Religious Circumcision and the Human Rights

76 LEADING ARTICLE Circumcision Islamic values. A further advantage of Arch Dis Child: first published as 10.1136/adc.86.2.76 on 1 February 2002. Downloaded from ................................................................................... early circumcision is that the child is able to immediately identify with his culture, which gives him a sense of belonging. Religious circumcision and the Circumcision in Islam forms one of the five prescribed rituals designed to Human Rights Act enhance personal hygiene, the others being: shaving pubic hair regularly, A R Gatrad, A Sheikh, H Jacks moustache trimming, paring of nails, and removing hair from under the arm- ................................................................................... pit. Although some of these practices are Implications for state provision not strictly adhered to by the third generation of Muslims in the UK, all Muslim males are circumcised without edicine today is in a delicate ing into a Covenant with the Divine. One exception. It has long been the belief of state of balance between the of the prerequisites for becoming “a Muslims that an uncircumcised male is paternalistic and the modern; an great nation” was that Abraham should M unclean and that the foreskin may increasingly empowered public demands “circumcise the flesh of the foreskin”. harbour disease.4 Some Muslim jurists its rights, while the medical profession is “Every male among you in every genera- have ruled that marriage to an uncir- frequently seen as taking refuge behind tion shall be circumcised on the eighth cumcised male is void and that such a a shield offered by evidence based medi- day ...” (Genesis xvii, 10–13) exhorts the person cannot be buried in a Muslim cine. When viewed in this context, it is Biblical teaching, thus laying the foun- cemetery. perhaps not surprising that male reli- dations for circumcision of Jewish male gious circumcision—the most widely infants. As a result, the bris is typically a RELIGIOUS CIRCUMCISION IN practised surgical operation in the time of great celebration with the baby 1 THE UK world —invokes considerable contro- usually given its Hebrew name on the British born Jewish and Muslim males versy and debate within the secularised same day. West. continue to be circumcised; the difficul- It is estimated that one third of the Christianity ties in obtaining religious circumcision global male population is circumcised.2 Jesus Christ was circumcised on the on the NHS, however, necessitates fre- Both Jewish and Islamic law sanction eighth day, in keeping with Jewish tradi- quent recourse to the private sector for and indeed promote religious circumci- tion; as the first male followers of Christ the performance of this essential rite. sion for males. Of concern then is the were Jews, the Church argued that Specially trained rabbis, known as mo- observation made by many that despite circumcision was compulsory for hels, will typically attend to the needs of the presence of sizeable faith communi- converts.3 Paul, his disciple, however was the Jewish community. In some parts of ties in Britain that adhere to this of the opinion that Jesus had fulfilled the Britain, because of a dearth of suitably tradition, state provision of services for “Old Covenant” and as circumcision trained Muslim practitioners, the com- religious circumcision remains, at best, would inhibit the appeal of his gospel, he munity also turns to mohels for expedi- patchy. Religious minority communities proclaimed that “in Jesus neither cir- ency. More typically however, a Muslim http://adc.bmj.com/ demand the right to practice their faith, cumcision nor uncircumcision counts for general practitioner (GP) or a paediatri- while medical opinion in Britain has his- anything” (Galatians v, 6) and this prac- cian, working in a private capacity, is torically derided religious circumcision tice was therefore unnecessary.3 approached to carry out the procedure, at on the grounds that there is at best, no an average cost of £50–100. good evidence that the procedure is of Islam Attempts by the Muslim community benefit, and at worst, that it constitutes a Islam is a close sister religion to Judaism to persuade health authorities to provide form of genital mutilation. What, if any, and Christianity and shares with them a religious circumcision on the NHS have Middle Eastern origin. It sanctions reli- largely proved unsuccessful, with only a are the implications of the recently on September 25, 2021 by guest. Protected copyright. introduced Human Rights Act with gious circumcision for males. Prophet handful of authorities currently offering respect to this continuing debate? In this Muhammad instructed his followers to this service. The question of male cir- circumcise their male infants on the sev- cumcision continues to excite consider- paper, we summarise the legal argu- 5 ments for and against religious circumci- enth day of life; as with the Jewish com- able debate in secular Western societies, sion in the light of this new legislation, munity,the child is usually named on the and although papers continue to be pub- exploring the powers and responsibility same day amid festivities, and food is lished indicating that the procedure may distributed to friends, family, and the offer benefit through protecting against of the Secretary of State for Health in 6 ensuring fair and equitable health care destitute to mark the occasion. Muham- conditions such as HIV infection, it is provision for all British citizens. mad’s utterances and actions— perhaps reasonable to conclude that the collectively known as the Sunnah— practice is looked on with contempt by RELIGIOUS CIRCUMCISION represent an accepted basis for the many clinicians. Pertinent to these deliberations is the derivation of religious law, and therefore need for a basic appreciation of mono- it is not surprising that the overwhelm- THE HUMAN RIGHTS ACT AND theistic faiths with respect to male ing majority of Muslims respect this ITS APPLICATION circumcision. The overview presented teaching and have their male offspring Although in most instances the reason here is in no way comprehensive, but circumcised. Variations in the timing of for male circumcision is a religious or rather aims to convey something of the the procedure do exist, with some cultural one, there is a grey area between significance of this practice to both Jews communities delaying the procedure; this and therapeutic indications. Female and Muslims and helps to underpin the however, all will insist on circumcision circumcision, on the other hand, is legal debate which follows. prior to attaining majority (age of 10). To perceived as offering no possible thera- leave this operation for a few years could peutic benefit whatsoever, and therefore Judaism result in the youth becoming non- represents an interesting comparison The Old Testament describes Abraham— compliant—because of fear of the when considering the implications of the Kirkegard’s “Knight of Faith”—as enter- procedure—resulting in dilution of newly introduced legislation. Although www.archdischild.com LEADING ARTICLE 77 female circumcision has been illegal in inadequate anaesthesia) and perhaps necessary, in default of which consent Arch Dis Child: first published as 10.1136/adc.86.2.76 on 1 February 2002. Downloaded from the UK since the Prohibition of Female more importantly, has almost certainly would need to be given by the Court. The Circumcision Act was passed in 1985, it not been sought or requested by the Court is prepared to give its consent in has been perceived as an unnecessary child, as inevitably of course, the child is those cases where it is satisfied that this is piece of legislation, given that the per- an infant. The relevance of Article 8 is in the child’s interest, for example, being formance of this operation is considered that it preserves the right to a private life. accepted in the community given that as “unprofessional conduct” by the Gen- In simple terms, for someone to come Section 1 of the Children Act 198911 eral Medical Council. In addition, if per- along unbidden (by the child) and carry reminds us that the child’s welfare shall formed by someone other than a regis- out a procedure which causes pain and is be the Court’s paramount consideration; tered medical practitioner, this would be not of any immediate obvious benefit, this obviously includes the fact that the an illegal act under Common Law for it would potentially infringe that right. procedure is carried out without risk and would be tantamount to aggravated Conversely the protection within that pain. assault against the person. Article of family life, is clearly pertinent Case Laws such as the ones cited above Neither of these constraints however to the child being accepted or rejected therefore seem to indicate that the pertain to male circumcision; it would within a particular religious or ethnic courts are supposed to operate a high nonetheless be wrong to justify all community. Similar considerations apply “threshold” test when deciding whether operations as having a potential thera- in relation to Article 9—it may well be a Article 3 has been breached. They will peutic benefit, regardless of the motiva- prerequisite of membership of a particu- decide, it seems, that this threshold is tion for the procedure. There has histori- lar community (such as the Muslim or not crossed in the case of a religiously/ cally been a far greater enthusiasm for Jewish community), that a circumcision culturally carried out male circumcision. 7 this procedure in the United States, has been carried out on the child. Article 3 is therefore in reality unlikely to although there appears to be a slight When considering whether there is a be applicable in cases of ritual male decline in this practice recently. This breach of a relevant human right, one circumcision. leads to the rather uneasy conclusion has to look at the body of the Human What is the likelihood that any Article that professional organisations (particu- Rights Act, and in particular Sections 6 8 rights are breached? A child may larly in the United States) and the crimi- and 7.

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