In response to Aaron A.R. Tobian and Ronald H. Gray’s terrible recent article, “The Medical Benefits of Male Circumcision,” in the Journal of the American Medical Association, ARC submitted the following letter for publication.

Steven Svoboda

Attorneys for the Rights of the Child

Tobian and Gray ignore substantial ethical and human rights implications of their advocacy of male circumcision as an HIV preventive. While they acknowledge that the best interests of the child are a primary consideration, they claim that banning neonatal male circumcision denies religious freedoms to Jewish and Muslim parents, which would be potentially unconstitutional. The opposite is true. Permitting parents to irreversibly mark their religion on the bodies of their children by amputating functional tissue is contrary to the law. After all, upon reaching adulthood, the child might choose to follow a different religion.

In 1891, the United States Supreme Court recognized the right of all citizens to bodily integrity and self-determination. No right is held more sacred or is more carefully guarded by common law than the right of every individual to the possession and control of his own person free from all restraints or interference of others.[i] Joel Feinberg argues for the child’s right to an open future,[ii] and the British Medical Association recommends prioritizing options that maximize the patient’s future opportunities and choices.[iii]

When children are incapable of consenting, parents possess temporary authority to make health care decisions on their behalf if the procedure is in the child’s best interests. Parents do not possess unrestricted authority to make decisions on behalf of their children. Moreover, parents are not permitted to make martyrs of their children.[iv] According to the American Academy of Pediatrics, parental permission for medical intervention is authorized only in situations of clear and immediate medical necessity, such as disease, trauma, or deformity.[v] Because parents lack the power to give permission for prophylactic amputation from their children of healthy tissue, and because neonatal circumcision has no universally recognized medical benefit, parental permission for the procedure is not effective.

Where parents request a procedure that is not medically indicated, courts have required strong evidence that the procedure is in the patient-child’s interests and does not entail parents injecting their own preferences into the decision-making process. The benefits of the proposed procedure must clearly outweigh short- and long-term disadvantages, and spiritual considerations may not be incorporated into this analysis. For non-essential treatments—such as neonatal circumcision–that can be deferred without loss of efficacy, the physician and family must wait until the child is old enough to consent. Judging by the low adult circumcision rates, most will hang onto what they have.

By J. Steven Svoboda, J.D., M.S.
Executive Director
Attorneys for the Rights of the Child
Word Count: 400

[i] Feigenbaum MS. Minors, medical treatment, and interspousal disagreement: Should Solomon split the child? De Paul L Rev 1992; 41:841-884.

[ii] Feinberg J. 2007. The Child’s Right to an Open Future. In Curren R, ed. Philosophy of Education: An Anthology. Malden, Massachusetts: Wiley-Blackwell: 112-123.

[iii] Medical Ethics Committee, British Medical Association. 2006. The Law & Ethics of Male Circumcision. London: British Medical Association: 4.

[iv] Prince v. Massachusetts, 321 U.S. 158 (1944).

[v] American Academy of Pediatrics Committee on Bioethics. Informed consent, parental permission, and assent in pediatric practice. Pediatrics 1995; 95: 314-317.