On Tuesday of this week a German Court decided that the circumcision of a four year old boy constituted the criminal offence of causing grievous bodily harm. The case made headlines around the world, including in Australia. Cornelia Koch discusses the cultural background to the case and the decision itself before reflecting on whether it is time to rethink the Australian attitude to male circumcision.

 While male circumcision has historically been much less controversial than female circumcision, debate about ‘the chop’ has flared up occasionally in recent decades. Now, in what may prove to be a landmark ruling, a German court has decided for the first time that undertaking male circumcision constitutes a criminal offence (court’s press release). The case immediately triggered a strong response from religious groups in Germany, but it has also made headlines around the world, for example in the New York Times and the Sydney Morning Herald. What follows is a brief outline of cultural differences in relation to male circumcision between Western countries which may not be widely known. It is followed by a summary of the German case and a prediction on how this will play out in Germany, as an appeal to the highest German and European courts certainly looms large. Subsequently, I will reflect on the debate in Australia and raise the question whether it is time to see the circumcision of infants and children in a new light in this country.

 A note on cultural differences in Western countries

Before delving into the case, I would like to draw readers’ attention to one significant and not necessarily widely known cultural difference between continental Western countries and Australia, the United States, Canada and New Zealand. It may come as a surprise to Australian readers to hear that male circumcision other than for religious reasons is and has been almost unheard of on the European continent. That means that only sons of Jewish or Muslim parents are and have been circumcised. It was never a mainstream procedure. In contrast, the practice of circumcising all newborn boys was widespread in Australia, the United States, Canada and New Zealand since the 19^th century and, despite a drop in circumcision rates since the 1970s or 1980s, the practice is still not uncommon and culturally accepted.

 The extent of the cultural acceptance and the cultural difference between Australians and continental Europeans is illustrated by my personal experience. When my son was born in 2010, one of the first things that the mid-wife asked me and my partner was whether we would like to have him circumcised. It seemed as normal as clamping off the umbilical cord, (though no pressure was applied on us to go ahead with the procedure when we declined). As my partner and I are from continental European backgrounds, we refused and had a giggle about it later. For continental Europeans it is a bizarre idea to put your newborn baby through a procedure like this for no obvious reason. I acknowledge that some Australians believe that undertaking male circumcision is medically warranted and will address this point below. My partner and I were at the time not aware of any of these arguments. Our experience shows the strong cultural difference on this topic.

 It also explains why a decision of a lower court in Germany very quickly made headlines in places like Australia and the United States. After all, the German court is effectively passing moral judgment on a widely used cultural practice here. To put it brutally, the judgment impliedly suggests that a large majority of Australian parents have for over a century initiated and consented to grievous bodily harm being caused to their sons.

 Recognising the cultural difference is also vital in a discussion of the German case because it sets the scene for the debate in Germany, which is different from one that would be had in Australia. While in Australia circumcision was the norm for a long time, in Germany, there are only two reasons why someone would have their child circumcised – religious or acute and pressing medical reasons. (I read that any kind of ‘cutting’ of the foreskin in males of any age may be medically necessary in 1 in 500 men. This includes procedures that are less invasive than the complete removal of the foreskin.)

 The German case and reactions to it

The case decided by the German court, the Landgericht of Cologne, concerned a four year old Muslim boy who had been circumcised by a doctor on request of his parents. The parents asked for the procedure for religious reasons because male circumcision is regarded as an important rite in the Muslim (and Jewish) religions. The procedure was not warranted for any medical reasons.

 When the Prosecutor’s Office became aware of the case, it brought an action against the doctor for causing grievous bodily harm. The lower court acquitted the accused on the basis that he had carried out the procedure with parental consent, thus finding that parents are entitled to consent to such a procedure on behalf of their young child. The court also held that the procedure promoted the welfare of the child because it was a traditional practice which confirmed the boy’s belonging to a religious and cultural community. His circumcision prevented the stigmatisation of him as an outsider in his community. In coming to its decision the court also referred to the fact that circumcision for hygienic reasons played an important role in the North American and Anglo-Saxon culture.

 However, on appeal the Landgericht Cologne overturned this reasoning. It determined that carrying out a circumcision on a child for religious reasons, even with parental consent, constitutes a crime in German law. The Court found that this procedure did not promote the boy’s welfare but violated his fundamental right to bodily integrity, protected by the bill of rights in the German Constitution. It said that ‘the body of the child is irreparably and permanently changed by a circumcision. This change contravenes the interests of the child to decide later his religious beliefs.’ Against the child’s right to bodily integrity, the Court weighed the religious freedom of the parents and the parental right to educate their child, including in religious matters, both also protected by the constitutional bill of rights.

 In weighing up these competing rights against each other, the Court found that it would not be a an unacceptable compromise for the parents if they had to wait until the child himself could decide whether or not he wanted to be circumcised. In other words, it was fine for a consenting adult to undergo male circumcision, but it was not warranted for the parents to make their young son endure this invasive and irreversible procedure before he could legally consent to it, even if that was religiously motivated.

 The doctor who performed the procedure was nevertheless acquitted, because the law on this question had not been clear. The Court found that the doctor had been justified in believing that he could legally perform the surgery as long as he had parental consent.

 This judgment was handed down by a lower court in Cologne. While it is not binding on other courts, nor highly persuasive due to the low position of this court in the German court hierarchy, it could have the consequence that doctors asked to perform circumcisions in the future may now not be able to rely on an unclear legal position. Unless this judgment is overturned, it would not be advisable for a doctor to perform this surgery as they could risk serious criminal repercussions.

 Additional comment 3 July 2012: The judgment is already having the effect that I predicted. For example, only days after the decision was handed down, the Jewish Hospital in Berlin cancelled all religiously motivated circumcisions and announced that it would no longer undertake this procedure because it could not allow its doctors to risk criminal sanctions.

 The case has caused outrage amongst German religious groups. Muslim, Jewish and Christian organisations have condemned the judgment as interfering fundamentally in religious practices which have been carried out for centuries (or millennia) and thus in the parents’ right to freedom of religion. More broadly these groups argue that the decision also interferes unjustifiably with the parents’ right to educate their children, including in religious matters.

 Additional comment 3 July 2012: However, it seems that the broader German community is in favour of the judgment. A poll conducted by the magazine Focus found that a majority of 56% supported the Court’s decision, while 35% were opposed and 10% undecided.

 Correction to the next paragraph 3 July 2012: In contrast to what I said below, the doctor who performed the surgery on the Muslim boy does not have an option for appeal and the prosecution has stated that it would not appeal. The judgment in this case is therefore final. However, considering how heated the debate on this topic has become in Germany, it is almost inevitable that a ‘test case’, financially backed by religious organisations, will find its way into the court system. Because of the judgment of the Landgericht Cologne, the doctor and parents (as accessories) in this test case will not be able to rely on legal uncertainly to escape conviction. This will open the door to appeals through the German court hierarchy and possibly to the European Court of Human Rights, as described below.

 An alternative to this chain of events is that the German Parliament legalises male circumcision by means of a specific law in the near future. This is not unlikely because politicians have started to join the debate and some have already promised to work towards introducing a relevant Bill into Parliament. However, even if that was to occur, the legislation would end up before the highest courts because it would be challenged as infringing the boys’ right to bodily integrity. Therefore, no matter how the events unfold, this controversial question will ultimately be decided by the highest German and possibly European courts. These courts will approach the question as outlined below.

 Due to the strong interest in this matter by religious groups and its controversial nature, it is highly likely that this case will now be taken through the entire German court hierarchy to the German Constitutional Court. If the boy’s parents lose in that court, they will probably take the case to the European Court of Human Rights, with the support of religious groups. The fundamental question which these courts will have to decide is how to balance the boy’s right to bodily integrity with the religious rights of the parents and their right to educate their child.

 I predict that it is not unlikely for the higher German and European courts to follow the Landgericht’s lead. While religious freedom is strongly protected under the German Constitution, it always has to be balanced with other competing rights. In this case, the right to bodily integrity of a young child, who is unable to consent to an invasive and irreparable medical procedure, is a very important one. The State is obliged to protect the interests of children even against their own parents, in relevant circumstances. In German constitutional law, the principle of proportionality is applied in an attempt to balance the competing rights so that each is infringed to the least possible degree. Determining that the procedure can be performed, but only once the person is at an age where he can legally consent to it, does seem to be a likely compromise.

 Of course this outcome, while legally rational, is very controversial because it dramatically interferes with century old religious practices. Male circumcision is usually performed when the child is young. According to the Jewish practice, healthy boys are circumcised eight days after their birth. Muslim boys are usually circumcised when they are still toddlers. A court ruling which requires the procedure to be postponed until the person is old enough to legally consent constitutes a fundamental shift away from these religious practices. Nevertheless, because the bodily integrity of the child is at stake, it is likely that a consideration of his welfare will outweigh the religious freedom of the parents and their right to educate their child, even in religious matters. In my personal view, circumcision of children, even if religiously motivated, should not be permitted under any circumstances unless there are pressing medical reasons.

 Is it time for change in Australia?

As outlined above, a discussion of male circumcision in Australia takes place in a different cultural environment from that in Germany. Non-religiously motivated circumcision has been prevalent for a long time and research indicates that even today 20% of newborn boys are being circumcised according to their parents’ wishes. As part of its story about the German judgment, the Sydney Morning Herald conducted a poll on the question: ‘Do you think the right of the child outweighs that of the parents?’ Out of 11.237 respondents 56% voted ‘yes’, 38% ‘no’ and 6% ‘not sure’. This response shows that there is still a relatively high rate of support for male circumcision in Australia, in an environment where this does not turn on a religious question.

Instead, historically the reason for widespread circumcision of boys was a medical one. In the 19^th century, doctors started to recommend male circumcision because it was to prevent masturbation, syphilis and other ‘conditions’. Over time, various health benefits for the procedure were promoted, but it seems that it has now become a cultural practice. While a significant number of people still believe that it is warranted for medical reasons, there is very little support for this view from medical experts. Most leading medical bodies in the Western world, for example the English National Health Service and the Royal Australian College of Physicians, do not recommend circumcision and point out that the medical risks associated with having the operation outweigh the potential health benefits. Therefore, I argue that male circumcision is a non-therapeutic procedure.

 Before moving on to the broader issues at stake in Australia, I make one comment on the religious dimension of circumcision in this country. Of course, members of certain religious communities living in Australia would like to see their sons circumcised for religious reasons, just as they do in Germany. However, because in Australia protection of religious freedom at the constitutional and even legislative level is much weaker than it is in Germany, it is very unlikely that male circumcision would be protected because it is a religious practice, if any parliament wanted to outlaw it. However, in Australia the debate would probably not focus on religious, but on broader cultural issues.

At the centre of the debate about male circumcision stands the fact that the person on whom the procedure is performed is a young child who cannot legally consent to it. The question becomes whether the parents should be allowed to initiate the procedure lacking this consent or whether it should fall within a group of procedures that parents cannot consent to. The pivotal case in Australia on this topic is Marion’s case (1992) 175 CLR 218. In this case, the parents of a 14 year old girl, who was severely mentally and physically disabled, wanted to have their daughter sterilised. The High Court had to decide whether this type of procedure was one where parental consent was sufficient or where a court order had to be issued to allow the surgery. A majority of the Court held that this was an invasive, irreversible and non-therapeutic procedure, which required more than just parental consent. As a result, a court order was needed for the surgery to go ahead.

 I do not propose that male circumcision is as grave an operation as sterilisation. Nevertheless, one should realise that circumcision fulfils all the requirements of Marion’s case: it is invasive, irreversible and non-therapeutic (as argued above). Therefore, it may be worthwhile to pause and think before simply allowing parents to have this drastic procedure carried out on young children.

In an informed debate, one must also emphasise that male circumcision is not without risk. While it is a routine surgery, it is an unnecessary one. Infections and bleeding can occur. In the extreme but real case of botched circumcisions, a boy can literally lose his penis. One example of this is documented in the fascinating real life story of David Reimer, a boy born in 1967 in the US. After his botched circumcision as a baby, his parents were advised to agree to drastic gender reassignment surgery and to raise him as a girl. (John Colapinto, As Nature Made Him (Harper Collins, 2000)) This case was not unique and it shows in the extreme the terrible consequences of a surgery which, as we now know, was unnecessary in the first place.

 I acknowledge that there are many more arguments in favour of and against male circumcision that I have not addressed here. However, the purpose of this short piece is not to canvass the entire debate, but rather to make people stop and think before they agree to their son being circumcised, just because ‘this is the way it’s always been’. If parents have medical concerns, they should have a serious discussion with their doctor about the potential health benefits and risks of the procedure.

 But I would even go further than that. In my view, a procedure which started in Australia for dubious medical reasons (that it could prevent masturbation, syphilis etc) and then became culturally entrenched should not be continued simply because it has become part of mainstream culture. Most medical bodies in Western countries including Australia now agree that it is medically more risky to have a circumcision than not to have one. We should take a long, hard look at allowing parents to determine that their boys should be circumcised for no convincing rational reasons. There appears to be a societal change in Australia as the rate of circumcision is in decline. It may be time for the law to catch up and prohibit male circumcision unless it is required for pressing medical reasons, or is performed on a consenting adult. This would bring the law in line with current medical knowledge. Laws should not be based on overcome cultural ideals, particularly when it comes to the protection of the bodily integrity of a very young person.

 Cornelia Koch is a Senior Lecturer at the Adelaide Law School.