicians from performing surgery on boys that they would not choose for themselves, and the rule of proportionality, because any benefits that circumcision may have can be achieved without it.  In fact, physicians and parents have a legal duty to protect helpless children from harm and thus from circumcision.[5]

Physicians should not underestimate how angry many circumcised men are that their foreskins were removed against  their will.  The only way to avoid liability for non-therapeutic circumcision is not to perform the operation.



[1] Prince v. Massachusetts, 321 U.S. 158, 159–162 (1944).

[2] "Informed Consent, Parental Permission, and Assent in Pediatric Practice", AAP Committee on Bioethics, Pediatrics, Vol. 95, No. 2, at 314-17 (Feb. 1995).

[3] M. Frisch, MD, PhD, et al., "Cultural Bias in the AAP's 2012 Technical Report and Policy Statement on Male Circumcision", Pediatrics; originally published online March 18, 2013; DOI: 10.1542/peds.2012-2896.

[4] Sorrels ML, et al., "Fine-touch pressure thresholds in the adult penis", BJU Int. 2007 Apr.99(4):864-9.

[5] See generally Peter W. Adler, "Is Circumcision Legal?", Richmond J. L. & Pub. Int. (publication pending).

 

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