Notes from Limmud 2015

The Ethics of Circumcision

Joe Mazor

[Standard disclaimer: All views not in square brackets are those of the speaker, not myself. Accuracy of transcription is not guaranteed.]

The speaker is a moral philosopher, so is talking about the moral case, not the legal one.

In 2012, a court in Germany ruled that circumcision was illegal. The German parliament later effectively overruled the court, citing religious freedom of the parents. The court argued that circumcising a child violated the child's right to bodily integrity. While it recognised certain parental rights, it argued that the child's right to bodily integrity takes precedence.

The speaker's thesis: I will argue that circumcision does not violate the child's right to bodily integrity in the religious case. It should not be made illegal, either in the secular or religious case.

Issues that are set aside for this talk (one can't deal with everything in an hour): Parental rights, religious rights, and the child's right to self-determination.

The speaker will here make four claims:

The [lacuna: benefit to the child?] is defined in terms of his best interests (at least vis-à-vis his parents).
Even secular people should agree that male circumcision in the religious case is in his best interests.
The government should only overrule the parents' judgement when the practice is obviously strongly not in the child's best interests.
This condition is not met here.

What is a moral right? Claims with special moral force to perform or not certain actions to to be in certain states; that others [lacuna].

Strength of rights: How rights are to be weighted against other moral considerations.

There are three possibilities:

Rights are absolute, and can never be violated. Or:
Rights are trumps over mere interests: rights can be violated for the sake of protecting other rights, but they take precedence over any mere interests. Or:
Rights are moral claims that have a great deal of moral weight, but do not necessarily outweigh all interests.

Even if the right to bodily integrity is in the third category, it is still important in the circumcision debate.

Claims 1: That the benefit to the child is defined in terms of his best interests

There are two possible conceptions of the child's right to bodily integrity: the Encroachment conception and the Best-interest conception.

The former holds that the child [has the] right to bodily integrity whenever there is a serious encroachment on the child's body: it is irreversible, it involves removal of healthy tissue and significant loss of function, or some other characteristic beside the child's interests.

By contrast, the best-interest conception is that infringement on the child's body is a violation of his right only if it significantly deviates from his best interests.

There are two arguments in favour of the best-interest conception:

First, the intuitive argument. Consider a less controversial case: parents who authorise an operation to correct a minor cleft lip on their child.

We can adopt some assumptions for this to take us closer to the case with circumcision: That there are no medical reasons for performing operation, that the operation is irreversible, that it requires the removal of some healthy tissue, and that it reduces sensitivity to some extent. This makes it a serious encroachment in this definition of such. So, is this permissible? [show of hands] Everyone in the audience thinks yes.

This is difficult to explain using the encroachment conception. The encroachment conception says: you are violating the child's right but countervailing benefits—self-image, not being teased, etc—outweigh the right to bodily interests.

If we accept a very strong notion of the right to bodily integrity and we accept the encroachment conception, then we have to reject the permissibility of the operation (since it violates a right for benefits that are not crucial).

Even on a weaker notion of the right to bodily integrity, this example poses a problem for the encroachment conception.

The encroachment conception suggests this is a genuine moral dilemma; but it is fairly clearly permissible.

By contrast, the best-interests conception has no problem with this case. In this view, the operation is not a violation of the child's right to bodily integrity. The best-interest conception is also a more plausible analogue to adult's right to bodily integrity.

Only non-consensual infringements constitute violations of right to bodily integrity. An adult's consent serves two roles:

Respecting the adult's autonomy.
Serving as an indication (though not a perfect one: audience counterexample: smoking) that it's in their best interests.

Since a child is not autonomous, the right analogue is thinking about the child's best interests. Another way of seeing this [lacuna] The right analogue is asking what the child would consent to.

The only way to think through this is to ask what is in the best interests of the child.

Claim 2: Circumcision in the child's best interests in the religious case.

Is circumcision in the best interests of the child? There are two cases to be considered: It is important to separate out the religious case from the secular case for circumcision.

The secular case

Starting with the secular case: The speaker will think in terms of expected value for the child's interests. How to maximise the well-being of the child?

The main considerations are:

Pain: It is important to minimise pain. Not all methods of analgesia are equivalent in reducing pain in circumcision. Recovery pain also can be significant. There is no moral argument for not trying to minimise pain. It's also hard to say how much pain a child is in. There are ways of minimising pain for adults, though.
Medical (negative): There are complications, which are important. Extreme cases with untrained professionals have had horrendous outcomes, though these don't occur in the UK or USA. Even there, there are 1 in 500,000 deaths, though often there there are other medical factors involved too. Question: Does circumcision reduce or cause sexual dysfunction?
Medical (positive): reduction in urinary tract infections and STIs (especially HIV in developing countries). Also very much lower incidence of penile cancer.

The overall assessment of these factors is slightly positive on balance (Benatar and Benatar, Journal of Medical Ethics, 2003). Though there is a huge amount of controverysy, and no consensus.

On the subject of sexual pleasure, the evidence is unclear and difficult to obtain. Looking at men before and after, there isn't a uniform effect for all men: some report more after circumcision, some less. But let us assume a modest decrease in sexual pleasure.

This is often taken to be an obvious negative for the best interests of the child, but the speaker holds this is not so obvious.

Don't commit a naturalistic fallacy. Just because it's natural it isn't necessarily good. The question is whether human beings are born with the pleasure triggers that are optimal for a flourishing human life? The speaker thinks the answer is far from obvious. Maimonides for example didn't think so. He thought circumcision reduced sexual pleasure, but this was a good thing: a golden mean, avoiding being too lustful.

Consider a different example: Think of an intervention that would result in a modest decrease of pleasure from sweets, in terms of what we spend money and time on, or health problems, from reducing one's sweet tooth a bit.

Although a child is not autonomous, he has an interest in bodily self-determination. How significant is this interest? Claim: It is not overwhelming but is fairly significant (in expectation). If it were overwhelming, then cleft lip operations would not be permissible.

Reflection suggests circumcision is certainly not of overwhelming important for everyone—but it is significant. The body part involved is an intimate one that is tied up with masculine identity and a key human pleasure, which is an important consideration.

There are a very small minority who feel very strongly about this type of self-determination (i.e. people who have been circumcised who feel they have been mutilated).

Overall, the speaker would say that the balance of interests in the secular case is slightly negative, so would not have his child circumcised on the secular grounds alone.

There are slightly positive net medical benefits, but significantly negative [lacuna]: frustration of interest in bodily self-determination.

The religious case

Many Jews and Muslims regard circumcision as a religious obligation. (This is less important in Islam: it originates in the Ḥadīth, not the Qu'ran.) How does this change the calculus?

Clearly, the religious person thinks the circumcision is in the child's best interest. For them, it is a commandment of a benevolent divine being. But let's consider it from a secular point of view, since secular fellow citizens will be looking from that point of view.

Religious parents are interested in thinking about secular morality.

A key point is that children of religious parents are likely to grow up religious themselves, and much more likely to [want to perform circumcision on their own children].

[If circumcision is not performed as a child, it is incumbent upon the child to take the commandment upon themselves as an adult.] Adult circumcision is significantly more costly than infant circumcision. Recovery pain is higher. (This is controversial, there is no consensus on this.) There are also risks, especially when general anaesthesia used; and there is life disruption.

Thus, in expectation, there is a significant additional benefits from circumcision in the religious case. It seems to me that this benefit tips balance into positive territory for circumcision.

Claim 3: The government should only overrule parents' judgement when operation is obviously strongly not in the child's best interests.

Governments should not overrule parents' judgement whenever some operation is not deemed to be in child's best. There should be respect for family sphere. There should also be respect for religious practice (i.e. not telling someone they're wrong).

Governments also makes mistakes: they're not infallible. Avoid saying government is always right and paretns wrong.

Firstly, the government or the majority is not knowledgeable about the practice as the parents are. Consider, for example, FGM: People are ignorant about types of this, and not all types are equally bad.

The government or the majority also does not care as much about child as parents.

Many anti-circumcision campaigners are of the far right, and they have other agendas beyond just religion.

Conclusion:

The government should defer to the parents' judgement except [lacuna]

This condition is not met for circumcision in either the secular or religious case.

Conclusion: The German court got it wrong, morally speaking.

The right to bodily integrity is defined in terms of the childs best interests (not just a serious bodily integrity).

The balance might be slightly negative in the secular case; but it is probably slightly positive in the religious case, even from a secular perspective. In any case, it is certainly not obviously strongly against the child's best interest.

In such cases, the judgement should be left to the child's parents.

It is ethical in the religious case [lacuna]

Audience questions:

50% of the current generation have assimilated: One Jewish partner, one non-Jewish. This causes a problem where the father is Jewish and the mother is not. Speaker's response: One must ask whether the child will be raised Jewish, and to what extent is the community going to exert pressure towards circumcision, either as a child or as an adult. But doing it for social pressure reasons is deeply problematic.

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