Female Genital Mutilation and Male Circumcision: Toward an Autonomy-Basedethical Framework’ (2015) 5(1) Medicolegal and Bioethics 89

Almenn hegningarlög (bann við umskurði drengja) 114. mál, 148. lögg'afarþing 2017-2018. Dear Esteemed Madam or Sir, I have read with interest about the proposed circumcision ban in Iceland. The law, ethics, and policy of male and female genital cutting are my main academic areas of expertise, and I thought I might provide a few resources that may be helpful in your governmental deliberations. I am Research Fellow at the Uehiro Centre for Practical Ethics at the University of Oxford and Associate Director of the Yale-Hastings Program in Ethics and Health Policy at Yale University and The Hastings Center. First, I am attaching an analysis of a recent court decision in England, in the matter of B and G, which classified male circumcision as a 'significant harm' but then tried to rescue the distinciton between it and female genital cutting by appealing to alleged health benefits and a distinction between religion and 'mere' culture. Since this will be a common objection to the proposed Icelandic law, I hope you will find this analysis especially helpful. In the essay, recently published in the Medical Law Review by Oxford University Press, I argue that the supposed distinctions concerning health and religion are not grounded in fact, but rather stereotypes about the two forms of genital cutting. That therefore, I conclude, if non-therapeutic female genital cutting is unlawful, then so must be non- therapeutic male genital cutting. This argument is explored further in the attached second essay, "In Defence of Genital Autonomy for Children," published by the Journal of Medical Ethics. Third, I am attaching an in-press chapter on female and male genital cutting for Cambridge University Press, showing, again, that the current legal situation whereby the one is entirely criminalized and the other not is incoherent. The fourth essay is a point-by-point comparison of the supposed differences between female and male genital cutting and shows that these are, again, not grounded in reality but based on stereotypes. Now, against this view, and as an effort to shore up 'secular' support for male circumcision, many religious leaders will (as noted) appeal to health benefits, which only one pediatric society in the world, the American Academy of Pediatrics (AAP), has argued to outweigh the risks, in their now-expired 2012 policy. The attached next two essays are critical analyses of the AAP findings on health benefits, and show that their policy was politically motivated, whereas the majority view of European health authorities that circumcision cannot be justified on medical grounds is better justified. Finally, I am attaching two essays concerning the demonstrable harms of circumcision, arguing, in brief, that since the foreskin itself has value (it has been shown to be the most touch-sensitive tissue of the penis by objective measures), its sheer removal is a harm, even if there are no additional surgical complications. If you prefer more popular, accessible discussions of these ideas, I have a posting with the Journal of Medical Ethics blog exploring the problems with appealing to medicine to arbitrate the morality of childhood genital cutting, whether for males or females: http://blogs.bmj.com/medical-ethics/2017/08/15/does-female-genital-mutilation- have-health-benefits-the-problem-with-medicalizing-morality/ And here is a short policy report I wrote for the European Parliament with my colleage Dr. Rebecca Steinfeld, a prominent Jewish opponent of male and female genital cutting who advocates instead "brit shalom" (covenant without cutting): http://euromind.global/en/brian-d-earp-and-rebecca-steinfeld/ I hope these resources are useful as you consider the issue. I am happy to send more papers or to consult on any of these matters in greater detail if that would be of use. Warmly, Brian D. Earp (titles below) February 21, 2018 Brian D. Earp, Departments of Philosophy and Psychology, Yale University Associate Director, Yale-Hastings Program in Ethics & Health Policy Research Fellow, Uehiro Centre for Practical Ethics, University of Oxford Academia.edu page; ResearchGate page; Twitter page Short video series: "Can We Trust Research in Science and Medicine?" Medical Law Review, Vol. 25, No. 4, pp. 604-627 doi:10.1093/medlaw/fwx027 Advance Access Publication: May 24, 2017 REASON AND PARADOXIN MEDICAL AND FAMILY LAW: SHAPING CHILDREN’S BODIES BRIAN D. EARP1, JENNIFER HENDRY2 AND MICHAEL THOMSON3’* 1 Philosophy, Yale University, New Haven, CT, USA 2 Law, University of Leeds, Leeds, UK 3 Law, University of Leeds, Leeds, UK *[email protected] ABSTRACT Legal outcomes often depend on the adjudication of what may appear to be straightforward distinctions. In this article, we consider two such distinctions that appear in medical and family law deliberations: the distinction between religion and culture and between therapeutic and non-therapeutic. These distinctions can impact what consti- tutes ‘reasonable parenting’ or a child’s ‘best interests’ and thus the limitations that may be placed on parental actions. Such distinctions are often imagined to be asocial facts, there for the judge to discover. We challenge this view, however, by examining the con- troversial case of B and G [2015]. In this case, Sir James Munby stated that the cutting of both male and female children’s genitals for non-therapeutic reasons constituted ‘significant harm’ for the purposes of the Children Act 1989. He went on to conclude, however, that while it can never be reasonable parenting to inflict any form of non- therapeutic genital cutting on a female child, such cutting on male children was currently tolerated. We argue that the distinctions between religion/culture and therapeutic/non-therapeutic upon which Munby LJ relied in making this judgement cannot in fact ground categorically differential legal treatment of female and male children. We analyse these distinctions from a systems theoretical perspective—specifically with reference to local paradoxes—to call into question the current legal position. Our analysis suggests that conventional distinctions drawn between religion/culture and the therapeutic/non-therapeutic in other legal contexts require much greater scrutiny than they are usually afforded. K EYW O RD S: Children, Genital cutting, Religion, Shaping surgeries, Systems theory I. INTRODUCTION Legal reasoning often coheres around the determination of what can appear to be binary distinctions. For example, the adjudication of whether an act was lawfUl or © The Author 2017. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected] • 604 Downloaded from https://academic.oup.eom/medlaw/article-abstract/25/4/604/3852239 by Yale University user on 05 January 2018 Shaping Children's Bodies • 605 unlawful may depend upon an assessment of whether it was reasonable/unreasonable, proportionate/disproportionate, careless/reckless, and so forth. In terms of criminal and civil law standards that delimit acceptable parental action, consideration of whether a practice is religious or cultural or whether an intervention is therapeutic or non-therapeutic may be similarly determinative. Practices described as religious or therapeutic in nature are typically afforded greater protection from interference by the state than those that are described as non-therapeutic or ‘merely’ cultural. Neither of these distinctions is straightforward, however. As we shall demonstrate, rather than being ahistorical or apolitical in nature, dominant understandings of which practices do or do not deserve the labels ‘religious’ or ‘therapeutic’ are shaped by competing value claims and by overlapping, often evolving contingencies of culture, power, gender, race, and social class. As Alice Ludvig notes, law’s ‘dichotomies are not “neutral”; they have been the means of fixing meaning in ways that secure power relations and inequalities in and of themselves’.1 One particularly contentious area in which these binary distinctions are commonly drawn concerns the cutting of children’s genitals. When such cutting is done to female children, it is often said to be a non-religious cultural practice, and one which, more- over, has no therapeutic benefit: if legal protection is to be granted, therefore, it should be to the girl and her unmodified genitals, rather than to those who might wish to cut them. When such cutting is done to male children, by contrast, it is commonly said to be a religious practice, and one with at least potential therapeutic benefit:2 therefore, it must not be restricted—much less forbidden—by law. Accordingly, protection in this instance is afforded to the parents, or to the person or persons des- ignated by the parents to cut the boy’s genitals. To interrogate these distinctions we turn to the English High Court decision of B and G [2015], in which Sir James Munby, President of the Family Division, consid- ered the current disparity in legal responses to male and female genital cutting (MGC, FGC). Potentially marking a shift in judicial thinking, Munby LJ found that both practices can constitute ‘significant harm’. Yet as Carol Smart has noted, ‘harm’ is not ‘a transcendental notion which is automatically knowable and recognizable at any moment in history by any member of a culture’.5 Rather, it is a culture- and context-sensitive notion, which can be shaped by differing perceptions, assumptions, and values, and by conscious or unconscious stereotypes about the object(s) of evalu- ation. Accordingly, one of our aims in this article is to shed light on such factors as they bear on judgements about harm to children’s bodies—particularly insofar as these judgements diverge as a function of the child’s sex or gender. 1 A Ludvig, ‘Differences between Women? Intersecting Voices in a Female Narrative’ (2006) 13(3) European Journal ofWomen’s Studies 245, 249. 2 Expert opinion is sharply divided. R Collier, ‘Ugly, Messy and Nasty Debate Surrounds Circumcision’ (2012) 184(1) Canadian Medical Association Journal E25; BD Earp, ‘Addressing Polarisation in Science’ (2015) 41(9) Journal ofMedical Ethics 782.

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