The Circumcision Debate: Modern Discourse of an Ancient Procedure

Neonatal male circumcision is a surgical procedure during which some or all of an infant male’s penile foreskin is removed. Male circumcision is one of the oldest documented surgeries dating back to Egypt in 2300 B.C.E.[1] Today, circumcision is the most commonly performed surgery worldwide.[2] However, many medical, legal, and human rights experts argue that circumcision is a violent procedure which ignores the infant’s rights.

In 2012, the debate over neonatal male circumcision was brought to the forefront after the death of a New York baby. The baby died after contracting the Herpes Simplex virus from a metzitzah b’peh, an Orthodox Jewish practice in which a mohel,[3] after performing a circumcision, sucks blood directly from the infant’s penis.[4] Since 2000, this practice has been linked to 17 separate instances of babies contracting the Herpes virus in New York State alone.[5] Also in 2012, a regional court in Germany held that neonatal circumcision violates the infant’s right to bodily integrity and self-determination and amounts to grievous bodily harm.[6] Soon after, the German legislature passed a law permitting circumcision when performed for religious justifications. These events and others have brought circumcision under the international spotlight, compelling a reassessment of the justifications underlying this ancient practice.

In Canada, circumcision’s prevalence has been on a steady decline since the 1950’s, an era during which a majority of newborn males were circumcised as compared with only 32% today.[7] Provincial or territorial health insurance plans no longer cover circumcision costs.[8] In 1996 and again in 2015, the Canadian Paediatric Society released a Position Statement recommending against neonatal circumcision, stating that its benefits are minimal and, in any case, are outweighed by the health risks.[9] This policy placed Canada alongside Australia, Britain, and all European countries who do not endorse neonatal circumcision.[10]

Conversely, in 2012 the American Academy of Pediatrics released a Position Statement asserting that, while routine neonatal circumcision is not recommended, the health benefits outweigh the risks such that continued access to the surgery is justified and circumcision should be available as a parental choice.[11]  Despite not outright endorsing routine circumcision, the United States is isolated as the only nation in the world with child health experts who weigh the health benefits as outweighing the risks.[12] Some critics have gone so far as to suggest that circumcision’s continued popularity in the United States is a result of economic exploitation by the hospital, biotechnology, and pharmaceutical industries.[13]

In Canada, circumcision’s historic prevalence was likely attributed to some combination of religious,[14] cultural,[15] social,[16] and medical reasons,[17] justifying the procedure. However, as Canadian society has become increasingly secular and as medical research advances, many of the once relied upon justifications have become irrelevant or contradicted. Likewise, the development of human rights law has compelled an increased recognition of the moral worth of infants. The budding momentum away from the practice of neonatal circumcision has triggered strong anti-circumcision discourse amongst the medical, legal, and human rights communities prompting, for the first time, the question: is neonatal circumcision a violation of the infant’s Charter rights?

The American Center for Disease Control and Prevention states that circumcision is “[u]ltimately…a decision made by parents or guardians on behalf of their newborn son.”[18] But if circumcision is a non-medically necessary surgery, should it be the kind of decision that can be made on behalf of another person? This paper will provide a survey of the arguments for and against circumcision, ultimately concluding that neonatal circumcision is ethically impermissible and legally problematic.[19] Ethically impermissible because of medical professionals’ position against it, the procedure’s lifelong, irreversible consequences, and the elective nature of the procedure combined with the infant’s inability to provide consent. Legally problematic because neonatal circumcision violates the infant’s Charter rights to Security of Person under Section 7, Freedom of Religion under Section 2(a), and Equal Protection for age under Section 15 and sex under Sections 15 and 28. Further, I will highlight the stark contrast between the condemnation of female genital mutilation and male circumcision’s continued legality and social legitimacy. While historically, the discussion surrounding circumcision has been largely theological and medical in nature, this paper urges that the legal perspective take a participatory if not principal role in the debate.

Neonatal Circumcision: What is it?

Neonatal circumcision refers to circumcisions which take place while the baby is a newborn. Although in some cases the procedure can take place after, the vast majority of neonatal circumcisions occur within the first couple days or weeks after birth.[20] The procedure involves physically restraining the infant, then surgically removing some or all of the penile foreskin, called the “prepuce.” The skin of the prepuce continuously regenerates and is thus akin to that of the mouth, vagina, and esophagus.[21] This skin also contains a high concentration of nerve endings similar to those of the fingertips and lips.[22] At birth, the skin of the prepuce adheres to the glans penis, eventually separating during the infant’s childhood or puberty.[23] The central function of the foreskin is to act as a protective cover for the glans penis.[24] It is also generally accepted that the foreskin has sexual functions: as skin with erogenous properties, as a sliding mechanism during intercourse, and as a barrier which prevents the loss of vaginal secretions.[25]

What Benefits? Whose Benefits?

A discussion of the benefits of circumcision should survey more than merely the health benefits. Benefits of a religious or cultural nature include the belief that circumcision is a covenant with God[26] or that circumcision provides a sense of belonging in a community whose members have undergone the same religious ceremony or rite of passage to manhood.[27] Benefits of a social nature include having one’s body emulate that of male family members.[28]

It is imperative that each type of benefit, whether it medical, religious, cultural, or social, be considered independently. There is a tendency to allow personal parental beliefs to colour scientific medical arguments. Physicians and health experts are individuals most knowledgeable and best suited to make informed judgements on medical issues. Parental beliefs should therefore not be included in the scientific discussion of circumcision’s benefits.

Of the four types of benefits outlined above, medical benefits are the most relevant and significant to the legal argument against circumcision. This is because it is the only kind of benefit that is truly certain to benefit the infant. The infant may grow up and choose to practice a different (or no) religious faith, fail to identify with his parents’ cultural community, or give up his parents’ social practices. The intended religious, cultural, or social benefits, may therefore not be passed on to the infant. Conversely, any medical benefits the infant receives from circumcision are beyond the infant’s choice or control.[29]

Likewise, medical risk of circumcision should not exceed the combined potential for religious, cultural, and social benefit. This is because no medical procedure performed for religious, cultural, or social grounds, if harmful to an infant, could be justified by its potential for religious, cultural, or social benefits. Again, this is because it is not certain that the infant will actually receive any of the intended benefits; rather, it is certain that the infant will be harmed.[30] To argue otherwise, is to deny the premise that children sometimes hold different beliefs than their parents or to give preference to the religious, cultural, or social beliefs of the parents rather than to the health and wellbeing of the infant. If the latter were the case, and the infant is a mere instrument used to fulfill the beliefs of the parents, then it follows that circumcision is not in the best interest of the infant, but instead the parents’.

With this in mind, the following will provide a brief survey of the medical benefits associated with neonatal circumcision.

The Benefits

The removal of an infant’s foreskin can prevent the production of smegma, a collection of oil and dead skin which collects under the foreskin.[31] Smegma is not itself harmful, however it can lead to bacterial growth and contains a strong-smelling odor. The removal of the foreskin thus aids in the ease of male hygiene.[32]

The other major, non-sexual health benefit of circumcision is the reduction of the risk of a urinary tract infection (UTI) during the first year of a baby’s life. However, this health benefit is somewhat controversial as male babies are already a very low risk group at roughly 0.007% to 0.01%.[33] Repeated and untreated UTIs can cause reduced kidney function or renal failure, however the risk of either is similarly low.[34] Renal scarring may also occur in approximately 15% of UTIs, however there is no evidence that this causes long term impact on function.[35] Generally, UTIs are not considered to pose serious short or long term health concerns.

Other health benefits of circumcision are sexually related. Some studies have suggested that circumcision reduces the risk of acquisition of the human immunodeficiency virus (HIV). These findings suggest that the skin of the prepuce may be more susceptible to HIV infection as compared with the skin on the rest of the penis.[36] This skin is also more likely to experience minor tearing during intercourse.[37] These tears act as the entrance into the body for harmful pathogens including HIV.[38] Moreover, the space between the unretracted foreskin and the penis may be vulnerable to virus colonization, including HIV and Human Papillomavirus (HPV).[39] However, other studies have produced conflicting results and several HIV studies have been criticised for methodological flaws.[40] Consequently, there is not widespread acceptance within the international medical community that circumcision reduces HIV acquisition.[41]

Another suggestion from these controversial studies is that circumcision of male infants will reduce the impact of the HIV virus in adult males which will, in turn, protect adult females. However, in Canada, the main source of exposure to the HIV virus is injection drug use at 58.1% followed by heterosexual exposure at 30.2%.[42] The Canadian Paediatric Society has refuted the suggestion that male circumcision plays a significant role in protecting the female partner from HIV transmission.[43] Even if these findings were to be later confirmed, education and condom use are far less intrusive and more effective methods of preventing the transmission of the HIV virus.

American, Ugandan, and South African studies have independently found that circumcision may lead to a reduced risk of contracting carcinogenic subtypes of HPV, which is believed to cause about 40% of penile cancers.[44] Another study found that 80% of tumour specimens located on the glans penis were HPV-positive.[45] However, these benefits are also quite contentious in the medical community as penile cancers are extremely rare in developed countries, occurring at approximately 1 in 100,000 males.[46] For instance in 2010 only 155 Canadian men were diagnosed with penile cancer.[47] In developing countries however, penile cancer rates are more common, suggesting that hygiene may be a risk factor.[48] In either case, the medical community has advised that HPV vaccination is a much more effective and less intrusive method of fighting HPV.[49]

Neonatal circumcision reduces an infant’s risk of a UTI. However, the risk of UTI in infant males is already quite low and the associated risks are mild. The current medical recommendation asserts that the prevention of the risks of a UTI do not outweigh the risks of circumcision.[50] The other medical benefits associated with circumcision, while controversial and thus far unaccepted in the broader medical community, is that they may prevent viruses which are sexually transmitted. However, children are not sexually active, so these purported benefits do not begin to affect the infant until much later in the infant’s life. By this time, the infant is old enough to provide his own consent to the surgical procedure. Delaying the procedure slightly increases the risk of complication[51], results in a minor loss of the health benefits, protects the infant against unnecessary medical risk, and demonstrates respect for the infant’s right to bodily integrity, autonomy, and liberty. Given the Canadian Paediatric Society’s recommendation against neonatal circumcision, parents who cite medical benefits as the justification for their infant’s circumcision do so fallaciously. Likewise, parents who cite religious, cultural, or social benefits as the justification must acknowledge the likelihood that none or not all of the intended benefits will be realized and that instead medical, religious, cultural, and social harms may be inflicted.

The Harms

Just as religious, cultural, and social benefits must be included in the discussion of circumcision’s benefits, so too must their potential for harm be included in the discussion of the surgery’s risks. Religious or cultural harm, as will be discussed later in this paper, includes forcing an infant to participate in a religious ceremony which has a permanent, irreversible physical effect on the infant’s body, and impeding the infant’s ability to determine his own religious or cultural affiliation. The social harm includes the child being ashamed of the appearance of his body, humiliated by not looking like the majority of his peers, reduced sexual function caused by a botched surgery, and emotional distress caused by a violent medically-unnecessary surgery performed without his consent.

Unlike the medical benefits of circumcision, the medical risks are well understood. Like any surgical procedure, even where an analgesia is given, the patient still experiences some pain.[52] Newborn infants exhibit comprehensive responses to pain, demonstrated by both behavioural and observational indications including increased heart rate, prolonged crying, and decreases in oxygen tension.[53] Where an infant experiences procedural pain during his circumcision, long-term complications include higher pain scores and altered response to vaccinations.[54]

During circumcision, anesthetic can be given to the infant via local injection or EMLA cream.[55] However, prevalence of anaesthetic use is surprisingly low. In 1996, only 45% of US providers used anaesthesia.[56] Today, the majority of circumcisions performed by nonmedical practitioners are done so without use of any anaesthesia.[57] The most common justifications for not providing the baby with anaesthetic pain relief are cost, associated risks, and unavailability. Of neonatal babies circumcised in their first week of life using analgesia, one US study found that 6.5% still gave overt signs of experiencing pain.[58] A common alternative to anaesthesia amongst non-medical practitioners is to provide the baby with wine. While some studies have shown that this practice does provide some comfort for the infant, medical experts have asserted that this does not provide the infant with an appropriate substitute for anaesthetics.[59]

The default position in medicine is to leave the body the way it is unless there is a problem that requires treatment. The burden of proof to justify removal of the foreskin therefore falls on those seeking to remove it, not on those arguing to leave the body in its natural state. This standard of proof increases when pain and risk of complications are factored into the decision as proponents of circumcision must justify causing needless harm to a newborn. The standard of proof is higher still in circumstances where anaesthetic is available but unused.

The most common complications associated with circumcision are bleeding, and infection occurring at approximately 1.5-3%.[60] The most common chronic complication is unsatisfactory cosmetic result.[61] Other severe complications include suture sinus tracts, phimosis and concealed penis, adhesions, meatitis, meatal stenosis, chordee, urethrocutaneous fistula, necrosis, amputation, hypospadias, and in very rare instances death.[62] If the procedure is performed later in the infant’s life, the risk of complications increase.[63] In children, complication rates increase to approximately 6%,[64] the rate is roughly the same for adults.[65]

Studies of adult males who undergo circumcision have shown that penile sensitivity may slightly decrease after circumcision.[66] Another study found that circumcised males are 4.5 times more likely to use an erectile dysfunction drug.[67] Circumcised males may be less likely to use condoms because of concern about reduced penile sensitivity.[68] However, the Canadian Paediatric Society states that there is no indication that circumcision leads to a reduction in sexual function.[69]

Circumcised infants have been shown to have higher pain responses to first vaccinations.[70] Other controversial studies have linked circumcision to childhood Post-traumatic Stress Disorder,[71] higher teen social violence and suicide rates,[72] lower self-esteem in adulthood,[73] and higher divorce rates among circumcised men.[74]

Case Law on Circumcision

Case law on circumcision is limited to botched surgeries in which a physician is sued for failing to meet the standard of a reasonable care owed by a doctor.[75] They are thus generally unhelpful in formulating a Charter argument against circumcision.

Neonatal Male Circumcision or Infantile Male Genital Mutilation?

The following argument will compare and contrast male circumcision with female genital mutilation. Comparison between these two non-consensual practices is not intended to diminish the brutality of female genital mutilation, women’s struggle for international sex equality, or downplay the oppressive circumstances under which most female genital cutting takes place. Instead, examining the two practices together is exceedingly valuable in highlighting the irrationality found in the justifications for male circumcision.[76]

Female circumcision, better known as female genital mutilation or female genital cutting, refers to a variety of surgical procedures intended to alter or remove part or all of the external female genitalia. The World Health Organization identifies four types of female genital mutilation, each with varying levels of severity.[77] The results of the surgery range from partial removal of the prepuce[78] to complete removal of the clitoris and/or labia minora, to narrowing the vaginal opening through cutting and re-stitching the labia minor or majora.[79]  Reasons for female genital mutilation include social,[80] cultural,[81] hygienic,[82] aesthetic,[83] and religious.[84] The United Nations estimates that there are between 100 and 140 million women alive today who have undergone some form of female genital cutting.[85] These women live almost exclusively within sub-Saharan Africans nations or the Arab states, areas of the world with a high level inequality between men and women.[86]

Female genital mutilation is internationally regarded as a brutal disfigurement of the female body. However, some rural African communities consider the practice as being a crucial part of their cultural identity.[87] Women in these communities believe female genital cutting to be an act of sisterhood and empowerment.[88] Conversely, in Canada, as well as the rest of the developed world, female genital mutilation is illegal. Section 268 of the Criminal Code of Canada prohibits the wounding, maiming, excising, infibulation, or mutilation, in whole or in part of the labia majora, labia minora, or clitoris.[89] This practice constitutes Aggravated Assault and can result in imprisonment for a term of up to 14 years.[90]

In both male and female circumcision surgical knives are used to cut away and deliberately amputate the infant’s genitalia without the infant’s consent. It is thus curious that procedures so similar in practice, admittedly to varying degrees of severity, are treated with such utterly divergent degrees of social acceptance and are given vastly disparate legal treatment despite being performed for overtly similar justifications. For instance, the Criminal Code makes no reference whatsoever to male circumcision. In fact, Section 268’s gender-specific language excludes the possibility of males benefiting from its protection.[91] Likewise, Western society is generally very comfortable with the practice of male circumcision while extraordinarily wary about the same procedure when performed on females.

Female genital mutilation serves no recognized health benefit, and like male circumcision is not endorsed by Canadian medical professionals. While both surgical procedures involve more medical risk than benefit,[92] and neither is performed with the consent of the individual undergoing the surgery, male circumcision is legal and female genital mutilation is not. The legality and social legitimacy of male circumcision must then not be grounded in its medical justifications but instead in some combination of its religious or cultural justifications.

However, female genital mutilation is illegal irrespective of the grounds upon which it is performed, whether malicious or for a sincerity-held religious or cultural belief. Conversely, male circumcision may be performed with or without religious or cultural justification, sincerely-held or otherwise. The explanation as to why circumcision is only legal for one sex is therefore not based on religious or cultural justifications. One possible explanation for this disparity is that female circumcision eliminates a woman’s ability to derive pleasure from intercourse while male circumcision may slightly decrease penile sensitivity,[93] but does not remove sexual pleasure altogether. However a more likely explanation combines historical and sociological perspectives. Both male and female circumcision can be traced historically for thousands of years. However, only male circumcision has been practiced in the developed world within the last couple hundred years. Western society has thus been socialized and accustomed to the practice of male circumcision while female circumcision is viewed as a foreign and malign procedure.[94] This explanation offers a reason for why two surgeries, with largely no or insignificant health benefits, and often performed for analogous reasons, can be regarded, on one hand as a justifiable minor harm, and on the other, as a barbaric atrocity.

Potential & Function: Medical Arguments in Favour of Equal Treatment of Male Circumcision and Female Genital Mutilation

The penis and clitoris arise from the same embryonic tissue, the genital tubercle.[95] Embryos develop along near identical pathways for the first six weeks before the sex chromosomes direct sexual differentiation.[96] This phenomenon reflects the discrete difference between the genetic sexes. On account of the clitoris and penis’ common source, removal of all or part of one is therefore comparable to the removal of all or part of the other.[97] Anti-circumcision proponents argue that illegality of female genital mutilation should necessitate illegality of male circumcision.[98] This argument, most commonly waged by physicians, emphasizes equal treatment for bodily tissue with the same biological potential.

A similar argument focuses on the embryonic tissue’s eventual function, asserting that in addition to being created by the same biological material, the clitoris and the male prepuce play a similar role in sexual function, both in pleasure, among other things.[99] Although female genital mutilation all but removes a woman’s ability to derive pleasure from intercourse, the argument concludes that structures which share similarities in natural function should be given equal treatment, regardless of genetic sex.

Legal Arguments

Notwithstanding the medical arguments against circumcision, arguments of a purely legal nature are of an equal, if not greater, force.

Section 7

Section 7 of the Charter guarantees an individual’s right to life, liberty and security of person.[100] Circumcision, when performed for non-medical justifications and without the infant’s consent, constitutes a violation of the infant’s right to bodily integrity and autonomy.

Parents should be unable to provide consent on behalf of an infant for non-medically necessary surgery as this violates the infant’s right to physical security through subjection to unnecessary pain and medical risk. Likewise, the surgery violates an infant’s liberty interests, as later in life, the infant’s potential for sexual behaviour, aesthetics, and religious affiliation are all limited by his neonatal circumcision.[101] An infant is too young to exercise many of its rights. However, circumcision restricts an infant’s ability to exercise its liberty in the future. Genuine consideration of the infant’s rights to self-determination, autonomy, and bodily integrity oblige parents to defer elective, non-medically necessary surgeries until such time as consent may be given by the child.

Section 15

Section 15 of the Charter guarantees equality before and under the law and equal protection and benefit of the law without discrimination based on several enumerated grounds.[102] This section is particularly significant because it affords protection to infant males in two ways: through the enumerated grounds of sex and age. Like Section 28, Section 15 guarantees that the rights of males and females are protected equally. This suggests that any right or freedom available to one sex ought to be available to the other. The fact that the sex equality guarantee appears twice in the Charter is perhaps telling of the intentions of its drafters and of its import. The Charter should thus protect male infants from surgery that, if performed on a female, would be illegal.

As discussed earlier, female genital mutilation is explicitly prohibited by the Criminal Code.[103] Male circumcision is conversely not protected and cannot fall within the protection of Section 268. Like all other Canadian legislation, the Criminal Code is subject to compliance with the Charter. Circumcision of either sex is a biologically-equivalent procedure. Apart from medical necessity, female genital mutilation is de facto illegal regardless of its justification whereas male circumcision is legal regardless of its justification.[104] Therefore a hypothetical situational in which sadistic parents elect to circumcise their son merely to inflict pain upon the infant would be legal[105] whereas a female circumcision performed for devout and genuine religious beliefs is illegal. The absurdity of this hypothetical reveals a problem with the current law in Canada. Female infants are thus given more protection than males as circumcision of female genitalia constitutes Aggravated Assault whereas male circumcision is neither illegal nor punishable. This unequal protection is a violation of the sex equality guarantees found in Sections 28 and 15 of the Charter.

Secondly, Section 15 guarantees equal treatment without discrimination based on age.[106] That the recipient of neonatal circumcision is an infant should therefore not affect the degree of legal protection that infant receives. The application of this enumerated ground is somewhat complicated by the fact that the infant is unable to provide consent to the surgical procedure and must instead rely on his parents to act in the infant’s best interest. Here, it is important that the discussion not confuse the best interest of the parents with those of the infant. Physicians too have a duty to act in the best interest of the infant-patient. This duty differs from that of the parents as a physician is under a professional obligation. The Canadian Paediatric Society has stated that circumcision is not in the best medical interest of the infant.[107]

Circumcision is unique in that, although not medically necessary (or suggested), parents are permitted to determine if circumcision is still in the best interest of the infant on account of the infant’s religious, cultural, or social best interests. Parents, like doctors are permitted to consider these external factors which may affect the infant’s best interest.[108] However, as would be the case with an incapacitated adult, the personal beliefs of substitute decision makers, even parents, should not be permitted to influence or determine the best interest of the infant and furthermore, their personal beliefs should not be given preference to the medical best interest of the infant. If all that is required to justify potentially harmful elective surgery is the sincere belief of the infant’s parents that the surgery will, in some religious, cultural, or social way, benefit the child, then female genital mutilation must also be permitted where it is practiced for genuine religious, cultural, or social grounds.

The fact that this is not allowed demonstrates a recognition that parents’ personal beliefs are not what determine an infant’s best interest. Any parental decision purported to be in the infant’s best religious, cultural, or social best interest does not begin to affect the infant until later in the child’s life when they are able to understand the religious, cultural, or social implications of circumcision. By this time the infant is able to form his own beliefs as to what is in his best interest and to provide his own consent. However, at the time of circumcision, the best interest of the infant, is unknowable.[109] The medical and legal policies surrounding neonatal male circumcision therefore confuse the best interest of the parents with those of the child by permitting parents to decide whether to perform elective surgery which cannot be confirmed to be in the infant’s best interest, only in the parents’ best interest. Failure to afford infants the same level of protection that is provided in an analogous situation for an incapacitated adult represents a violation of the Charter.

Section 2(a)

Likewise, the same argument can be made with respect to an infant’s right to Freedom of Religion.[110] Any religious, cultural, or social justifications for circumcision are held by the infant’s parents, and importantly not by the infant undergoing the procedure. That an infant’s best interest and right to freedom of religion are not afforded equal protection because of his age is a violation of the Charter. In modern society, it is increasingly common for children to altogether abandon the cultural or religious beliefs of his parents.[111] An infant who is born into a family practicing religion x may later choose to convert to religion y. This frequently occurs for marital purposes.[112]

Likewise, an infant who is born into a family practicing no religion may later join a religious community or vice versa. Ultimately, the infant is free to let his own beliefs and desires guide his decision making. However, an infant’s future religious freedom may be limited if the infant believes that a covenant with God was made without his consent during his neonatal circumcision. Circumcision may therefore restrict an infant’s future choices with regard to his religious beliefs and is thus a violation of the infant’s Charter rights.Even if the infant later adopts the religious or cultural practices of his parents, this retroactive adoption does not eradicate or justify the prior violation.

That infants are unable to exercise many of their rights and freedoms until they grow older does not make their rights less worthy of protection. In fact, the legislature regularly offers extra protection to those groups who are unable to protect themselves. Parental decision-making can limit or foreclose a child’s Section 2(a) and 7 rights, eliminating rights altogether or narrowing the scope of his future rights which the child may later exercise as an adult. Every child deserves the right to an open future, having the greatest possible opportunity to exercise rights when the infant becomes old enough to do so.[113] This includes the right to determine their own religious beliefs and the right not to have their medical best interest subverted so that their parents’ personal beliefs may benefit.

Making decisions which are in the infant’s genuine best interest require that parents recognize the supremacy of the infant’s rights to their own, even if the infant cannot yet exercise all of his rights. As such, the parents’ relationship to their infant imitates that of a trustee, holding the infant’s rights in trust until such time as the infant may make his own decisions.[114] This parental safeguard of the infant’s rights demonstrates recognition that the infant’s best interest cannot be determined by the parent through an authoritative exercise of parental rights over the child.[115] This form of parental decision making provides the infant with a more open future and is compatible with the contemporary recognition of the human rights of the infant.[116]

Alternative Ceremonial Practices

Another factor that should be considered when determining if a medical treatment is in the best interest of the child is whether there are reasonable alternatives to the treatment. In the case of circumcision, some Jewish communities practice symbolic alternatives to the removal of the child’s foreskin. These are practices which act as a substitute means to accomplish the same religious observance. For instance, “Brit Shalom” is a naming and welcoming ceremony in which a child becomes initiated into the Jewish community, avoiding the need for surgery altogether.[117] Substitutive practices which accomplish the same religious or cultural objective such as this are far less invasive and risky, and should thus be encouraged by religious or cultural leaders.

Consent

The principles of autonomy and liberty provide the legal foundation for the doctrine of consent. Every individual should have the right to determine what is done with and to their body; this underlies the purpose of medical professionals attaining consent. The Health Care Consent Act requires that, prior to any medical treatment, the medical professional is given consent by the patient or their substitute decision maker.[118] Consent must relate to the treatment, be informed, be given voluntarily, and must not be obtained through misrepresentation or fraud.[119] As children are incapable of giving consent at the time of neonatal circumcision, parents must provide consent on their behalf. Providing consent for infants is practical where the medical treatment is necessary. However, in the case of an elective, non-therapeutic, irreversible surgery, there is no reason to allow parents to provide consent on behalf of their infant. The future preferences of the infant are unascertainable at the time of circumcision and therefore the decision of whether to undergo surgery should not be the kind of decision that can be made on behalf of another person.

In 1993, Justice McLellan speaking for the New Brunswick Court of Queen’s Bench stated that he was “unwilling to hold that the usual rules for informed consent for surgery apply to the circumcision” because of circumcision’s “apparent popularity in our society”.[120] This statement is reflective of the deeply engrained social legitimacy of circumcision in Canadian society and the unjustified special medical and legal treatment the surgery is awarded.

Parental Authority Defence

The parental authority defence is a common counterargument to the alleged breach of the infant’s right to equality as guaranteed by the enumerated ground of age. This argument asserts that the parents’ decision of whether to circumcise their child falls within the scope of their parental rights over the child.

The authority and freedom to make decisions regarding an infant’s care and upbringing are included in parents’ custody rights and Section 7 liberty interests.[121] These rights include decisions of an educational, religious, and medical nature. Parents are given a high degree of deference to raise their child as they see fit. However, parents must also care for and protect their child. Failure to uphold society’s standards of care may result in removal of the child from the environment of neglect or abuse.[122] Moreover, the parents’ ability to make decisions on behalf of their child is not unlimited.[123] In the case of medical decisions, the parents’ authority is typically limited to only those procedures which are deemed, by health professionals, to be medically necessary, imminent, and serious.[124] Oddly, circumcision falls outside of this scope, being one of very few[125] elective, non-medically necessary surgical procedures which parents are permitted to consent to on behalf of their child.

The Canadian Paediatric Society recommends that, where a treatment is elective and justified by non-medical reasons, medical intervention should be delayed until the patient is able to consent to the treatment.[126] Without medical justification, parents are not free to remove other parts of their infant’s body, such as ears, fingers, appendix, or tonsils even if grounded in a sincere parental belief that it is in the best interest of their infant’s religious, cultural, or social identity. This is so even if removal of the body part would be likely to prevent future health concerns. Breasts, for instance, are far more likely sites of cancer growth and, like removal of the foreskin, neither surgery would eliminate the infant’s procreative powers.[127] A sincere parental belief that it is in the infant’s best medical interest to have her breasts removed would not permit the performance of this surgery. Nor would a genuine religious, cultural, or social belief that such a surgery would benefit their infant in some corresponding religious, cultural, or social form. Therefore, if parental authority rights are what justify circumcision’s availability, they do so peculiarly and irrationally and in such a way that while being sufficient for circumcision, would be grossly insufficient to justify a similar surgical procedure.

Courts have previously intervened where parents attempt to make non-medically sound decisions on behalf of their child.[128] The doctrine of parens patriae holds that parental rights are not absolute.[129] Society may intervene where parents, acting under their Section 7 liberty interests, make a medical decision that is clearly not in the best interest of the child.[130] Likewise, society may intervene where parents, acting under their Section 2(a) religious freedom, put a child at risk.[131]

Analogous Practices

Defenders of circumcision have previously compared the procedure to trimming finger nails, cutting hair, entering a child into contact sports, or administering vaccinations.[132] However, to equate circumcision to any of these practices is to do so in bad faith. Finger nails and hair are regenerative and their removal does not cause pain. Also, these are not surgical procedures making their associated risks incomparable. Likewise, contact sports have minimum age requirements for the safety of those who participate and the participant is thus likely old enough to provide some base level of consent.[133] Sports, unlike surgical procedures are moreover done for enjoyment. Lastly, vaccinations have been demonstrated to be the most effective way of safeguarding not only the subject, but those within their immediate community.[134] As compared to circumcision, vaccinations are a far less invasive method of achieving any community-health goal.[135]  Circumcision is therefore isolated as a procedure with no analogous substitute. Even tattooing a newborn infant falls short of a suitable comparison as a tattoo, unlike circumcision, is reversible.

Parents’ Freedom of Religion Defence

Another defence of neonatal circumcision is that the procedure is included in the parents’ right to religious freedom. However, it is not clear that any right ever grants an individual permission to interfere with the rights of others.[136] Typically, one individual’s rights end where another person’s body or beliefs begin.[137] While there can be conflicting interests, religious rights have previously been subverted to the benefit of rights to bodily integrity.[138]

Merely because religious scripture directs that circumcision be performed does not justify providing access to the procedure. A disciple of any Abrahamic religious tradition taking a literalist approach to scripture must engage in several forms of illegal behaviour such as slavery, subjugation of women, or punishment for adultery or working on the Sabbath.[139] That circumcision is ordered in religious texts is therefore not sufficient to justify its legality (or social acceptance) as these other unlawful practices could not be justified in the same way.

Likewise, that parents hold a genuine belief that circumcision is necessary to form a contract between their child and God cannot justify the surgery’s legality as the sincerity of personal beliefs rightly plays no part in determining an action’s legality.[140] Ultimately, in balancing the religious freedom of the parents with the rights of the infant, society should give primacy to the infant’s right to security of person. However, this not reflected in the current law surrounding circumcision. Again, it is important to highlight that it is the parents’ right to religious freedom that is being given supremacy over the infant’s rights to bodily integrity, autonomy, freedom of religion, and equality under the law. Where four rights[141] of an individual are subverted to benefit one positive right of another, this is legally troubling. Individuals are importantly given the right to religious belief and the freedom to practice and observe those beliefs. This right however does not grant an unrestricted freedom to interfere with the rights of others, even a child at the discretion of his own parent.[142] Parents, motivated by genuine religious justifications, must ultimately still be restricted from interfering with their infant’s Charter rights.

On Behalf of the Infant’s Religious Interests

It is misguided to claim that circumcision is performed on behalf of the infant for the infant’s own religious benefit. Infants are incapable of understanding religion. By the time an infant can comprehend supernatural beliefs, he will also be capable of understanding the risks and benefits associated with circumcision and is then able to determine if firstly, he subscribes to the religious belief and secondly, consents to the religious practice. To argue that by this time in the child’s life it is too late[143] to make a covenant with God is to deny that adults can receive the same religious benefit when they convert to a new religion. That liberal branches of Judaism do not require adult converts, as part of their conversion process, to undergo circumcision, further highlights the non-compulsory nature of the surgery as a religious observance.[144]

In-Group/Out-Group

Another line of argumentation claims that an infant’s parents may be treated as outcasts of the religious community because their son will have not have undergone the requisite religious ceremonies like all other members of the religious community. This argument highlights that circumcision is often performed for the benefit of the parents. An infant is unable to understand the religious justifications for circumcision much less the phenomenon of social humiliation. Here, an infant undergoing the circumcision is used instrumentally to grant the parents’ acceptance by their religious community.[145] The ethical problems associated with this practice are evident and substantial as the infant’s basic rights are undermined so that the infant’s parents may protect their social status.

Don’t Rock the Boat

Religious justifications are often given special treatment and awarded too much deference on account of a general unwillingness to challenge beliefs that are fundamental to the lives of many people. This sensitivity however, must not supersede other important considerations. Canadian society is proudly pluralistic and diverse. However, it is also deliberately secular. Secular democratic society, unlike a theocracy, must examine its policies and practices with meticulous scrutiny to ensure that they are compatible with current law, medical guidelines, and human rights.

Membership in a religious or cultural community which encourages a violent, medically unnecessary, body-modifying surgery should not be immune to challenge. Despite the good intentions of the parents and religious or cultural community, insular thinking based on ancient scripture or practice can be dangerous.[146] Cultural and religious observances should not be invulnerable to modernization to align with current medical opinion and a modern acknowledgement of an infant’s human rights.

The religious freedom of an infant’s parents should not be permitted to hijack the Charter’s Section 2(a) protection and subsequently be used to justify a violation of the infant’s Charter rights. To do so is to allow a right which guarantees religious tolerance to be distorted and refashioned into a right which safeguards a parents’ authoritative rights over their child, including the parental right to disfigure their infant’s body in the name of the parents’ religious beliefs.

Parental Rights Over Children: Dead Dogma

Circumcision’s continued legality and widespread social acceptance is most likely attributed to a long process of conditioning and socialization as a result of the procedure’s ancient and sustained prevalence. However, as civilization progresses, common aspects of everyday life, which were once accepted without question, are gradually outed as being morally impermissible and, as such, their continued practice becomes unthinkable. Examples include slavery, genocide, treating women as property, and institutionalized racism. While today Canadian society views these practices as being morally impermissible, before their abolition, their practice, for some time, went largely unchallenged (at least by the ruling class).

John Stuart Mill describes this phenomenon as “dead dogma” in that a practice has gone unchallenged for so long and is so deeply ingrained in society that individuals cease to know why they engage in the practice’s prescribed behaviour.[147] The exercise of parental rights over their children, particularly with neonatal circumcision is likely to ultimately join this list of abandoned practices.[148] Medical research has established that circumcision is not a medically sound surgery and more importantly it is an irreversible, non-therapeutic, elective surgery performed without the infant’s consent. An examination of the ethical principles upon which circumcision is based highlight that circumcision is dead dogma. Circumcision is grounded in irrational justifications and is isolated as the only routine practice which permits a parent to purposefully subject their newborn infant to potentially harmful, non-therapeutic surgery.

Conclusions

The mounting opposition to circumcision has intensified in the recent past amongst medical experts, lawyers, and human rights activists. That the momentum against infant male circumcision will eventually result in a Charter claim is a question of when, not if.

Routine neonatal circumcision is a violent, non-medically necessary, non-therapeutic, permanent procedure which is not endorsed by Canadian medical professionals. The purported health benefits of circumcision are more effectively and less invasively accomplished through alternative methods. Whether to undergo elective procedures such as this is not the kind of decision which substitute decision makers ought to be able to make on another’s behalf. Delaying the procedure until the infant is old enough to provide his own informed consent safeguards the infant’s right to an open future, maximizing the scope for an infant’s future life choices, and avoids violating the infant’s Charter rights to religious freedom, bodily integrity, autonomy, and equal benefit under the law.

The legal and ethical problems created by male circumcision are not mollified by its legal, medical, religious, cultural, or social justifications. Notwithstanding this, the burden of proof should fall to the party pursuing the surgery to overcome the medical and legal arguments against its performance and not on the party protecting the infant’s body in its natural form. Canadian law must be modernized to protect the rights and freedoms which the Charter guarantees to all individuals, including infants.

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[1] Arif Bhimji MD, Infant Male Circumcision: A Violation of the Canadian Charter of Rights and Freedoms. Health Care Law (Toronto: 2000) [Bhimji].

[2] Julian Savulescu, “Male Circumcision and the Enhancement Debate: Harm Reduction, Not Prohibition” (2013) 39(7) Journal of Medical Ethics 416-417.

[3] A mohel is an individual who is trained to perform ritual Jewish infant make circumcisions.

[4] Associated Press, “Orthodox Jews in Talk over Ritual After Herpes Cases”, USA Today (21 February 2015).

[5] Ibid.

[6] Bennett Foddy, “Medical, Religious and Social Reasons For and Against an Ancient Rite” (2013) 39(7) Journal of Medical Ethics 415.

[7] Canadian Paediatric Society, “Newborn Male Circumcision: Position Statement” (2015) 20(6) Paediatric Child Health 311-315 [Canadian Paediatric Society]; Centers for Disease Control and Prevention, “Male Circumcision” (2011) 4 [Male Circumcision] (in the US, circumcision prevalence is higher at approximately 55% in 2007).

^[8] John Bowman, “Should provincial health insurance cover circumcision?” CBC News (27 August 2012).

[9] Canadian Paediatric Society, supra note 7 (the Canadian Urological Association’s Guidelines regarding circumcision are currently under draft).

[10] Circumcision Information Australia, “Canadian doctors reject circumcision: Canadian Paediatric Society recommends against circumcision” (2015) [Circumcision Information Australia].

[11] American Academy of Pediatrics, “Circumcision Policy Statement” (2012) 130(3) Paediatrics 585 [“Circumcision Policy Statement”].

[12] Circumcision Information Australia, supra note 10.

[13] S K Hellsten, “Rationalising circumcision: from tradition to fashion, from public health to individual freedom – critical notes on cultural persistence of the practice of genital mutilation” (2004) 30 Journal of Medical Ethics 248-253 [Hellsten]; Lindsay Rempel, “CAN-FAP Is Fighting For Foreskins Everywhere” Vice (25 March 2014) (this article suggested that hospitals may benefit financially from urging parents to circumcise their children and that the foreskin fibroblasts are later resold for use in cosmetic products such as face creams).

[14] World Health Organization, “Neonatal and child male circumcision: a global review” (2010) WHO Library Publications at 7 [World Health Organization, “Neonatal and child”] (for Muslims, circumcision is practiced as a confirmation of the relationship with God; although not found in the Koran, the Prophet Muhammad was instructed to follow the faith of Abraham (Koran 16:123), including the act of circumcision; circumcision is thus a recommended act (Sunnah) but not an obligatory act (Wajib); likewise for Jews, circumcision is believed to be a covenant with God (Genesis 17); it is directed that circumcision take place on the eighth day of the infant’s life).

[15] Ibid at 7 (circumcision is often seen as a mark of cultural identity, or as a rite of passage to manhood or self-identity).

[16] David P Lang, “Circumcision, sexual dysfunction and the child’s best interests: why the anatomical details matter” (2013) 39(7) Journal of Medical Ethics 462 [Lang] (historically, circumcision was used to prevent males from masturbating); Suzanne Bouclin, “An Examination of the Legal and Ethical Issues Surrounding Male Circumcision: The Canadian Context” (2005) 4(3) International Journal of Men’s Health 205-222 at 210.

[17] “Circumcision Policy Statement”, supra note 11 (the AAP suggests that there are medical benefits to circumcision relating to UTI prevention and reduction of HIV transmission).

[18] “Male Circumcision”, supra note 7 at 6.

[19] Circumcision Information Australia, supra note 10 (the phrases, “ethically impermissible” and “legally problematic” are not my own, they come from Circumcision Information Australia).

[20] World Health Organization, “Neonatal and child”, supra note 14 (Jewish circumcisions occur on the eighth day of the infant’s life).

[21] Joel C Hutcheson MD, “Male neonatal circumcision: indications, controversies and complications” (2004) 31 Urologic Clinics of North America 461-467 at 462 [Hutcheson].

[22] Ibid.

[23] Canadian Paediatric Society, supra note 7.

[24] Ibid.

[25] Lang supra note 16.

[26] World Health Organization, “Neonatal and child”, supra note 14.

[27] D. Doyle, “Ritual male circumcision: a brief history” (2005) The Journal of the Royal College of Physicians of Edinburgh 35(3) 279-285.

[28] World Health Organization, “Male circumcision: global trends and determinants of prevalence, safety and acceptability” (2008) Department of Reproductive Health and Research and Joint United Nations Programme on HIV/AIDS (UNAIDS) [World Health Organization, “Male Circumcision”].

[29] In E (Mrs.) v Eve [1986] 2 SCR 388 the Court held that “In the absence of the affected person’s consent, it can never be safely determined that it is for the benefit of that person. The grave intrusion on a person’s rights and the ensuing physical damage outweigh the highly questionable advantages that can result from it.” Here, the Court was speaking in reference to a mother’s application to have her mentally challenged adult daughter sterilized. The statement is relevant to circumcision as it is not possible, in either case, to determine whether the procedure will truly benefit the person on whom the surgery is taking place.

[30] In B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 at 322 Iacobucci and Major JJ. (Lamer C.J.C. and Cory J. concurring) stated that because the child had not accepted her parents’ faith, the parents’ decision to refuse to allow the child to receive a blood transfusion impinged on her freedom of conscience [Westlaw headnote].

[31] Hutcheson, supra note 21.

[32] Canadian Paediatric Society, supra note 7.

[33] Ibid.

[34] Ibid.

[35] Canadian Paediatric Society, supra note 7.

[36] “Male Circumcision”, supra note 7 at 1.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Circumcision Information Australia, supra note 10.

[41] Ibid; Canadian Paediatric Society, supra note 7.

[42] Canadian Paediatric Society, supra note 7.

[43] Ibid.

[44] “Male Circumcision”, supra note 7 at 3.

[45] Canadian Paediatric Society, supra note 7.

[46] Ibid.

[47] Canadian Cancer Society, “Penile Cancer” (2016) online: Canadian Cancer Society

[48] Hutcheson, supra note 21 at 463.

[49] Canadian Paediatric Society, supra note 7.

[50] Ibid.

[51] Ibid.

[52] Canadian Paediatric Society, supra note 7.

[53] Hutcheson, supra note 21.

[54] Canadian Paediatric Society, supra note 7.

[55] World Health Organization, “Neonatal and child”, supra note 14 at 11.

[56] Ibid at 24.

[57] Ibid at 11.

[58] “Male Circumcision”, supra note 7 at 4.

[59] Hutcheson, supra note 21.

[60] Canadian Paediatric Society, supra note 7; World Health Organization, “Neonatal and child”, supra note 14 at 5 (the CPS Position Statement puts complication rates at 2-3% whereas the WHO Global Review puts complication rates at 1.5%).

[61] Ibid.

[62] Hutcheson, supra note 21 at 464-466.

[63] “Male Circumcision”, supra note 7 at 3-4; World Health Organization, “Neonatal and child”, supra note 14 at 5.

[64] Canadian Paediatric Society, supra note 7.

[65] Leandro Gobbo Braz, et al., “Mortality in Anesthesia: A Systemic Review” (2009) 64(10) US National Library of Medicine 999-1006 (newborns are typically administered local anesthetic prior to circumcision whereas adults are given a choice between general and local anesthetic).

[66] “Male Circumcision”, supra note 7 at 4; Doctors Opposing Circumcision, “Chapter Six: Long-Term Adverse Effects of Circumcision” (2008) Genital Integrity Policy Statement [Long Term Adverse Effects]; Kenneth Fink, et al., “Adult Circumcision Outcomes Study: Effect on Erectile Function, Penile Sensitivity, Sexual Activity and Satisfaction” (2002) 167(5) Journal of Urology 2113-2116 [Fink].

[67] Lang, supra note 16.

[68] “Long Term Adverse Effects”, supra note 66.

[69] Canadian Paediatric Society, supra note 7.

[70] “Long Term Adverse Effects”, supra note 66.

^[71] Ibid.

^[72] Lloyd deMause, “Restaging Fetal Traumas in War and Social Violence” (1996) 10(4) Pre & Perinatal Psychology Journal 227–258.

^[73] Ibid.

[74] Ronald Goldman, Circumcision: The Hidden Trauma (Boston: Vanguard Publications, 1997) 139–175.

[75] In Bera v Marr (1989) 37 BCLR (2d) 195 (BC SC) the Court awarded damages for humiliation the infant would likely face as a result of his deviated penis from a botched circumcision; In Gray v LeFleche (1950) 1 DLR 337 (Man QB) the Court found that the infant’s circumcision was so unskillfully performed that the infant should receive damages for having to live with a deformed penis that could reduce sexual pleasure and decrease the likelihood of finding a spouse; In Oliver v Paras (1993) 136 NBR (2d) 57 [Oliver] an action for damages was dismissed against a physician who was alleged to have failed to meet the standard of care owed while performing a circumcision which resulted in an unsightly penis; In Voorthuyzen v Orovan (1988) OJ 337 damages were not awarded for alleged unsightliness and damage to the plaintiff as a result of his adult circumcision.

[76] Hellsten, supra note 13.

[77] World Health Organization, “Female genital mutilation: Fact sheet” (2016) Media Centre [Female genital mutilation].

[78] In females, the prepuce is the skin covering the clitoris, also known as the clitoral hood.

[79] Female genital mutilation, supra note 77.

[80] United Nations Population Fund, “Female genital mutilation: frequently asked questions” (2015) [UNPA] (female genital cutting can be viewed as a woman’s initiation into womanhood, it can also be performed to guarantee virginity upon marriage)

[81] Ibid (some cultures, in which female genital cutting is performed, have myths that the clitoris, if unremoved, will grow to the size of a penis).

[82] Ibid (some communities, in which female genital cutting is performed, view external female genitalia as dirty).

[83] Ibid (some communities, in which female genital cutting is performed, view external female genitalia as ugly).

[84] Ibid (although no major religion explicitly sanctions female genital mutilation, supposed religious doctrine is used to justify the practice within many Muslim communities in sub-Saharan Africa).

[85] Ibid.

[86] Ibid.

[87] Kristin Louise Savell, “Wrestling With Contradictions: Human Rights and Traditional Practices Affecting Women” (1996) 41 McGill Law Journal 781.

[88] Ibid; UNICEF, “Female Genital Mutilation/Cutting: A Global Concern” (2016) Media Centre (in Guinea and Sierra Leone, boys and men are more likely to oppose the practice of female genital cutting than girls and women).

[89] Criminal Code, RSC 1985, c C-46 s 268(3) [Criminal Code].

[90] Ibid at s 268(2).

[91] Ibid at s 268.

[92] Again, I wish to acknowledge and emphasize the significant variance between levels of risk between male circumcision and female genital mutilation. Nonetheless, the internal logic of the argument holds.

[93] “Male Circumcision”, supra note 7 at 4; “Long Term Adverse Effects”, supra note 66; Fink, supra note 66.

[94] Hellsten, supra note 13.

[95] “Human Embryology: Organogenesis” Universities of Fribourg, Lausanne and Bern, online: Human Embryology

[96] Ibid.

[97] Bhimji, supra note 1.

[98] Ibid.

[99] Hutcheson, supra note 21.

[100] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK) 1982 c 11s 7 [Charter].

[101] Bhimji, supra note 1.

[102] Charter, supra note 100 at s 15(1).

[103] Criminal Code, supra note 89.

[104] Ibid at s 268(3)(a), (b) (subsections (a) and (b) are exceptions to section 268 which allow a surgical female circumcision to be performed by a licenced medical practitioner if the procedure would provide medical benefit or if the patient is eighteen or older and consents to some form of sex reassignment surgery).

[105] This hypothetical further assumes that the sadistic parents have not honestly communicated their reasons for circumcision to the doctor or non-medical practitioner.

[106] Charter, supra note 100 at s 15(1).

[107] Canadian Paediatric Society, supra note 7.

[108] British Medical Association, “The law and ethics of male circumcision: guidance for doctors” (2004) 30 Journal of Medical Ethics 259-263.

[109] In E (Mrs.) v Eve [1986] 2 SCR 388 at para 87 the Court stated “[a]nd how are we to weigh the best interests of a person in this troublesome area, keeping in mind that an error is irreversible?” Here, the Court was speaking in reference to a mentally challenged adult woman whose mother was seeking an application for non-therapeutic sterilization. The Supreme Court’s statement is relevant to neonatal circumcision as, in both instances, at the time of the desired procedure, the best interest of the individuals, the infant and the mentally challenged woman, are not ascertainable by others.

[110] Charter, supra note 100 at s 2(a).

[111] The Pew Forum on Religion & Public Life, “US Religious Landscape Survey: Religious Affiliation: Diverse and Dynamic” (2008) at 22.

[112] Ibid.

[113] Robert J L Darby, “The child’s right to an open future: is the principle applicable to non-therapeutic circumcision?” (2013) 39(7) Journal of Medical Ethics 463-468 [Darby] (this idea was first proposed by the legal philosopher Joel Feinberg and developed further by bioethicist Dena Davis).

[114] Ibid.

[115] R S Van Howe, “Infant circumcision: the last stand for the dead dogma of parental (sovereignal) rights” (2013) 39(7) Journal of Medical Ethics 475-481[Van Howe].

[116] Darby, supra note 113.

[117] Brian Earp, “The ethics of infant male circumcision” (2013) 39(7) Journal of Medical Ethics 418-420.

[118] Health Care Consent Act, SO 1996, c 2 Schedule A s 10(1).

[119] Ibid at s 11(1).

[120] Oliver, supra note 75.

[121] B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 at 317; Conversely, Justice Lamer held that Section 7 liberty interests do not include the right of parents to choose or refuse medical treatment [Westlaw headnote].

[122] Child and Family Services Act, RSO 1990, c C-11 s 37(2); B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315.

[123] Canadian Paediatric Society, supra note 7.

[124] In E (Mrs.) v Eve [1986] 2 SCR 388 a mother’s application to have her mentally challenged adult daughter non-therapeutically sterilized was denied.

[125] Other procedures include ear piercing or cosmetic surgeries such as removal of hemangiomas (vascular birthmarks).

[126] Canadian Paediatric Society, supra note 7.

[127] Lang, “Circumcision” supra note 16.

[128] B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315.

[129] In P (D) v S (C) 1993 4 SCR 141 at para 107 the Supreme Court affirmed the Court of Appeals statement that while freedom of religious belief cannot be limited, the same cannot be said about religious practices, particularly when they interfere with the fundamental rights of others.

[130] In B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 at 322 La Forest J. (L’Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ. concurring) wrote that the state interest in protecting children may override parents’ right to make decisions that affect their child [Westlaw headnote].

[131] In B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 at 322 Iacobucci and Major JJ. (Lamer C.J.C. and Cory J. concurring) wrote that freedom of religion does not encompass the activities of one person that categorically negate the freedom of conscience of another [Westlaw headnote].

[132] Van Howe, supra note 115.

[133] Ibid.

[134] Ibid.

[135] Ibid.

[136] In R v Big M Drug Mart Ltd [1985] 1 SCR 295 at p 337 the Court stated that religious freedom could be subjected to “such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”; In B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 at 322 Justices Iacobucci and Major JJ. (Lamer C.J.C. and Cory J. concurring) stated that a parent’s freedom of religion as guaranteed under s 2(a) of the Charter does not include the right to impose religious practices on a child that threaten his or her safety, health, or life [Westlaw headnote].

[137] In B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 at 319, 432 Iacobucci and Major JJ. held that an individual may refuse medical procedures that affect himself or herself, he or she may not however speak for another, particularly if that other person cannot speak for himself or herself. Parents are to discharge their duties in accordance with the best interests of their child. The right to liberty in s. 7 does not protect the acting out of a parental belief if the action grossly encroaches upon those interests [Westlaw headnote].

[138] In R v Big M Drug Mart Ltd [1985] 1 SCR 295 L’Heureux-Dubé, in obiter, wrote “[w]hereas parents are free to choose and practise the religion of their choice, such activities can and must be restricted when they are against the child’s best interests, without thereby infringing the parents’ freedom of religion.”; In B (R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315 Iacobucci and Major JJ. stated that while the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, and is subject to such limitations as are necessary to protect the fundamental rights and freedoms of others [Westlaw headnote].

[139] Some examples include: men may sell their daughters (Exodus 21:7-11), slaves may be inherited (Leviticus 25:45-6), masters shall not be punished for beating their slaves unless the slaves dies (Exodus 21:20-21), anyone who works on the Sabbath must be put to death (Exodus 35:2).

[140] In R v DJW [2011] BCCA 522 a father was held to have committed criminal negligence causing bodily harm for performing a circumcision on his four year old son. That the accused believed it was necessary to circumcise his son for religious reasons was deemed to be an insufficient defence.

[141] Here, I counted the s 7 rights to security and liberty as being two separate rights.

[142] Reinhard Merkel, Holm Putzke, “After Cologne: male circumcision and the law: parental right, religious liberty or criminal assault?” (2013) 39(7) Journal of Medical Ethics 444-449.

[143] For Jews, Genesis 17 directs that an infant be circumcised on the eighth day of the infant’s life. For Muslim, the Koran does not provide direction for when an infant’s circumcision should be performed.

[144] Daniel B Syme, The Jewish Home (New York: URJ Press, 2003).

[145] Van Howe, supra note 115.

[146] Ibid.

[147] Ibid.

[148] Ibid.