Because most philosophies that frown on reproduction don't survive.

Wednesday, June 27, 2012

On the German Circumcision Ruling

Gilbert of The Last Conformer is a Catholic blogger in Germany who writes in English, and as such he's able to bring some local knowledge to the "Germany outlaws Judaism" story that's been going around.
The abstract legal question has been under discussion for a while. The new part is not that a circumcision counts as bodily injury. German courts have always helt that basically every medical treatment is a "bodily injury" under section 223 of the criminal code. There are however legal justifications that make the act of bodily injury legal. The most important one is consent, which is why doctors are still in business.

Now the question is if parents can consent to their children's circumcision. The general rule is that they can consent to medical procedures if they are in the child's best interest. What exactly counts as the child's best interest is not defined by statute and basically left to the courts. Most German legal scholars think circumcision is in the best interest of a child growing up in a religious setting that demands it, because in that context it's an important part of socialization. A minority think it isn't, because an irreversible damage is more important.
...
Unlike common law systems, the German legal system doesn't officially have binding precedents. So no new law has been created and any other court or theoretically even the same one could find different in different cases. But this specific court has made its opinion known and presumably would find child circumcision criminal in other appeals from its district.

I am ashamed for my country. Obviously a statute in need of interpretation should be interpreted in the light of the constitutional guarantee of religious liberty. And I think it's pretty obvious that circumcision wins for every religion prescribing it.

But in this case it's especially bad because of our national history with the Jews. A German court declaring it a crime to practice the Jewish religion is even more heinous than it "just" failing to get religious freedom. A week ago I would have thought this impossible and people in other countries are fully justified in downgrading their opinion of Germany.

Still, please keep your sense of proportion in the extent of how far you downgrade your opinion of Germany. Idiotic court rulings happen in all countries and the principles of this one will not stand.
There's more in the full post about the specific context, how the case progressed, and the likelihood (apparently high) that legislation will be passed to make it clear that circumcision is a protected religious practice. Go read the whole thing.

21 comments:

Anonymous said...

If circumcision is ok, why isn't "female circumcision"? It's also claimed as a religious practice. In fact, pretty much all the same justifications are made for both. Why don't boys get to keep their genitals intact?

I'll admit, religious circumcision by Jews leaves me conflicted, because as a Catholic, I believe the OT, etc. But at the same time, natural law, Catholic medical ethics, my personal experience, etc. all argue against routine "medical" circumcision, mostly only still practiced here in the U.S.

I think the practice ought to be banned, not because of lack of consent from the child on a religious matter (parents have the right to raise their child in their religion), but because of lack of consent on a bodily integrity matter. Amputating healthy body parts for no medical reason, especially without the amputee's consent, sickens me.

Brandon said...

It can be a difficult question, but there is no one practice called 'female circumcision' (unlike male circumcision, which is a fairly precise procedure with only minor variations), and the various practices occur in widely different contexts, so it would be necessary to be much more specific.

I'm not quite sure I understand your last paragraph; on what principled basis would you allow medical exceptions and not religious ones, while at the same time not regarding consent important in religious matters but regarding it as important in medical matters? How do you square your suggestion of a ban with your claim that parents have the right to raise their children in their religion, given that both the Jewish and Muslim religion require this to include circumcision? Likewise, you mentioned natural law, but traditional natural law theorists explicitly considered circumcision and denied that it was in any way a violation of bodily integrity, so how is natural law actually informing your argument? In other words, it's not clear what the objection is, because it's unclear what your underlying principles are.

Darwin said...

Anon,

Like Brandon, I'm unclear as to what you're arguing in your last paragraph.

On your first:

If circumcision is ok, why isn't "female circumcision"? It's also claimed as a religious practice. In fact, pretty much all the same justifications are made for both. Why don't boys get to keep their genitals intact?

To the extent that "female circumcision" is usually used to refer to the complete removal of the clitoris and the removal and/or cauterization of other parts of the female genital area, it seems to me that there's a much stronger case for considering "female circumcision" to be a violation of bodily integrity. An analogous male procedure would be the near complete removal of the penis, not just the removal of the foreskin -- something which actually had medical value in times and places without modern standards of cleanliness and which doesn't result in any clear loss of feel or function.

Given the near or complete harmlessness of the procedure of male circumcision, and the fact that it's a foundational membership rite in Judaism and Islam, banning it seems like it achieves dubious benefits while doing very clear harms.

bearing said...

I admit that I'm sympathetic to the desire to ban routine circumcision on bodily integrity/consent grounds. Heck, I'm eeped out by the practice of piercing babies' ears. I haven't had any of my sons circumcised, and that was a very deliberate choice.

If it weren't for the fact that it is "a foundational membership rite in Judaism and Islam," banning it wouldn't do *any* clear harms.

But I am also inclined to come down heavily on the side of religious freedom. I often describe myself as practically a First Amendment absolutist.

So for me the question of whether infant circumcision should be considered as impermissible abuse is difficult. Usually, it seems, religious freedom and bodily integrity/consent are on the *same* side. Here, I can't quite come up with an argument better than "well, Judaism is special, so it gets a pass on the don't-cut-off-pieces-of-your-babies front." And that bugs me.

TheOFloinn said...

Strangely enough, when I was a baby, circumcisions were routinely performed "for medical reasons." This evidently had to do with the ease of washing and cleaning the penis. Fashions change, I suppose.

But if circumcision is horrific because it cuts out a healthy tissue, how do we justify the removal of wisdom teeth or tonsils when there is no impaction or infection?

Darwin said...

I guess I find it hard to get worked up about the bodily integrity issue, in particular because I and all the males in my family were circumcised, and so I'm fairly confident in it's not being a detriment to a guy's life.

Also, it seems important to me to be careful about how one frames the question. Not "do we have a really good reason to allow Jews and Muslims to do something some of us find icky" but rather "do we have a very strong and compelling reason to have the state step in between parents and children and make overrule the parent's decisions about something".

The German court's ruling on this issue seems in keeping with a general tendency in Germany and some other parts of Europe to see it as the state's job to get in between parents and children on a lot of decisions. For instance, a German family was given political asylum in the US a couple years ago when the parents were going to be jailed and their children taken away because of the parent's desire to homeschool. The state's view was that it was the state's job to enforce the child's right to a good education, and that the state did this by insisting that all children attend approved schools.

Rather than end up in that kind of situation, I'd rather see the maximum amount of latitude possible given to parents in determining how raise their children, and something as harmless as infant circumcision (whether for religious reasons or basically any other) strikes me as falling well within that latitude.

Lauren said...

Legal question: so if all medial procedures are defined at assault with consent, is suing for medial malpractice or assault even possible? So a patient consents to a routine medial procedure which goes wrong or the doctor is a creep and assaults the patient, then is the patient just out of luck legally because they've already consented to assault? it seems a very strange way define it. I'm no lawyer, but sounds odd to me.

As for circumcision, Mary and Joseph had Jesus circumcised. Can't be that horrible.

MrsDarwin said...

Oh goody, a circumcision discussion. We haven't had one of those since Jack had the snip almost four years ago. At least it's a change from talking about sex and porn. We know how to mix it up on this blog.

Lauren, I'm with you, and I've never understood the "Catholics Against Circumcision!" furor. If the Blessed Virgin Mary had Jesus circumcised, then you can say what you want about the practice, but you can't say that it's immoral in and of itself. From a religious standpoint, if God is the creator of our bodies, He surely has the right to requirement modification of our bodies. It's an old covenant requirement, which is why Catholics aren't obligated to have it done, but they're not forbidden it either.

As for the "eep" factor: I've seen it done, and it's not all that extreme. "Mutilation" is not an appropriate word to describe the procedure, since it destroys neither function nor form (unless one has a particular admiration for the uncircumcised penile form, but I'm not qualified to make the assessment since I've never seen one of those in person except on an infant a few days old).

What I can't understand is this peculiar insistence on comparing circumcision to female genital mutilation, as if there were some kind of equivalence. There isn't. There is no female equivalent of circumcision -- males and females are physically different, in case that's news to anyone. The procedure called "female circumcision" is analogous to castration, not circumcision, and castration is something that I think we can all agree is abhorrent religiously and and the level of bodily integrity. If one wants to argue against circumcision there are surely many compelling cases to be made, but false equivalence is not one of them.

Gilbert said...

Thanks for the shout-out, Darwin!

@Lauren
I'm not a lawyer either, so don't rely on this for anything important.

That being said, I think the consent is to a specific action and not to the abstract offense or analogous civil violation it could be subsumed under. So the justification will not transfer to the doctor being negligent or just doing something completely different.

If the procedure just goes wrong because it sometimes does without the doctor being at fault the patient is indeed out of luck. If the doctor is provably at fault the patient has a civil claim and depending on the circumstances there might also be a criminal punishment.

By American standards the compensation would be extremely low though. There are no penal damages and actual damages for bodily harm are very stingy.

Anonymous said...

This is the same "anon" as the first comment.

bearing said it better than I did.

Also, I know there are variations in female circumcision, but one of the typical ones is excision of the clitoral hood, which is analogous to the foreskin. And in the cultures that practice it, they argue the same reasons: cleanliness, avoiding masturbation (the reason medical circumcision of males was started in the 19th century!), etc...

As for the Old Covenant: Learning the function and anatomy of the foreskin helped several references to circumcision in the New Testament make more sense to me. My untrained interpretation is that circumcision was an outward sign of a repudiation of concupiscence via sacrificing some measure of sexual pleasure (along with pain and blood and flesh) while retaining the necessary biological functions. This also makes metaphorical "circumcision" references more comprehensible to me, anyway. If circumcision wasn't understood to reduce sexual pleasure (for both parties, from what I read) i.e. imperfectly repudiate concupiscence, then I don't know how to make sense of a bunch of those passages.

Removing healthy tissue without clear medical justification doesn't square with Catholic medical ethics, as far as I understand it. Wisdom teeth are removed when they are causing or will cause problems (mine weren't, then later they were, so I had them out). I've never heard of tonsils removed without infection or some problem.

A better, albeit rather imperfect analogy to routine circumcision would be preventing cavities by removing all the teeth.

I was circumcised in the era of unquestioning hospital circumcision here in the U.S. They shoved a "consent" form in front of my dad to sign...only when he asked did they even say what it was for. No discussion of whether even my parents wanted this for me, much less what I might think of the matter.

I suffered from the age of 15 to the age of 25 with tearing of the skin and bleeding because I was circumcised. Well into the first years of marriage.

I had no idea what was wrong with me until I learned how the foreskin works. It's frankly a beautiful design, mechanically. The skin being long enough to accommodate the change in length of the erect penis.

Mine wasn't. No more bleeding today, but no elasticity. Scar tissue. Pain still. From what I can tell, mine wasn't a particularly drastic circumcision, either. (You see now why I'm commenting anonymously).

Those of you as ignorant of the anatomy of the intact male as I was, I encourage you to look it up. Especially men. It's some clever engineering.

Like bearing, If it weren't for the Jewish covenant, it would a clear case that circumcision of infants is wrong, period.

I am also loathe to allow the state between parent and child. Especially in matters of religion. But at the same time I abhor the routine circumcision that still happens only here in the U.S. I'm in a quandary on this one.

Anonymous said...

Germany is a liberal country and it thereby thinks that Jewish circumcision is bad but it probably thinks that genital mutilation is good (e.g. "transgender" operations).

Darwin said...

Anon,

Thanks for your more detailed response, especially given the highly personal nature of what's being discussed.

As for the Old Covenant: Learning the function and anatomy of the foreskin helped several references to circumcision in the New Testament make more sense to me. My untrained interpretation is that circumcision was an outward sign of a repudiation of concupiscence via sacrificing some measure of sexual pleasure (along with pain and blood and flesh) while retaining the necessary biological functions. This also makes metaphorical "circumcision" references more comprehensible to me, anyway. If circumcision wasn't understood to reduce sexual pleasure (for both parties, from what I read) i.e. imperfectly repudiate concupiscence, then I don't know how to make sense of a bunch of those passages.

I guess I'd have to see the specific passages you have in mind (could you provide citations?) Doing some basic looking around, all of the NT circumcision passages relate to the question of whether adult gentile converts to Christianity needed to be circumcised. Given how much more slowly adults heal, that seems pretty reasonable. Also, Christianity moved beyond the tribal identification of God's people which was the basis of the Old Testament into a univerval covanent in which all are called to be God's people, so a tribal mark of bodily differentiation was no longer required. Other references, still talking about why it's not necessary to be circumcised to be saved, talk about "circumcision of the heart" or "a circumcision made without hands" in order to get across the idea that one may be one of God's people without the specific physical mark which differentiated the Israelites from others. Given general Jewish OT ideas relating to purity, obviously there's also a concept of purity (physical and spiritual) that also ties in here, but I don't get the impression at all that the purpose of circumcision in the OT was to reign in concupiscence by making sex less pleasurable.

Darwin said...

Removing healthy tissue without clear medical justification doesn't square with Catholic medical ethics, as far as I understand it. Wisdom teeth are removed when they are causing or will cause problems (mine weren't, then later they were, so I had them out). I've never heard of tonsils removed without infection or some problem.

A better, albeit rather imperfect analogy to routine circumcision would be preventing cavities by removing all the teeth.


Actually, in the '50s it was fairly common to just remove the tonsils on principle at a young age -- my Mom's were. (I kind of wish this has been done for me as well, as I have large tonsils and get sore throats frequently, though given that recovery is much worse as an adult I haven't taken the step of having them out yet.)

I think the teeth analogy is bad since removing all one's teeth (as opposed to, as with a wisdom tooth, one which is places such that it's likely to cause crowding or trouble later -- the which likelihood was the reason my wisdom teeth were all removed despite being perfectly healthy) would significantly reduce function, whereas in the vast majority of cases circumcision does not affect function (either utility or pleasure) to any clear degree.

I suffered from the age of 15 to the age of 25 with tearing of the skin and bleeding because I was circumcised. Well into the first years of marriage.

I had no idea what was wrong with me until I learned how the foreskin works. It's frankly a beautiful design, mechanically. The skin being long enough to accommodate the change in length of the erect penis.

Mine wasn't. No more bleeding today, but no elasticity. Scar tissue. Pain still. From what I can tell, mine wasn't a particularly drastic circumcision, either. (You see now why I'm commenting anonymously).


This sounds really horrible, and I can certainly see how that would strongly affect your views on the issue.

That said, that's not the usual result of circumcision, either in my experience or in what I've read. There's normally plenty of skin left after circumcision, it's just that the glans is always exposed.


All that said, I guess the strong feelings people bring to this discussion serve to underline to good a tribal marker this was for the Israelites, since as something so personal it easily evokes strong feelings of "ick" or "like me".

bearing said...

All that said, I guess the strong feelings people bring to this discussion serve to underline to good a tribal marker this was for the Israelites, since as something so personal it easily evokes strong feelings of "ick" or "like me".

I definitely agree with this.

My own phillosophy is informed by a general "God made the body this way for a reason" attitude -- unless a body part is *actually* diseased, it strikes me that to remove it is mutilation -- and influenced by my attitude towards reproductive health -- low-intervention if possible. (You know very well that I am an advocate for low-intervention or natural birth, and opposed to contraception and sterilization). I don't at all mean to draw an equivalence between any of those things and circumcision, only to point out that I see in myself connections between my respect for my sons' bodily integrity and my insistence that other people respect my choices to maintain mine.

So the existence of the circumcision ritual creates a philosophical stumbling block of sorts -- and I think that is not at all an accident. The best I can do is to regard circumcision as a kind of merciful substitute for the child sacrifice practiced by the Israelites' neighbors, and a foreshadowing of the new covenant, which would not be sealed without blood.

I mean -- of course it is a hard teaching. What about the atonement isn't?

Tony said...

Darwin wrote:

not just the removal of the foreskin -- something which actually had medical value in times and places without modern standards of cleanliness and which doesn't result in any clear loss of feel or function.

Being circumcised, how can you comment on there being no loss of feel or function? Were you circumcised as an adult after trying out the "uncut" version?

Darwin said...

Tony,

Since the topic is infant circumcision, obviously it would be impossible for a single person to comment on "before" and "after".

This is, of course, the sort of topic that Wikipedia thrives on (anything to do with sex gets written up in great detail) and my reading of it is that that's no strong evidence one way or the other as to whether circumcision increases, decreases or is neutral in regard to function and feel. If there were a detriment to function or feel, I would think it would show up in the kind of surveys and studies listed there. (Indeed, even on adult circumcision, it looks like the results show now clear consensus.)

Darwin said...

Meant to post the link:

http://en.wikipedia.org/wiki/Sexual_effects_of_circumcision

Tony said...

Darwin,

Are you reading the same Wikipedia article I am?

Those reviewing the literature have reached differing conclusions. The American Academy of Pediatrics points to a survey (self-report) finding circumcised adult men had less sexual dysfunction and more varied sexual practices, but also noted anecdotal reports that penile sensation and sexual satisfaction are decreased for circumcised males.[1] In January 2007, The American Academy of Family Physicians (AAFP) stated "The effect of circumcision on penile sensation or sexual satisfaction is unknown. Because the epithelium of a circumcised glans becomes cornified, and because some feel nerve over-stimulation leads to desensitization, many believe that the glans of a circumcised penis is less sensitive. [...] No valid evidence to date, however, supports the notion that being circumcised affects sexual sensation or satisfaction."[2] Conversely, a 2002 review by Boyle et al. stated that "the genitally intact male has thousands of fine touch receptors and other highly erogenous nerve endings—many of which are lost to circumcision, with an inevitable reduction in sexual sensation experienced by circumcised males." They concluded, "intercourse is less satisfying for both partners when the man is circumcised".[3]

There are a number of things mechanically that change when a male is circumcised (if you feel the graphic nature of my description is inappropriate for your blog, please feel free to edit or delete it).

When a man has an intact foreskin, and he enters his wife, the entry is the only time he slides against the walls of her vagina. From that time on, he moves within his own foreskin reducing the chafing of his wife. He also retains more sensitivity in the head of his penis (being protected most of the time) reducing the amount of "pounding" required to reach climax. He is also encouraged by his anatomy to remain deeper and closer to his wife throughout the marital act.

The above quote says that uncircumcised men have "more varied sexual practices". Well duh. When you are insufficiently stimulated, you need to try new things.

I just am amazed at the "if it's good enough for me (or my husband or father) it's good enough for my son" attitude. If you are Jewish, and are following the old covenant, that's one thing. People make sacrifices for their faith every day, but when it's not required...

These sorts of articles seem like they're designed to quell the consciences of the parents who made these decisions and are having second thoughts.

A German ban on penile mutilation of a minor child (if there's a religious exemption) does not seem so bad to me. If he wants to get circimcised later, he can go for it. Adults pierce, tattoo and mutilate themselves all the time.

MrsDarwin said...

I think that's the most weirdly masturbatory description of sex I've ever seen.

Darwin said...

Tony,

Are you reading the same Wikipedia article I am?

Yes, I'm just reading it less selectively. The article cites a large number of studies. Some show uncircumcised males as experiencing greater sexual satisfaction and function. Some show circumcised males as experiencing greater satisfaction and function. Others show no difference. Your conclusion from these evenly divided results appears to be to assume that it supports your opinion. My conclusion is that no side is supported by the data and that there is probably no very large effect one way or the other.

[I had started to go through and rebut your various mechanics points, but it seems to me that that rapidly becomes a sexual ability sand kicking contest, so I decided it is better not to "go there".]

A German ban on penile mutilation of a minor child (if there's a religious exemption) does not seem so bad to me. If he wants to get circimcised later, he can go for it.

My entire and only point in the post was that the German ruling against circumcision very specifically did not have a religious exemption, and thus amounted to a ban on Jewish and Muslim religious practice. I consider this unacceptable, not to mention very bad PR for Germany for obvious reasons.

For whatever reason, circumcision is one of those topics where the anti folks feel the need to come out of the woodwork whenever the topic is mentioned, whatever the context, and state their views. I've never quite understood how some people manage to get themselves so worked up over the topic.

Tony said...

When the poster starts being attacked, I know it's time to bow out. There is no rational discussion to be found here.