IS CIRCUMCISION a FRAUD? FRAUD? a IS CIRCUMCISION Peter W

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cjp_30-1_42664 Sheet No. 27 Side A 11/12/2020 09:05:36 11-NOV-20 14:50 Seq: 1 Seq: 45 unknown IS CIRCUMCISION A FRAUD? FRAUD? A IS CIRCUMCISION Peter W. Adler, J.D., M.A., was an editor of the Virginia Law Review and the Virginia Peter W. Adler, J.D., M.A., was an editor of the This Article suggests that non-therapeutic male circumcision or that non-therapeutic male circumcision This Article suggests * Peter W. Adler, Robert Van Howe, Travis Wisdom & Felix Daase* Wisdom & Felix Howe, Travis Adler, Robert Van Peter W. M K - Journal of International Law, and he teaches International Law at the University of Massachu setts. Robert Van Howe, M.D., M.S., a pediatrician and clinical professor at Michigan State cir- University College of Human Medicine, has published extensively about non-therapeutic cumcision. Travis Wisdom, M.A., LL.M., is a Ph.D. Candidate at the University of Adelaide, - Australia, specializing in international human rights law and in children’s right to bodily integ rity in the context of non-therapeutic male and intersex genital cutting. Felix Daase studied (Germany) and in Massachusetts. political science and law at the Universities of Tübingen - Currently he studies law at Bucerius Law School in Hamburg (Germany) focusing on interna tional law and human rights. male genital cutting (MGC), the irreversible removal of the foreskin from (MGC), the irreversible removal male genital cutting United States but boys, is not only unlawful in the the penises of healthy its ruling was a German court held in 2012 before also fraudulent. As pressure, cir- by a special statute under political effectively overturned violates the or non-medical reasons is harmful, cumcision for religious (which super- bodily integrity and self-determination child’s rights to assault. MGC rights), and constitutes criminal sedes competing parental it constitutes a bat- child’s rights under U.S. law, and also violates the upon a 2016 crime, and statutory child abuse. Building tery, a tort and a the novel suggestion that when case in the United Kingdom, we make a breach of trust or fiduciary duty, performed by a physician, MGC is courts impute fraud even if intent to and hence constructive fraud, where build upon the argument that it is defraud is absent. We reprise and and hospitals to bill Medi- unlawful and Medicaid fraud for physicians Finally, we suggest that MGC con- caid for unnecessary genital surgery. Academy of Pediatrics (AAP) stitutes intentional fraud by the American circumcisions in the United States. and most physicians who perform medicine when it is violence, and as a They have long portrayed MGC as right to keep their penile foreskin, parental right when males have the take orders from parents to perform and physicians are not allowed to Various aspects of potential lit- unnecessary genital surgery on children. plaintiffs. Hence, we conclude that igation would be favorable to the and the AAP to large and possibly MGC exposes physicians, hospitals, uninsured liability. \\jciprod01\productn\C\CJP\30-1\CJP102.txt C Y cjp_30-1_42664 Sheet No. 27 Side A 27 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 27 Side B 11/12/2020 09:05:36 M K . . C Y EV ED Earp . M L. R and it RIT 10 OWA [Vol. [Vol. 30:45 11-NOV-20 14:50 regardless of 11 The burden thus The burden thus 4 have adjudged the 9 OLICY OLICY P Seq: 2 Seq: 796 (2013) [hereinafter Frisch Cul- UBLIC UBLIC P EDIATRICS and legal scholars * * * * * * unknown 8 AW AW AND L (Sept. 2, 2012), https://www.creativitypost.com/article/ 3 OST P ethicists, 7 OURNAL OURNAL OF In 1999, the legal scholar Matthew Giannetti showed In 1999, the legal scholar Matthew J 5 REATIVITY Circumcision and the American Academy of Pediat- Matthew R. Giannetti, Note, Circumcision and the American Academy of ORNELL ORNELL In any case, males, like females, have the ethical and legal right like females, have the ethical and In any case, males, 2 See See, e.g., Morten Frisch et al., Cultural Bias in the AAP’s 2012 Technical Report and See, e.g. Brian D. Earp, The AAP Report on Circumcision: Bad Science + Bad Ethics See infra Part I. See infra Introduction B.2. See infra notes 126–128. See infra Introduction I.A. See infra at note 48. See infra Introduction Part I.B and Part I. See infra note Part II.A. , 2 B Douglas Gairdner, The Fate of The Foreskin: A Study of Circumcision Medical experts, It respects what boys would choose for themselves if able to themselves if able choose for what boys would It respects 6 This Article begins by suggesting that the arguments for leaving the for leaving that the arguments begins by suggesting This Article Physicians are required to justify each medical intervention and to to justify each medical intervention Physicians are required As the British physician Douglas Gairdner wrote in 1949, however, Douglas Gairdner wrote in As the British physician We suggest that it will never be possible for physicians who circum- We suggest that it will never be possible 1 6 7 8 9 1 2 3 4 5 10 11 foreskin of the penises of healthy boys alone, as physicians in most devel- as physicians in boys alone, the penises of healthy foreskin of of boys and for the health It is better do, are convincing. oped countries men. crosses a line that physicians are not allowed to cross, crosses a line that physicians are Policy Statement on Male Circumcision, 131 P = Bad Medicine, C J. 1433, 1433 (1949). tural Bias]. obtain the patient’s consent to it whenever possible. obtain the patient’s \\jciprod01\productn\C\CJP\30-1\CJP102.txt 46 C falls to physicians in the U.S., who are outliers in circumcising healthy in the U.S., who are outliers in circumcising falls to physicians circumci- birth, to justify performing non-therapeutic boys, primarily at arguments against and thus to refute the sions without consent, circumcision. that physicians had medical and trivial reasons of all the many varied mid-1800s to the mid-1900s, none advanced for the practice from the were convincing. AAP’s most recent 2012 circumcision guidelines, which contain even AAP’s most recent 2012 circumcision to be unsustainable. more extravagant medical claims, to justify non-therapeutic circumci- cise and their medical associations the opposite of medicine, sion without consent. It is violence, Bad Ethics]. the_aap_report_on_circumcision_bad_science_bad_ethics_bad_medicine [hereinafter 1507, 1553 (2000). that the American Academy of Pediatricians (AAP) had made unscien- that the American Academy of Pediatricians fraudulent claims about the tific, negligent, and possibly intentionally circumcision industry for monetary practice in order to perpetuate the gain. to remain genitally intact. to remain genitally choose. rics: Should Scientific Misconduct Result in Trade Association Liability?, 85 I rics: Should Scientific Misconduct Result in cjp_30-1_42664 Sheet No. 27 Side B 27 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 28 Side A 11/12/2020 09:05:36 R R R R R R R R R R R R R R R R R R R R R R R R R R 7 7 4 81 81 68 68 80 80 83 78 78 77 77 78 53 53 62 62 62 66 67 68 68 72 72 73 73 76 55 55 55 58 48 48 48 48 50 70 70 68 68 ...... 11-NOV-20 14:50 ILLING ...... B ...... ? Seq: 3 Seq: EDICAID RUST RAUD ...... T F M ...... NLAWFUL REACH OF unknown ...... BUSE B U ...... A ...... IRCUMCISION IRCUMCISION A ROM ROM C F F S HILD I physicians in the U.S. deceive parents about cir- parents about in the U.S. deceive physicians RAUD C 12 13 F Material Omissions RISING RISING a. Fraudulent Medical Claims and Omissions Not Medically Justified Early False Medical Claims Early Specious Claims Early Unfair and Deceptive Practices The Prepuce Genital Cutting A A ...... 1. Intentional Fraud by the AAP in 2012 Motives to Defraud Today 4. Constructive Fraud Unjust Enrichment Unfair and Deceptive Acts and Practices The Past as Prologue 1. 2. 3. Unnecessary Surgery Unnecessary Genital Cutting Factual Background Ethical and Legal Background 1. 2. Breach of Fiduciary Duty Medicaid Fraud Unlawful Medicaid Billing LAIMS LAIMS ATTERY AND NTENTIONAL C C. B. B B. C. D. A. A. B. C A. B. A. I B. A. See infra Part IV. See infra Part II.C. We show that circumcised boys and men, their parents, and the U.S. boys and men, their parents, We show that circumcised I. II. 12 13 III. IV. NTRODUCTION M K cumcision, and insofar as the parents are acting as legal proxies on be- as legal proxies the parents are acting and insofar as cumcision, also also thereby their sons, the physicians in place of half of and hand, they permission in invalid parental sons. With legally deceive the and enrich them- boys have the legal right to keep take the foreskin that selves in the process. the many excuses advanced for it in the past, or that might be advanced be advanced that might past, or it in the for advanced excuses the many fraudulent conduct and unfair and deceptive future. Through for it in the omissions, claims and and state governments have several causes of action against the physi- have several causes of action and state governments and the Ameri- the American Academy of Pediatrics, cian, the hospital, three types of fraud. and Gynecologists for can College of Obstetricians 150-year-old mul- that circumcision is a complex, We therefore suggest fraud. tibillion dollar-per-year I \\jciprod01\productn\C\CJP\30-1\CJP102.txt 2020] 2020] C Y cjp_30-1_42664 Sheet No. 28 Side A 28 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 28 Side B 11/12/2020 09:05:36 R R R R R R R R R R R R R R R R R R R M K C Y 96 96 86 86 93 93 97 98 98 92 92 91 91 90 90 83 83 105 104 104 104 104 103 103 103 103 106 106 102 102 100 100 101 . [Vol. [Vol. 30:45 11-NOV-20 14:50 ...... The same reason- 14 OLICY OLICY P ...... Seq: 4 Seq: ...... UBLIC UBLIC ...... P ...... LAIMS unknown ...... AW AW AND C L ...... NTRODUCTION ...... I ...... RAUD ...... F ...... 140 Cal. Rptr. 3d. 853 (Cal. 2006). Undisclosed Disadvantages and Understated Understated and Disadvantages Undisclosed Risks “Physicians Are Allowed to Take Orders “Physicians Are Allowed from Parents” “Parents Have the Right to Elect “Parents Have the Religious Reasons” Circumcision for “Parents Will Need to Take Their Personal “Parents Will Need Preferences Into Account” “Parents Have the Right to Elect “Parents Have the Circumcision” Usually Not Performed for Medical Reasons Medical Reasons Performed for Usually Not Anyway Exaggerated and Irrelevant Claims About and Irrelevant Exaggerated Benefits Potential Medical Actual and ECOMMENDATIONS OURNAL OURNAL OF R J b. d. c. b. a. d. c. The “Question” The “Talk” Coercion Fraudulent Legal Claims Fraudulent Legal Damages May Be Large, Multiplied, and Uninsured Damages May Be Large, Multiplied, Prior Admissions Right to Summary Judgment Longer Statute of Limitations Easier than a Malpractice Suit Intentional Fraud by Many Physicians Who Intentional Fraud Circumcise 1. 2. 3. 2. ITIGATING THE The Prepuce ORNELL ORNELL E. D. C. B. A. D. L C Tortorella v. Castro, 1. is to have one’s body and We claim that to be in perfect health Factual Background 14 V. ONCLUSION AND C ing applies to unnecessary male and female genital cutting (FGC), ing applies to unnecessary male and female genital cutting (FGC), whether performed by laypeople, as has been the case from ancient A. fully functioning. Therefore, when hence also one’s genitals intact and part of a person’s body is re- living tissue is excised or a functional moved—or in medical terms, amputated—from a healthy person’s body, in the person is no longer in perfect health. A California court observed - 2006 in Tortorella v. Castro, which concerned an adult who was sub jected to unnecessary surgery, that it seems obvious that it is inherently injurious or harmful to needlessly go under the knife. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 48 cjp_30-1_42664 Sheet No. 28 Side B 28 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 29 Side A 11/12/2020 09:05:36 . . 9 9 OS- 4 RIT ROL 1848, EXUALLY . J. U U.S. H 83, Supp. 1 RIT 17 L ROLOGY ’ 11-NOV-20 14:50 , 29–33, 67–85 NT 65, 68–69 (Springer EWBORNS IN REPUCE 17, 17 (2016). N P Similar to the labia Similar to the labia ? REPUCE 20 ALE 1, 1 (George C. Denniston et P EALTH M Seq: 5 Seq: H S RAUD ’ BNORMAL F EN A Like the vulva, the penis is a vulva, the penis Like the BNORMAL 19 IRCUMCISION A & M C IRCUMCISION FOR EMALE unknown C ORMAL AND ROLOGY (May 26, 2015), https://www.washingtonpost.com/ (May 26, 2015), https://www.washingtonpost.com/ ORMAL AND U The foreskin of the penis also has immu- The foreskin of the penis also has & F ,N LOG 22 IRCUMCISION IRCUMCISION A , N B ALE C RENDS IN RENDS M AHMY S ONK I AHMY F ., T in F Researchers from Foregen, a biomedical company Researchers from Foregen, a biomedical : W 23 364, 364 (1998). AKY AKY OST , BJU I 74 (2018). CJ Cold & J. Taylor, The prepuce . P and in neither sex is it a birth defect. The foreskin and birth defect. The sex is it a and in neither 864, 864 (2007) (“Circumcision ablates the most sensitive parts of the A. B A. B 18 L WINGS ET AL ASH ’ NFECTIONS O NT I I Baskin et al., supra note 19. OHAMED ARIA OHAMED can be manipulated, and, as demonstrated by a study using ob- and, as demonstrated by a study can be manipulated, except in the United States, South Korea, and Israel. South Korea, the United States, except in to the present, or by a physician, as is uncommon in the Western Western in the uncommon as is physician, or by a present, to the contra J.A. Bossio, C.F. Pukall & S.S. Steele, Examining Penile Sensitivity in Neona- note 19. “The outer epithelium has the protective function of Cold and Taylor, supra note 19. “The outer epithelium has the protective Morris L. Sorrells et al., Fine-touch Pressure Thresholds in the Adult Penis, 99 B M Christopher Ingraham, Americans Truly Are Exceptional—at to Least When it Comes M Christopher J. Cold & Kenneth A. McGrath, Anatomy and Histology of the Penile and M See , 83 B W.D. Dunsmuir & E.M. Gordon, The History of Circumcision 21 16 15 : 1979–2010, rates of 1 (Nat’l Ctr. for Health Stat. ed. 2013) (finding U.S. circumcision The prepuce, in males the foreskin of the penis and in females the and in females foreskin of the penis in males the The prepuce, IFFERENTIATION 1, 1 (1999) (circumcision may date back 15,000 years). 1, 1 (1999) (circumcision may date back 15,000 21 22 23 17 18 19 20 15 16 ROLOGY L ’ RANSMITTED NT M K tally Circumcised and Intact Men Using Quantitative Sensory Testing, 195 J. U minora—which are elastic, and a protective and lubricating role, serve during sex, masturbation, and foreplay—thecan be manipulated penile the penile sheath that protects and lubricates foreskin is an elastic glans, nological properties. specializing in tissue regeneration, write, specializing in tissue regeneration, 64.9% in 1981 and 55.4% in 2007). internalising the glans (clitoris and penis), urethral meatus (in the male) and the inner preputial internalising the glans (clitoris and penis), urethral epithelium, thus decreasing external irritation or contamination . . . . The moist, lubricated male preputial sac provides for atraumatic vaginal intercourse.” Clitoral Prepuce in Primates, the clitoral hood have many similarities. hood have many the clitoral jective methods for establishing sensory thresholds, it is the most sensi- establishing sensory thresholds, jective methods for ablates the most penis to light touch. “Circumcision tive part of the sensitive parts of the penis.” world al. ed. 1999). times (1999). penis”); ed. 2020) ; P.M. Fleiss et al., Immunological Functions of the Human Prepuce, 74, S - 1848 (2016); but see Brian D. Earp, Infant Circumcision and Adult Penile Sensitivity: Implica tions for Sexual Experience, 7 T J. U clitoral hood, is a natural body part that has evolved over more than 65 evolved over more body part that has is a natural clitoral hood, million years, T \\jciprod01\productn\C\CJP\30-1\CJP102.txt complex, intimate body part of significant psychosexual importance. body part of significant psychosexual complex, intimate that function genitalia have multiple components Both types of external a coherent anatomical system. together as part of (Springer ed. 2020); Laurence Baskin et al., Development of the Human Penis and Clitoris, (Springer ed. 2020); Laurence Baskin et al., 103 D 2020] 2020] PITALS - news/wonk/wp/2015/05/26/americans-truly-are-exceptional-at-least-when-it-comes-to-circum . . . have [circumcision] rates less than 20 cision/ (“Most Western European countries percent.”). I Circumcision, W C Y cjp_30-1_42664 Sheet No. 29 Side A 29 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 29 Side B 11/12/2020 09:05:36 M K C Y EXUAL ONTROVER- . J. S C [Vol. [Vol. 30:45 RIT 11-NOV-20 14:50 OST , and 2 M S ’ ORLD OLICY OLICY W P Seq: 6 Seq: 1 (2018). G ’ UBLIC UBLIC P NG E often tied to painful rites of pas- ISTORY OF THE 24 26 Today as well, when healthy, living Today as well, when healthy, living ISSUE : A H 25 unknown AW AW AND L . 1181, 1184 (2000). ED ., 375 (2001). IRCUMCISION ED . & M , C CI . M . S IST OURNAL OURNAL OF OC J . H OLLAHER ULL L. G 3 (Basic Books ed. 2000) (“Within the magico-religious framework of Egyptian Genital Cutting ORNELL ORNELL potentially larger. On average, the foreskin accounts for the foreskin larger. On average, potentially and length of the penile shaft skin 51% of the total dy- of functions. The tissue is highly serves a multitude - functions like a roller bear namic and biomechanically the foreskin ‘unfolds’ and glides ing; during intercourse, are is reduced and lubricating fluids as abrasive friction the foreskin is considered to be retained. The sensitive zone of the male penis and is divided primary erogenous inner mucosa, ridged band, into four subsections: to foreskin; each section contributes frenulum, and outer sensory pleasure through the gliding a vast spectrum of stretches and action of the foreskin, which mechanically receptors (ci- stimulates the densely packed corpuscular tation and footnotes omitted). Few parts of the human anatomy can compare to the in- to can compare anatomy the human parts of Few foreskin. At of the human multifaceted nature credibly is, in the adult foreskin as ‘just skin,’ times dismissed bi- and densely innervated vascularized fact, a highly 90•cm area of up to with a surface layer tissue, AVID and also served other social purposes from the marking of slaves and also served other social purposes The Development of a Decellularized Extracellular Ma- Valeria Purpura et al., The Development of a Decellularized Extracellular Frederick M. Hodges, The Ideal Prepuce in Ancient Greece and Rome: Male Genital John P. Warren & Jim Bigelow, The Case Against Circumcision, B D 27 The Greeks posited that a circumcised penis is a deviation from the The Greeks posited that a circumcised 2. URGERY . 6, 6 (1994) (“[M]any writers have suggested that it was a sacrificial rite.”); John C. 24 25 26 27 S ED sage, tissue is excised, or a functional part of a person’s body is removed such tissue is excised, or a functional part definition, no longer in perfect health. as the prepuce, a person is, by our or removal of the clitoral or penile Genital cutting, including the cutting foreskin, began as pre-historic rituals trix–Based Derived from Human Foreskin for the Purpose of Foreskin Biomaterial Scaffold Reconstruction in Circumcised Males, 9 J. T - Caldwell et al., Male and Female Circumcision in Africa From a Regional to a Specific Niger ian Examination, 44 S M natural, defective, and disfigured. As stated, by our definition, to be in perfect health males and females As stated, by our definition, to be the prepuce). Moreover, insofar as must have intact genitalia (including serves multiple functions, and gives the prepuce is highly erogenous, life, it is very good for physical and pleasure throughout a person’s sex mental health. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 50 C SIAL Aesthetics and Their Relation to Lipodermos, Circumcision, Foreskin Restoration, and the Aesthetics and Their Relation to Lipodermos, Circumcision, Foreskin Restoration, and Kynodesme, 75 B cjp_30-1_42664 Sheet No. 29 Side B 29 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 30 Side A 11/12/2020 09:05:36 1 1 E- 34 35 31 YS- 5 S (Aug. 16, OCHRANE and as the Among the Both MGC The rate of The rate AGES 11-NOV-20 14:50 32 33 37 29 P 57 (2004). ESOURCE ? R URATIONIS Seq: 7 Seq: RAUD F are still painful, and MGC is 36 NFORMATION AND I Thus, both male genital cutting and cutting male genital both Thus, unknown 28 note 15. IRCUMCISION IRCUMCISION A e756, e774 n.213 (2012) [hereinafter 2012 AAP Technical C . L. 337, 337 (1985) (calling male and female circumcision . L. 337, 337 (1985) (calling male and female IRCUMCISION S I AM note 32, at 2462–43. EDIATRICS (June 10, 2017), https://www.nytimes.com/2017/06/10/health/genital-mutila- . (July 19, 2004), https://www.cochranelibrary.com/cdsr/doi/10.1002/14651858. Circumcision of male infants as a human rights violation, e.g., J. Steven Svoboda, Circumcision of male infants as a human rights IMES EV . J. (2016) (“infant circumcision is a violent act” performed without medical justifi- . J. (2016) (“infant circumcision is a violent act” - primarily for relig to this day to be performed Both continue 1, 1 (2016). R ED American Academy of Pediatrics, Task Force on Circumcision, Technical Report American Academy of Pediatrics, Task Force – S.M. Mogotlane et al., Mortality and Morbidity Among Traditionally Circumcised Krill et al., supra See Pam Belluck, Michigan Case Adds U.S. Dimension to Debate on Genital Mutila- Barbara Brady-Fryer et al., Pain Relief for Neonatal Circumcision, 18 C Dunsmuir & Gordon, supra See, Circumcision Deaths, C Risks, 137 P Andrew L. Freedman, The Circumcision Debate: Beyond Benefits and 11 Scientific World Journal Aaron J. Krill et. al., Complications of Circumcision, 30 The assumption is widespread in the United States that MGC, when widespread in the United States that The assumption is . M 33 34 35 36 37 28 29 30 31 32 RIT M K AAP observed in 2012, male circumcision also can be fatal. 2012, male circumcision also can be AAP observed in Xhosa of South Africa, for example, many boys die each year from their for example, many boys die Xhosa of South Africa, amputations. initiation rites, with numerous penile harsh circumcision and FGC carry the risk of many complications. The American Academy and FGC carry the risk of many complications. that male “circumcision predisposes of Pediatrics (AAP) stated in 1975 stenosis, and that, “[t]he immediate to meatitis,” may result in meatal include local infection which hazards of circumcision of the newborn bleeding, infection, and death from both would have been high in ancient have been high from both would infection, and death bleeding, times. often performed on newborn boys without using pain relief. often performed on newborn boys without female genital cutting are analogous and both are violence. analogous and both cutting are female genital Male Circumcision, 130 P Xhosa Boys in the Eastern Cape Province, South Africa, 27 C tion, N.Y. T 2458, 2458 (2011). medicine. to do with having nothing and other reasons ious, cultural, to the suppression of sexuality. of suppression to the DIATRICS TEMATIC CD004217.pub2/full. Report]. tion-muslim-dawoodi-bohra-michigan-case.html (“As more details emerge about the first-ever tion-muslim-dawoodi-bohra-michigan-case.html (“As more details emerge about the first-ever charges of female genital mutilation in the United States . . .”). mutilation). hospital environ- medical professionals in a sterile performed by licensed are untrue. safe, and harmless, but these assumptions ment, is painless, science and medicine, circumcision apparently was a ritual marking the passage from youth to science and medicine, circumcision apparently manhood.”) Even when performed by licensed medical professionals in a sterile hos- by licensed medical professionals Even when performed has been per- MGC and FGC, the latter of which pital environment, U.S., formed at least once recently in the settings by untrained practitioners, severe by untrained practitioners, settings in non-sterile When performed cutting, can occur for both types of medical complications \\jciprod01\productn\C\CJP\30-1\CJP102.txt Circumcision as Child Abuse: The Legal and cation or consent); see also William E. Brigman, Constitutional Issues, 23 J. F 2020] 2020] 2013), http://www.cirp.org/library/death/. B C Y cjp_30-1_42664 Sheet No. 30 Side A 30 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 30 Side B 11/12/2020 09:05:36 M K E- C Y 38 42 P and ODILY EDIAT- Men B Factors 45 ORESKIN 44 in F Indeed, , LINICAL , 56 P It causes It causes 46 [Vol. [Vol. 30:45 39 11-NOV-20 14:50 As discussed As discussed 41 . 189 (2017). . (Aug. 2017), https:// TS OC . R OLICY OLICY P UM Seq: 8 Seq: EMONIZATION OF THE . & S D 43 J. H ED L ’ HE UBLIC UBLIC NT P : M : T 89, https://www.dovepress.com/female-gen- 177–88et al., eds.). (George C. Denniston THICS 24 (University of Chicago Press) (2005) (hereinaf- unknown EMPTATION AW AW AND OVEPRESS L T (Oct. 2011), https://www.health.harvard.edu/press_re- RITAIN . 189, 195 (2017). IRCUMCISION B TS C . R URGICAL Infants cry with piercing screams while being cir- Infants cry with piercing screams while UBLISHING UM P 47 Long-Term . (2002); see also Tim Hammond & Adrienne Carmack, ,A S ,A OURNAL OURNAL OF J. H J OLITICS OF L ’ P EALTH SYCH IRCUMCISION IN ARBY by removing nerves that would otherwise be susceptible to otherwise be nerves that would by removing NT H P C D 40 Tim Hammond & Adrienne Carmack, Long-term adverse outcomes from neonatal ORNELL ORNELL EALTH ISE OF OBERT ARVARD , 1532 (2018). R Five Things You May Not Know About Second Opinions, from the Harvard Health Peter J. Ball, A Survey Of Subjective Foreskin Sensation in 600 Intact Men R J. Steven Svoboda, Nontherapeutic Circumcision of Minors as an Ethically Problem- H.C. Thompson et al., Report of the Ad Hoc Task Force on Circumcision setting in the United States, every A 2018 article showed that in a sterile hospital Toward an Auton- Brian Earp, Female Genital Mutilation and Male Circumcision: See See infra Part IV.C.1.c. Seque- Gregory J. Boyle et al., Male Circumcision: Pain, Trauma and Psychosexual H It is safe to say that people do not want to be operated on without people do not want to be operated It is safe to say that ]. 610, 611 (1975) [hereinafter 1975 AAP Statement 44 45 46 47 38 39 40 41 42 43 Darby Temptation). NTEGRITY AND THE healthy men in Western countries rarely volunteer to have the foreskin of healthy men in Western countries rarely their penis removed. sexual harm below, even granting the AAP’s disputed claims that MGC slightly the AAP’s disputed claims below, even granting occur in adult- risk of some diseases, most of which reduces the absolute in childhood, or net potential medical benefit hood, it has no meaningful adult diseases into risk of adult diseases. Even taking and boys are not at on balance; and any that a man will benefit from it account, it is unlikely can be easily benefit that it might have in adulthood potential medical of the foreskin. any pain or risk and without the loss achieved without Associated with Early Deaths Following Neonatal Circumcision, 2001-2010, 57 C Associated with Early Deaths Following Neonatal Letter, atic Form of Iatrogenic Injury, AMA J. E 49,166 circumcisions resulted in one death. B.D. Earp, V. Allareddy & A. T. Rotta, 49,166 circumcisions resulted in one death. B.D. stimulation during sexual activity and by destroying how the foreskin destroying how the activity and by during sexual stimulation appearance alters the MGC also radically moves and functions. normally the wound. scar as evidence of and leaves a of the penis, Adverse Outcomes from Neonatal Circumcision Reported in a Survey of 1,008 Men: An Over- Adverse Outcomes from Neonatal Circumcision view of Health and Human Rights Implications, 21 I ital-mutilation-and-male-circumcision-toward-an-autonomy-bas-peer-reviewed-article-MB. ital-mutilation-and-male-circumcision-toward-an-autonomy-bas-peer-reviewed-article-MB. their consent when they are healthy, and about 30% of adults seek a their consent when they are healthy, surgery is needed. second opinion to ensure that a recommended I MGC can cause psychological harm as well. MGC can cause psychological MGC can be fatal even when performed in a sterile setting. performed in be fatal even when MGC can \\jciprod01\productn\C\CJP\30-1\CJP102.txt 52 C historically some have regarded it as a highly valued body part. historically some have regarded it as with intact penises typically assign positive value to the foreskin, with intact penises typically assign DIATRICS RICS ter AND THE leases/five-things-you-may-not-know-about-second-opinions. may progress to septicemia, significant hemorrhage, and mutilation.” and hemorrhage, significant to septicemia, progress may omy-Based Ethical Framework, 2015 D men: an overview of health and human rights circumcision reported in a survey of 1,008 implications, 21 I lae, 7 J. H cjp_30-1_42664 Sheet No. 30 Side B 30 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 31 Side A 11/12/2020 09:05:36 , 3 3 5 186 and XFORD FFAIRS 48 A , O THICS Indeed, 52 . E THICS ED 11-NOV-20 14:50 and by the E UDICIAL 49 J (Jan. 2005). AMA (2013). THICS THICS 20–24 (1997). ? IOMEDICAL B THICAL AND Seq: 9 Seq: E RAUMA RAUD T F IDDEN RINCIPLES OF H OUNCIL ON , P HE C . 373, 374 (2012). See also Ungar-Sargon E., On : T When performed non-consensually on When performed unknown 50 HILOS HILDRESS P IRCUMCISION IRCUMCISION A - MGC violates the ethical rule of proportion 51 C 1 (2019). S . 7; Kate Goldie Townsend, The Child’s Right to Genital Integ- I IRCUMCISION EPORTS OF THE & J.F. C ARE AND EP , C C R The Principle of Proportionality Revisited: Interpretations and Ap- RITICISM en, . C EALTH EALTH OLDMAN EAUCHAMP (6th ed. New York: 2008). OC . H H G ED RESS . & S T.L. B P EXUAL 15 M oran Hermer´ ONALD HIL S See Brian D. Earp & Rebecca Steinfeld, Genital Autonomy and Sexual Well-Being, 10 G¨ R Sharon P. Douglas, R Case 5.1: Futile Care—An Inoperable Cancer, AMA J. E Medically unnecessary surgery in the U.S., which includes unneces- surgery in the U.S., which includes Medically unnecessary Ethical and Legal Background Ethical and Legal 50 51 52 48 49 NIVERSITY URRENT M K thus they object to it. It can be inferred that if given the choice and devel- given the choice be inferred that if object to it. It can thus they as genitally choose, it, boys would typically able to make opmentally undergo a penis and not to foreskin of their do, to keep the intact men penile procedure. and irreversible unnecessary, painful, risky, B. and opinions of the is proscribed by several rules sary genital surgery, Association Code of Medical Ethics, American Medical ethical rules require that physicians, “provide guidance about what they ethical rules require that physicians, for the patient based on the physi- consider the optimal course of action and that they consider and dis- cian’s objective professional judgment”, the risks, benefits and costs of cuss treatment alternatives including fundamental principles of medical ethics, namely autonomy, non-malefi- of medical ethics, namely autonomy, fundamental principles and justice. cence, beneficence, a minor, genital cutting preempts and undermines the individual’s future preempts and undermines the a minor, genital cutting and indeed with respect to a special, very personal, bodily autonomy “private part” of his body. ality whereby, when treatment is needed, there must be an acceptable ality whereby, when treatment is and the risk of harm. balance between the likelihood of benefit cumcised, even when anesthetic is provided, and they need to be physi - to be they need and is provided, anesthetic when even cumcised, device, operation by a “circumstraint” during the cally restrained rity, 20 P 142 (American Medical Association, 2012 Annual Meeting) (“There is broad consensus that 142 (American Medical Association, 2012 Annual consideration when making recommendations physicians should first take medical need into to refrain from offering or acceding to patients’ and providing care. Physicians are expected are medically unnecessary (E-2.19, ‘Unneces- requests for interventions or diagnostic tests that be expected to benefit the patient (E-2.035, sary Medical Services’) or that cannot reasonably Medical Services,’ states, ‘Physicians should ‘Futile Care’).”). “Opinion 2.19, ‘Unnecessary for services that they know are unnecessary.’ F. not provide, prescribe, or seek compensation Lagay, (2013). Opinion 4.04 states, “Treatment or hospitalization that is willfully excessive or inadequate Opinion 4.04 states, “Treatment or hospitalization where the economic interests of the hospital are constitutes unethical practice . . . In a situation in conflict with patient welfare, patient welfare takes priority.” See also AMA Code of Medical Ethics’ Opinions of the Physician as a Businessperson, AMA J. E U - journalofethics.ama-assn.org/article/nontherapeutic-circumcision-minors-ethically-problem atic-form-iatrogenic-injury/2017-08. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 2020] 2020] the impermissibility of infant male circumcision: a response to Mazor, 41 J. M C plication, C Y cjp_30-1_42664 Sheet No. 31 Side A 31 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 31 Side B 11/12/2020 09:05:36 M K C Y supra (Sept. 30, AGE [Vol. [Vol. 30:45 11-NOV-20 14:50 . P it unfairly pre- it unfairly ES 55 . R NFO I OLICY OLICY P Seq: 10 Seq: As detailed below, it also . 353 (1999); and Giannetti, MGC also violates the rule violates the rule MGC also 57 In Lloyd v. Kramer, for ex- EV 54 UBLIC UBLIC 56 P IRCUMCISION legal scholars have been arguing L. R 58 60 As discussed in Parts I and II below, As discussed in Parts I and II below, unknown ARSHALL , Rule 1.1.3(b) Patient Rights. , Rule 2.2.1 Pediatric Decision Making. , 17, 17–28 (2019). AW AW AND 1–16 (June 2016), https://journals.sagepub.com/doi/ 61 L M PEN THICS THICS OHN E E IOETHICS Since 1985, 59 . J. B In addition, physicians should, “in general [prefer] [prefer] “in general should, physicians In addition, EDICAL EDICAL M 53 M M OURNAL OURNAL OF J ODE OF ODE OF ORNELL ORNELL Lloyd v. Kramer, 503 S.E.2d 632, 635 (Ct. App. Ga. 1998). Id. See infra Part III. 2A; see also Brussels Collaboration on See, e.g., Mass. Gen. Laws Ann. ch. 260 § See, e.g., Brigman, supra note 29; Shea Lita Bond, Female Circumcision Laws and See generally Circumcision Legal Issues, C AMA C AMA C the case for non-ther- Darby R., Targeting patients who cannot object? Re-examining http://www.cirp.org/library/legal/. Since unnecessary surgery is definitionally harmful and unethical, it surgery is definitionally harmful and Since unnecessary What about minors subjected to medically unnecessary genital sur- What about minors subjected to medically 56 57 58 59 60 61 53 54 55 cludes boys and men from deciding the fate of their own foreskin; and of their own foreskin; deciding the fate and men from cludes boys forms, is including minor FGC of all types, unnecessary since medically unfairly discrim- States and most of the world, MGC illegal in the United rules enumer- If physicians adhered to the ethical inates against males. the circumcision would not invite parents to make ated above they course of ac- they would determine that the optimal decision, but rather that is what they foreskin of healthy boys alone, and tion is to leave the would recommend. subjected to un- American case law shows that adults is also unlawful. breach of fiduciary have causes of action for battery, necessary surgery duty, and often fraud in inducing consent. is unlawful to bill Medicaid for unnecessary surgery as Medicaid only is unlawful to bill Medicaid for unnecessary pays for medically necessary surgery. of justice: it targets vulnerable boys who cannot object; boys who cannot it targets vulnerable of justice: ample, the court allowed an adult subjected to unnecessary foot surgery ample, the court allowed an adult of action. to proceed to trial on those causes courts in Europe are reaching the same conclusion. This Article suggests courts in Europe are reaching the same have the same causes of action as that boys and men subjected to MGC surgery. adults subjected to unnecessary non-consensual alternatives that will not foreclose important future choices by the ado- future choices important that will not foreclose alternatives will become.” adult the patient lescent and Bodily Integrity, Medically Unnecessary Genital Cutting and the Rights of The Child: Moving Toward Consensus, 19 A the Equal Protection Clause, 32 J 2013), full/10.1177/2158244016649219. gery? The genitals are widely considered to deserve special protection by gery? The genitals are widely considered whether by touching or cutting. law from non-consensual interference, the statute of limitations for the For example, some states have extended sexual abuse of minors. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 54 C that MGC is unlawful as well. forgoing treatment. forgoing apeutic infant circumcision, SAGE O note 6. cjp_30-1_42664 Sheet No. 31 Side B 31 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 32 Side A 11/12/2020 09:05:36 5 5 5 Unnec- 63 11-NOV-20 14:50 Setting aside 62 ? BUSE Seq: 11 Seq: RAUD A F HILD C unknown IRCUMCISION IRCUMCISION A C ATTERY AND S I B 1, 1 (2017). I. URGERY S AFE S Meeks v. Miller, 956 So. 2d 942, 947 (Ct. App. Miss. 2006). Philip F. Stahel et al., Why Do Surgeons Continue to Perform Unnecessary Surgery?, The Article is organized as follows. Part I of the Article suggests suggests Article I of the Part as follows. organized Article is The This Part first shows that unnecessary, non-consensual surgery on This Part first shows that unnecessary, in 2006 that “[s]urgery deals A Mississippi Appeals Court stated Unnecessary Surgery ATIENT 62 63 M K essary surgery is considered to be a serious violation of a physician’s essary surgery is considered to be a serious violation of a physician’s license to practice medicine. For example, Florida medical guidelines - prohibit “a procedure that is medically unnecessary or otherwise unre cosmetic surgery with fully informed adult consent, there are three types cosmetic surgery with fully informed is not needed; surgery that is not of unnecessary surgery: surgery that pa- medically indicated; and surgery that is not in the best interest of a tient because a more conservative treatment alternative exists. that MGC constitutes battery and child abuse under U.S. law. Part II under U.S. law. and child abuse constitutes battery that MGC rise to breach of trust, giving that MGC is a novel suggestion makes the duty and hence constructive of fiduciary of action of breach the causes prac- unfair and deceptive and in some states, enrichment, fraud, unjust for physi- Medicaid fraud it is unlawful and III suggests that tices. Part genital surgery, and to bill Medicaid for unnecessary cians and hospitals such billing. We Academy of Pediatrics to encourage for the American entitled to summary time that circumcised males are suggest for the first duty, and con- child abuse, breach of fiduciary judgment on the battery, state govern- In addition, the U.S. government, structive fraud claims. judgment on in some states are entitled to summary ments, and taxpayers duty to stop pay- officials for failing to do their claims against Medicaid Part IV suggests for unnecessary genital surgery. ing physicians’ claims the AAP and most intentional fraud on the part of that MGC constitutes considerations Part V suggests that litigation physicians who circumcise. to the U.S. medical profession. are favorable to the plaintiffs and adverse adults constitutes a battery. This takes parents and religion out of the adults constitutes a battery. This takes reasoning applies to MGC and equation. It then shows that the same child abuse. FGC, which constitute a battery and A. of injury, deformity, and disease with the diagnosis and treatment Thus, patients subjected to surgery, through an operation or procedure.” must have a medical condition which involves the destruction of tissue, a surgeon because there is the need requiring treatment. “A patient sees a surgi- for an invasive procedure. . . . [T]he surgeon determines whether ,” (emphasis added). cal procedure is medically necessary \\jciprod01\productn\C\CJP\30-1\CJP102.txt 2020] 2020] 11 P C Y cjp_30-1_42664 Sheet No. 32 Side A 32 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 32 Side B 11/12/2020 09:05:36 M K C Y 68 [Vol. [Vol. 30:45 11-NOV-20 14:50 125 (1769), https:// Massachusetts Massachusetts 64 NGLAND OLICY OLICY . 307, 310. (2003). E P Seq: 12 Seq: THICS AW OF . E L UBLIC UBLIC ED P provides that the rights of the provides that the 66 67 71 These legal rights are the founding These legal rights are the founding 72 unknown AW AW AND This right to liberty or freedom is some- This right to liberty or freedom is L 69 OMMENTARIES ON THE In 1891, the United States Supreme Court in In 1891, the United States Supreme , C 70 OURNAL OURNAL OF J LACKSTONE B - against physi to report claims law provides a form Illinois 65 ORNELL ORNELL ILLIAM No right is held more sacred, or is more carefully No right is held more sacred, or the right of every in- guarded, by the common law, than of his own person, dividual to the possession and control of others, unless by free from all restraint or interference of law. . . .clear and unquestionable authority ‘The right a right of complete to one’s person may be said to be immunity: to be let alone.’ 64 FL ADC 64B8–8.001 (Fl. Disciplinary Guidelines). 243 Mass. Code Regs. 2.14. 40 Ill. Reg. 928, exhibit B, code 260. W Id. Id. See, e.g., Roe v. Wade, 410 U.S. 113, 152 (1973) (“[T]he Court has recognized that a Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). R. Gillon, Ethics Needs Principles—FourCan Encompass the Rest—and Respect for Next to personal security, the law of England “preserves the per- Next to personal security, the law Unnecessary non-consensual surgery in the United States also vio- United States also surgery in the non-consensual Unnecessary 64 65 66 67 68 69 70 71 72 worker’s compensation regulations require reporting physicians for disci- physicians require reporting compensation regulations worker’s such as . . . [u]nnecessary a pattern of abuse have engaged in pline “who surgery.” people are to be preserved inviolate: “The right of personal security con- inviolate: “The right of personal people are to be preserved of his life, his legal and uninterrupted enjoyment sists in a person’s body is “enti- health, and his reputation.” A person’s limbs, his body, his corporal insults of natural right to security from the tled by the same such insults amount beating, and wounding; though menaces, assaults, preservation of a of life or member,” and to “[t]he not to destruction may prejudice or annoy it.” man’s health from such practices as times referred to in the United States as the right to self-determination, times referred to in the United States autonomy, or privacy. Union Pacific Railway Company v. Botsford affirmed these rights, Union Pacific Railway Company stating, right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”) Autonomy Should Be “First Among Equals”, 29 J. M cians arising from unnecessary surgery. from unnecessary cians arising www.gutenberg.org/files/30802/30802-h/30802-h.htm#Page_117. sonal liberty of individuals.” lates every individual’s inalienable common law rights, derived from the inalienable common law rights, lates every individual’s Commentaries, law. Chapter I of William Blackstone’s English common Rights of Persons” “Of the Absolute The legal right to be left alone is analogous to the ethical rule of The legal right to be left alone to self-determination is analogous nonmaleficence, while the legal right to the ethical rule of autonomy. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 56 C lated to the patient’s diagnosis or medical condition.” or medical diagnosis to the patient’s lated cjp_30-1_42664 Sheet No. 32 Side B 32 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 33 Side A 11/12/2020 09:05:36 . 7 7 73 ED 5 EGAL Following 11-NOV-20 14:50 80 Svoboda, Van 74 76 The Texas court 79 ? 61 (2000) [hereinafter Svoboda Seq: 13 Seq: Y ’ RAUD OL F 77 L. & P Similarly in the context of children, in Similarly in the context unknown EALTH 78 . H art. 11 (“Everyone shall have the right to inviolability of art. 11 (“Everyone shall have the right to inviolability IRCUMCISION IRCUMCISION A In common law jurisdictions including the In common law C 75 S ONTEMP . art. CVI. Christyne Neff writes, “American constitutional and . art. CVI. Christyne Neff writes, “American I ONST ONSTITUTION 326, 328–29, 337 (1991). . C ASS EMINISM observed in 2000 that, “the general rule in English crim- general rule in English in 2000 that, “the et al. observed ., https://www.law.cornell.edu/wex/assault_and_battery. Gregory J. Boyle et al., Circumcision of Healthy Boys: Criminal Assault?, 7 J.L. M Johnson v. United States, 559 U.S. 133, 139 (2010) (stating that at common law, even J. Steven Svoboda et al., Informed Consent for Neonatal Circumcision: An Ethical Lloyd v. Kramer, 503 S.E.2d 632, 635 (Ct. App. Ga. 1998). Williamson v. State, 356 S.W.3d 1, 15 (Ct. App. Tx. 2010). Id. at 27. See, e.g., M See, e.g., Gw. C NST , involving unnecessary foot in Lloyd v. Kramer, involving unnecessary As stated, in 1998 Boyle J. L. & F . I 75 76 77 78 79 80 73 74 ALE NFO M K Howe, and Dwyer wrote in 2000, “The common law has always recog- wrote in 2000, “The common law Howe, and Dwyer nized battery – from unwanted of a person’s right to be free violation touching – and criminal wrong.” as a civil held that the physician’s use of a scalpel constituted use of a deadly held that the physician’s use of a child abuse statute. weapon in violation of a Texas criminal , involving unnecessary surgery on a child Williamson v. State of Texas, involving unnecessary surgery on physician testified that “unnecessary that caused serious bodily injury, a medical care.” surgeries do not constitute reasonable United States, assault is usually paired with battery, which technically is usually paired with battery, United States, assault the act that causes the physical harm. under U.S. law is the slightest offensive touching constituted a battery); see also Assault and Battery, L and Legal Conundrum, 17 J. C common law principles incorporate these concepts of physical liberty and bodily integrity in a common law principles incorporate these concepts affirms the central importance of a citizen’s wide array of legal principles, each of which law roots, the right to be free from an invasion bodily integrity . . . In addition to its common in the First, Fourth, Fifth, and Fourteenth of bodily integrity by the state has found support L. Neff, Woman, Womb, and Bodily Integrity, 3 Amendments of the Constitution.” Christyne Y principles in the United States Constitution and U.S. state constitutions, state and U.S. Constitution States United in the principles 301 (2000). surgery on an adult, the Georgia Court of Appeals allowed the plaintiff’s the Georgia Court of Appeals allowed surgery on an adult, to trial. battery claim to proceed inal law, and reflected in other common law jurisdictions [including the jurisdictions [including common law and reflected in other inal law, slight, is no matter how application of force, is that any United States], prima facie an assault.” I which are recognized by all democratic countries, codified in some of codified all democratic countries, recognized by which are law. as international and recognized their constitutions, \\jciprod01\productn\C\CJP\30-1\CJP102.txt this logic, unnecessary surgery today, like unnecessary genital cutting this logic, unnecessary surgery today, is violence and it constitutes a prima from ancient times to the present, surgery on an adult is as well, face case of assault and battery. Cosmetic fully informed consent of the person but the violence is justified by the being subjected to it. his person, without prejudice to restrictions laid down by or pursuant to Act of Parliament.”); his person, without prejudice to restrictions laid Eur. Conv. On H.R. (following T3.4 – and BAS) Art. 5(1) (“Everyone has the right to liberty security of the person.”). 2020] 2020] Informed Consent]. C Y cjp_30-1_42664 Sheet No. 33 Side A 33 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 33 Side B 11/12/2020 09:05:36 M K C Y 83 84 ROTECTIVE P [Vol. [Vol. 30:45 11-NOV-20 14:50 HILD C S ’ ORK OLICY OLICY Y P EW Seq: 14 Seq: N UBLIC UBLIC P UIDE TO , A G unknown AW AW AND L REEN 82 G OGER & R OURNAL OURNAL OF J ILVER , 9 (2001) (defining “abused child” in New York as when a parent or other S at 11. YSTEM ORNELL ORNELL The Congress finds that—(1)The Congress gen- the practice of female cul- carried out by members of certain ital mutilation is (2) groups within the United States; tural and religious in genital mutilation often results the practice of female ef- physical and psychological health the occurrence of women involved; (3) such mutilation fects that harm the - guarantees of rights secured by Fed infringes upon the both statutory and constitutional; . . . eral and State law, - genital mutilation can be pro (5) the practice of female - the exercise of any rights guar hibited without abridging or first amendment to the Constitution anteed under the under any other law. [C]hild abuse, commonly defined as the intentional, non- [C]hild abuse, commonly defined as result in injury to a accidental use of physical force that law. The Califor- child, is universally proscribed by state means a physical in- nia law is typical: ‘[C]hild abuse’ accidental means on jury which is inflicted by other than [male] circumcision a child by another person. . . . Since significant physiolog- is not medically warranted, has no is performed without ical benefits, is painful because it which urinary salts anesthesia and leaves a wound in Congress made findings that FGC was already unlawful: that FGC was already made findings Congress HELDON S 18 U.S.C. § 116. In 2018, a federal judge ruled the ban unconstitutional for failure to 116. In 2018, a federal judge ruled the ban unconstitutional for failure to 18 U.S.C. § 645, Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, § S Id. 81 In 1985, the legal scholar William Brigman showed that MGC also In 1985, the legal scholar William In 1996, when the United States Congress made female genital cut- female genital States Congress made when the United In 1996, Unnecessary Genital Cutting Genital Unnecessary 82 83 84 81 ERVICES person legally responsible for a child’s care, such as a physician, “inflicts or allows to be person legally responsible for a child’s care, such as a physician, “inflicts or allows to inflicted upon the child physical injury . . . which causes or creates a substantial risk of death, or serious or protracted disfigurement, protracted impairment of physical or emotional health protracted loss or impairment of the function of any bodily organ” and a sex offense against the child). protect children on a nondiscriminatory basis. United States v.Nagarwala, 350 F.Supp.3d 613, protect children on a nondiscriminatory basis. 19-1015, 2019 WL 7425389 (6th Cir. Sept. 13, 618 (E.D. Mich. 2018), appeal dismissed, No. 2019). 709–10 Notes]. (emphasis added) [hereinafter violates the criminal child abuse statutes in every U.S. state. He violates the criminal child abuse reasoned, S FGC also violates the black letter law of the U.S. child abuse statutes. FGC also violates the black letter law cases of child abuse. Physicians are required to report suspected \\jciprod01\productn\C\CJP\30-1\CJP102.txt 58 C B. statutory a federal female genital mutilation, which it called ting (FGC), crime, cjp_30-1_42664 Sheet No. 33 Side B 33 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 34 Side A 11/12/2020 09:05:36 . N 9 9 ’ 86 ED 5 . M OMM C ULL 11-NOV-20 14:50 When harm EFORM 87 L. R (Sept. 30, 2013), http:// ? AGE . P 85 Seq: 15 Seq: ES UEENSLAND RAUD . R F 88 NFO similarly reasoned that because I 90 unknown IRCUMCISION that appeals to religion do not count as an that appeals to religion do not count IRCUMCISION IRCUMCISION A 92 C S I supra note 29. In 1997, Christopher Price supra note 90. 89 burn, carries a significant risk of surgical complications, complications, of surgical risk a significant carries burn, would seem the penis, it death, and deforms including properly in- injury, it is nonaccidental physical that as a child abuse. the definition of cluded in This has been clearly established in the case of FGC, including This has been clearly established Re B and G (Children) [2015] EWFC 3 LJ13C00295, 9, 22 [hereinafter UK Case]. 13J(a)–(b) (establishing a prison term of “not See Mass. Gen. Laws Ann. ch. 265, § Circumcision: Legal Issues, C Christopher Price, Male Circumcision: An Ethical and Legal Affront, 128 B Circumcision of Male Infants Research Paper, Q Price, Brigman, 13L (“Whoever wantonly or recklessly See, e.g., Mass. Gen. Laws Ann. ch. 265, § 91 13 (1997). In 1997, the ethicist Margaret A. Somerville, “characterized male In 1997, the ethicist Margaret A. Moreover, because MGC permanently disfigures the penis com- the penis permanently disfigures because MGC Moreover, 87 88 89 90 91 92 85 86 THICS M K ` minor forms that are less invasive than penile circumcision. Price ob- minor forms that are less invasive served, as discussed below, the practice is non-therapeutic, invasive, irreversible, and major surgery the practice is non-therapeutic, invasive, be regarded as a violation of the with serious potential risks, it could of Australia’s Queensland Criminal common law assault provisions Code. circumcision as ‘technically criminal assault’ under the Canadian crimi- circumcision as ‘technically criminal nal code.” pared to its intact state, disables the motile functions of the foreskin vis- state, disables the motile functions pared to its intact and serious medical penis, and carries many minor a-vis the rest of the it constitutes a death, it creates a risk of harm, risks up to and including of a substantial some states meets the definition harm, and in at least abuse statutes. injury, in violation of state child harm or serious bodily (1993). As recently as 2015, a senior British judge held that any form of female a senior British judge held that As recently as 2015, the United King- constitutes “significant harm” under genital mutilation forms of female 1989. He reasoned that because some dom Children Act the vulva or partial such as pricking or nicking of genital mutilation, male circumcision, prepuce, are less invasive than removal of the clitoral harm” as well. male circumcision constitutes a “significant \\jciprod01\productn\C\CJP\30-1\CJP102.txt is significant, the damages are higher in a civil lawsuit and when crimi- is significant, the damages are higher longer. nally prosecuted the prison term is www.cirp.org/library/legal/. 2020] 2020] more than fifteen years” for assault causing “substantial bodily injury” to a child, compared to more than fifteen years” for assault causing “substantial bodily injury” to a child, compared five years for more minor assaults). engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a engages in conduct that creates a substantial steps to alleviate such risk where there child or wantonly or recklessly fails to take reasonable in the house of correction for not more than is a duty to act shall be punished by imprisonment injury which results in a permanent disfig- 21/2 years. . . . ‘Serious bodily injury’ [is] bodily function, limb or organ, or substantial risk urement, protracted loss or impairment of a bodily of death”). E C Y cjp_30-1_42664 Sheet No. 34 Side A 34 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 34 Side B 11/12/2020 09:05:36 M K C Y 95 63, L N. Y. and ’ . J. 469 97 NT ED The Inter- . M [Vol. [Vol. 30:45 11-NOV-20 14:50 99 (Feb. 19, 2012), RIT 22 (2012). OCAL L HE OLICY OLICY HILDREN P C The Swedish Paediatric Seq: 16 Seq: 100 . 301 (2000). UBLIC UBLIC ED P IOLENCE AGAINST unknown V AW AW AND 94 L and criminal statutory child abuse, and criminal statutory - circumci “[n]on-therapeutic He concluded, 96 93 note 77. “Numerous legal scholars have concluded that supra note 77. “Numerous legal scholars have concluded OUNCIL ON The court held that it is an assault and a crime for a The court held that it is an assault OURNAL OURNAL OF J NGO C 102 L ’ supra note 29. NT “There is no reason, other than cultural bias, why the cur- other than cultural bias, why “There is no reason, supra note 82. supra note 90. note 90 (citing Poulter for the proposition that, “The basic right to bodily supra note 90 (citing Poulter for the proposition that, 98 Thus, American society has in effect been giving physicians Thus, American society has in effect ORNELL ORNELL Circumcision of male infants as a human rights violation, 39 B Circumcision of male infants as a human rights 101 , 83 BJU I R. S. Van Howe et al., Involuntary Circumcision: The Legal Issues Violating Children’s Rights: Harmful Practices Based on Tradition, Culture, Religion Clara Guibourg, Swedish Docs in Circumcision Protest, T Nicholas Kulish, German Ruling Against Circumcising Boys Draws Criticism, Notes, Price, Price, P. Price, J. Neville Turner, Circum- Gregory J. Boyle, J. Steven Svoboda, Christopher Brigman, See generally Svoboda, Legal scholars have thus shown that MGC constitutes a battery, shown that MGC have thus Legal scholars Importantly, in a landmark 2012 decision, a regional court in Co- Importantly, in a landmark 2012 decision, (Jun. 26, 2012), https://www.nytimes.com/2012/06/27/world/europe/german-court- 99 93 94 95 96 97 98 100 101 102 IMES national Council on Violence Against Children has stated that “non-con- Violence Against Children has stated national Council on whatever the circumcision of boys, sensual, non-therapeutic rights, including the a gross violation of their circumstances, constitutes religion and to pro- to freedom of thought and right to physical integrity, violence.” tection from physical and mental or Superstition, I integrity which everyone possesses under the English common law means that any interference integrity which everyone possesses under the with this right amounts to an assault or battery.”). cision of Healthy Boys: Criminal Assault? 7 J. L. M T rent child abuse laws and laws prohibiting female circumcision are not and laws prohibiting female circumcision rent child abuse laws involuntary male circumcision.” applied to those performing (2016). which is a tort and a crime, which is a tort and \\jciprod01\productn\C\CJP\30-1\CJP102.txt 60 C - rules-against-circumcising-boys.html#:~:text=german%20Ruling%20Against%20Circumcis ing%20Boys%20Draws%20Criticism,-By%20Nicholas%20Kulish&text=BERLIN%20%E2% 80%94%20A%20German%20court%20in,significant%20repercussions%20for%20religious %20groups. who circumcise a pass to cause significant harm and bodily injury to who circumcise a pass to cause significant rights. boys and men and to violate their in modern history that circumci- logne, Germany held for the first time sion is unlawful. sion is clearly discriminatory, unethical and illegal. Its pre-historic ori- illegal. Its pre-historic unethical and discriminatory, sion is clearly of penile and other forms subincision its kinship with gins, and tolerated, no longer be barbarity. It should show its essential mutilation, religious overtones.” despite its that it violates children’s civil and human rights under U.S. and interna- civil and human rights under that it violates children’s tional law. https://www.thelocal.se/20120219/39200. excuse under Western law. Western under excuse 73 (1999). routine neonatal circumcision falls within the legal definition of child abuse and violates chil- routine neonatal circumcision falls within the and international law.” See also J. Steven dren’s civil and human rights under national Svoboda, Society has called infant male circumcision an “assault on these Society has called infant male boys.” cjp_30-1_42664 Sheet No. 34 Side B 34 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 35 Side A 11/12/2020 09:05:36 1 1 6 UTILATION the Ger- M 106 11-NOV-20 14:50 ENITAL G Likewise, MGC is Likewise, MGC ? 109 EMALE F uber den Umfang der Personen- The court reasoned that The court Seq: 17 Seq: Under political pressure, Under political 108 RAUD 103 (July 3, 2012), https://www.loc.gov/ 105 F ONITOR uber den Umfang der Personensorge und die EGISLATION ON M , L unknown EGAL . L IGHTS 110 R IRCUMCISION IRCUMCISION A LOB C .: G S I The court stated that, consequently, parents can- parents stated that, consequently, The court ONG supra note 103. 104 . C EPRODUCTIVE 3, (2004). Reinhard Merkel and Holm Putzke argue, however, and Holm Putzke argue, however, Reinhard Merkel IBR R 107 OR TATES F 444, 444 (2013). S ]. English translation available from the authors. Cologne Decision]. English translation available from the authors. THICS ENTER NITED Reinhard Merkel & Holm Putzke, After Cologne: Male Circumcision and the Law, 39 Id. at 447. C See also infra Part V.C. Landgericht Köln [Cologne Regional Court] May 7, 2012, Urteil Ns 169/11 (Ger.) [Cologne Landgericht Köln Circumci- Id. See also Wendy Zeldin, Germany: Regional Court Ruling Criminalizes Cologne Decision, Statement to the federal gov- Dr. W. Hartman, Pres. of the Prof. Ass’n Pediatricians, . E U As discussed above, the same reasoning applies in the United States the same reasoning applies in the As discussed above, ED 107 108 109 110 103 104 105 106 M K J. M [hereinafter - des Beruf Wolfram Hartmann, Präsident ernment (Nov. 26, 2012) (“Stellungnahme Dr.med. am 26. November 2012 zum zur Anhörung sverbands der Kinder- und Jugendärzte, eines Gesetzes Gesetzentwurf der Bundesregierung: “Entwurf ¨ Kindes bei einer Beschneidung.”). English translation available from Rechte des männlichen the authors. sorge bei einer Beschneidung des männlichen Kindes” und zum Gesetzentwurf der Abge- sorge bei einer Beschneidung des männlichen Diana Golze, Caren Marks, Rolf Schwanitz, ordneten Marlene Rupprecht, Katja Dörner, weiterer Abgeordneter: “Entwurf eines Gesetzes ¨ physician to circumcise a boy for religious reasons, and by implication, by implication, and reasons, for religious a boy circumcise to physician medical need. performed without whenever IN THE - law/foreign-news/article/germany-regional-court-ruling-criminalizes-circumcision-of-young boys/. man legislature subsequently passed a specific statute allowing religious passed a specific statute man legislature subsequently circumcisions. the practice is harmful; that it violates boys’ rights to bodily integrity and rights to bodily integrity it violates boys’ is harmful; that the practice relig- their parents’ boys’ rights supersede and that self-determination; other rights. ious and and over the objection of the German Pediatric Association, and over the objection to MGC and FGC. The only exception that Congress carved out for FGC The only exception that Congress to MGC and FGC. when it is medically necessary. is that it is lawful \\jciprod01\productn\C\CJP\30-1\CJP102.txt not provide valid consent for the procedure. valid consent not provide that medically unnecessary, non-consensual penile circumcision remains non-consensual penile circumcision that medically unnecessary, an assault according the special statute as it is unlawful notwithstanding standard legal criteria. to the countermanding 2020] 2020] sion of Young Boys, L lawful only when it is medically necessary and cannot be deferred. Oth- lawful only when it is medically necessary it violates boys’ rights to bodily erwise, like any unnecessary surgery, German court reached its decision integrity and self-determination. The trial is needed in the U.S. either to after a hearing and without a trial. No we suggest for the first time that make the same determination. Hence, to summary judgment on the bat- boys and men in the U.S. are entitled tery and child abuse counts. C Y cjp_30-1_42664 Sheet No. 35 Side A 35 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 35 Side B 11/12/2020 09:05:36 M K C Y 113 111 112 [Vol. [Vol. 30:45 11-NOV-20 14:50 RUST RUST T OLICY OLICY P Seq: 18 Seq: REACH REACH OF UBLIC UBLIC 115 . 335, 367–80 physi- (2009) (discussing P B EV Physicians have a parallel duty 114 ROM L. R F unknown , Opinion 1.1.1. ALL AW AW AND H L THICS RISING E ETON A See also Parham v. JR, 442 U.S. 584, 618–19 (1979) (holding that EDICAL M LAIMS OURNAL OURNAL OF J C ODE OF II. ORNELL ORNELL The relationship between a patient and a physician is The relationship between a patient ethical re- based on trust, which gives rise to physicians’ above the physi- sponsibility to place patients’ welfare to others, to use cian’s own self-interest or obligations behalf, and to ad- sound medical judgment on patients’ vocate for their patients’ welfare. See generally Terry v. Terry, 273 S.E. 2d 674, 677–79- (N.C. 1981) (involving fiduci Canterbury v. Spence, 464 F.2d 772, 780–82 (D.C. Cir. 1972). Orlak v. Loy. Univ. Health Syst., 885 N.E.2d 999, 1010 (Ill. 2007). See generally Thomas L. Hafemeister & Richard M. Gulbrandsen, Jr., The Fiduciary AMA, C Physicians’ have many duties, which healthy individuals and pa- Physicians’ have many duties, which Unnecessary surgery on a child, including MGC and FGC, thus con- and FGC, thus child, including MGC surgery on a Unnecessary As courts have noted, physicians have superior knowledge of noted, physicians have superior As courts have Breach of Fiduciary Duty Breach of Fiduciary 112 113 114 115 111 ary duties in the sale of a business interest (“Plaintiff bottoms his cause of action on the ary duties in the sale of a business interest then abused his trust and confidence”)). assertion that [defendant] . . . first won and under the American Medical Association Code of Medical Ethics: under the American Medical Association tients suffering from a medical condition are trusting that they will ad- tients suffering from a medical condition stitutes a battery and child abuse. This Part will show that unnecessary will show that unnecessary abuse. This Part battery and child stitutes a trust, and abuses their advantage of people takes unfair surgery also Children are more vulnerable than adults because of their youth, and the vulnerable than adults because of Children are more performed in the U.S. are com- newborn boys on whom MGC is usually System, the Illi- pletely vulnerable. In Oriak v. Loyola University Health “beyond doubt” that the physician- nois Supreme Court stated that it is “in which the patient places great patient relationship is a fiduciary one, advice and recommendations.” trust and confidence in the physician’s a strict fiduciary duty to act Accordingly, courts impose upon physicians in the best interests of the patient. giving rise to additional causes of action for breach of fiduciary duty and breach of fiduciary of action for to additional causes giving rise and deceptive fraud, unjust enrichment, and unfair hence constructive trade practices. A. adult patients know bargaining power, while even medicine and superior but to trust their medicine and have no choice little or nothing about health and safety. most valuable possession: their physician with their \\jciprod01\productn\C\CJP\30-1\CJP102.txt 62 C cians’ fiduciary duties and the best interests rule, and citing numerous cases) [hereinafter cians’ fiduciary duties and the best interests rule, and citing numerous cases) [hereinafter Hafemeister, Just Say No]. in where three physicians using their independent medical judgment had determined that it was was the best interests of a boy to commit him to a psychiatric institute, the commitment justified). Obligation of Physicians to “Just Say No” if an “Informed” Patient Demands Services that Obligation of Physicians to “Just Say No” if an “Informed” Patient Demands Services Are Not Medically Indicated, 39 S cjp_30-1_42664 Sheet No. 35 Side B 35 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 36 Side A 11/12/2020 09:05:36 3 3 6 be- 117 The legal 11-NOV-20 14:50 122 and not betraying and not 120 ? 123 and preferences; Seq: 19 Seq: 116 RAUD F , Opinion 1.1.3. Physicians also have a fiduciary Physicians also have 121 THICS E unknown , Opinion 1.1.7. EDICAL THICS IRCUMCISION IRCUMCISION A M supra note 114, at 376. being completely honest in all professional in all professional honest being completely E C S 118 I ODE OF EDICAL , C M N ’ Just Say No, SS . A ODE OF ED using sound medical judgment in determining whether treat- in determining medical judgment using sound . M 119 Physicians are well-educated, well-trained professionals well-trained professionals Physicians are well-educated, be responsible for determining who are and should ap- course of treatment is medically whether a requested - must appraise whether a re propriate. . . . [Physicians] is medically indicated for a given quested treatment patient. . . . The physician is not a subservient pawn in trustworthy partner the patient’s life, but an erudite and a patient’s medi- dedicated to promoting and protecting cal well-being. . . . [P]hysicians breach their fiduciary their responsibility duty to patients when they abdicate and provide to exercise independent medical judgment services that are their patients with access to medical not medically indicated (emphasis added). M Id. at 224–25 (quoting then-Judge Cardozo, “A trustee is held to something stricter A Rhodes v. Jones, 61 S.E. 2d 725, 726 (N.C. 1950) (“A course of dealing between Canterbury v. Spence, 464 F.2d 772, 781–82 (D.C. Cir. 1972). Hafemeister, AMA, C See supra notes 39–55, and accompanying text; see also Hafemeister, Just Say No (“Perhaps the most funda- See, e.g., Pegram v. Herdrich, 530 U.S. 211, 224 (2000) Importantly, Hafemeister and Gulbrandsen reason that fiduciary Importantly, Hafemeister and Gulbrandsen 119 120 121 122 123 116 117 118 M K than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most than the morals of the marketplace. Not honesty sensitive, is then the standard of behavior”). the persons so situated is watched with extreme jealousy and solicitude; and if there is found slightest trace of undue influence or unfair advantage, redress will be given to the injured (“It party,” internal quotations omitted); Stilwell v. Walden, 320 S.E. 2d 329, 332 (N.C. 1984) of is just because confidence in others inherently and inevitably begets influence that the law it, constructive fraud is needed, lest that influence be exerted for the benefit of the one having rather than that of the one whose confidence created it.”). note 114 (discussing the duties of loyalty, honesty, and using sound judgment in supra note 114 (discussing the duties of loyalty, medicine). throughout the administration of the trust mental duty of a trustee is that he must display and must exclude all selfish interest and all complete loyalty to the interests of the beneficiary consideration of the interests of third persons”). here to and thus are fiduciary in nature. A physician’s fiduciary duties fiduciary A physician’s in nature. are fiduciary to and thus here the practice rules governing ethical and legal with the include: complying patients’ rights such as respecting of medicine, ing loyal to the patient; ing loyal duty to disclose what is in the patient’s best interests including different is in the patient’s best interests duty to disclose what and the alternative of doing nothing. treatment alternatives doctrine establishes and addresses behaviors in which no physician doctrine establishes and addresses dealings; \\jciprod01\productn\C\CJP\30-1\CJP102.txt ment is needed and what treatments are appropriate; and what treatments ment is needed 2020] 2020] scholars Hafemeister and Gulbrandsen observe, scholars Hafemeister the patient’s trust in the slightest way. the patient’s trust C Y cjp_30-1_42664 Sheet No. 36 Side A 36 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 36 Side B 11/12/2020 09:05:36 M K C Y 126 , https:// [Vol. [Vol. 30:45 11-NOV-20 14:50 This is exactly This is exactly ICTIONARY 124 . D ED OLICY OLICY M P Seq: 20 Seq: EBSTER UBLIC UBLIC P -W ERRIAM Once a physician examines a boy for Once a physician examines a boy for unknown 129 AW AW AND 125 L , 87S, 87S (1992) (arguing circumcision is a “betrayal that is, a person with a medical condition that is, a person with a medical condition 128 note 120. IDWIFERY -M supra , N OURNAL OURNAL OF ’ 127 J URSE SS . A ED . M ORNELL ORNELL M Id. at 378–79. Id. at 379. Id. at 370–71, v. Glucksberg, 521 U.S. 702,731 (1997) n. 179 (citing Washington See Marilyn Fayre Milos & Donna Macris, Circumcision: A Medical or a Human Medical Definition of “patient”, M A We note parenthetically that the medical definition of a patient is “a We note parenthetically that the medical Adults and children pronounced healthy are trusting, or would be pronounced healthy are trusting, Adults and children 124 125 126 127 128 129 (noting that “trust . . . is essential to the doctor-patient relationship”)). of infant trust”). medical conditions and pronounces him healthy, he no longer has medi- medical conditions and pronounces provided and no suffering needs to cal needs. Since no care needs to be www.merriam-webster.com/dictionary/patient#medicalDictionary (last visited June 30, 2020). requiring treatment. AMA Code of Medical Ethics Opinion 1.1.1 simi- requiring treatment. AMA Code of relationship exists when a physician larly states that a patient-physician serves a patient’s medical needs. sick individual especially when awaiting or under the care and treatment sick individual especially when awaiting of a physician or surgeon;” trusting if able to reason, that the physician will respect their rights and trusting if able to reason, that the physician to be left alone and to make impor- their preference, express or implied, that can be deferred for themselves; tant decisions about their own bodies to undergo an invasive procedure; will determine that they do not need and accordingly will discharge them bodily intact, and as physicians and accordingly will discharge them they are trusting that the physician worldwide ordinarily do. Conversely, from their bodies, here the foreskin will not excise healthy, living tissue condition requiring it, determin- tissue, except after diagnosing a medical efforts to save the body part have ing that it is medically necessary after be deferred so as to obtain the failed, and when the operation cannot patient’s consent. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 64 C should engage, such as failing to exercise independent medical judgment judgment medical independent to exercise failing such as engage, should indicated. are not medically services that or providing what physicians who circumcise do: although they advance medical rea- they advance medical do: although who circumcise what physicians pros to weigh the medical leave it to parents circumcision, they sons for and cons—which incapa- education, are who lack a medical the parents, ble of doing—and circum- to have their son whether or not to decide physicians to their fiduciary duty as trained cised, thus abdicating make a medical rec- medical judgment and to exercise their independent what explana- such circumstances, it does not matter ommendation. In by extension their legal defenses that physicians or tions, excuses, or in defense of the have advanced or might advance medical associations regard- Such conduct, “crosses [a] line [where] impermissible behavior. consequences given for that behavior . . . [legal] less of the explanation should flow” (emphasis added). Rights Issue?, 37 J. N cjp_30-1_42664 Sheet No. 36 Side B 36 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 37 Side A 11/12/2020 09:05:36 5 5 6 HER- -T ON ., N 11-NOV-20 14:50 SSOC e756, e760 (2012) . A ED M Similarly, in a 2016 ? EDIATRICS 134 It is the duty of physi- It is the duty of UTCH Seq: 21 Seq: D 131 In a U.S. Supreme Court RAUD Excessive surgery is more F 135 136 OYAL R Healthy children are not suitable 137 supra note 91. , unknown N 5 (2010) (“a powerful policy of deterrence should be ’ supra note 132. IRCUMCISION IRCUMCISION A OMM ., INORS N C “The basis of this attitude is the respect which “The basis of this attitude is the respect C ’ M S SS I 133 ALE A EFORM supra note 120 (stating that the physicians’ responsibility is to the M ED , N M ’ L. R SS . A UTCH D ED It is in any event a breach of a physician’s fiduciary duty to a breach of a physician’s fiduciary It is in any event 132 . M 130 IRCUMCISION OF M UEENSLAND OYAL , 130 P Task Force on Circumcision, Male Circumcision A Frisch Cultural Bias, supra note 7. See also Q Id. Re L and B (Children) [2016] EWHC 849 [143]. Pegram v. Herdrich, 530 U.S. 211, 234 (2000). R C , the Court expressly stated that “excessive sur- Pegram v. Herdrich, the Court expressly stated that “excessive It also appears self-evident that adults of any sex are in the best any sex are in the that adults of self-evident It also appears In 2010, the Royal Dutch Medical Association wrote that the rule is, In 2010, the Royal Dutch Medical Association The Queensland Law Reform Commission likewise concluded that The Queensland Law Reform Commission 130 131 132 133 134 135 136 137 M K patient and no one else). candidates for surgery. MGC is a breach of fiduciary duty in the U.S. candidates for surgery. MGC is a of boys and the men they become for because: (1) it is the best interests and their right to bodily integrity physicians to respect their preference to leave their healthy genitals and self-determination, and therefore must be paid to an individual’s bodily integrity.” must be paid to an individual’s bodily be alleviated, a patient-physician relationship no longer exists. We there - We longer exists. no relationship a patient-physician be alleviated, are operat- in the U.S. boys that physicians that the healthy fore suggest exists. relationship no patient-physician not patients and ing on are or not—in they want an operation decide whether position to case to this known by intact, and it is their own genitals nervous tissue of keep the they typically do want this—rathertheir conduct that their parents, than the circumcision who circumcise in the U.S. leave to whom physicians decision. (discussing who decides about circumcision). cians licensed to practice medicine to determine whether a patient needs medicine to determine whether cians licensed to practice they should counsel they should recommend it. If not, surgery, and if so medical associa- medical experts representing against it, as thirty-eight to the AAP’s 2012 Europe and Canada did in response tions in Northern guidelines. case, gery is not in the patient’s best interest.” surgery than needed or unnecessary surgery. surgery than needed or unnecessary do not operate on heathy children. boys should not be circumcised unless it is medically necessary and in boys should not be circumcised unless the boy’s best interests. \\jciprod01\productn\C\CJP\30-1\CJP102.txt boys to defer medical assessments to parents. boys to defer medical established”). 2020] 2020] APEUTIC circumcision case, a U.K. judge held that it is in the best interests of two circumcision case, a U.K. judge held boys—whose circumcised for religious reasons father wanted them to be over the mother’s objection—to the boys’ right to autonomy, and respect become old enough to decide the to defer the operation until the boys fate of their own foreskin for themselves. C Y cjp_30-1_42664 Sheet No. 37 Side A 37 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 37 Side B 11/12/2020 09:05:36 M K , C Y 143 [Vol. [Vol. 30:45 11-NOV-20 14:50 The California 140 OLICY OLICY P 138 Seq: 22 Seq: UBLIC UBLIC P 141 144 unknown AW AW AND L note 120; 4 Elements of a Breach of Fiduciary Duty Claim Thus, where there is a breach of fiduciary duty, Thus, where there is a breach of supra , 142 N . § 23-2-51 (2010). . § OURNAL OURNAL OF ’ J SS NN A . A P.C. (2018), https://www.griffithslawpc.com/resources/elements-breach-fidu- ED ODE AW For example, Georgia’s statute provides that “[c]onstructive statute provides that “[c]onstructive For example, Georgia’s . M ORNELL ORNELL . C L M A 139 A Id. G Salahutdin v. Valley of California, Inc., 24 Cal. App. 4th 555, 562 (1994). Terry v. Terry, 273 S.E. 2d 674, 677–79 (N.C. 1981). Salahutdin, 24 Cal. App. at 562. In Re King Street Partnerships, 219 B.R. 848, 856 (B.A.P. 9th Cir. 1998). When a fiduciary wins a vulnerable person’s trust and violates that When a fiduciary wins a vulnerable Crundwell v. Becker, a patient In a Texas Court of Appeals case, United States case law shows that a breach of fiduciary duty that law shows that a breach of fiduciary United States case Constructive Fraud Constructive Fraud 138 139 140 141 142 143 144 RIFFITHS G courts impute, infer, presume, or deem fraud to have occurred by U.S. courts impute, infer, presume, or is liable to his principal for operation of law. Importantly, a “fiduciary fraudulent” constructive fraud even though his conduct is not actually ciary-duty-claim/. Salahutdin v. Valley of California, Inc. in 1994 appeals court observed in Salahutdin v. Valley of California, of his fiduciary duties [to the that “[m]ost acts by an agent in breach principal] constitute constructive fraud.” trust, and the plaintiff alleges that the defendant took advantage of his trust, and the plaintiff alleges that a presumption of fraud arises called position of trust to harm a plaintiff, constructive fraud. evidence that a physician informed suffering from abdominal pain gave did not, and only as a result did she her that she had cancer when she The patient’s expert testified agree to an unnecessary total hysterectomy. (emphasis original). The purpose of the constructive fraud doctrine is to (emphasis original). The purpose of for the plaintiff as if he prevent the same unfair adverse consequences had been intentionally defrauded. B. Constructive fraud constitutes a constructive fraud. causes damage also breach of equi- omissions, and concealments involving includes “all acts, in damage to an- trust or confidence, and resulting table or legal duty, other.” \\jciprod01\productn\C\CJP\30-1\CJP102.txt 66 C fraud consists of any act of omission or commission, contrary to legal or fraud consists of any act of omission justly reposed, which is contrary to equitable duty, trust, or confidence injury of another.” good conscience and operates to the alone; and contrary to their best interests to ignore their preference, vio- preference, their to ignore interests their best to and contrary alone; the removal and harms of them to the risks rights, and expose late their in exchange accept money who circumcise (2) physicians of the foreskin; themselves thereby enrich genital tissue, and of healthy for the removal (3) physi- to the child; and of being loyal expense instead at the child’s and the to parents place perceived obligations circumcise also cians who to the parents’ preferences ahead of their obligations parents’ personal owe a strict duty of loyalty. sons to whom they cjp_30-1_42664 Sheet No. 37 Side B 37 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 38 Side A 11/12/2020 09:05:36 7 7 6 149 Simi- 155 gaining an 11-NOV-20 14:50 151 The court held 154 ? As documented in Part As documented Seq: 23 Seq: 153 RAUD F or failure to disclose what a fiduciary to disclose what or failure (and therefore also a reckless misrep- also a reckless (and therefore unknown unfair conduct such as self-dealing; unfair conduct such 147 146 148 IRCUMCISION IRCUMCISION A C S I We thus infer that the industry is extremely profita- We thus infer that the industry is 156 and taking advantage of a position of trust, and taking advantage or obtaining a possible benefit. or obtaining a possible 150 152 at 435. Dema v. Tenet Physician Services-Hilton Head, Inc., the Su- Dema v. Tenet Physician Services-Hilton United States case law substantiates that constructive fraud also fraud that constructive case law substantiates United States Terry v. Terry, 273 S.E. 2d 674, 679 (N.C. 1981). Terry v. Terry, 273 S.E. 2d 674, 679 (N.C. 2007) (stating that instances of bad See Ryan v. Gifford, 918 A.2d 341, 357 (Del. Ch. White v. Consolidated Planning, Inc., 603 S.E.2d 147, 156 (N.C. 2004). Dawson v. Hummer, 649 N.E.2d 653, 661 (Ind. Ct. App. 1995). Id. Dema v. Tenet Physician Services-Hilton Head, 678 S.E.2d 430, 432 (S.C. 2009). Id. Assuming a historical inflation adjusted cost of $1,000 per circumcision for the past Crundwell v. Becker, 981 S.W.2d 880 (Tex. Ct. App. 1998). Crundwell v. Becker, 981 S.W.2d 880 (Tex. 825 S.W.2d 439 (Tex. 1991). See, e.g., Federal Land Bank Ass’n of Tyler v. Sloane, 2018 WL 5929638, at *3 (W.D. Okla. Cantwell v. De La Garza, No. CV-18-272-D, See, e.g., Karle v. Seder, 214 P.2d 684 (Wash. 1950). In Unjust Enrichment Unjust Enrichment 145 150 151 152 153 154 155 156 145 146 147 148 149 M K advantage, resentation); a material omission resentation); IV below, physicians in the U.S. who circumcise healthy boys engage in in the U.S. who circumcise healthy IV below, physicians further examples of and deceptive practices as well, all of these unfair duty and constructive fraud. breach of fiduciary C. that the employees of a medical preme Court of South Carolina found therapeutic cardiac catheter- center had performed over 200 unauthorized licensed to do so. izations, even though they were not 150 years, circumcision has generated at least $100 billion in revenues for physicians and 150 years, circumcision has generated at least $100 billion in revenues for physicians hospitals. Nov. 13, 2018). that there were less radical treatment alternatives to control her pain. On her pain. to control alternatives treatment less radical there were that proceed to fraud claim to her constructive court allowed appeal, the trial. larly, MGC unjustly enriches physicians at the expense of their patients. larly, MGC unjustly enriches physicians hospitals in the U.S. have derived By rough estimates, physicians and circumcised more than 100 million $100 billion in revenues from having boys since 1875. that the defendant corporation was undoubtedly unjustly enriched, as it that the defendant corporation was revenues and profits from “realized a benefit in the form of tremendous yet unlawful, procedures.” performing these highly lucrative, knew or should have known; knew or should have acting in bad faith, disloyally, consciously disregarding duties, or for per- disloyally, consciously disregarding acting in bad faith, sonal gain; \\jciprod01\productn\C\CJP\30-1\CJP102.txt ble. Moreover, Dr. Peter Charles Remondino observed as early as the ble. Moreover, Dr. Peter Charles arises from a false statement or omission that misleads the plaintiff such misleads the plaintiff or omission that a false statement arises from misrepresentation as a negligent 2020] 2020] faith include when “the fiduciary intentionally acts with a purpose other than that of advancing faith include when “the fiduciary intentionally or the best interests of the corporation, acts with the intent to violate applicable positive law, a where the fiduciary intentionally fails to act in the face of known duty to act, demonstrating conscious disregard for his duties.”). C Y cjp_30-1_42664 Sheet No. 38 Side A 38 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 38 Side B 11/12/2020 09:05:36 M K C Y ARLIEST practi- E 162 158 [Vol. [Vol. 30:45 11-NOV-20 14:50 ILLING B Physicians must Without the boys’ Without . 335 (2011) [hereinafter 163 ED 157 OLICY OLICY EDICAID P M Seq: 24 Seq: M AW IRCUMCISION FROM THE See generally Peter W. Adler, Is It C UBLIC UBLIC P NLAWFUL A Massachusetts case shows reluc- A Massachusetts ISTORY OF U Numerous U.S. Supreme Court cases Numerous U.S. Supreme Court cases 160 H unknown AW AW AND 164 HE 161 L ROM , T F RISING EMONDINO In North Carolina, conduct that constitutes a breach conduct that constitutes a breach In North Carolina, R A OURNAL OURNAL OF 207 (2007). 159 J HARLES LAIMS RESENT - (Mar. 27, 2018, 4:35 AM), https://www.vice.com/en_uk/article/43bxgm/the C C P ICE ORNELL ORNELL ETER Daviris v. Petros, 442 Mass. 274, 279 (2004) (listing cases holding that unfair trade Daviris v. Petros, 442 Mass. 274, 279 (2004) This Part reprises and builds upon the argument made in a 2010 law review article that Harris v. McRae, 448 U.S. 297, 301 (1980). See 42 C.F.R. § 456.1 (requiring “methods and procedures to safeguard against unnec- See 42 U.S.C. § 1320c-5 (requiring healthcare providers compensated by Medicaid to P Anti-Circumcision Activ- Ingrid Kesa, Beauty Industry Part of Foreskin Flesh Trade, 2 (2020). See, e.g., Mass. Gen. Laws Ann. ch. 93A, § III. Under the federal Medicaid Act, 42 USC § 1396 et seq., USC § Under the federal Medicaid Act, 42 Finally, many states have enacted consumer protection statutes to have enacted consumer protection Finally, many states Unfair and Deceptive Acts and Practices Unfair and Deceptive Unlawful Medicaid Billing 161 162 163 164 157 158 159 160 IMES TO THE practice suits against doctors are limited to business activities, such as billing and advertising, practice suits against doctors are limited to business and not medical activities.). to it is unlawful and possibly fraudulent for physicians and hospitals in the United States charge the federal and state Medicaid program for MGC. Lawful to Use Medicaid to Pay for Circumcision?, 19 J. L ists Warn, V certify that each medical service that they provide is medically necessary certify that each medical service that in order to be reimbursed for it. permission and unknown to their parents, hospitals sometimes sell the hospitals sometimes to their parents, and unknown permission and cos- to pharmaceutical obtained that they have unlawfully foreskins year industries. dollar per also multibillion metics companies, tance to impose such liability, but insofar as MGC involves unfair and liability, but insofar as MGC tance to impose such it may well claims, and omissions, and it is unlawful, deceptive conduct, act, depending upon the statute’s violate a state’s consumer protection wording. state that the purpose of the joint federal and state Medicaid program, 42 state that the purpose of the joint federal U.S.C. §§ provide federal financial assistance to states 1396 et seq., is to T protect consumers who may lack knowledge, experience, or capacity who may lack knowledge, experience, protect consumers or unconsciona- unfair, deceptive, bad faith from any false, misleading, ble trade practice. A. D. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 68 C of fiduciary duty and constructive fraud is sufficient to support an unfair and constructive fraud is sufficient of fiduciary duty practice claim. and deceptive trade beauty-industry-is-part-of-a-baby-foreskin-flesh-trade-anti-circumcision-activists-warn. beauty-industry-is-part-of-a-baby-foreskin-flesh-trade-anti-circumcision-activists-warn. Adler Medicaid]. Nineteenth Century that “[f]or skin-transplanting there is nothing supe - nothing there is skin-transplanting “[f]or that Century Nineteenth a boy.” the prepuce of plants offered by rior to the tioners must furnish only medically necessary care. tioners must furnish only medically essary utilization of care and services”). & show procedure was “supported by evidence of medical necessity”); Assoc. of Am. Phys. Surg. v. Weinberger, 395 F. Supp. 125, 129–30 (N.D. Ill. 1975). cjp_30-1_42664 Sheet No. 38 Side B 38 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 39 Side A 11/12/2020 09:05:36 9 9 6 MGC fails Massachu- In addition, 11-NOV-20 14:50 173 172 171 ? Seq: 25 Seq: RAUD F Federal regulations also require regulations also require Federal 167 unknown IRCUMCISION IRCUMCISION A C As an example, Massachusetts Medicaid regu- As an example, Massachusetts S . 450.204 (2020). . 410.405 (2020) (“The MassHealth agency does not pay for the I 169 EGS EGS R possibly dating back to the beginning of the program possibly dating back to the beginning supra note 161. R Massachusetts does not pay a provider for services not pay a provider for services Massachusetts does medically necessary medically has opted to subsidize “Congress 175 ODE ODE 170 166 . C . C ASS ASS Those states determined that physicians are not allowed to Those states determined that physicians 168 at 343. 176 Medicaid’s purpose is to enable each state to meet the costs of to meet the costs enable each state purpose is to Medicaid’s 174 Schweiker v. Hogan, 457 U.S. 569, 573 (1982) (citing 42 U.S.C. § 1396a(a)(10)(C)); (citing 42 U.S.C. § Schweiker v. Hogan, 457 U.S. 569, 573 (1982) Harris, 448 U.S. at 316–17. 1320c-5(a). See 42 U.S.C. § Emp. of Dep’t Pub. Health & Welfare Mo. v. Dep’t Pub. Health & Welfare, Mo., 411 130 M Id. Id. 130 M Adler Medicaid, Id. Id. , Harris v. McRae, 448 U.S. 297, n.1 (1980). The Court used the phrase “med- See, e.g., Harris v. McRae, 448 U.S. 297, n.1 (1980). The 165 Indeed, as of 2011, 18 U.S. states had stopped allowing physicians Indeed, as of 2011, 18 U.S. states Further, pursuant to 42 U.S.C. § Further, pursuant all states must estab- 1396a(a)(30), 167 168 169 170 171 172 173 174 175 176 165 166 M K in 1965. that are not medically necessary; that are “not reasonably calculated to necessary; that are “not reasonably that are not medically correct, or cure prevent the worsening of, alleviate, prevent, diagnose, or where another compara- ” (emphasis added); conditions in the member alternative exists. ble but more conservative or less costly generally” (emphasis added). services generally” Beal v. Doe, 432 U.S. 438, 444 (1977). U.S. 279, 298 (1973). medically necessary treat - necessary of medically costs certain to reimburse choose that ment. following services: (2) cosmetic surgery.”). each of these tests, and it is not a covered benefit. each of these tests, and it is not a for MGC, whether by legislation or and hospitals to use Medicaid to pay by letter that it is not a covered by its Medicaid office giving notice benefit. setts law also expressly prohibits using Medicaid to pay for cosmetic setts law also expressly prohibits a medical condition. surgery, except when needed to treat the care must be substantiated by records of medical necessity and must the care must be substantiated by records of health care. meet professionally recognized standards physicians to show evidence of medical necessity for all services necessity for all of medical to show evidence physicians provided. lish utilization review boards and procedures to reduce unnecessary boards and procedures to lish utilization review Medicaid expenditures. lations only allow payment for inpatient hospital services that are medi- payment for inpatient hospital services lations only allow cally necessary. \\jciprod01\productn\C\CJP\30-1\CJP102.txt charge Medicaid for medically unnecessary circumcisions. Therefore, charge Medicaid for medically unnecessary claims against physicians who U.S. federal and state governments have billions of dollars for unlawful perform circumcisions for potentially Medicaid billing, for individuals whose income and resources and resources whose income for individuals medical services necessary are insufficient. 2020] 2020] ically necessary” 75 times. C Y cjp_30-1_42664 Sheet No. 39 Side A 39 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 39 Side B 11/12/2020 09:05:36 M K E- C Y R ETER- : D RAUD F In United THICS [Vol. [Vol. 30:45 The physi- ARE 11-NOV-20 14:50 E 178 . 439, 468 (2013) C 181 NT . I ODE OF EALTH UB C H OLICY OLICY P 1 (2016). Seq: 26 Seq: GAINST . J. L. & P A The Fifth Circuit has stated Circuit has stated The Fifth ICH UBLIC UBLIC AWS P 177 PINION OF THE O ., L NTERVENTION , https://icd.codes/icd10cm/Z412 (last visited I ERVS S unknown ODES DVISORY AW AW AND L URGICAL , A S EDICAID & M The American Academy of Ophthalmology simi- The American Academy EDICAL OR 179 OURNAL OURNAL OF M J PHTHALMOLOGY EDICARE . O M CAD 1 (2014). FOR EED FOR . Adler Legal]. 180 N . A ORNELL ORNELL UIDE M TRS Physicians licensed to practice medicine must know that “normal Physicians licensed to practice medicine The Supreme Court has observed that in some areas of the law The Supreme Court has observed C United States ex rel. Marcy v. Rowan, 520 F.3d 384, 389 (5th Cir. 2008) (internal United States v. Laughlin, 26 F.3d 1523, 1526 (10th Cir. 1994). A ICD-10-CM Code Z41.2, ICD.C Peter W. Adler, Is Circumcision Legal?, 16.3 R 3.2.2(a) N.C. Medicaid and Health Choice Clinical Coverage Policy No: 1A-22 § G Physicians who circumcise bill Medicaid using the billing code bill Medicaid using the Physicians who circumcise The U.S. Government Accountability Office designated Medicaid designated Medicaid Office Government Accountability The U.S. 182 Medicaid Fraud Fraud Medicaid 183 177 178 179 180 181 182 183 (2015). [hereinafter MINING THE cians are thus certifying to the Medicaid program that they are circumcis- cians are thus certifying to the Medicaid the requisite diagnosis of a medical ing healthy newborn boys, without the surgery is medically neces- condition and recommendation that sary. SOURCE Z41: “Encounter for procedures for purposes other than remedying Z41: “Encounter for procedures code Z41.2, “Encounter for routine health state,” the subsidiary billing absence of medical indication, and and ritual male circumcision” in the for “Normal newborn.” they use the diagnosis group #795 \\jciprod01\productn\C\CJP\30-1\CJP102.txt 70 C larly states that “[c]laiming reimbursement for unnecessary surgery could reimbursement for unnecessary larly states that “[c]laiming private insurance under Medicare/Medicaid or also constitute fraud policies.” newborn” is not a diagnosis; however, that is the diagnosis that they newborn” is not a diagnosis; however, form. Physicians who know that often place on the circumcision consent bill Medicaid for it anyway there- MGC is not a covered benefit but who fraud. Given that it is obvious that fore commit intentional Medicaid use false diagnoses to bill for MGC is unnecessary, and that physicians are recklessly violating Medicaid it, we suggest that the other physicians law. recklessness is considered to be a form of intentional conduct. In addi- recklessness is considered to be a by a physician is a tion, as shown above, a reckless misrepresentation B. for payments,” including risk for improper that is at “high as a program necessary. were not medically those that Sept. 22, 2020). , the Tenth Circuit held that a person who makes a held that a person who makes , the Tenth Circuit States v. Laughlin can be convicted and knows the claim to be false false Medicaid claim for Medicaid fraud. quotations omitted). where “the government has conditioned payment of a claim upon a of a claim conditioned payment government has where “the a statute or reg- of compliance with, for example, claimant’s certification when he or she submits a false or fraudulent claim ulation, a claimant with that statute or regulation.” falsely certifies compliance cjp_30-1_42664 Sheet No. 39 Side B 39 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 40 Side A 11/12/2020 09:05:36 1 1 7 In 185 EDIATRICS and claims 11-NOV-20 14:50 190 ? Therefore, physicians physicians Therefore, 184 Seq: 27 Seq: RAUD F Aware of declining Medicaid cov- Aware of declining The AAP contends that the “preven- The AAP contends 188 unknown 189 supra note 33, at e777. See also AAP Speaking Points, The claim then is that MGC has actual or The claim then is that MGC has actual IRCUMCISION IRCUMCISION A The AAP also observed in 2012 that, “more The AAP also observed 191 C S 187 supra note 187. See also S.L. Sansom, V.S. Prabhu& A.B. I supra note 187 (“Although health benefits are not great enough The American Academy of Pediatrics (AAP) The American 186 S ONE, e8723 (2010). O supra note 182. AAP Speaking Points]. (Aug. 27, 2012) American Academy of Pediatrics, Circumcision Speaking Points 2012 AAP statement, 2012 AAP Statement, 2012 AAP Technical Report, Adler Legal, 1347 (2012). 18 U.S.C. § (4th Cir. 2015). United States v. Bajoghli, 785 F.3d 957, 967 , 130 P American Academy of Pediatrics, Circumcision Policy Statement It also is a violation of 18 U.S.C. § a violation of 18 It also is willfully knowingly and 1347 to 188 189 190 191 184 185 186 187 M K potential medical benefits, but the argument fails because MGC harms potential medical benefits, but the them; any potential medical all males with little prospect of benefiting the surgery; and regardless, unneces- benefits can be achieved without We suggest that the AAP has en- sary surgery is not a covered benefit. the federal and state Medicaid gaged in an intentional scheme to defraud Medicaid agencies must conduct in- programs. Under federal law, state fraud and must refer suspected pro- ternal investigations of any report of fraud control unit or “appropriate vider or beneficiary fraud to the state’s [hereinafter Hutchinson et al., Cost-effectiveness of newborn circumcision in reducing lifetime HIV risk among U.S. males, 5 PL breach of fiduciary duty and constructive fraud. and constructive duty of fiduciary breach , the court held that the owner of a surgery owner of a surgery held that the , the court v. Bajoghli United States of performing un- in a lucrative fraudulent scheme center had engaged necessary surgeries. that “recent efforts by state Medicaid programs to curb payment for new- that “recent efforts by state Medicaid population that could benefit the born male circumcision affect those most from the procedure.” who bill Medicaid commit either intentional fraud or constructive fraud. fraud or constructive either intentional Medicaid commit who bill care benefit program. any health a scheme to defraud execute erage and hence declining circumcision rates and revenues, the AAP’s declining circumcision rates and revenues, erage and hence plea that policy statement contains an unprecedented 2012 circumcision for it. physicians be reimbursed tive and public health benefits associated with newborn male circumci- tive and public health benefits associated of the procedure,” sion warrant third-party reimbursement families may be choosing not to have a circumcision because of a sense not to have a circumcision families may be choosing necessary.” that it is not medically 585, 585–6 (2012) [hereinafter 2012 AAP Statement]. \\jciprod01\productn\C\CJP\30-1\CJP102.txt knows that MGC is unnecessary as it calls it non-therapeutic, meaning is unnecessary as it calls it non-therapeutic, knows that MGC meaning optional therapeutic purposes, and elective, not necessary for and, again, unnecessary. 2020] 2020] to recommend routine circumcision for all male newborns, the benefits of circumcision are to recommend routine circumcision for all male newborns, the benefits of circumcision sufficient to justify access to this procedure for families choosing it and to warrant third-party payment for circumcision of male newborns.”). supra note 188 (“A growing number of state Medicaid programs have stopped paying for circumcision, thereby reducing access to the service.”). C Y cjp_30-1_42664 Sheet No. 40 Side A 40 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 40 Side B 11/12/2020 09:05:36 M K C Y “In- 198 [Vol. [Vol. 30:45 11-NOV-20 14:50 practiced to induce OLICY OLICY P The patient alleged that Seq: 28 Seq: 195 RAUD UBLIC UBLIC F P unknown AW AW AND The court allowed her to proceed to trial The court allowed her to proceed to L NTENTIONAL 196 and we call upon Medicaid agencies to do to agencies upon Medicaid we call and I 192 IV. - , cited above, a physi Similarly, in Lloyd v. Kramer OURNAL OURNAL OF J 194 The elements of a claim for fraudulent misrepresentations The elements of a claim for fraudulent e.g., Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir. 1984); see also 197 199 ORNELL ORNELL 42 C.F.R. § 455.14–15 (2011). 42 C.F.R. § In addition, in some states such as Massachusetts, taxpayers can bring suit to force United States v. Bajoghli, 785 F.3d 957, 959–60 (4th Cir. 2015). Lloyd v. Kramer, 503 S.E.2d 632, 634 (Ct. App. Ga. 1998). Id. at 633. Id. at 635. Brown v. State, 868 N.E.2d 464, 468 (Ind. S. Ct. 2007). See, The question thus arises as to whether physicians and/or their medi- The question thus arises as to whether In cases involving unnecessary surgery on adults, physicians often adults, physicians surgery on involving unnecessary In cases 193 192 193 194 195 196 197 198 199 state Medicaid agencies to end such coverage. Mass. Gen. Laws Ann. ch. 12, § 5C(2) (2006). state Medicaid agencies to end such coverage. Mass. Gen. Laws Ann. ch. 12, § tentional fraud” consists of “deception intentionally tentional fraud” consists of “deception another to part with property or to surrender some legal right,” (emphasis another to part with property or to surrender original). the physician had made intentionally fraudulent and material misrepre- the physician had made intentionally her medical condition and as to the sentations both as to the nature of need for surgery to correct it. on her counts of battery, breach of fiduciary duty, fraud, and punitive on her counts of battery, breach of damages. cal associations, which are also trade associations, intentionally defraud cal associations, which are also trade of their sons as their legal proxies, parents, who are acting on behalf deceive their sons. Fraud is com- about circumcision, and thereby also “deception,” or “deceit.” monly understood to mean “trickery,” fraudulently misrepresent or omit facts to induce a healthy individual or or omit facts to induce a healthy fraudulently misrepresent the surgery into condition who does not need a patient with a medical If physicians told people the truth—thatconsenting to it. they do not need the operation—no for adults re- one would consent to it, except Bajoghli, surgery. For example, in United States v. questing cosmetic including an alle- jury issued a 60-count indictment cited above, a grand practice who had the owner of a lucrative surgical gation of fraud against though they did not patients with skin cancer, even routinely diagnosed unnecessary surgery consequently performed medically have cancer, and on benign tissue. so. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 72 C cian falsely diagnosed a patient as having hammer toe and performed cian falsely diagnosed a patient as medical condition when she had a unnecessary surgery on her for that condition. different and easily distinguishable and omissions are: “(a) misrepresentation (false representation, conceal- and omissions are: “(a) misrepresentation of falsity; (c) intent to defraud, ment, or nondisclosure); (b) knowledge reliance; and (e) resulting dam- i.e., to induce reliance; (d) justifiable law enforcement agency,” enforcement law Brown, 868 N.E.2d at 466, n.1. cjp_30-1_42664 Sheet No. 40 Side B 40 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 41 Side A 11/12/2020 09:05:36 R R 3 3 & 7 207 Y ’ EGAL 211 OL . P OC 11-NOV-20 14:50 . J. S A Surgery hoped to 209 ? Seq: 29 Seq: RAUD The practice is thus self- The practice is The plaintiff must prove in- must prove plaintiff The F 206 201 Defendants also may be held liable also may be Defendants 203 202 unknown note 46, at 4. IRCUMCISION IRCUMCISION A In 1975, the AAP stated that a “program of In 1975, the AAP stated that a “program C supra S 210 I such that when a father is circumcised, the parents father is circumcised, the parents such that when a . 455, 457 (2003) (“the practice of male circumcision is a quintessen- 205 EV note 204, at 538. e110, e110–e113 male circumcision rates continue to (2013) (“newborn and as a source of moral and physical decay. One physi- and as a source of moral and physical . L. R supra 208 IN supra note 60, at 359. , Buckland v. Threshold Enterprises, 155 Cal. App. 4th 798, 806–07e.g., Buckland v. Threshold Enterprises, 155 Cal. (2007). HYSICIAN . C , 9 V Geoffrey P. Miller, Circumcision: Cultural-Legal Analysis Early False Medical Claims Early False Medical . ., https://www.law.cornell.edu/wex/fraudulent_misrepresentation . P Conduct can also be fraudulent. also be can Conduct As a result, it has long been a deeply embedded cultural norm in long been a deeply embedded cultural As a result, it has NIV See Sarah E. Waldeck, Using Male Circumcision to Understand Social Norms as Multipli- Chris Rediger & Andries J. Muller, Parents’ Rationale for Male Circumcision, 59 See Darby Temptation, Id. Miller, Bond, 1975 AAP Statement, supra note 38. See, 1097, 1103–04See, e.g., Vess v. Ciba-Geigy Corp. USA, 317 F.3d (9th Cir. 2003). Ltd., 559 F.3d 1317, 1340 (Fed. Cir. Larson Mfg. Co. of S.D. v. Aluminart Prods. Ct. App. 1995) (“The plaintiff See, e.g. Ellerin v. Fairfax Savings, 337 Md. 216 (Md. AM NST 200 In the Nineteenth Century, physicians demonized the foreskin. In the Nineteenth Century, physicians 1. falsely, por- United States have resolutely, but Physicians in the 204 The Past as Prologue The Past as Prologue . I . F 205 206 207 208 209 210 211 200 201 202 203 204 AN NFO M K tent to defraud by clear and convincing evidence, but circumstantial evidence, but circumstantial and convincing by clear tent to defraud it. can be used to show evidence ers, 72 U C 2009). be heavily influenced by the circumcision status of the child’s father”). age.” replace soap and water. perpetuating. for fraud even if they lack knowledge of falsity, when they make reckless when they make knowledge of falsity, even if they lack for fraud and omissions. misrepresentations education leading to continuing good personal hygiene would offer all education leading to continuing good the attendant surgical risk.” the advantages of circumcision without tial social norm”). I “Where the uncircumcised penis had been regarded as pure, healthy, nat- “Where the uncircumcised penis had physicians “succeeded in portray- ural, beautiful, masculine, and good,” harmful, alien, effeminized and ing it as ‘polluted, unnatural, disfigured’” A. Nineteenth Cen- as a positive practice since the late trayed circumcision tury. \\jciprod01\productn\C\CJP\30-1\CJP102.txt are likely to be biased in favor of it. are likely to be cian called it a toxic “cesspool” inviting infection. cian called it a toxic “cesspool” inviting the United States, 2020] 2020] 497, 501 (2002) (discussing the shift of opinion on circumcision from the Nineteenth L. 497, 501 (2002) (discussing the shift of opinion Century). in an action of fraud or deceit must prove that the defendant either knew that the representation in an action of fraud or deceit must prove that indifference’ as to its truth.” And, “the tort was false or made the representation with ‘reckless who is recklessly indifferent to the truth of of fraud or deceit may be committed by a defendant , L the statement that deceives the plaintiff.”); see generally Fraudulent Misrepresentation C Y cjp_30-1_42664 Sheet No. 41 Side A 41 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 41 Side B 11/12/2020 09:05:36 R M K C Y See 217 . 79 ULL . B ED [Vol. [Vol. 30:45 Darby Tempta- 11-NOV-20 14:50 This resonated This resonated 214 . 233–34 (1870). OLICY OLICY genital irritation lead- P EC 220 . (Nov. 9, 2018); Seq: 30 Seq: 609 (Schlomo Pines trans., Univ. . R ED ERV - Nineteenth Cen In the late S UBLIC UBLIC P 213 ERPLEXED Similarly, “some doctors recom- Similarly, “some EALTH P . 737, 737–39 (2003). 215 H L ’ IST eye problems, unknown AT AW AW AND . H 216 219 L OC UIDE OF THE G ] (“From . 5, 8 (1994) [hereinafter Gollaher Ritual to Science HE IST just as FGC was performed and continues to be and continues was performed just as FGC , T . H epilepsy, 212 . 323, 323–24 (2008). OC CI 218 OURNAL OURNAL OF S J AIMONIDES LLIED M supra note 60, at 358. ORNELL ORNELL . & A OSES ED Id. Lewis A. Sayre et al., Circumcision versus Epilepsy, etc.: Transcription of the New M. Landesberg, On Affections of the Eye Caused by Masturbation, 3 M Rethinking the History of Female Circumcision and Clito- Sarah W. Rodriguez, Rethinking the History of Female Circumcision Male Circumcision: A Robert Darby, The Masturbation Taboo and the Rise of Routine Is Masturbation Normal?, U.K. N Bond, of Circumci- David L. Gollaher, From Ritual to Science: The Medical Transformation M After creating needless hysteria about masturbation among the hysteria about masturbation After creating needless - to sup times was in ancient were circumcised boys reason that One supra note 46. . M 218 219 220 213 214 215 216 217 212 IST York Pathological Society Meeting of June 8, 1870, 5 M sion in America, 28.1 J. S tion, its earliest appearance in the surgical repertoire circumcision has been touted as the miracle its earliest appearance in the surgical repertoire of diseases, bodily conditions and disapproved cure for a bewildering, and unbelievable, array pre- behaviour [sic.]. In roughly chronological order it has been advocated and imposed as a ventive of or cure for masturbation, phimosis, epilepsy, syphilis, cancer of the penis, paralysis, polio, tuberculosis, bilharziasis (a tropical parasite), hip joint disease, bed-wetting, pimples, brass poisoning, ‘nervousness’, cervical cancer in women, prostate cancer, herpes, urinary tract infections and AIDS – a few. One collector of medical curiosities has identified no to name fewer than 390 reasons to circumcise.”). (1881). tury, the erogenous properties of the foreskin was common knowledge was common of the foreskin erogenous properties tury, the as a male circumcision began to prescribe so they among physicians, and prevent masturbation. curb sexual desire means to mended clitoridectomies for women to cure the same ‘ailments,’ [al- for women to cure the same mended clitoridectomies doctors eventually was not as widespread and though] the procedure the 1930’s.” abandoned [it] by American public, and spreading fear about its consequences to males and spreading fear about its consequences American public, 20th century have since the beginning of the who practiced it, physicians many diseases, MGC prevents or cures a great falsely claimed that including insanity, \\jciprod01\productn\C\CJP\30-1\CJP102.txt 74 C performed to suppress female sexuality. to suppress female performed Chi. Press 1963) (“Similarly with regard to circumcision, one of the reasons for it is, in my Chi. Press 1963) (“Similarly with regard to sexual intercourse and a weakening of the organ opinion, the wish to bring about a decrease in and the organ be in as quiet a state as possi- in question, so that this activity be diminished the faculty of sexual excitement and sometimes ble. . . . The fact that circumcision weakens For if at birth this member has been made to perhaps diminishes the pleasure is indubitable. it, it must indubitably be weakened.”). bleed and has had its covering taken away from also Dunsmuir & Gordon, supra note 15, at 1. press male sexuality, press male with puritanical parents, even though masturbation had previously been even though masturbation with puritanical parents, and not harmful. considered normal ridectomy: American Medicine and Female Sexuality in the Late Nineteenth Century, 63 J. ridectomy: American Medicine and Female H Review of the Historiography, 36 J. S cjp_30-1_42664 Sheet No. 41 Side B 41 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 42 Side A 11/12/2020 09:05:36 . , 5 5 TS 7 222 to R that Y 228 ’ ESOURCE 226 TT NTEGRITY R I Whenever Whenever 11-NOV-20 14:50 223 ENITAL G IRCUMCISION FOR . 205 (1870). ? N ’ OAL SS C Seq: 31 Seq: A timeline shows L . A RAUD ’ ED 225 NT F . M M Is Circumcision Quackery, 10.1 A A . 188, 188 (2015). Even though the circumcision 227 1, 3 (1953). unknown note 217, at 27 (“Old arguments about reflex irrita- note 217, at 27 (“Old arguments about reflex DUC E IRCUMCISION IRCUMCISION A supra RANSACTIONS C YNECOLOGY S I ERINATAL G Physicians also claimed, perhaps in good faith but Physicians also claimed, 224 and “nearly all physical and mental illness[es].” and all physical “nearly and 221 BSTETRIC . J. O . 1, 5–6 (2013). M Thus, physicians in the U.S. have fraudulently portrayed MGC Thus, physicians in the U.S. have EWSL The Medicalization of Circumcision Timeline, I Teri M. Mitchell & Claudia Beal, Shared Decision Making for Routine Infant Circum- See supra, Introduction. Gollaher, supra note 217, at nn. 15–16the 1870s the primary medical indica- (“Before Richard L. Miller & Donald C. Snyder, Immediate Circumcision of the Newborn , C See Historical Medical Claims About Circumcision Gollaher Ritual to Science, See infra notes 330–40 and accompanying text. It could be countered that science Partial Paralysis from Reflex Irritation, Caused by Congenital Phi- Lewis A. Sayre, Partial Paralysis from Reflex Irritation, Caused /. This brings to , https://circumcision.org/historical-medical-claims-about-circumcision N Although medically unnecessary genital cutting is always inconsis- unnecessary genital cutting is always Although medically 229 226 227 228 229 222 223 224 225 221 ENTER HILD M K perhaps not, that circumcision prevented whatever disease was of great- circumcision prevented whatever disease perhaps not, that public at any given time—firstest concern to the then ve- masturbation, infections penile cancer, then sexually transmitted nereal disease, then below, now HIV. (STIs), and as discussed cision: A Pilot Study, 24.3 J. P - tions for circumcision were cancerous lesions and phimosis, an abnormal constriction or tight Male, 65.1 A of hypotheses, their testing, and subsequent must progress in such a way, with the positing and likely some of the medical argu- proof or disproof using rigorous scientific methodology, in in good faith. As Darby wrote, how- ments made in favor of circumcision were advanced for such a “bewildering and unbelievable array ever, circumcision was touted as a miracle cure that appealed to the public at the time, such as of diseases,” one after another, including claims era, and they made specious claims as that it prevented masturbation during the Puritanical well. The circumstantial evidence is strong that many of these early false medical claims were made with the bad faith intent of perpetuating circumcision. tion, phimosis and adherent prepuce are forgotten, but new theories have arisen to take their tion, phimosis and adherent prepuce are forgotten, place.”). ing to paralysis, ing to physicians in the U.S. thereby caused the circumcision rate to climb from thereby caused the circumcision physicians in the U.S. were routinely cir- to the point where physicians virtually zero in 1875 cumcising boys by the mid-1900s. tent with a state of perfect health, and painful, risky, and harmful, tent with a state of perfect health, C The psychologist Ronald Goldman lists 50 conditions and behaviors that and behaviors lists 50 conditions Ronald Goldman The psychologist or cure.” could “prevent claimed circumcision people have \\jciprod01\productn\C\CJP\30-1\CJP102.txt C mind useless and sometimes adulterated “snake oil” elixirs that its proponents falsely claimed mind useless and sometimes adulterated “snake would cure many or all diseases. Peter W. Adler, http://www.icgi.org/medicalization/. 2020] 2020] persuade parents to elect it, physicians “needed to convince them that persuade parents to elect it, physicians neither dangerous nor unduly pain- circumcision was a minor procedure, ful.” one medical claim about MGC was disproved or found not to justify the or found not to was disproved claim about MGC one medical suggesting in its place, advanced another U.S.-based physicians practice, of the some if not many had advanced that physicians the possibility reasons in bad faith. mosis and Adherent Prepuce, 21 T - rate had declined to 58.3% in the U.S. by 2013, physicians sometimes still refer to it as “rou tine infant circumcision.” C Y cjp_30-1_42664 Sheet No. 42 Side A 42 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 42 Side B 11/12/2020 09:05:36 R M K . E- C Y J. ES 231 238 The . R ORLD , 15 R 240 NFO . W I CI Physicians Physicians [Vol. [Vol. 30:45 11-NOV-20 14:50 707329 (2012); 232 626 (1997). IRCUMCISION ROLOGY and that the “proce- Pain and pain management OLICY OLICY P 237 EDIATRICS Seq: 32 Seq: and there is no reason why UBLIC UBLIC when there are non-invasive when there are 239 P 233 Many people in the United States in the United Many people 230 unknown AW AW AND L 15, 15 (2007). supra note 188. (Sept. 9, 2010, 1:09 PM), https://www.npr.org/sections/publiceditor/ (Sept. 9, 2010, 1:09 PM), https://www.npr.org/sections/publiceditor/ ATTERS http://www.cirp.org/pages/anat/ (“The foreskin is not a ‘flap’ of skin http://www.cirp.org/pages/anat/ (“The foreskin OURNAL OURNAL OF 234 J M ADIO supra note 5, at 1436. . R UB EALTH that being circumcised avoids embarrassment in the locker avoids embarrassment in the that being circumcised P H Early Specious Claims Early Specious Claims L ORNELL ORNELL 235 that it is difficult to clean the foreskin, ’ AT See Gollaher Ritual to Science, supra note 217, at 25. , ISRN U See Sukbir Kaur Shahid, Phimosis in Children Gairdner, E. Noel Preston, Whither the Foreskin? A Consideration of Routine Neonatal Circum- 1975 AAP Statement, supra note 38 (“Circumcision . . . eliminates much of the need AAP Speaking Points, F.L. Porter, C.M. Wolf, J. Gold, D. Lotsoff & J.P. Miller, R.L. Poland, R.J. Roberts, J.F. Guitierrez-Mazorra & E.W. Fonkalsrud, Committee on See, e.g. Anatomy of the Penis, Mechanics of Intercourse, C See, e.g. Anatomy of the Penis, Mechanics of See Peter Aggleton, “Just a Snip”?: A Social History of Male Circumcision male circumcision was medically neces- Indeed, at least some laypeople believed that 236 Physicians have given many plainly specious reasons for MGC, given many plainly specious reasons Physicians have 2. (Sept. 30, 2013), 234 235 236 237 238 239 240 230 231 232 233 AGE on the end of the penis, and it is not ‘useless’ or ‘redundant’ skin.”). on the end of the penis, and it is not ‘useless’ believe this, as the operation is sometimes referred to as a “snip”. Physi- to as a “snip”. is sometimes referred as the operation believe this, belief. clearly erroneous not corrected this circumcise have cians who for careful penile hygiene.”) Fetus and Newborn, Committee on Drugs, Section on Anesthesiology, Section on Surgery: sary. For example, in 2010, a spokesperson for National Public Radio stated that the circumci- sary. For example, in 2010, a spokesperson for beliefs about whether circumcision for a baby sion debate “centers on two strongly differing Interview about Circumcision: Not the Whole boy is medically necessary.” Alicia C. Shepard, Story, N PRODUCTIVE healthy newborn boys should be forced to tolerate any pain at all. healthy newborn boys should be forced which they would not do if they could justify it on medical grounds. For not do if they could justify it on medical which they would is aesthetically claimed that the circumcised penis example, they have superior, dure”—theywhich likely would set off alarm rarely call it “surgery,” bells among parents—is during the newborn period”. “best-tolerated ening of the foreskin interfering with normal function. . . . Cases of phimosis severe enough to ening of the foreskin interfering with normal down through the ages it was considered a rare require surgery were uncommon though and affliction.”). In fact, newborns do not tolerate it well, In fact, newborns do not tolerate it By the mid-1900s, physicians in the U.S. were routinely circumcising were routinely circumcising in the U.S. physicians By the mid-1900s, necessary. MGC was medically implying that boys, falsely \\jciprod01\productn\C\CJP\30-1\CJP102.txt 76 C room, , 11 S Yutaro Hayashi et al., Prepuce: Phimosis, Paraphimosis, and Circumcision from 1875 to the present as a simple, painless, harmless, procedure that procedure harmless, simple, painless, as a the present 1875 to from skin. a useless piece of removes P 2010/09/09/129732264/interview-about-circumcision-not-the-whole-story. The interviewee, a 2010/09/09/129732264/interview-about-circumcision-not-the-whole-story. Douglas Diekema, did not correct the mistake. member of the AAP Committee on Bioethics, also falsely diagnosed congenital phimosis or a tight foreskin, which is congenital phimosis or a tight also falsely diagnosed for the operation, normal, as reasons cision, 213 JAMA 1853, 1853–54 (1970). in newborn infants: a survey of physicians and nurses, 100 P 289, 289 (2011). treatment options. cjp_30-1_42664 Sheet No. 42 Side B 42 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 43 Side A 11/12/2020 09:05:36 R 7 7 7 note This ONTEM- C During 242 supra 247 For exam- 11-NOV-20 14:50 244 IRCUMCISION IN C ? Seq: 33 Seq: RAUD F ROBLEM OF P unknown (Mar. 16, 2002), http://www.cirp.org/pages/parents/pro- supra note 39. 446 (1987). See also 2012 AAP Statement, IRCUMCISION IRCUMCISION A C ERSPECTIVES ON THE AGES note 182, at 480. S I : P . P ES EDIATRICS supra LOOD Hospitals must have known that mothers and fathers Hospitals must have known that mothers . R B 245 There also are many reports of boys being circumcised There also are many reports of boys NFO I Protection of Infant Boys from Wrongful Circumcision in American Hospi- 246 87 (George C. Denniston et al., eds., 2013). 243 241 LESH AND F Early Unfair and Deceptive Practices Early Unfair and OCIETY implying that circumcision is medically necessary and that pa- implying that circumcision is medically Physicians in the U.S. did not turn this violence into an industry Physicians in the U.S. did not turn 2012 AAP Technical Report, Determinants of Prevalence, Safety and See Male Circumcision: Global Trends and See, e.g., Id. See See Protection of Infant Boys, supra note 244. See Adler Legal, See Protection of Infant Boys, supra note 244. 1975 AAP Statement, supra note 38. S IRCUMCISION Stories also abound online, and there is no reason to question their online, and there is no reason to Stories also abound 3. - that male circumci report also asserts 2012 technical The AAP’s 248 249 243 244 245 246 247 248 249 241 242 M K would not read such a provision, given the urgency of the onset of labor. would not read such a provision, given circumcision and some parents Moreover, many cultures do not practice not understand what circumcision is do not speak English, so they would when offered. https://www.unaids.org/sites/default/files/media _ Acceptability, WHO & UNAIDS 1, 1 (2007), asset/jc1360_male_circumcision_en_0.pdf. tals, C AAP has even claimed that “[f]actors such as climate, the social and the social climate, such as that “[f]actors claimed has even AAP and the to penile cleansing, parents reaction of prospective emotional be taken etc. should facilitate good hygiene, understand and ability to should be circumcision whether when recommending into account performed.” claim by a medical association in a scientific report seems to imply that it association in a scientific report seems claim by a medical misleading because for medical reasons. That is is commonly performed for religio-cul- performed worldwide by Muslims circumcision is usually tural reasons. veracity, by parents claiming that physicians who circumcise took unfair veracity, by parents claiming that physicians son) in various ways. advantage of them (and thereby their sion, “is one of the most common procedures in the world.” the most common procedures in sion, “is one of 187. Neonatal anesthesia, 80 P \\jciprod01\productn\C\CJP\30-1\CJP102.txt in hospitals in the United States against their parents’ wishes. in hospitals in the United States against rental consent to surgery on a child is not necessary, when the opposite is rental consent to surgery on a child true. PORARY 2020] 2020] the mid-1900s, when physicians were routinely circumcising boys, some the mid-1900s, when physicians were boys without parental con- and perhaps many physicians circumcised sent, tection/ [hereinafter Protection of Infant Boys]. ple, hospital admission forms reportedly often contained a consent form ple, hospital admission forms reportedly for circumcision. C Y cjp_30-1_42664 Sheet No. 43 Side A 43 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 43 Side B 11/12/2020 09:05:36 M K , N C Y ’ SS . A ED (Mar. 2016), . M [Vol. [Vol. 30:45 11-NOV-20 14:50 M IRCUMCISION Nor did they tolerate did they Nor OLICY OLICY C P 250 with a multibillion dollar Seq: 34 Seq: 259 PPOSING The AMA observed, for ex- The AMA observed, UBLIC UBLIC and in 1977, that it is not an and in 1977, that P . O 254 In 1999, the American Medical In 1999, the American RS 252 . (Sept. 20, 2019), https://intactamerica.org/ M 253 A unknown AW AW AND L NTACT Parents are likely unaware that the AAP “is Parents are likely unaware that the 258 In 1999, Matthew Giannetti suggested that the In 1999, Matthew 255 supra note 8. OURNAL OURNAL OF J The remainder of this Part builds upon Giannetti’s The remainder of this Part builds supra note 6, at 1553. 257 251 610 (1975), http://www.cirp.org/library/statements/aap/#a1977. and he showed that this could expose the AAP to trade associ- and he showed that this could expose Not Medically Justified Not Medically ORNELL ORNELL 256 Standards and Recommendation for Hospital Care of Newborn Infants, AAP (1971), Standards and Recommendation for Hospital the Ad Hoc Task Force on Circumcision Committee on Fetus and Newborn: Report of Council on Scientific Affairs. Report 10: Neonatal circumcision, A Id. Giannetti, Id. at 1545. Stahel, et al., supra note 63, at 2. Earp Bad Ethics, See Medical Organization Statements, D Voices – Marilyn Milos, RN, I As three surgeons have written, some surgeons perform unnecessary As three surgeons have written, some 4. for cir- stated that there is no medical indication In 1971, the AAP Motives to Defraud Today EDIATRICS 253 254 255 256 257 258 259 250 251 252 accusations. B. surgery for financial gain. - https://www.doctorsopposingcircumcision.org/for-professionals/medical-organization-state the American Academy of Pediatrics and the ments/ (listing misconceptions propagated by medical profession writ large). [hereinafter 1971 AAP Statement]. http://www.cirp.org/library/statements/aap/#a1971 ample, that behavioral factors are the principal cause of STIs and HIV, factors are the principal cause ample, that behavioral as protecting cannot responsibly be viewed and that “circumcision against such diseases.” essential component of health care. essential component Association stated that although there is evidence that circumcision has that although there is evidence that Association stated to sufficient to rec- benefits, the data are not sufficient potential medical neonatal circumcision. ommend routine cumcision during the newborn period, cumcision during not a dispassionate scientific research body: it is a medical association not a dispassionate scientific research but also a trade association for pediatricians” pro-circumcision claims of the AAP were unscientific, negligent, and pro-circumcision claims of the AAP designed to perpetuate physicians’ possibly intentionally fraudulent, profits, ] (1999), http://www.cirp.org/library/statements/ama2000/ [hereinafter 1999 AMA Statement cir- (“[E]xisting scientific evidence demonstrates potential medical benefits of newborn male cumcision; however, these data are not sufficient to recommend routine neonatal circumcision.”). \\jciprod01\productn\C\CJP\30-1\CJP102.txt 78 C ation liability. over a 150 year period by being honest about it. honest by being period a 150 year over 56 P opposition to the practice: a nurse and founder of the anti-circumcision of the anti-circumcision a nurse and founder to the practice: opposition opposing lost her job after for example, Marilyn Milos, movement, circumcision. marilyn-milos-rn/. cjp_30-1_42664 Sheet No. 43 Side B 43 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 44 Side A 11/12/2020 09:05:36 . 9 9 7 ND 268 . (Sept. 19, . 2355, 2356 K 11-NOV-20 14:50 FFS W Doctors Op- A 266 EWISH EALTH ? Seq: 35 Seq: If physicians wanted to If physicians wanted RAUD 269 265 F One committee member rep- member committee One - refer to mem The guidelines 260 261 supra note 250. unknown note 31, at 2. - 1,1 (Apr. 2013), https://www.doctorsopposingcircumci IRCUMCISION IRCUMCISION A C supra note 261, at 7. supra note 261, at 7. Obstetricians also perform circumcisions, and Obstetricians also perform circumcisions, S Protecting that option for parents also conve- Protecting that option As discussed in Part III above, the AAP’s 2012 the AAP’s 2012 in Part III above, As discussed I 267 264 262 IRCUMCISION note 193. More than one million boys are circumcised per year in supra note 193. More than one million boys are circumcised C . 1, 8 (2015). PPOSING EV Sarah J. Clark et al., Coverage of Newborn and Adult Male Circumcision Varies A member of the AAP’s 2012 committee wrote in 2016 that, AAP’s 2012 committee wrote in A member of the . O , 12 I Maxwell J. Mehlman, Why Physicians are Fiduciaries for Their Patients See Andrew L. Freedman, supra See DOC Commentary, See Medical Organization Statements, See DOC Commentary, See id. at 1–2. Ted Merwin, Fleshing Out Change On Circumcision, N.Y. J According to the AAP, the average cost of a circumcision is “upwards of $1,750”.” According to the AAP, the average cost of a 2012 Circumcision Policy State- See Commentary on American Academy of Pediatrics RS L. R 263 262 263 264 265 266 267 268 269 260 261 EALTH M K the American College of Obstetricians and Gynecologists endorsed the the American College of Obstetricians ACOG makes the same claims as the AAP’s 2012 statement. Insofar as the AAP discussed in this Article. AAP, it faces the same liability as the United States. Thus, circumcision is upwards of a $1.75 billion per year industry, not the United States. Thus, circumcision is upwards counting hospitals selling foreskins to industry. AAP Speaking Points, ment, D per year financial bias in favor of MGC. in favor bias financial per year posing Circumcision concluded that the AAP is in it for the money of its posing Circumcision concluded that member pediatricians. help parents, who want to protect their children, they would not offer want to protect their children, they help parents, who parents against it. circumcision to them, and would warn ber physicians as “stakeholders,” a term usually reserved for investors in reserved for a term usually as “stakeholders,” ber physicians to ignore a fiduciary duty physicians have enterprise, whereas a for-profit of boys and best interests and to act in the financial interests, their own become. the men they 2012). niently protects the circumcision industry. niently protects the In addition, one member of the 2012 Task Force on Circumcision that In addition, one member of the 2012 had an undisclosed religious bias in issued the 2012 AAP Statement an interview, “I circumcised him my- favor of circumcision. He stated in reasons.” self . . . for religious, not medical \\jciprod01\productn\C\CJP\30-1\CJP102.txt guidelines reveal that the committee was very concerned about the de- that the committee was very concerned guidelines reveal the income of revenues, which adversely impacted cline in Medicaid of all circumci- Medicaid pays for about one-third AAP members as sions. given the serious efforts in both the United States and Europe to ban efforts in both the United States given the serious option for parents the AAP wanted to protect the circumcision outright, to elect circumcision. H - sion.org/wp-content/uploads/2016/08/commentary-on-american-academy-of-pediatrics-2012 DOC Commentary]. circumcision-policy-statement.pdf [hereinafter 2020] 2020] (2011). Among Public and Private US Payers Despite Health Benefits, 30 H resented the AAP’s finance committee. the AAP’s finance resented C Y cjp_30-1_42664 Sheet No. 44 Side A 44 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 44 Side B 11/12/2020 09:05:36 R M K C Y 278 EDIAT- . P CAD [Vol. [Vol. 30:45 11-NOV-20 14:50 . A M (2020), https://www.aap. supporting technical supporting technical OLICY OLICY P 272 Seq: 36 Seq: and they continue to cite NITIATIVES I 277 UBLIC UBLIC P EALTH H unknown AW AW AND ENTAL L supra note 39. supra note 188. supra note 187. supra note 187; see also Policy Statements, A and confidential “Speaking Points” to its member and confidential and the AAP did not replace them or revoke them, and the AAP did not replace them 273 275 OURNAL OURNAL OF J circumcision policy statement; circumcision policy Although the 2012 guidelines automatically expired five Although the 2012 guidelines automatically 271 274 ORNELL ORNELL They also comply with all rules of medical ethics and the law. In ethics and the law. rules of medical comply with all They also Medicaid officials previously cited 2012 AAP Statement, Adler Medicaid, supra note 161. Letter from the Massachusetts Office of Medicaid to Ronald Goldman (May 12, 2017) See supra Part II.A. and n.101. of Infant Circumcision, But Final Say is See New Evidence Points to Greater Benefits 2012 AAP Statement, 2012 AAP Technical Report, AAP Speaking Points, See Policy Statements, AAP: M 270 This subpart suggests that the AAP, a medical and trade organiza- that the AAP, a medical and This subpart suggests To reiterate, physicians, whose job is to serve each patient’s medical each patient’s medical job is to serve physicians, whose To reiterate, Intentional Fraud by the AAP in 2012 the AAP by Fraud Intentional 276 , https://www.aap.org/en-us/advocacy-and-policy/aap-health-initiatives/Mental-Health/ 276 277 278 270 271 272 273 274 275 they remain the AAP’s last word disseminated to the public on the sub- they remain the AAP’s last word disseminated ject. Pages/AAP-Policy-Statements.aspx (“All policy statements from the American Academy of Pages/AAP-Policy-Statements.aspx (“All policy statements from the American Academy at Pediatrics automatically expire 5 years after publication unless reaffirmed, revised, or retired or before that time.”). - (“MassHealth coverage of clinical services is based on recommendations of professional medi cal societies and expert panels, a review of existing peer-reviewed literature, and the most recent data as detailed below,” including the American Academy of Pediatrics Circumcision Policy Statement in 2012). https://www.aap.org/en-us/about-the- Still Up to Parents, Says AAP, AAP (Aug. 27, 2012), - aap/aap-press-room/Pages/New-Benefits-Point-to-Greater-Benefits-of-Infant-Circumcision [hereinafter AAP Press Release]. But-Final-Say-is-Still-Up-to-parents-Says-AAP.aspx org/en-us/advocacy-and-policy/aap-health-initiatives/Mental-Health/Pages/AAP-Policy-State org/en-us/advocacy-and-policy/aap-health-initiatives/Mental-Health/Pages/AAP-Policy-State ments.aspx. or scientific report; This Part of the Article suggests that the AAP’s claims in 2012 were This Part of the Article suggests parents and the public about cir- knowingly false, intended to mislead \\jciprod01\productn\C\CJP\30-1\CJP102.txt 80 C pediatricians to help them answer questions by the media, which would pediatricians to help them answer parents might have when offered also help them answer questions that circumcision. the AAP’s 2012 guidelines as reasons to continue Medicaid coverage. the AAP’s 2012 guidelines as reasons years later in 2017, the face of credible accusations dating back to 1985 that MGC is child accusations dating back to 1985 the face of credible and constructive and now breach of fiduciary duty abuse and a battery, is lawful and that it bear the burden of proving that it fraud, physicians advantage of boys. does not take unfair to meet that burden physicians who circumcise, failed tion representing widely publicized it published in 2012: its in thes various statements press release; RICS C. grounds on medical all interventions the burden of justifying needs, bear of the pa- the best interests is in that the intervention and of proving tient. cjp_30-1_42664 Sheet No. 44 Side B 44 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 45 Side A 11/12/2020 09:05:36 1 1 8 279 11-NOV-20 14:50 ? Seq: 37 Seq: RAUD F unknown IRCUMCISION IRCUMCISION A C S I Fraudulent Medical Claims and Omissions Medical Claims Fraudulent Systematic evaluation of English-language peer-re- Systematic evaluation of English-language 2010 indicates that viewed literature from 1995 through circumcision of preventive health benefits of elective of the procedure. male newborns outweigh the risks in the risk of uri- Benefits include significant reductions of life and, subse- nary tract infection in the first year acquisition of HIV quently, in the risk of heterosexual sexually transmitted and the transmission of other infections. when performed by The procedure is well tolerated with appro- trained professionals under sterile conditions are infrequent; priate pain management. Complications are rare. Male most are minor, and severe complications newborn period has circumcision performed during the than when per- considerably lower complication rates formed later in life. enough to recom- Although health benefits are not great mend routine circumcision for all male newborns, the benefits of circumcision are sufficient to justify access to this procedure for families choosing it and to warrant third-party payment for circumcision of male newborns. It is important that clinicians routinely inform parents of the health benefits and risks of male newborn circumcision in an unbiased and accurate manner. See supra Part IV.A.1. 1. is circumcision or unnecessary above, non-therapeutic As discussed 279 M K cumcision, did deceive them, and continues to deceive them, and thus them, and deceive to and continues them, deceive did cumcision, of intentional fraud. the elements claims satisfy that the AAP’s violence, the opposite of medicine. It was performed in the past and it performed in the medicine. It was the opposite of violence, esthetic reasons for religious, cultural, and continues to be performed medical circumci- do with medicine. Non-therapeutic having nothing to condition, is an that is not needed to treat a medical sion, or circumcision public to perceive as popularized it and caused the oxymoron. Physicians many new false the foreskin; by advancing medicine by demonizing the procedure benefits; and by falsely portraying claims about its medical below, in 2012, the if any. As discussed as having few disadvantages, promote the prac- use these time-tested strategies to AAP continued to makes a variety of circumcision policy statement tice. The AAP’s 2012 as follows. claims that we will show are unsustainable, \\jciprod01\productn\C\CJP\30-1\CJP102.txt 2020] 2020] C Y cjp_30-1_42664 Sheet No. 45 Side A 45 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 45 Side B 11/12/2020 09:05:36 M K C Y 281 284 , 3 Fron- [Vol. [Vol. 30:45 11-NOV-20 14:50 Medical ex- 10 (2020). 283 434 (2013) (“The policy IOETHICS OLICY OLICY P THICS Seq: 38 Seq: 280 . E ED UBLIC UBLIC P 8 (2017); Brian D. Earp, Do the Benefits of THICS unknown have exposed the AAP’s claims as un- have exposed the AAP’s claims as E , Opinion 5.5 (2001). AW AW AND L 286 note 187. THICS E EDIATRIC note 254. As to UTIs, the AMA cited one model of deci- supra note 254. As to UTIs, the AMA cited one model supra note 7. supra EDICAL M OURNAL OURNAL OF J ODE OF and legal scholars ORNELL ORNELL 285 The AMA Code of Medical Ethics Opinion 5.5 makes clear that of Medical Ethics Opinion 5.5 makes The AMA Code Parents ultimately should decide whether circumcision is is circumcision whether decide should ultimately Parents will need to male child. They interests of their in the best of their own in the context information weigh medical The beliefs and practices. ethical, and cultural religious, these other not outweigh benefits alone may medical families. for individual considerations Frisch Cultural Bias, of Brian D. Earp & David M. Shaw, Cultural Bias in American Medicine: The Case J. Steven Svoboda and Robert S. Van Howe, Out of Step: Fatal Flaws in the Latest 2012 AAP Statement, Id. 1999 AMA Statement, AMA C 282 This policy statement shows that the AAP knows that MGC is pain- shows that the AAP knows that This policy statement 284 285 286 280 281 282 283 Infant Male Circumcision, 1 J. P AAP Policy Report on Neonatal Circumcision, 39 J. M ful; that it risks complications, the only dispute being to what extent; and the only dispute being ful; that it risks complications, for all newborns. not recommend the operation that the AAP does This leads to the conclusion that MGC is still not medically justified, as conclusion that MGC is still not medically This leads to the circumcision state- concluded in 1999 in its only the AMA essentially ment. ethicists, \\jciprod01\productn\C\CJP\30-1\CJP102.txt 82 C when a physician has a patient, a person with medical needs, physicians has a patient, a person with medical when a physician that are medically and provide interventions “should only recommend appropriate—i.e., grounded—and scientifically the physi- that reflect about the risks and likely benefits of cian’s considered medical judgment goals for care.” available options in light of the patient’s sustainable, for the reasons discussed below. The nearby Canadian Pedi- sustainable, for the reasons discussed endorsed the AAP position on atric Society, which has historically Male Circumcision Outweigh the Risks? A Critique of the Proposed CDC Guidelines perts representing pediatric associations in Northern Europe, perts representing pediatric associations - statement and technical report suffer from several troubling de?ciencies, [including] the exclu sion of important topics and discussions, an incomplete and apparently partisan excursion - through the medical literature, improper analysis of the available information, poorly docu not mented and often inaccurate presentation of relevant ?ndings, and conclusions that are supported by the evidence given.”). sion making concluding that, “the incidence of UTI would have to be substantially higher in sion making concluding that, “the incidence as a preventive measure against this condition.” uncircumcised males to justify circumcision is rare and occurs later in life, the use of As to penile cancer, it stated, “because this disease As to STIs and HIV, it stated, “behav- circumcision as a preventive practice is not justified.” for acquisition of HIV and other sexually ioral factors are far more important risk factors and circumcision cannot be responsibly transmissible diseases than circumcision status, viewed as ‘protecting’ against such infections.” tiers in Pediatrics 88 (2015) [hereinafter Earp Critique]; Alex Myers & Brian D. Earp, What Is The Best Age to Circumcise? A Medical and Ethical Analysis, B cjp_30-1_42664 Sheet No. 45 Side B 45 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 46 Side A 11/12/2020 09:05:36 3 3 T- 8 294 HILD & C LOODSTAINED The AAP B 11-NOV-20 14:50 296 HE AEDIATRICS It does not discuss It does not discuss , http://www.intactamerica. The AAP bears the ? 289 295 Seq: 39 Seq: MERICA RAUD A F NTACT nor that it is rarely necessary to nor that it is rarely 288 unknown 77 (2018) [hereinafter Van Howe Response]. , https://www.arclaw.org; and T , https://www.doctorsopposingcircumcision.org; A 287 HILD note 187. note 187. IRCUMCISION IRCUMCISION A C C IOETHICS S I supra supra IRCUMCISION its failure to disclose opposition to the practice, its failure to disclose opposition to C note 6, at 1563. nor that Giannetti accused the AAP of possible fraud accused the AAP of possible fraud nor that Giannetti 293 291 IGHTS OF THE supra 803 (2008). Undisclosed Disadvantages and Understated Risks Undisclosed Disadvantages and Understated Material Omissions Material R PPOSING it does not disclose that boys and men may be angry at their that boys and men may be angry it does not disclose O These facts, together with the AAP’s incomplete and biased with the AAP’s incomplete and These facts, together THICS a. b. 290 292 . E 2012 AAP Statement, Id. Id. Id. Giannetti, Robert S. Van Howe, Response to Vogelstein: How the 2012 AAP Task Force on Opposition groups in the U.S. include I 2012 AAP Statement, R.S. Van Howe, J.S. Svoboda, Neonatal pain relief and the Helsinki Declaration, 36 , 20 P S. Todd Sorokan et al., Newborn Male Circumcision 311 (2015). ED OCTORS The AAP’s 2012 circumcision policy statement does not disclose to does not disclose policy statement 2012 circumcision The AAP’s The AAP’s statement does not disclose that males value the foreskin The AAP’s statement does not disclose , https://www.bloodstainedmen.com. 289 290 291 292 293 294 295 296 287 288 EN EALTH M K circumcise boy in childhood or men in adulthood. circumcise boy in review of the medical literature, its failure to disclose and entertain alter- literature, its failure to disclose review of the medical native paradigms, J. L. M circumcision, failed to follow the AAP’s lead in its 2015 policy state - policy in its 2015 lead the AAP’s follow failed to circumcision, remains in effect. ment, which burden of justifying all of its claims, including the claim that circumci- burden of justifying all of its claims, gives no evidence that the claim is sion pain is “well-tolerated,” but it boys undergoing the surgery true. Countless videos online of newborn of clinical studies shows that infant show the opposite, and a plethora not anesthetic is used. circumcision is painful whether or org; D parents that physicians in most countries outside the United States leave in most countries outside the parents that physicians boys alone, the genitals of healthy M or that MGC is harmful, even though pain and the loss of the foreskin or that MGC is harmful, even though harms. constitute harms and indeed substantial H and its failure to acknowledge or discuss the 2012 Cologne case holding and its failure to acknowledge or discuss an intent to mislead the public and that circumcision is a crime, all evince to perpetuate it. parents about circumcision in order \\jciprod01\productn\C\CJP\30-1\CJP102.txt in 1999. parents for having given permission for it, or that parents may regret given permission for it, or that parents for having having done so, TORNEY FOR THE 2020] 2020] Circumcision Went Wrong, 32 B the anatomy and physiology of the foreskin, the body part being re- physiology of the foreskin, the the anatomy and to be medically since the procedure is unlikely moved, or the diagnosis, indicated; C Y cjp_30-1_42664 Sheet No. 46 Side A 46 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 46 Side B 11/12/2020 09:05:36 M K C Y 298 305 even 304 [Vol. [Vol. 30:45 11-NOV-20 14:50 . 91, 91 (2020). clinical studies CI 301 . S ED OLICY OLICY P There also is no central There also 299 Seq: 40 Seq: . J. M 108 (2018). AK 300 UBLIC UBLIC P URGEON unknown AW AW AND L note 187. that MGC also causes post-operative pain. post-operative causes MGC also that supra 297 OURNAL OURNAL OF J supra note 5. Gairdner did not explicitly state that all of these deaths oc- and insofar as circumcision removes the erogenous foreskin, removes the erogenous and insofar as circumcision which it must know since those operations keep pediatric urolo- which it must know since those operations ORNELL ORNELL 34, 37 (2005). 302 2012 AAP Technical Report, supra note 33, at e772. 2012 AAP Technical Report, supra note 33, at e772–73. M. Frisch & J. Simonsen, Cultural Background, Non-Therapeutic Circumcision and R. Darby, The Sorcerer’s Apprentice: Why Can’t We Stop Circumcising Boys?, 4 AAP Speaking Points, supra note 188, claiming, “Isolated cases of morbidity and Gairdner, 2012 AAP Statement, - Caglar Munevveroglu & Mehmet Gunduz, Postoperative pain management for cir Frisch Cultural Bias,, supra note 7, at 631–32. 303 The AAP’s claims that “[c]omplications are infrequent” and that infrequent” and are claims that “[c]omplications The AAP’s In 1999, the AAP stated that circumcision risks causing many minor In 1999, the AAP stated that circumcision 300 301 302 303 304 305 297 298 299 ONTEXTS C mortality after ritual circumcision have been reported in the U.S., [but they] have been related to circumcisions that were not performed under sterile conditions.” curred in a sterile setting, but he refers to circumcision operations in hospitals, so likely many of the deaths occurred in a sterile hospital setting. , 36 P cumcision; Comparison of frequently used methods though Gairdner disclosed that it can be in his famous 1949 article. though Gairdner disclosed that it can “severe complications are rare” were not made in good faith because the in good faith rare” were not made are “severe complications complica - and severity of report that the rate in its technical AAP stated are unknown. the procedure tions following Shortly thereafter, the United Kingdom’s National Health Service Shortly thereafter, the United Kingdom’s Thus, the AAP intentionally downplayed pain. AAP intentionally Thus, the \\jciprod01\productn\C\CJP\30-1\CJP102.txt 84 C the complication rate is 100%. Thus, the AAP intentionally downplayed rate is 100%. Thus, the AAP intentionally the complication and thereby their misled the public, parents, complications, intentionally do so since it has not renounced its sons about them, and continues to 2012 guidelines. to disclose the same risks again and serious injuries. The AAP’s failure statement evinces an intent to hide when widely publicizing its 2012 to disclose but failed to disclose that those risks. The AAP had a duty discomfort or poor cosmetic “badly performed circumcisions, causing operations and repair jobs, are com- outcomes, often necessitating repeat mon,” gists busy. The AAP acknowledges that MGC can be fatal when ritual gists busy. The AAP acknowledges non-sterile setting but falsely implies circumcisions are performed in a in a sterile hospital setting, that it is never fatal when performed also did not disclose did not also have reported an average post-circumcision rate of meatal stenosis of average post-circumcision rate of have reported an 5–20%; the Risk of Meatal Stenosis and Other Urethral Stricture Disease: Two Nationwide Register- Based Cohort Studies in Denmark 1977–2013, 16 S registry for reporting severe complications or post-operative complica- severe complications or post-operative registry for reporting acute com- the AAP committee claimed a significant tions. Dr. Brady of when European 1 in 500 infants circumcised or .2%, plication rate of rate for circum- higher 1.2% to 3.8% complication centers report a much newborn and non-newborn periods; cision in both the cjp_30-1_42664 Sheet No. 46 Side B 46 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 47 Side A 11/12/2020 09:05:36 R R 5 5 8 The Com- 313 311 from the 44 (Douglas 2 11-NOV-20 14:50 In addition, in EDIATRICS 309 P The AAP evidently AAP evidently The ? 306 Seq: 41 Seq: THICS IN RAUD E F when changing form changes when changing form without mentioning or refuting without mentioning 308 LINICAL 310 307 C - Dr. Brady’s claim, then, is that al in 312 unknown note 187. IRCUMCISION IRCUMCISION A C S I supra note 285. 686 (1999) [hereinafter 1999 AAP Statement]. supra EDIATRICS 2012 AAP Statement, 2012 AAP Technical Report, supra note 39, at e769. Earp Critique, 2012 AAP Technical Report, supra note 39, at e756. American Academy of Pediatrics Task Force on Circumcision, Circumcision Policy Debate between Steven Svoboda, Attorneys for the Right of the Child, and Michael Id. E. Charlisse Caga-anan & Anthony J. Thomas, Jr., Requests for “non-therapeutic” E. Charlisse Caga-anan & Anthony J. Thomas, The AAP fraudulently claims that circumcision does not appear to claims that circumcision does The AAP fraudulently 307 308 309 310 311 312 313 306 M K Statement, 103 P at Brady & Douglas Diekema, Task Force on Circumcision, American Academy of Pediatrics, The Twentieth Pitts Lectureship in Medical Ethics at the Medical University of South Carolina in Charleston, South Carolina (Oct. 18–19, 2013), https://www.arclaw.org/debates/arc-releases -video-from-charleston-debate-victory-over-american-academy-of-pediatrics [hereinafter Debate]. stopped paying for non-therapeutic circumcision. for non-therapeutic paying stopped penis will reduce sexual sensitivity for life. At a 2013 debate, when penis will reduce sexual sensitivity and mobile foreskin could not affect asked how removing the innervated Brady replied, “The question is, then, penile sensitivity and function, Dr. capable of providing accommodation are the other portions of the penis and function? . . . [T]here’s no to maintain the same level of sensitivity . . there wouldn’t be a loss . . . it turns evidence that there is a valid loss . out that we can’t identify a loss.” mon sense suggests that irreversibly removing highly vascularized and that irreversibly removing highly mon sense suggests area of up to 90•cm densely innervated tissue with a surface 1999, the AAP acknowledged anecdotal reports that “penile sensation anecdotal reports that 1999, the AAP acknowledged males.” In 2012, the are decreased for circumcised and sexual sensitivity “does not appear to adversely claim that MGC AAP makes the ipse dixit . . . sensitivity”, affect penile sexual does not want parents to know that their son might die from the opera- might die from that their son want parents to know does not that they men are angry protests that many AAP knows from tion. The that in its policy statement failed to disclose but it were circumcised, harm. cause psychological MGC can function and removing the foreskin plainly destroys its ability to fold and the foreskin plainly destroys its function and removing selected to do by evolution. unfold as it was sexually the anecdotal reports it mentioned before showing that it might. it mentioned before showing that the anecdotal reports though MGC removes the nerves of the foreskin, somehow other parts of though MGC removes the nerves of the AAP does not know how. the penis make up for the loss, but adversely affect penile sexual function, adversely affect penile S. Diekema et al. eds., 2011). \\jciprod01\productn\C\CJP\30-1\CJP102.txt 2020] 2020] AAP seems intent on claiming that circumcision does not reduce sexual AAP seems intent on claiming that to the contrary; thus, this is an- sensitivity and function despite evidence claim. other intentionally fraudulent medical interventions in children: male circumcision, C Y cjp_30-1_42664 Sheet No. 47 Side A 47 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 47 Side B 11/12/2020 09:05:36 M K , C Y The 324 ICTIONARY This must . D [Vol. [Vol. 30:45 11-NOV-20 14:50 ED 315 322 : M Even if true, UTIs The 1978 case of The 1978 case of This argument like- 321 316 OLICY OLICY It is irresponsible for P 323 ICTIONARY 325 ”. Seq: 42 Seq: D REE UBLIC UBLIC P The AAP knows that MGC only The AAP knows CQUISITION 318 59 (2005). unknown AW AW AND There, the New York Court of Appeals There, the New York The AAP’s technical report states that technical report The AAP’s The AAP’s argument that MGC reduces The AAP’s argument L supra note 33, at e767. supra note 33, at e764. supra note 33, at e756. 317 HIV A 314 319 NFECTIONS ”. also fails to consider confounding factors that also fails to consider supra note 254. supra note 7, at 7. supra note 311. supra note 311. 320 ISK OF R ISEASES OURNAL OURNAL OF J D Exaggerated and Irrelevant Claims About Actual and Actual About Claims and Irrelevant Exaggerated Potential Medical Benefits Medical Benefits Potential None of the studies in North America found that circumci- None of the studies in North America c. 326 at 719. ORNELL ORNELL EDUCES THE REVENTS Simcuski v. Saeli, 377 N.E.2d 713 (N.Y. 1978). Simcuski v. Saeli, 377 N.E.2d 713 (N.Y. 1978). Id. 1999 AAP Statement, 2012 AAP Technical Report, Van Howe RS, Effect of confounding in the association between circumcision status Frisch Cultural Bias, 2012 AAP Technical Report, 1999 AAP Statement, 1999 AMA Statement, See, e.g., Edward O. Laumann et al., Circumcision in the United States: Prevalence, 2012 AAP Technical Report, Id. See, e.g., Definition of Risk Compensation, F “R “P 317 318 319 320 321 322 323 324 325 326 314 315 316 stated that a physician had falsely and fraudulent assured the plaintiff had falsely and fraudulent stated that a physician been effective. that a treatment had “[s]pecific benefits from male circumcision were identified for the pre- were identified circumcision benefits from male “[s]pecific of of HIV, transmission acquisition urinary tract infections, vention of infections, and penile cancer.” some sexually transmitted can impact testing rates and accurate UTI detection. can impact testing rates and accurate and urinary tract infection, 51 J. I Prophylactic Effects, and Sexual Practice, 277 JAMA 1052 (1997) (finding “no significant AMA concluded that same year that “circumcision cannot be responsibly AMA concluded that same year that infections.” viewed as ‘protecting’ against such have been intended to defraud as MGC does not prevent any of these to defraud as MGC does not prevent have been intended protection and rely upon this false claim might forego diseases. Men who called “risk compensation.” thereby contract HIV, the AAP and physicians in the U.S. to promote circumcision as reducing the AAP and physicians in the U.S. men who engage in unprotected het- the risk of HIV acquisition because it. The AAP limited its discussion to erosexual sex still risk contracting studies performed in North studies of African men, ignoring completed America. . https://medical-dictionary.thefreedictionary.com/Risk+Compensation has “potential benefits” or slightly reduced risks, as that is what it called or slightly reduced risks, as has “potential benefits” guidelines. them in its 1999 the risk of UTIs by 1% the risk of UTIs by \\jciprod01\productn\C\CJP\30-1\CJP102.txt 86 C wise fails. Although the AAP claimed in 1999 that “there is a substantial wise fails. Although the AAP claimed in men with risk for HIV body of evidence that links non-circumcision that “behavioral factors appear to be infection,” it nonetheless concluded status” in acquiring HIV. far more important than circumcision can easily be treated with antibiotics without tissue loss. can easily be treated with antibiotics Simcuski v. Saeli is on point. cjp_30-1_42664 Sheet No. 47 Side B 47 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 48 Side A 11/12/2020 09:05:36 , . 7 7 ED 8 M NFECTIOUS REVENTION Boys are EXUAL 11-NOV-20 14:50 333 & P After finding 331 Shortly before the before Shortly ONTROL C 327 ? Seq: 43 Seq: ISEASE RAUD D . Report No. 04-10 (July 2004); Lee F The AAP should be warning The AAP should TR FOR . . C 332 ES TRS R S ONE e861 (2007); Anne G. Thomas, et al., S ONE e861 (2007); Anne G. Thomas, et al., O unknown EALTH H supra note 33, at e784. IRCUMCISION IRCUMCISION A AVAL C where the prevalence of HIV is high (note that is high (note prevalence of HIV where the S note 330, at 317. I 329 HIV Basics: Prevention, U.S. C in a country such as the United States where the preva- as the United States where the in a country such Even granting the AAP’s claim of a 60% relative risk reduc- claim of a 60% relative the AAP’s Even granting 330 . 316, 326 (2011). 328 ED 59 (2009). This is a matter of simple arithmetic. Assume that the relative risk reduction (1 - Boyle and Hill, supra See, e.g., Declining Rates in Male Circumcision amidst Increasing See, e.g., Zohar Mor, et al., Declining Rates in Male Circumcision amidst of Carlos E. Rodriguez-Diaz, et al., More than Foreskin: Circumcision Status, History 2012 AAP Technical Report, Gregory J. Boyle & George Hill, Sub-Saharan African Randomised Clinical Trials 331 332 333 327 328 329 330 ISEASE M K (percentage positive in treatment group/percentage positive in control group)) is 60%. If the (percentage positive in treatment group/percentage positive in control group)) is 60%. If an infection rate in African studies is 0.86666% in the treatment group, this would mean - infection rate of 2.16666% in the control group. The absolute risk reduction (percentage posi tive in control group - percentage positive in treatment group) would be 1.3%. If the infection rate in the control group in the United States were 0.216666%, then to maintain a 60% relative risk reduction, the infection rate in the treated group would be 0.0816666%, and the absolute risk reduction would be only 0.13%. HIV/STI, and Sexual Risk in a Clinic-Based Sample of Men in Puerto Rico, 9 J. S HIV/STI, and Sexual Risk in a Clinic-Based Sample sion significantly reduces the risk of HIV infection. of HIV the risk reduces significantly sion not at risk of sexually transmitted diseases anyway. It is fraudulent to not at risk of sexually transmitted to elect circumcision or to perform advance HIV as a reason for parents the operation. numerous flaws in the African study, Boyle and Hill wrote in 2012, in the African study, Boyle and numerous flaws “‘Condom prevention.’ circumcision is essential for HIV use after male use is still needed of male circumcision, if condom What is the purpose transmission of HIV?” to prevent sexual 2933 (2012). release of the AAP’s 2012 guidelines, one study from Puerto Rico found from Puerto guidelines, one study the AAP’s 2012 release of than in- greater risk of HIV at significantly men were that circumcised tact men. using circumcision as a preventive measure against HIV as a preventive measure against all men against using circumcision expensive alterna- less invasive, and much less because more effective, limiting exposure to infected sexual tives are readily available, such as and the use of condoms. partners, pre-exposure prophylaxis, the 60% relative risk reduction in this content is a 1.3% absolute risk is a 1.3% absolute in this content relative risk reduction the 60% reduction), differences between circumcised and uncircumcised men in their likelihood of contracting sex- differences between circumcised and uncircumcised ually transmitted diseases.”). D \\jciprod01\productn\C\CJP\30-1\CJP102.txt lence is much lower, if the relative risk reduction were the same, the if the relative risk reduction lence is much lower, would be much lower as well. absolute risk reduction tion in HIV in Africa, tion in HIV Prevalence of Circumcision and Its Association With HIV and Sexually Transmitted Infections Prevalence of Circumcision and Its Association in A Male US Navy Population, N 2020] 2020] http://www.cdc.gov/hiv/basics/prevention.html. Male Circumcision and Risk of HIV Infection among Heterosexual African Warner, et al., Male Circumcision and Risk of HIV Infection Transmitted Disease Clinics, 199 J. I American Men Attending Baltimore Sexually Evidence of its Public Health Benefit, 2 PL Methodological, Ethical and Legal Concerns, into Male Circumcision and HIV Transmission: 19 J. L. M C Y cjp_30-1_42664 Sheet No. 48 Side A 48 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 48 Side B 11/12/2020 09:05:36 M K C Y 342 [Vol. [Vol. 30:45 Even if the 11-NOV-20 14:50 345 1 (2013) [hereinafter Boys are not at risk THICS OLICY OLICY . E 344 P - the center claim, This ED Seq: 44 Seq: 334 ”. UBLIC UBLIC P ISKS Fifth, since MGC harms all boys R 339 . 373, 374 (2012). Fourth, men who have a foreskin and Fourth, men who To comply with the ethical rule of pro- To comply with the ethical rule of unknown AW AW AND 338 340 L HILOS supra note 33. supra note 33. note 7, at 799. note 335. That is speculation, not science. Third, the That is speculation, & P Second, the AAP stated in its 2012 technical Second, the AAP 337 supra note 7, at 798. supra note 187. ARE supra 335 UTWEIGH UTWEIGH THE supra so it cannot logically conclude that the benefits so it cannot logically C O The Principle of Proportionality Revisited: Interpretations and Ap- 336 (July 20, 2019), https://www.theguardian.com/society/2019/jul/21/ OURNAL OURNAL OF en, J EALTH Finally, regardless, as Frisch et al. write, “[t]he cardinal Finally, regardless, as Frisch et al. physicians must advise men to use the easier and more physicians must advise men to use . H 343 UARDIAN ENEFITS ED 341 Cultural Bias, B ORNELL ORNELL 15 M oran Hermer´ HE Respectful Dialogue, 2012 AAP Technical Report, Infant Male See e.g., Gary Nunn, Foreskin Reclaimers: the “Intactivists” Fighting Frisch G¨ 1975 AAP Statement, supra note 38. Frisch Cultural Bias, Id. Id. 2012 AAP Statement, The AAP Task Force on See generally, The AAP Task Force on Circumcision 2012, 2012 AAP Technical Report, “T 338 339 340 341 342 343 344 345 334 335 336 337 men injured by circumcision or unhappy to have been circumcised would or unhappy to have been men injured by circumcision beg to differ with the AAP’s claim. AAP assigned no value to the foreskin and thus left it out of the equation value to the foreskin and thus left it AAP assigned no importance. despite its manifest report that “[t]he true incidence of complications after newborn circum- true incidence of complications after report that “[t]he cision is unknown,” Circumcision, G of adult diseases, so they “do not represent compelling reasons for sur- of adult diseases, so they “do not decide for themselves.” gery before boys are old enough to and men with little prospect of benefiting any boy or man, the disadvan- and men with little prospect of benefiting tages outweigh the advantages. portionality, and to avoid STDs, such as safe sexual practices, human papilloma virus and to avoid STDs, such as safe sexual which avoid the risks and harms of vaccination, and cancer screening, circumcision. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 88 C outweigh the risks. Moreover, in 2013, the AAP backpedaled, writing, Moreover, in 2013, the AAP backpedaled, outweigh the risks. risks of the proce- were felt to outweigh the “[t]hese benefits dure”(emphasis added). medical question should not be whether circumcision can prevent dis- medical question should not be whether be prevented.” ease, but how can disease can best effective methods to avoid penile cancer, such as washing the penis, effective methods to avoid penile foreskin-reclaimers-the-intactivists-fighting-infant-male-circumcision (quoting from a male foreskin-reclaimers-the-intactivists-fighting-infant-male-circumcision (quoting from a male that there was “immense loss and grief” not have the chance “to experience sex the way nature intended it”). piece of the AAP’s now-expired 2012 circumcision statement, as an- statement, 2012 circumcision the AAP’s now-expired piece of release, is press in the contemporaneous to the public nounced its circum- claim before in never made this First, the AAP unsustainable. national- 2012; it is the only 1971 and statements between cision policy make this knowledge, to the world, to our society in level pediatric or balancing no recognized method of weighing claim; and it employed risks. either benefits or Respectful Dialogue]. , 39 J. M Neonatal Circumcision: a call for respectful dialogue plication, cjp_30-1_42664 Sheet No. 48 Side B 48 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 49 Side A 11/12/2020 09:05:36 R 9 9 ”. 8 . L. ED are so- 352 11-NOV-20 14:50 NALOGOUS (Jan. 22, 2013), A . 22 (2013), https:// 349 1088 (2010), https:// OT Circumcision thus Circumcision HILD NTACTION N 19 (Denniston et al., eds., C ? 346 RE EDIATRICS Seq: 45 Seq: A RAUD GAINST F A A European physician writes: physician writes: A European IRCUMCISION C 347 UTTING The male and female prepuce, in Both MGC and FGC are painful, C 351 353 IOLENCE EMALE V unknown & F ENITAL ALE IRCUMCISION IRCUMCISION A G C OUNCIL ON S I note 29, at 338. EMALE F NGO C L ’ NT I Unproven, uncertain benefits exist for both interventions: a benefits exist for both interventions: Unproven, uncertain Baskin et al., supra note 19. Female Minors]. 348 but that view is untenable. ALE AND The two procedures are not analogous. Female genital are not analogous. Female genital The two procedures cutting is not cir- cutting is mutilation. Female genital of female genital cut- cumcision. The scientific evidence benefits. In male ting indicates only harms and no health and the procedure circumcision, the anatomy is different, been shown scientifi- is different. Male circumcision has being circum- cally to provide benefits to the person for safety. cised, and has a proven track record 350 Frisch Cultural Bias, supra note 7, at 799–800;Policy see also Comm. on Bioethics, European Doctors Say, “Routine Circumcision is Insane”, I AAP Speaking Points, supra note 188. See, e.g., Ruari D. McAlister, A Dangerous Muddying of the Waters?, 24 M See Brigman, supra See Christopher J. Cold & Kenneth A. McGrath, Anatomy and Histology of the Penile See Violating Children’s Rights: Harmful Practices Based on Tradition, Culture, Religion Violating Children’s Rights: Harmful Practices “M . 259, 263 (June 2016). 348 349 350 351 352 353 346 347 EV M K Statement: Ritual Genital Cutting of Female Minors, 125 P Statement: Ritual Genital Cutting of Female and Clitoral Prepuce in Primates, M or Superstition, potential medical benefits did outweigh the risks, unnecessary genital unnecessary the risks, outweigh did benefits medical potential rights. violates boys’ consent still surgery without pediatrics.aappublications.org/content/pediatrics/early/2010/04/26/peds.2010-0187.full.pdf pediatrics.aappublications.org/content/pediatrics/early/2010/04/26/peds.2010-0187.full.pdf [hereinafter “fails to meet the commonly accepted criteria for the justification of pre- for the justification accepted criteria the commonly “fails to meet in children.” procedures ventive medical “[T]he [AAP’s] claim, that there are health benefits in excising a piece of in excising there are health benefits claim, that “[T]he [AAP’s] as would is as absurd of a healthy neonate, from the penis healthy tissue a neonate has health amputating the left little finger of be the claim that benefits.” Plenum Pub. N.Y. 1999). risky, and harmful, and both can result in mutilation, as the AAP has risky, and harmful, and both can Granted, some scholars support the view that the procedures are not anal- Granted, some scholars support the ogous, \\jciprod01\productn\C\CJP\30-1\CJP102.txt males the foreskin of the penis and in females the clitoral hood, males the foreskin of the penis and missing left little finger would avoid the risk of a potential peronychial finger would avoid the risk of a potential missing left little infection in that finger. https://intaction.org/european-doctors-say-routine-circumcision-is-insane/. R 2020] 2020] The AAP’s 2012 “Speaking Points” for members stated in answer to the “Speaking Points” for members stated The AAP’s 2012 but oppose fe- the AAP support male circumcision question, “Why does male genital cutting?”: called homologous parts. They are identical in early gestation, and their called homologous parts. They are anatomy and physiology are similar. - resourcecentre.savethechildren.net/library/violating-childrens-rights-harmful-practices-based tradition-culture-religion-or. C Y cjp_30-1_42664 Sheet No. 49 Side A 49 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 49 Side B 11/12/2020 09:05:36 M K ., C Y OSP H S ’ [Vol. [Vol. 30:45 OMEN and in this 11-NOV-20 14:50 IRCUMCISION AND 356 358 C & W , http://www.merriam- MPLICATIONS FOR THE ALE : I , M OLICY OLICY RIGHAM P Seq: 46 Seq: ICTIONARY D ONDITIONS C UBLIC UBLIC REVENTION P P ESTER -W EALTH H unknown AW AW AND note 38. ERRIAM THER L ONTROL AND O C supra —in case. every ISEASE 355 D Like FGC, MGC is a harmful traditional religio-cul- Like FGC, MGC is a harmful traditional OURNAL OURNAL OF Indeed, MGC, like FGC, meets the definition of muti - of the definition meets like FGC, MGC, Indeed, J 360 In much of the world, newborn circumcision is In much of the world, 354 RANSMISSION AND Usually Not Performed for Medical Reasons Anyway Medical Reasons Performed for Usually Not , at 4 (Jan. 31, 2008). ENTERS FOR 357 physicians have spent the past 150 years unsuccessfully at- physicians have spent the past 150 d. ORNELL ORNELL To understand the [AAP’s 2012] recommendations, one [AAP’s 2012] recommendations, To understand the - that when parents decide on circum has to acknowledge the issues are only one small piece of cision, the health puzzle. medical decision. Most circumcisions not primarily a and cultural tradition. In the are done due to religious may use the conflicting medical West, although parents their own beliefs and desires, for the literature to buttress want for a wide vari- most part parents choose what they ety of nonmedical reasons. There can be no doubt that familial identity, religion, culture, aesthetic preference, into their decision. and personal experience all factor are doing it solely to Few parents when really questioned or ulcerative lower the risk of urinary tract infections added) sexually transmitted infections. (emphasis 359 HIV T TATES See 1975 AAP Statement, See Definition of Mutilation, M Freedman, supra note 31; Consent for Circumcision, B U.S. C See supra Part IV.A.1. For example, the technical or scientific report supporting the AAP’s 2012 circumci- Id. S The implications are profound. As discussed above The implications are profound. As In a 2016 article, Dr. Andrew Freedman of the 2012 AAP commit- Dr. Andrew Freedman of the 2012 In a 2016 article, 355 356 357 358 359 360 354 NITED ISK FOR sion policy statement is 29 pages long and contains 248 footnotes. webster.com/dictionary/mutilation. section, tee stated, R U Similarly, the U.S. Centers for Disease Control & Prevention stated in Similarly, the U.S. Centers for Disease decisions about infant circumcision 2008, “[m]any parents now make parental desires rather than health based on cultural, religious, or concerns.” \\jciprod01\productn\C\CJP\30-1\CJP102.txt 90 C - https://www.brighamandwomens.org/assets/BWH/pediatric-newborn-medicine/pdfs/circumci - sion-consent-form.pdf [hereinafter BWH Consent Form] (“many parents are interested in hav ing circumcision done for ethnic, cultural, religious or social reasons”). lation—”destroying,or other a limb or severely damaging removing, of a person” body part tempting falsely to portray MGC, which is violence, as medicine, only to tempting falsely to portray MGC, which usually not circumcised for medical acknowledge at last that boys are reasons anyway. acknowledged. cjp_30-1_42664 Sheet No. 49 Side B 49 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 50 Side A 11/12/2020 09:05:36 1 1 9 361 Female As stated, 11-NOV-20 14:50 365 In this article we In this article 362 ? Seq: 47 Seq: RAUD F It also violates their inaliena- 366 1088, 1092 (2010), https://pediatrics.aappublica- unknown IRCUMCISION IRCUMCISION A EDIATRICS - (Jan. 12, 2017), https://www.huffpost.com/entry/denmarks C S . P I Thus, the AAP could not be trusted to respect Thus, the AAP could not be trusted OST note 31, 610–11. P CAD 367 (June 2, 2010), https://www.medscape.com/viewarticle/722840 . A supra M EWS 363 UFFINGTON . N ED Freedman, M Fraudulent Legal Claims Fraudulent Legal It recommended that physicians should be sensitive to the cul- that physicians should be sensitive It recommended Id. 116. Female genital mutilation. 18 U.S. Code § Kathleen Louden, AAP Retracts Controversial Policy on Female Genital Cutting, See Healthy Boys ‘Ethically Morten Frisch, Denmark Doctors Declare Circumcision of See DOC Commentary, supra note 268, at 8 (“A task force composed of Europeans, pediatricians is not as physically harmful “However, the ritual nick suggested by some 364 2. proposal in the AAP made an indefensible legal As background, the 365 366 367 361 362 363 364 EDSCAPE M K 29000-doctors-declare-circumcision-of-healthy_b_58753ec1e4b08052400ee6b3. 29000-doctors-declare-circumcision-of-healthy_b_58753ec1e4b08052400ee6b3. M Unacceptable’, H non-circumcising cultures, would have some medically trained and some not, from historically more credible. . . . The American Acad- been much more scientifically honest and ultimately its hand and should repudiate this travesty of a emy of Pediatrics has transparently overplayed the Academy loses any more of its lingering medical pronouncement immediately, before – and endangered – bioethical credibility.”). male genital cutting. There is reason to be- and is much less extensive than routine newborn trust between hospitals and immigrant com- lieve that offering such a compromise may build and life-threatening procedures in their munities, save some girls from undergoing disfiguring eradication of FGC. It might be more effective native countries, and play a role in the eventual if federal and state laws enabled pediatricians to reach out to families by offering a ritual nick as a possible compromise to avoid greater harm.” Policy Statement—Ritual Genital Cutting of Female Minors, 125 A tural practice cloaked as medicine, not a legitimate medical practice. medical a legitimate not as medicine, cloaked practice tural Congress found that female genital cutting violated girls’ federal and female genital cutting violated Congress found that state constitutional and statutory rights. have exposed the AAP, which supports circumcision, as having no circumcision, as which supports the AAP, have exposed clothes either. ble common law right to bodily integrity and constitutes a breach of fidu- ble common law right to bodily integrity the AAP proposed would have been ciary duty, so the legislation that opposition, the AAP quickly legally invalid. In the face of widespread retired the guideline. context of FGC that would have benefited parents and physicians but not would have benefited parents and context of FGC that girls. Frisch concluded a 2017 article by paraphrasing Hans Christian Ander- Hans Christian by paraphrasing a 2017 article Frisch concluded clothes. has no emperor of circumcision son that the \\jciprod01\productn\C\CJP\30-1\CJP102.txt girls’ legal rights. As discussed below, its legal advice about MGC can- girls’ legal rights. As discussed below, not be trusted either. tural and religious reasons that motivate parents to seek female genital reasons that motivate parents to tural and religious pediatricians to that federal and state laws enable cutting, and proposed a girl’s clitoris, this families by offering a ritual nick of reach out to such greater harm of female genital cutting. would avoid the #:~:text=opposes%20%22All%20Forms%22%20of%20FGC,recommend%20it%20to%20its #:~:text=opposes%20%22All%20Forms%22%20of%20FGC,recommend%20it%20to%20its %20members.%22. 2020] 2020] tions.org/content/pediatrics/early/2010/04/26/peds.2010-0187.full.pdf [hereinafter Minors]. C Y cjp_30-1_42664 Sheet No. 50 Side A 50 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 50 Side B 11/12/2020 09:05:36 M K C Y 373 372 and 368 OCUMENTS children’s [Vol. [Vol. 30:45 11-NOV-20 14:50 376 This argument 369 371 87 (1999). OLICY OLICY AW P L Seq: 48 Seq: THE UBLIC UBLIC . J. 469, 470 (2016) (“Informed consent & P Y ED ’ See also J. Steven Svoboda, Circumcision of OL . M . P RIT OC At a 2013 debate about the ethics and At a 2013 debate about the ethics unknown AW AW AND , S 370 L and autonomy is the most fundamental rule and autonomy is the most fundamental ENDER 374 supra note 103. supra note 187, Abstract. supra note 103. As the German court held in 2012, 375 OURNAL OURNAL OF J “Parents Have the Right to Elect Circumcision” Circumcision” to Elect the Right Have “Parents a. ORNELL ORNELL , https://www.docsoffreedom.org/student/readings/equal-and-inalienable-rights. Michael Brady, supra note 312. See Cologne Decision, See supra notes 69–71;, D see generally Equal and Inalienable Rights See supra notes 76–77. Informed Consent, Code of Medical Ethics Opinion 2.1.1, AMA, https://www.ama- Cologne Decision, See 1971 AAP Statement, supra note 252. 2012 AAP Statement, to the Surgical Ross Povenmire, Do Parents Have the Legal Authority to Consent Legal scholars have argued that parents do not have the legal au- argued that parents do not have Legal scholars have Beginning in 1975, shortly after the AAP stated in 1971 that there is in 1971 that there after the AAP stated in 1975, shortly Beginning 371 372 373 374 375 376 368 369 370 REEDOM Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circum- Amputation of Normal, Healthy Tissue From cision in the United States, 7 J. G continuing to the present, the AAP has expressly claimed—evidentlythe AAP has expressly to the present, continuing as medi- has actual or potential that circumcision to the claim an alternative cal benefits—that of their son’s have the right to decide the fate parents elected circumci- do not ask parents why they foreskin. Since physicians to elect it. This is that parents have the unfettered right sion, the claim is the AAP’s position claim; indeed, it is a centerpiece of an important legal claim that MGC has medical benefits. in 2012 after the fails. For example, there was no law on the books in Germany prohibit- fails. For example, there was no law when a court held that it constitutes ing circumcision either before 2012 had always met the definition of criminal assault: religious circumcision not previously been prosecuted. a crime in Germany but the crime had legality of circumcision, Michael Brady of the AAP’s 2012 committee legality of circumcision, Michael claiming that no jurisdiction in the devoted only one slide to the law, male newborn circumcision if per- United States has any law prohibiting consent of parents. formed with appropriate informed thority to consent to the surgical amputation of normal, healthy tissue to the surgical amputation of normal, thority to consent of refuting these children, and the AAP has the burden from their infant done so. In fact, the proving otherwise, but it has not credible claims and for the claim do not cite a single legal authority AAP’s 2012 guidelines that parents have such a right. of medical ethics. F As discussed, the rights of every individual to personal security and self- As discussed, the rights of every individual inalienable common law rights determination or autonomy are also and constitutional rights; \\jciprod01\productn\C\CJP\30-1\CJP102.txt 92 C no medical indication for circumcision during the newborn period, during indication for circumcision no medical is crucial in protecting patients from aggressive, unnecessary or unwanted medical intervention is crucial in protecting patients from aggressive, unnecessary or unwanted medical intervention The and protecting doctors from criminal charges or legal actions being brought against them. - informed consent process grew out of respect for personal autonomy: the ability of an individ ual to have control over his own person.”). assn.org/delivering-care/ethics/informed-consent. male infants as a human rights violation, 39 B cjp_30-1_42664 Sheet No. 50 Side B 50 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 51 Side A 11/12/2020 09:05:36 3 3 9 380 381 the cli- 383 11-NOV-20 14:50 ? Seq: 49 Seq: These factors include the RAUD 382 F unknown IRCUMCISION IRCUMCISION A C S I supra note 187. supra note 293 (Abstract). note 102. or to the German decision holding that it is a crime. or to the German supra note 31. “Parents Will Need to Take Their Personal Preferences “Parents Will Need to Take Their Into Account” supra note 29. 379 supra note 102. supra Parham v. in Parham v. States, in 1979 effect in the United To the same 378 b. 377 “the social and emotional reaction of prospective parents to pe- Kulish, Parham v. J.R., 442 U.S. 584, 585 (1979). Brigman, Kulish, Van Howe Response, 2012 AAP Statement, Freedman, 1975 AAP Statement, supra note 38. 384 Thus, the AAP has not responded in any meaningful way to the not responded in any meaningful Thus, the AAP has The AAP has long claimed, again without citing a single statute or The AAP has long claimed, again Similarly, despite nearly 100 publications available at the time ad- Similarly, despite nearly 100 publications 377 378 379 380 381 382 383 384 M K rights to intact genitalia supersede their parents’ rights to circumcise their circumcise rights to parents’ their supersede genitalia to intact rights children. mate; parents’ religious, cultural, and personal aesthetic preferences; parents’ religious, cultural, and personal arguments by legal scholars dating back to 1985 that MGC is child abuse scholars dating back to 1985 that arguments by legal and a battery, case, that not only is it legitimate for parents to make the circumcision case, that not only is it legitimate factors into consideration in decision, but they should take non-medical doing so include their personal preferences. Since autonomy is a fundamental ethical concept, and MGC violates the Since autonomy is a fundamental ethical possible for the AAP to refute the child’s autonomy, it will never be claim that MGC is unethical. The German decision put the AAP on notice that MGC might not only be put the AAP on notice that MGC The German decision the AAP has States but also a crime. Instead, unlawful in the United argument that it is controversy. If the AAP had a good ignored the legal their child’s body, elect to amputate a healthy part of legal for parents to from parents to do so, it would have and for physicians to take orders but there is no such law. Thus, the cited some law to that effect by now, unfettered right to elect circumcision AAP’s claim that parents have the legal controversy is intentionally and its failure to disclose the fraudulent. associated with infant male circum- dressing the substantial ethical issues did not seriously address the ethical cision, the AAP’s 2012 Task Force statement or technical report. controversy in its circumcision policy \\jciprod01\productn\C\CJP\30-1\CJP102.txt - parents have responsibil that although Supreme Court held J.R., the U.S. in not has a liberty interest child, a child upbringing of their ity for the treatment—in for medical unnecessarily being confined case for that mental illness—and a child to institutionalize parents may seek although medical their doing so is subject to independent for mental illness, judgment. 2020] 2020] C Y cjp_30-1_42664 Sheet No. 51 Side A 51 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 51 Side B 11/12/2020 09:05:36 M K – C Y 391 392 (May HILDREN C ENTINEL [Vol. [Vol. 30:45 The AAP’s The AAP’s OF 11-NOV-20 14:50 S 386 UN , S (NTMC) OLICY OLICY P Seq: 50 Seq: IRCUMCISION UBLIC UBLIC C P ALE it follows logically that the AAP is it follows logically that the AAP is M In sharp contrast, the British Medical In sharp contrast, the British Medical 390 unknown 393 AW AW AND and even social pressures. and even L supra note 33, at e759. 13 (2019) [hereinafter BMA Guidance]. 385 supra note 114, at 360 & n.139. HERAPEUTIC -T supra note 187. ON OCTORS D , N N 389 ’ OURNAL OURNAL OF J SS 387 . A ED Sprinkling parents’ non-medical preferences on top of an Sprinkling parents’ non-medical preferences UIDANCE FOR . M 388 388 (1989), https://pediatrics.aappublications.org/content/84/2/388 [hereinafter ORNELL ORNELL G Parents ultimately should decide whether circumcision is whether circumcision should decide Parents ultimately to will need male child. They interests of their in the best own in the context of their weigh medical information The and cultural beliefs and practices. religious, ethical, alone may not outweigh these other medical benefits for individual families (emphasis considerations added). RIT Id. , 84 Task Force on Circumcision, Report of the Task Force on Circumcision (RE9148) 2012 AAP Statement, B Id. 2012 AAP Technical Report, Id. Hafemeister, Just Say No, See, e.g., the Hironimus case in Florida. Marc Freeman, Mom Signs Consent for Son’s In our opinion, taking any such parental preference into considera- any such parental preference In our opinion, taking why they elect to have their son Since physicians do not ask parents 385 386 387 388 389 390 391 392 393 EDIATRICS RACTICAL Association observes that “where a child (with or without competence) Association observes that “where P Circumcision to Get Out of Jail — but Now Faces New Criminal Charge P falsely claiming that parents have the unfettered right to elect MGC. falsely claiming that parents have 2012 guidelines further state: further state: 2012 guidelines tion in deciding whether to circumcise a boy is absurd, as they have whether to circumcise a boy is absurd, tion in deciding guidelines, the child’s health. In its 2019 circumcision nothing to do with to “be alert to situ- Association advises its physicians the British Medical to their child’s decisions appear to be contrary ations in which parents’ interests.” that “parents are afforded wide au- circumcised, and the AAP believes appropriate child-rearing and thority for determining what constitutes for the parents to take into account child welfare, [so] it is legitimate traditions, in addition to medical their own cultural, religious, and ethnic factors, when making this choice,” As a result of this laissez-faire approach, which abandons the physician’s As a result of this laissez-faire approach, judgment, discussed above, fiduciary duty to exercise sound medical even to so-called spite circumci- the AAP apparently has no objection to circumcise the son to spite the sions, where a malevolent father wants or divorced, and the son states that he mother from whom he is separated does not want to be circumcised. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 94 C operation that is not medically justified does not make the operation operation that is not medically justified medically justified. 1989 AAP Statement]. nile cleansing, and the ability to understand and facilitate good hygiene” good hygiene” facilitate and understand ability to and the cleansing, nile is not elected; if circumcision cjp_30-1_42664 Sheet No. 51 Side B 51 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 52 Side A 11/12/2020 09:05:36 R 5 5 9 Par- 395 To respect 11-NOV-20 14:50 398 314 (1995). ? 394 Seq: 51 Seq: RAUD EDIATRICS F 475 (2013). THICS unknown , Opinion 2.2.1. . E note 39, at e778 (referring to task force member Steven ED AMA Opinion 2.2.1 gives parents and phy- AMA Opinion 2.2.1 IRCUMCISION IRCUMCISION A THICS 397 E C supra S I 396 ODE OF MEDICAL American Academy of Pediatrics, Committee on Bioethics, Informed consent, pa- should base their decisions on the substituted judgment should base their decisions on the use their knowl- standard; in other words, they should values to determine edge of the patient’s preferences and would have decided as best as possible what the patient of the incapaci- herself. If there is not adequate evidence and values, tated or incompetent patient’s preferences best interests of the the decision should be based on the Parents as surrogate decision makers: Parents as surrogate decision makers: BMA Guidance, supra note 388. AAP Technical Report, Robert S. Van Howe, Infant Circumcision: The Last Stand for the Dead Dogma of Bartley v. Kremens, 402 F. Supp. 1039, 1047–48 (1975), vacated and remanded, 431 AMA, C See Courts recognize that parents “may at times be acting against the that parents “may at times be acting Courts recognize Just as most parents know little or nothing about medicine and have medicine and little or nothing about parents know Just as most 399 394 395 396 397 398 399 M K sicians further guidance: “[i]n giving or withholding permission for med- “[i]n giving or withholding sicians further guidance: are expected to their children, parents/guardians ical treatment for health and well-being and to nurture safeguard their children’s physical and autonomy.” their children’s developing personhood Wegner, MD, JD). U. S. 119 (1977). rental permission, and assent in pediatric practice, 95 P refuses [non-therapeutic male circumcision], the BMA cannot envisage a envisage BMA cannot the male circumcision], [non-therapeutic refuses the best interest to perform be in the child’s in which it will situation of the parents’ wishes.” irrespective circumcision, ents do not own their children, however, and the claim that parents can children, however, and the claim ents do not own their they were chattel is want to their children’s bodies as if do whatever they a dead dogma. their son’s autonomy and protect their health, parents must decline the their son’s autonomy and protect AAP’s 45-year-old claim (dating invitation to elect circumcision. The right to elect to have their son cir- back to 1975) that parents have the preferences is false and fraudu- cumcised based on the parents’ own lent. interests of their children.” no reason or ability to question the AAP’s medical claims, they know medical claims, the AAP’s or ability to question no reason ability to question the law and have no reason or little or nothing about included a lawyer, The AAP’s 2012 committee the AAP’s legal claims. best lawyers. arguably, access to the country’s and the AAP has, - 22, 2015), https://www.sun-sentinel.com/local/palm-beach/fl-circumcision-mother-court-hear ing-20150522-story.html. \\jciprod01\productn\C\CJP\30-1\CJP102.txt 2020] 2020] Parental (Sovereignal) Rights, 7 J. M C Y cjp_30-1_42664 Sheet No. 52 Side A 52 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 52 Side B 11/12/2020 09:05:36 M K C Y (July THICS discussed This result [Vol. [Vol. 30:45 11-NOV-20 14:50 404 405 First, constitu- 406 OLICY OLICY P Seq: 52 Seq: and U.K. case UBLIC UBLIC 403 P cert. denied, 555 U.S. 814 (2008). In this , Opinion 2.1.2). unknown THICS AW AW AND E L 400 supra note 103. OURNAL OURNAL OF Merkel and Putzke write, “No conceivable (positive) Merkel and Putzke write, “No conceivable ODE OF MEDICAL J Second, “[i]f parents do not have a right to determine Second, “[i]f parents do not have 407 and in the U.S. parents unwittingly commit child abuse parents unwittingly commit child and in the U.S. “Parents Have the Right to Elect Circumcision for “Parents Have the Religious Reasons” Religious Reasons” 408 supra note 102. 401 c. This claim deserves special attention. There is no such right in special attention. There is no such This claim deserves ORNELL ORNELL patient (what outcome would most likely promote the the promote most likely would outcome (what patient well-being). patient’s 402 Cologne Decision, UK Case, supra note 87. Merkel & Putzke, supra note 107, at 445. Id. at 446. Kay-Alexander Scholz, Circumcision Remains Legal in Germany, DW Merkel & Putzke, supra note 107, at 447. Id. at 446. AMA Code of Medical Ethics’ Opinions on Patient Decision- Danielle Hahn Chaet, AMA Code of Medical Ethics’ Opinions on Kulish, Boldt v. Boldt, 176 P.3d 388 (Or. 2008), In lawsuits, Jewish organizations claim that parents have a religious organizations claim that parents have In lawsuits, Jewish 403 404 405 406 407 408 400 401 402 above found. Merkel and Putzke write, “Imagine that the whole proce- above found. Merkel and Putzke write, now newly developed by some relig- dure had been unknown and were fashion. There is little doubt that ious sect or in the wake of an odd social prosecution at once.” it would be made subject to criminal liberty right, roughly understood as a right to perform certain acts at liberty right, roughly understood physical intrusion into someone one’s will, can possibly justify direct else’s body.” Making Capacity and Competence and Surrogate Decision Making, AMA J. E Making Capacity and Competence and Surrogate tional rights are personal rights that adhere to individuals. A person’s tional rights are personal rights that him or her to inflict bodily harm on constitutional rights do not allow another person. 2017) (citing AMA, C Applying those standards, parents are only allowed to give permission to to give permission parents are only allowed those standards, Applying the opera- the operation and the child needs surgery when circumcision permis- parents who give fact, in Germany, be deferred. In tion cannot commit an assault healthy son circumcised unwittingly sion to have their themselves, \\jciprod01\productn\C\CJP\30-1\CJP102.txt 96 C their child’s religious affiliation for the child’s lifetime, why should they their child’s religious affiliation for right to elect MGC under the First Amendment Freedom of Religion under the First Amendment Freedom right to elect MGC clause. and a battery. the United States, however, as the German the United States, does not stem from animus toward Jews and Muslims. does not stem from animus toward . (Dec. 12, 2012), https://www.dw.com/en/circumcision-remains-legal-in-germany/a-16399336 2007 Oregon case, a Jewish father wanted to circumcise his son, but the son did not want to be 2007 Oregon case, a Jewish father wanted to Union of Orthodox Jewish Congregations of circumcised. The American Jewish Congress, Union of Orthodox Jewish Congregations of America, American Jewish Committee, and America filed amicus curiae briefs on behalf of the father. Thus, Jewish organizations want Jewish fathers to be able to elect to have their son circumcised, even when the son and mother are do not want it. We note parenthetically that Jewish and Muslim boys being circumcised exposed to the same risks and suffer the same pain and harms as Gentiles. cjp_30-1_42664 Sheet No. 52 Side B 52 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 53 Side A 11/12/2020 09:05:36 7 7 9 412 The 413 11-NOV-20 14:50 The AAP cannot It seems shocking 416 ? 415 Seq: 53 Seq: RAUD F Merkel and Putzke write that inso- Merkel and Putzke 411 414 unknown IRCUMCISION IRCUMCISION A C S I supra note 187. Prince v. Court held in Prince v. U.S. Supreme Third, the 409 in 1944 that parents are not allowed to expose their chil- allowed to expose parents are not in 1944 that “Physicians Are Allowed to Take Orders from Parents” to Take Orders from Parents” “Physicians Are Allowed d. Thus ‘proxy consent’ poses serious problems for pediat- Thus ‘proxy consent’ poses serious have legal and ric health care providers. Such providers to render competent ethical duties to their child patients needs, not what medical care based on what the patient impasses regarding someone else expresses. Although wishes of their the interests of minors and the expressed responsi- parents or guardians are rare, the pediatrician’s of parental bilities to his or her patient exist independent desires or proxy consent. famously stated that parents may martyr stated that parents in Prince famously The court Id. at 447. Prince v. Massachusetts, 21 U.S. 158, 169–70 (1944). Id. at 170. Merkel & Putzke, supra note 107, at 447. Committee on Bioethics, supra note 399. Id. Gairdner, supra note 5. 2012 AAP Statement, Even if parents had the right to elect circumcision for non-medical the right to elect circumcision for Even if parents had In 1949 the physician Douglas Gairdner wrote, “In order to decide In 1949 the physician Douglas Gairdner 410 409 410 411 412 413 414 415 416 M K have a right to permanently mark their children’s bodies with a symbol with a bodies children’s their mark permanently a right to have of that affiliation?” AAP’s own Committee on Bioethics made this clear in 1995: AAP’s own Committee on Bioethics accomplish its mission of helping children attain or in this case retain accomplish its mission of helping optimal physical and mental health without knowing the anatomy and far as MGC is more than merely a religious rite, but a significant bodily than merely a religious rite, but far as MGC is more the scene.” “this, inevitably, brings the law onto harm to the child, reasons, physicians, who are licensed only to practice medicine, are not who are licensed only to practice reasons, physicians, orders from par- to act as cultural brokers who take permitted as implied reasons. their healthy boys for non-medical ents to circumcise whether a child’s foreskin should be ablated the normal anatomy and whether a child’s foreskin should ages should be understood; the dan- function of the structure at different then be weighed against the hazards ger of conserving the foreskin must were unknown. of the operation,” which he stated \\jciprod01\productn\C\CJP\30-1\CJP102.txt Massachusetts Massachusetts actually harm, let alone or psychological to the risk of physical dren even be- on the parents’ religious FGC do, based as MGC and harm them, liefs. themselves, but not their children. themselves, but not 2020] 2020] that despite that warning, and the despite the AAP having issued circum- that despite that warning, and the despite the AAP still does not know the cision guidelines over a 50-year period, causes. extent of complications that the operation C Y cjp_30-1_42664 Sheet No. 53 Side A 53 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 53 Side B 11/12/2020 09:05:36 M K C Y URRENT Parents : C We sug- for U.S. 424 [Vol. [Vol. 30:45 HILDREN FROM 419 11-NOV-20 14:50 THICS 417 C E In legal terms, Dr. Thomas Wis- 421 EDICAL 418 ROTECTING OLICY OLICY M P : P Seq: 54 Seq: . 152, 152–53 (2009). NG ODE OF UTTING E UBLIC UBLIC C 1, 7–8, 18–19 (George C. Denniston et P C HE If they do, they might understand ., T 425 URGEONS ENITAL FFS G . S unknown note 46. To “tempt” is “to entice to do wrong supra note 46. To “tempt” is “to entice to do wrong AW AW AND . A in OLL L NFRINGEMENTS UD I C & J supra note 260. OYAL 2.19 (1997). R ELIGIOUS R THICAL supra note 182, at 443. E OURNAL OURNAL OF NNALS AND J , 420 NNOTATIONS OUNCIL A J. Steven Svoboda, fs, Tortured Doctrines: Informed Consent as a Legal Fiction Richard Robinson et al., Consent for Non-Therapeutic Male Circumcision on Re- ULTURAL The “Question” The “Question” forces parents to answer when they might well The “Question” forces parents to answer ORNELL ORNELL Such forms of solicitation are considered unethical by the Such forms of solicitation are , C 423 at 7 (“To increase the income of their members, the [AAP is] willing to put See id. at 7 (“To increase the income of their members, See Adler Legal, Id. AMA C See See See generally Darby Temptation, See DOC Commentary, Id. Since the 1970s, it has been common for medical professionals in Since the 1970s, it has been common 1. The question then arises whether physicians in the U.S. who per- arises whether physicians in the The question then Intentional Fraud by Many Physicians Who Circumcise by Many Physicians Who Circumcise Intentional Fraud 422 420 421 422 423 424 425 417 418 419 EDICAL PINIONS WITH Inapplicable to Neonatal Circumcision, al. eds., 2013) [hereinafter Svoboda Tortured Bodies]. may not speak English well or at all. physicians for financial reasons, and some (perhaps many) physicians in reasons, and some (perhaps physicians for financial the operation because it pays well. the U.S. perform the “Question” is an offer to sell unnecessary genital surgery to the par- the “Question” is an offer to sell unnecessary ents. well, a zealous circumcision advocate, admitted this when he stated that advocate, admitted this well, a zealous circumcision foreskin and see a are obstetricians who look at a he had friends who either. the procedure does not take long price tag on it, and the United States to ask the parents of newborn boys whether they want the United States to ask the parents (the “Question”). to have their son circumcised or not O M \\jciprod01\productn\C\CJP\30-1\CJP102.txt 98 C otherwise never have considered having their son circumcised. otherwise never have considered having AMA. form circumcisions also intend to deceive parents to obtain their permis- also intend to deceive parents to form circumcisions has long been a surgical temptation sion. The practice function of the foreskin and the hazards of the operation. The AAP’s The operation. of the hazards and the foreskin of the function later none but eight years for more research, report calls 2012 technical studies know of any such do the authors forthcoming, nor has been underway. D. gest that many physicians who circumcise intentionally deceive parents, who circumcise intentionally gest that many physicians about circumcision for personal and thereby their sons and the public, financial gain. healthy American boys under the circumcision knife and expose them all to the risks of any healthy American boys under the circumcision surgery, and the unique risks, harms, and losses of circumcision itself.”). ligious Grounds, 91 A by promise of pleasure or gain.” Merriam-Webster dictionary. by promise of pleasure or gain.” Merriam-Webster cjp_30-1_42664 Sheet No. 53 Side B 53 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 54 Side A 11/12/2020 09:05:36 9 9 9 437 427 In Fa- 436 428 (9th ed. 435 Physicians Physicians 11-NOV-20 14:50 which physi- 429 ICTIONARY 433 D The “Question” “Question” The 228, 234 (1996). AW 426 L ? S THICS ’ E This is analogous to the Seq: 55 Seq: LACK RAUD 434 F EALTHCARE note 424, at 19. note 424, at 19. thus acknowledging that when asked thus acknowledging Q. H unknown 430 note 424, at 14–15, 19–20. note 424, at 19. supra supra IRCUMCISION IRCUMCISION A supra supra AMBRIDGE C note 182, at 471–72. S I supra note 271. (Aug. 27, 2018), https://www.nytimes.com/2018/08/27/opinion/ supra The mothers—whoare recovering from labor, often IMES 432 infra note 454. e.g., at 472–73, 475–76. Adults sometimes obtain a second opinion before consenting to obtain a second opinion before consenting Adults sometimes Svoboda Tortured Bodies, Vanessa Barbara, Hairy Baby? Better Get a C-section. Gingivitis? C-section. Scolio- See, Svoboda Tortured Bodies, Chris Ciesielski-Carlucci, Nancy Milliken & Neal H. Cohen, Determinants of Deci- Chris Ciesielski-Carlucci, Nancy Milliken & See Adler Legal, Id. See Svoboda Tortured Bodies, AAP Press Release, See Svoboda Tortured Bodies, Id. at 8, 19. definitions from state-specific Legal incapacity is judicially determined following The “Question” also may take the parents by surprise. the parents by also may take The “Question” 431 434 435 436 437 426 427 428 429 430 431 432 433 M K sis? C-section., N.Y. T sion Making for Circumcision 5 C 224309 at *1 (Oct. codes and statutes. See, e.g., In Re Estate of Card, 2001 WL 1335957 No. is understood as the mental or physical inabil- 30, 2001). Generally, however, legal incapacity required. B ity to care for or consider something as fully 2009). We stipulate here that the period immediately after birth may qualify a woman for 2009). We stipulate here that the period immediately after birth may qualify a woman as incapacity on the grounds that the process of childbirth is extremely exhausting, as well physically, mentally, and emotionally taxing, and therefore potentially leading to a temporary impairment of the facilities required to make legally binding decisions. the “Question” to constitute a recommendation. to constitute “Question” the addition, nurses and physicians are busy people, and they give parents addition, nurses and physicians are the fate of their son’s foreskin. only a few minutes to decide cesarean-section-childbirth-brazil.html (“C-sections are routinely prescribed under an endless cesarean-section-childbirth-brazil.html (“C-sections are routinely prescribed under an endless number of pretexts, many of them . . . implausible.”). should know that this takes unfair advantage of the parents. Susan Blank, this takes unfair advantage of the parents. should know that a press release that 2012 committee, stated in the chair of the AAP’s . . . so you to have this conversation during pregnancy “[i]t’s a good idea the decision,” have time to make cians knowledgeable about medicine and accustomed to obtaining con- cians knowledgeable about medicine will not. sent should know, but the mothers in the hospital without having had this conversation before, some the having had this conversation in the hospital without fully informed deci- have time or be able to make a parents might not sion. As exposed in this Article, none of those implied claims are true. claims are none of those implied in this Article, As exposed \\jciprod01\productn\C\CJP\30-1\CJP102.txt on medications, after giving birth, and who are distracted by beginning to on medications, after giving birth, and nurse their newborn son—may incapacitated, be legally surgery, but parents whose consent is solicited in the hospital will not whose consent is solicited in the surgery, but parents have that option. 2020] 2020] thers, who may be left to make the circumcision decision on their own, thers, who may be left to make the and unable to think clearly. also may be tired, distracted, surprised, falsely implies that circumcision is medicine, that parents have the right that parents have is medicine, that circumcision falsely implies elect it, and son’s health to not bad for their that it is good or to elect it, it. from parents to perform to take orders are permitted that physicians obstetric violence that is common in Brazil, where many physicians ad- obstetric violence that is common sections and episiotomies. vance specious reasons for Cesarean C Y cjp_30-1_42664 Sheet No. 54 Side A 54 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 54 Side B 11/12/2020 09:05:36 M K C Y (Oct. even 444 438 [Vol. [Vol. 30:45 The “Talk” 11-NOV-20 14:50 IRCUMCISION 439 . C M thus, they are not thus, they are not OLICY OLICY 441 P as protesters protest at as protesters protest Seq: 56 Seq: 443 UBLIC UBLIC P American Circumcision Film, #AAP16: American unknown AW AW AND L supra note 114, at 367. supra note 271. note 182, at 443. Just Say No, supra Physicians know that any operation including MGC that any operation including MGC Physicians know OURNAL OURNAL OF J 442 Hafemeister, ORNELL ORNELL The “Talk” The “Talk” See AAP Press Release, See See id. at 372–76. 2016, the AAP’s bioethicist Douglas For example, at a circumcision protest in October Hospital in Boston, Massachu- For example, a physician at Brigham and Women’s Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir. 1972). Canterbury v. Spence, 464 F.2d 772, 783 (D.C. See Adler Legal, 2. in most the “Question,” medical professionals After asking parents As stated, physicians who circumcise are required to use their inde- who circumcise are required to As stated, physicians 440 441 442 443 444 438 439 440 “[C]onsent, to be efficacious, must be free from imposition upon the pa- upon imposition from be free must be efficacious, to “[C]onsent, patient may by the that therapy not authorized the settled rule tient. It is a tort—aamount to law battery—by common physician.” the Diekema grabbed the video camera of a film maker and would have smashed it, had it not been Diekema grabbed the video camera of a film maker attached to the photographer’s body. See Rights Protestors, A Academy of Pediatrics Attempts to Silence Human surprised one of the authors (Adler) and his setts, which is affiliated with Harvard University, the day after his son was born there on wife, who was nursing at the time, with the “Question” referred to as a snip and he visualized a painless April 7, 1987. Adler had heard circumcision “Talk,” the physician did not disclose that the and safe small snip of a piece of skin. In the risky, and harmful, or that there is any foreskin is erogenous, that circumcision is painful, that circumcision reduces the risk of UTIs, pe- opposition to the practice. The physician said but that according to the American Academy of nile cancer, and sexually transmitted diseases, UTIs can be treated with antibiotics, penile Pediatrics it is not medically justified because The cancer can be avoided by good penile hygiene, and STDs can be avoided by safe sex. physician then said that some parents elect circumcision for religious, cultural, and personal reasons. Adler asked what do you mean, personal reasons? The physician answered that some parents want their son’s penis to look like the father’s penis. It seemed unlikely that the claim that parents have such a legal right could be true. That led to learning more about circumcision - and decades later to writing this Article. When the physician asked if Adler had other ques - tions, Adler asked, “Can’t my son decide for himself when he becomes an adult?” The physi cian replied that it is better to circumcise boys in infancy. Adler felt pressured and by that time had decided to decline the offer to circumcise. His son thanked him when he became an adult, be and said “it is not rocket science,” meaning that it is clearly better to have a foreskin than to circumcised. - 31, 2016), https://circumcisionmovie.com/2016/10/aap16-american-academy-pediatrics-at tempts-silence-human-rights-protestors/. though to be fully informed patients or their proxies must be given all though to be fully informed patients conveys the same pro-circumcision message as the Abstract of the pro-circumcision message as the conveys the same release announcing policy statement and press AAP’s 2012 circumcision it. the annual conferences that most attend, and sometimes outside hospi- the annual conferences that most inform parents of those facts, tals, but physicians are unlikely to hospitals in the United States then give parents the “Talk.” hospitals in the United \\jciprod01\productn\C\CJP\30-1\CJP102.txt 100 C is painful and risks complications, and pediatricians and obstetricians complications, and pediatricians is painful and risks opposition to the practice, know that there is pendent medical judgment about medical matters; pendent medical allowed to hide behind the false claims in the AAP’s 2012 guidelines the false claims in the AAP’s allowed to hide behind described above. cjp_30-1_42664 Sheet No. 54 Side B 54 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 55 Side A 11/12/2020 09:05:36 450 451 101 101 11-NOV-20 14:50 ? note 182, at n.47. Seq: 57 Seq: RAUD F supra Moreover, none of the nurses Moreover, none 447 For example, J. Steven Svoboda, For example, J. 446 110, 114 (2015). unknown URSING IRCUMCISION IRCUMCISION A N but Svoboda had not asked for it and did not but Svoboda had not asked for it and C S 448 I HILD /C 445 note 223, at 6; Adler Legal, supra ATERNAL Adler, Lauren Sardi & Kathy Livingston, Parental Decision Making in Male Circumci- . J. M Coercion Coercion at 111–12, 114. Badgering parents to persuade them to consent after they have Badgering parents to persuade them M For example, the circumcision consent form for Brigham and Women’s Hospital, a For example, the circumcision consent form See Personal communication from J. Steven Svoboda to Peter W. Adler March 10, 2020. Id. Canterbury v. Spence, 464 F.2d 772, 782–83 (D.C. Cir. 1972). See Id. 449 , the court stated, “[it] is In an often-cited case, Canterbury v. Spence 3. boys of newborn may ask the parents nurses in hospitals In addition, 445 446 447 448 449 450 451 M K want it. must be free from imposition . . . clear that the consent, to be efficacious, that therapy not authorized by the upon the patient. It is the settled rule patient may amount to a tort—a law battery—by common the physician.” information that might affect their decision. Consent forms may contain may forms Consent decision. affect their might that information as well. false claims Harvard University hospital, states “there is still some medical controversy about the need for Harvard University hospital, states “there is still the procedure on a routine basis.” BWH Consent Form, supra note 356. This is a fraudulent claim: there is no medical need to circumcise boys on a routine basis or at all. Van Howe has personal knowledge that the practice is ubiquitous: such stories have been conveyed to him on multiple occasions. told Svoboda and his wife anything about the procedure. Svoboda be- his wife anything about the procedure. told Svoboda and that it is unneces- and told the nurse, “Don’t you know came exasperated telling him because the nurse should have been sary surgery?”, which Svoboda asked know it. The nurse replied, “I know.” parents may not answer was, ‘Be- the procedure, then, and her why she was soliciting cause parents want it,’” founder of Attorneys for the Rights of the Child, reports that when his for the Rights of the Child, reports founder of Attorneys on five sepa- asked him and his wife that question son was born, nurses they had said “no.” rate occasions after on multiple occasions whether they want to have their son circumcised, whether they want to have their on multiple occasions answer. pressing for an affirmative Although nurses might wish to assert the defense that they simply take Although nurses might wish to assert to place more of the informed consent orders from their superiors, moves nurses also make them culpable. and educational responsibilities on has expressed concern about The New Hampshire Board of Nursing provision of health care, including nurses engaging in deception in the \\jciprod01\productn\C\CJP\30-1\CJP102.txt 2020] 2020] declined constitutes unfair and deceptive conduct. Giving parents little or declined constitutes unfair and deceptive when they are entitled to be fully no information about circumcision, on their child, including the diag- informed about any medical procedure also appears to be a fraudu- nosis and the physician’s recommendation, the parents into consenting. lent omission intended to deceive sion, 40 A C Y cjp_30-1_42664 Sheet No. 55 Side A 55 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 55 Side B 11/12/2020 09:05:36 M K C Y 458 Plaintiffs [Vol. [Vol. 30:45 11-NOV-20 14:50 460 Circumcision Is Un- OLICY OLICY P LAIMS Seq: 58 Seq: C UBLIC UBLIC P RAUD F and the result would be the same and the result would be the same note 182, at 443. 263, 275, n.242 (2016). 457 unknown AW AW AND supra THICS L 52, 53–54 (2003). . & E The board shared particular concern about concern about shared particular The board ED 452 note 425, at 153. IOETHICS ITIGATING THE L Egregious examples include high pressure sales Egregious examples supra note 103. . J. B 454 OURNAL OURNAL OF The German court held that because circumcision for held that because circumcision for The German court M J V. 456 453 J. Steven Svoboda, Peter W. Adler & Robert S. Van Howe, J. Steven Svoboda, Circumcision—A Lacking Ethical, Medical or Victorian Relic 459 ORNELL ORNELL at 275. See also Adler Legal, Office of Professional Licensure and Certification, New Hampshire Board of Nursing Office of Professional Licensure and Certification, Robinson et al., supra See Id. Canterbury v. Spence, 464 F.2d 772, 782–83, n.34 (D.C. Cir. 1972). Cologne Decision, Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir. 1984). Id. See The consequence is that parental permission is rarely, if ever, fully is that parental permission is rarely, The consequence As discussed above, case law shows that intentional fraud consists As discussed above, case law shows Litigation considerations are favorable to the plaintiffs. Litigation considerations are favorable Thus, a variety of circumstantial evidence suggests that many physi- circumstantial evidence suggests that Thus, a variety of 455 452 453 454 455 456 457 458 459 460 fraudulent behavior toward patients that may affect the nurses’ ability to ability the nurses’ may affect that patients toward behavior fraudulent for patients. safely care tactics, not disclosing that circumcision is painful and risky, assigning no that circumcision is painful and tactics, not disclosing the right to elect the and claiming that parents have value to the foreskin, the circumcised pe- they prefer the appearance of procedure because nis. non-medical reasons violates the child’s rights to bodily integrity and non-medical reasons violates the rights supersede the parents’ rights, self-determination, and the child’s parental consent is always invalid, (June 25, 2020). ethical and Unlawful, 44 J. L. M might include not only circumcised boys and men but also their parents, might include not only circumcised under U.S. law. to part with property or to sur- in deception practiced to induce another accomplishes the end designed. render some legal right, and which cians who circumcise intend to defraud parents and thereby their sons intend to defraud parents and cians who circumcise about circumcision. children, noting that they are especially vulnerable. Physicians in the Physicians are especially vulnerable. noting that they children, reveal that “[t]he data study concluded law as well: a 2009 U.K. flout the the com- practice and with recommended non-conformity a consistent mon law.” MGC meets that definition. Physicians and nurses mislead parents and MGC meets that definition. Physicians through the deceptive conduct and thereby their sons about circumcision representations and omissions enu- false and deceptive medical and legal the parents, acting on behalf of their merated above. They thereby induce of value (the foreskin of their sons, to consent to part with something right (their son’s right to keep the son’s penis) and to surrender a legal foreskin). \\jciprod01\productn\C\CJP\30-1\CJP102.txt 102 C informed as the law requires. The consent is thus invalid, and the opera- requires. The consent is thus invalid, informed as the law tion is a battery. Legal Justification, 3 A cjp_30-1_42664 Sheet No. 55 Side B 55 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 56 Side A 11/12/2020 09:05:36 103 103 Im- 461 Fur- 466 463 11-NOV-20 14:50 Likewise, the New 464 ? 468 Seq: 59 Seq: RAUD F These actions address “behaviors in These actions address unknown This markedly expands the number of This markedly expands the number 462 supra note 114, at 379–80, n.215. 469 IRCUMCISION IRCUMCISION A C S I Just Say No, , the For example, on appeal in Neilsen v. Kazarian 465 supra note 465, at 7; see also WA Southwest 2, LLC v. First A. Title Ins. called the delayed discovery rule. 467 Neilsen v. Kazarian, Nos. B284287, B287623, 2019 Cal. App. Unpub. LEXIS Hafemeister, Neilsen, 930 N.Y.S.2d 176, 176 (N.Y. Sup. Ct. 2011). at 379. at 379–80. Id. See Id. Id. See Id. Additionally, in Remis v. Fried, a New York court stated that the statute of limita- See Id. Simcuski v. Saeli, 44 N.Y.2d 442, 448–49 (N.Y. 1978) (internal citations omitted). See The statute of limitations will likely be longer for the fraud claims The statute of limitations will likely It is much easier for plaintiffs to bring a lawsuit for battery, breach for battery, to bring a lawsuit easier for plaintiffs It is much Longer Statute of Limitations Longer Statute of Easier than a Malpractice Suit a Malpractice Easier than 462 463 464 465 466 467 468 469 461 M K because as parents learn more about circumcision, they may come to may come they circumcision, about more learn as parents because their son circumcised. to have given their permission regret having tions was three years for negligent misrepresentation but “the longer of six years from the tions was three years for negligent misrepresentation but “the longer of six years from the wrongful conduct or two years from when the party knew, or should have discovered, fraud.” 1859 (Mar. 19, 2019). Co., 240 Cal. App. 4th 148, 156 (Cal. Ct. App. 2015). court also held that the statute of limitations does portantly, the Neilsen court also held that the statute of or has reason to discover the cause not begin until the plaintiff discovers of action, ther, because “the plaintiff need only show that the physician’s conduct plaintiff need only show that the ther, because “the are expected of conduct regarding how all physicians violated basic rules testimony may not be required.” to act . . . expert which no physician should engage . . . [and] regardless of the explanation should engage . . . [and] regardless which no physician flow.” . . . [legal] consequences should given for that behavior potential plaintiffs to include men of any age who learn that a physician potential plaintiffs to include men penis by intentional or constructive and hospital took the foreskin of their fraud. , “[i]t is the rule that a York Court of Appeals noted in Simcuski v. Saeli the Statute of Limitations where defendant may be estopped to plead or deception to refrain plaintiff was induced by fraud, misrepresentations from filing a timely action.” B. than for battery. A. malpractice, as and constructive fraud than for medical of fiduciary duty, of the latter such as the requirements and problems such lawsuits avoid testimony. the need for expert \\jciprod01\productn\C\CJP\30-1\CJP102.txt court observed that the statute of limitations in California in 2019 was court observed that the statute of infliction of emotional distress, but two years for battery and intentional for breach of fiduciary duty. three years for fraud and four years 2020] 2020] C Y cjp_30-1_42664 Sheet No. 56 Side A 56 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 56 Side B 11/12/2020 09:05:36 R M K C Y 481 OSPITAL ]. H “[s]ome [Vol. [Vol. 30:45 479 11-NOV-20 14:50 1021 (1997). TATEMENT As it has already As it has In the 2016 United In the 2016 471 OLICY OLICY EDIATRICS P 470 Seq: 60 Seq: ECOMMENDATIONS FOR R UBLIC UBLIC P “[a] program of education leading note 161, at 353. 482 unknown TANDARDS AND AW AW AND “local anesthesia adds an element of “local anesthesia adds an element L , S 476 although the AAP claims that “significant although the AAP claims that “significant supra note 103. EWBORN 478 supra note 252. supra note 386. supra note 386; see also Oh W, Merenstein G. Fourth Edition of While it has not yet been decided within the U.S., While it has not yet 121 (6th ed. 1977) [hereinafter 1977 AAP S & N 472 OURNAL OURNAL OF circumcision is a non-therapeutic elective proce- circumcision is a non-therapeutic J the “skin is a protective organ, and any break in its the “skin is a protective organ, and NFANTS ETUS 473 I F 475 ON . ORNELL ORNELL EWBORN MGC may reduce penile sensation and sexual satisfaction; MGC may reduce penile sensation the “immediate hazards of circumcision of the newborn include the “immediate hazards of circumcision “‘phimosis of the newborn’ is not a valid medical indication for OMM N Re L and B (Children) [2016] EWHC 849 [143]. Re L and B (Children) [2016] EWHC 849 [143]. See generally Adler Medicaid, supra 1971 AAP Statement, 1989 AAP Statement, 1975 AAP Statement, supra note 38. C 1989 AAP Statement, 1975 AAP Statement, supra note 38. 2012 AAP Technical Report, supra note 39, at e772. Female Minors, supra note 364, at 1089. 1999 AAP Statement, supra note 311. Id. See Cologne Decision, 480 477 474 In the aforementioned 2012 German case, the court held that cir- the court held that German case, 2012 In the aforementioned In the past, physicians in the U.S. and the AAP have made many in the U.S. and the AAP have In the past, physicians Prior Admissions Prior Admissions Right to Summary Judgment Judgment to Summary Right 472 473 474 475 476 477 478 479 480 481 482 470 471 ARE OF C. trial. conducting a is a battery without cumcision been discussed in this paper, it is straightforward that it is unlawful to bill this paper, it is straightforward that been discussed in Medicaid for MGC. risk;” acute complications are rare” and that the benefits outweigh the risks, the acute complications are rare” and that of complications; AAP states that it does not the incidence C “behavioral factors appear to be far more important than circumcision “behavioral factors appear to be far status” in preventing STIs and HIV; \\jciprod01\productn\C\CJP\30-1\CJP102.txt 104 C statements favorable to the plaintiffs that could be used against them if to the plaintiffs that could be statements favorable For example, position without justifying the change. they take a contrary or guidelines between 1971 in the AAP’s circumcision policy statements following: circumcision is not medi- and 2012, the AAP has stated the cally indicated; given these outcomes and our analogous reasoning, plaintiffs should be and our analogous reasoning, given these outcomes judgment on those claims. entitled to summary D. dure; integrity affords an opportunity for infection,” and the circumcision site integrity affords an opportunity for is an open surgical wound; local infection which may progress to septicemia, significant hemor- local infection which may progress rhage, and mutilation;” circumcision;” forms of FGC are less extensive than the newborn male circumci- forms of FGC are less extensive sion;” the Guidelines for Perinatal Care: Summary of Changes, 100 P Kingdom case, the court also held that boys have a right to decide the have a right to held that boys case, the court also Kingdom a trial. without foreskin for themselves fate of the cjp_30-1_42664 Sheet No. 56 Side B 56 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 57 Side A 11/12/2020 09:05:36 105 105 . 753, EV Even a 486 . L. R Given that 11-NOV-20 14:50 489 484 The Restate- ARQ 493 and the benefits are and the ? 490 483 Seq: 61 Seq: which in our view is large. which in our view RAUD 487 F , https://www.arclaw.org/resources/legal-vic- HILD unknown . C TS R IRCUMCISION IRCUMCISION A note 203. for which the damages can be large. for which the damages even if evil intent to harm the patient is lack- even if evil intent to harm the patient C S I YS FOR 485 491 ’ supra In business cases, plaintiffs who prevail on claims In business cases, TT ., 488 NST . I NFO I EGAL In our view, then, MGC does constitute wanton and reckless In our view, then, MGC does constitute L (Cal. Ct. App. 1960). Prince v. Harting, 177 Cal. App. 2d 720, 731 the beneficiary of his fiduciary duties Id. at 731 (“[A] faithless fiduciary must repay to See supra note 260. See, e.g., James D. Ghiardi, Punitive Damages in Wisconsin, 60 M See generally Noe, supra note 491, at 424–25. Pacific Mut. Life Ins. Co. v. Haslip et al., 499 U.S. 1, 15 (1991) (internal citation 1975 AAP Statement, supra note 38. 2012 AAP Statement, supra note 187. Legal Victories, A Id. In addition, in some states, physicians can be held liable for multi- In addition, in some states, physicians Attorneys for the Rights of the Child has published a list of judg- Rights of the Child has published Attorneys for the Damages May Be Large, Multiplied, and Uninsured Multiplied, and Uninsured May Be Large, Damages 492 488 489 490 491 492 493 483 484 485 486 487 M K to continuing good personal hygiene would offer all the advantages of advantages all the offer would hygiene good personal to continuing risk”; surgical without the attendant circumcision the entire profit that he has caused the beneficiary to lose.”). omitted). unnecessary surgery unjustly enriches physicians at the expense of their unjustly enriches physicians at unnecessary surgery the physician’s and would likely be entitled to recover patients, plaintiffs Furthermore, if the hospital sold the hospital’s profits from the operation. company, the profits from its foreskin to a pharmaceutical or cosmetics recoverable. unlawful resale would also likely be Faithless fiduciaries must make good the full amount of the loss that their must make good the full amount Faithless fiduciaries breach has caused. properly performed circumcision gives rise to damages for pain and suf- circumcision gives rise to damages properly performed lost value of the foreskin, fering and for the ple and/or punitive damages for battery—for example, where there is rights including the preserva- wanton or reckless disregard for a person’s tion of health and life, ing. E. or so-called involving negligently performed ments and settlements botched circumcisions, \\jciprod01\productn\C\CJP\30-1\CJP102.txt arising from breach of trust are also entitled to lost profits. arising from breach 2020] 2020] disregard for boys’ rights and the preservation of the health and life of disregard for boys’ rights and the has observed that punitive damages boys and men. The Supreme Court a part of state tort law and that their for wrongful conduct have long been and deterrence. purpose is compensation, punishment, 757 (1977) (citing Kink v. Combs, 135 N.W.2d 789 (1965)). In Noe v. Kaiser Foundation 757 (1977) (citing Kink v. Combs, 135 N.W.2d 789 (1965)). In Noe v. Kaiser Foundation Hosp., an Oregon court observed that where there has been a particularly aggravated disregard and by a member of the medical profession of his professional duties (preservation of life health), punitive damages are appropriate, in part to deter such conduct. 248 Or. 420, 424–25 (Or. 1967). tories (last visited Jun 7, 2020). not great enough to recommend it as a routine procedure. it as a routine enough to recommend not great C Y cjp_30-1_42664 Sheet No. 57 Side A 57 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 57 Side B 11/12/2020 09:05:36 M K , C Y 502 ANE & L Moreo- many of 498 [Vol. [Vol. 30:45 496 11-NOV-20 14:50 AMPBELL C OLICY OLICY P ULLOUGH to 5 years for battery causing 2 / C 1 Seq: 62 Seq: § 908(2) (1979). § C M UBLIC UBLIC ORTS P T OF ) ECOMMENDATIONS R unknown ECOND AW AW AND L (S 501 ESTATEMENT OURNAL OURNAL OF ONCLUSION AND J ., R Depending upon the state, the physician might not be Depending upon the state, the physician to 15 years for causing substantial bodily injury). C 2 / 1 NST 497 Chart of Punitive Damages by State, I . ., https://www.law.cornell.edu/wex/class_action supra note 204, at 498. Plaintiffs’ lawyers have a powerful financial incentive to have a powerful financial incentive Plaintiffs’ lawyers AW NST Physicians who perform MGC also risk incarceration for child Physicians who perform MGC also 495 ORNELL ORNELL . I Thus, courts can award punitive damages large enough to end enough to end damages large can award punitive Thus, courts . L and Medicaid fraud. M 499 NFO , JUSTIA, https://www.justia.com/in- Statutes of Limitations and the Discovery Rule Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972). Miller, See, e.g., 13J (2 See, e.g., Mass. Gen. Laws Ann. ch. 265, § 1347. 287; 18 U.S.C. §1001; and 18 U.S. Code § See 18 U.S.C. § See supra note 254. A See generally Class Action, See, e.g., Mass. Gen. Laws Ann. ch. 93A, Section 11. 494 500 I , the court observed that physicians held Finally, in Cobbs v. Grant, the court observed that physicians Some consumer protection acts provide that when an unfair and de- acts provide that when an Some consumer protection It is a very good thing to be genitally intact, and a very bad thing to It is a very good thing to be genitally 496 497 498 499 500 501 502 494 495 EGAL ment (Second) of Torts § 908(2) provides: “In assessing punitive dam- punitive assessing “In provides: 908(2) § of Torts (Second) ment of the the character properly consider trier of fact can ages, the that the harm to plaintiff and extent of the act, the nature defendant’s the defen- and the wealth of to cause has caused or intended defendant dant.” jury/medical-malpractice/statutes-of-limitations-and-the-discovery-rule/ (last visited 4/10/ jury/medical-malpractice/statutes-of-limitations-and-the-discovery-rule/ 2020). L bodily injury and 2 those males could be part of the class. A successful class action lawsuit be part of the class. A successful those males could way to end the practice. would be the quickest might not be covered by malprac- liable for the intentional tort of battery tice insurance. the practice of circumcision (and we suggest that they should). that they should). (and we suggest of circumcision the practice situated indi- has injured numerous other similarly ceptive act or practice lawsuit on behalf of person can bring a class action viduals, any injured the class. have one’s healthy genitals cut without one’s own consent. In any event, have one’s healthy genitals cut without for male or female genital cutting since there is no medical indication \\jciprod01\productn\C\CJP\30-1\CJP102.txt 106 C covered for any of the claims discussed in this Article because malprac- covered for any of the claims discussed performed operations, not tice insurers are insuring against negligently been performed at all. against operations that should not have bring such suits in the U.S., where an estimated 80% of males now living the U.S., where an estimated 80% bring such suits in the statute of limi- males) are circumcised. Because (roughly 132 million in some states begins upon discovery, tations in fraud suits abuse ver, malpractice insurance contracts may expressly exclude fraud ver, malpractice insurance contracts claims. LLP, https://www.mcandl.com/puni_chart.html (displaying a chart prepared by a law firm showing punitive damages by state and stating that “punitive damages are insurable unless awarded for intentional conduct”). cjp_30-1_42664 Sheet No. 57 Side B 57 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 58 Side A 11/12/2020 09:05:36 107 107 11-NOV-20 14:50 ? breach of fiduciary duty breach of fiduciary Seq: 63 Seq: - that physi a line it crosses 507 and intentional fraud in in- and intentional fraud RAUD 504 F 509 unknown IRCUMCISION IRCUMCISION A Medicaid fraud, C S Physicians in the U.S. will never meet their bur- never meet their in the U.S. will Physicians I 508 505 and legally proscribed, and the innumerable sometimes plainly specious claims plainly specious sometimes the innumerable 503 506 510 See supra Part I.B. See supra Parts I.B, II, and III. See supra note 129. See supra Part II. See supra Part I. See supra Part II.A and II.B. See supra Part III. See supra Part IV. Physicians have an ethical and legal duty to stop circumcising boys, ethical and legal duty to stop circumcising Physicians have an as physicians continue to None of this has not happened, however, 503 504 505 506 507 508 509 510 M K and it is ethically and it and constructive fraud, and nurses have a duty to stop assisting them. Physicians and hospitals duty to stop assisting them. Physicians and nurses have a it, and federal and state Medicaid are not allowed to bill Medicaid for to stop reimbursing physicians and officials in turn have a legal duty States should prosecute child hospitals for non-therapeutic circumcision. should issue a gender-neutral bans abuse, and federal and state legislators against unnecessary genital cutting. and the public believe their claims. promote the practice and parents have been circumcised as boys, by Lawsuits by men who are angry to and not fully informed about the regretful parents who were pressured lawsuit (if a class can be certified) are risks and harms, and a class action of the circumcision industry and needed to speed the inevitable demise circumcision causes to boys and thereby end the substantial harm that men. \\jciprod01\productn\C\CJP\30-1\CJP102.txt den of justifying it. Circumcision is an abuse of a physician’s power and of a physician’s is an abuse it. Circumcision den of justifying trust; breach of cians must not cross. cians must ducing consent. made in favor of it since the Nineteenth Century are pretextual; and what are pretextual; Nineteenth Century of it since the made in favor fail to disclose—suchphysicians sensitive is the most as that the foreskin has warned against that the AAP committee on pain part of the penis, without anesthet- that boys are often circumcised causing pain to infants, can be fatal, and that risks many severe injuries and ics, that circumcision having been circumcised—ismany men resent MGC and inexcusable. causes of action for battery, FGC give rise to 2020] 2020] C Y cjp_30-1_42664 Sheet No. 58 Side A 58 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36