“Tortured Doctrines, Tortured Bodies: How Legal Fictions Help Justify and Perpetuate Male Circumcision and Other Inhumane Practices”
By J. Steven Svoboda
Abstract for Presentation at the Eleventh NOCIRC Symposium, Berkeley, California, July 28-31, 2010
Although the doctrine of informed consent functions reasonably well within its area of applicability, it dissolves into an incoherent legal fiction when applied by proxy to incompetent persons such as newborns and mentally incapacitated adults. Both leading approaches to permitting an oxymoronic “proxy consent”—substituted judgment and best interests—cloak a usurpation of agency that allows ostensibly hallowed principles of autonomy and self-determination to be violated with impunity. Because a court can never truly know what an idiot or a newborn wants, Kantian ethics and human rights are violated. History abounds with examples of tortured doctrines applied to justify human atrocities such as male circumcision, Japanese internment, adult sterilization, organ transplants from incompetents, slavery, and inhumane experiments. Such legal fictions conceal our violations from ourselves and others under the pretenses of legal authorization and compliance with human rights, masking our failure to properly safeguard human dignity and autonomy.