The terms of the debate about non-therapeutic circumcision of minors have changed. The issue is no longer whether the so-called “benefits” outweigh the risks, or even whether the benefits outweigh the risks and harms. (As for the troglodytes who still mutter about pros and cons …) Coming on top of the judgement of a German court that circumcision is bodily harm and that it violates the child’s right to religious freedom, a leading legal philosopher now argues that boys have an inherent right not to be circumcised without medical need. In a paper forthcoming in Health Matrix, Stephen Munzer argues that current norms of autonomy and bodily integrity give male minors “a moral, anticipatory right-in-trust not to be circumcised without a medical indication.” Even more remarkably, it is now conceded by a prominent defender of religious/cultural circumcision that the practise is harmful and does violate the rights of the child. Writing in the Journal of Applied Philosophy, Joseph Mazor acknowledges the physical and moral harms of circumcision and admits that the child has “a right of moderate strength” not to be subjected to “presumably harmful circumcision”.

Both Munzer and Mazor go on to argue that, given the importance of circumcision within the cultural/religious communities that follow this tradition, the practice should not be criminalised. This is a fair point, far less important than the vital concession that circumcision is harmful and does violate the rights of the child to bodily integrity, personal autonomy and an open future. If it is now admitted that NTC is harmful and does violate the rights of the child, there can be no justification for medical authorities recommending the practice or “routinely” performing it on demand, or even sitting awkwardly on the fence; or for government agencies to encourage it (e.g. through health insurance coverage etc); and there is a strong argument for appropriate agencies to take measures to discourage it by removing incentives and imposing disincentives – in the same way as government programs have sought to discourage harmful practices such as smoking tobacco, without actually making it illegal.

However these details are resolved, the debate now is not about whether or not circumcision should be performed, but about the best and most effective means of discouraging the practice. In the background is a further question: whether non-therapeutic circumcision of minors is or should be illegal.

Boys have a “moral right” not to be circumcised

A straw – or perhaps a haystack – in the wind is a recent paper by legal philosopher Stephen Munzer giving detailed consideration to the question of whether male minors have a moral right not to be circumcised without medical need, and concludes that they do. Male minors, he argues, have “a moral anticipatory right-in-trust not to be circumcised without a medical indication.” The basis for this position rests on four key factors: (1) the permanent loss of functional tissue; (2) the “salience” of the penis in physical, psychological and cultural terms; (3) the limits on parental rights to modify their children’s bodies; and (4) the principle of gender equity. Although Munzer does not endorse criminalisation (taking account of the importance of circumcision to the cultures that practise it as a religious or cultural rite) he reaches the firm conclusion that it is morally wrong and that boys have the same right to genital integrity as currently enjoyed by girls. And if they do have such a right, society must eventually acknowledge its obligation to take action to translate that principle into practical reality.

Abstract  This Article argues that male minors have a moral anticipatory right-in-trust not to be circumcised without a medical indication. Based on norms of autonomy and bodily integrity, this Article’s treatment of children’s rights, parental rights, religious freedom, and tolerance offers arguments accessible to readers of many ethical, political, and intellectual persuasions. Three direct arguments rest on (1) the loss of non-renewable functional tissue, (2) genital salience, and (3) limits on a parental right to permanently modify their sons’ bodies. This Article also compares circumcision to a rare form of female genital cutting; the comparison contains the seed of an argument sounding in (4) gender equality. In current circumstances, however, it is unwarranted to treat nontherapeutic circumcision as a crime or subject it to burdens under tort, family, or administrative law.

Stephen Munzer. Examining nontherapeutic circumcision. Health Matrix 28 (1) 2018: 1-77 (in press). Full text at SSRN.

Mazor’s qualified defence of religiously motivated circumcision

Abstract  This article considers the question of how much weight the infringement of children's right to bodily integrity should be given compared with competing considerations. It utilises the example of circumcision to explore this question, taking as given this practice's opponents’ view of circumcision’s harmfulness. The article argues that the child’s claim against being subjected to (presumably harmful) circumcision is neither a mere interest nor a right so strong that it trumps all competing interests. Instead, it is a right of moderate strength. Indeed, even the aggregate strength of children’s rights against the practice of (presumably harmful) circumcision as a whole is not so weighty so as to always trump competing interests. The harms are not sufficiently serious to justify such a status. And the expressive wrongs associated with non‐negligently benevolent harming are much less serious than those associated with intentional harming. The debate over banning circumcision thus cannot be conducted only in terms of competing rights. Competing interests, such as those that would be set back by the departure of religious citizens, should be considered as well and might plausibly justify allowing even a rights-infringing practice to continue.

Joseph Mazor. On the Strength of Children’s Right to Bodily Integrity: The Case of Circumcision. Journal of Applied Philosophy, on-line first, 24 May 2018.

There will be continuing argument over how harmful these harms are; but once the reality of harm is conceded, there can be no going back to tired old clichés such as pros and cons or benefits and risks. It may be while before troglodytes such as the American Academy of Pediatrics catch up (let alone Prof Morris), but once it is agreed (as Mazor concedes and Munzer argues) that NTC of minors is morally wrong, it places pressure on government, the medical profession, regulatory agencies, bioethical watchdogs etc to take some sort of action to discourage it, and certainly to ensure that nothing is done to promote it. We are really entering new territory.