Circumcision and law


Laws restricting, regulating, or banning circumcision, some dating back to ancient times, have been enacted in many countries and communities. In the case of non-therapeutic circumcision of children, proponents of laws in favor of the procedure often point to the rights of the parents or practitioners, namely the right of freedom of religion. Those against the procedure point to the boy's right of freedom from religion. In several court cases, judges have pointed to the irreversible nature of the act, the grievous harm to the boy's body, and the right to self-determination, and bodily integrity.

History

Judaism

There are ancient religious requirements for circumcision. The Hebrew Bible commands Jews to circumcise their male children on the eighth day of life, and to circumcise their male slaves.
Laws which ban circumcision are also ancient. The ancient Greeks prized the foreskin and disapproved of the Jewish custom of circumcision. 1 Maccabees, 1:60–61 states that King Antiochus IV of Syria, the occupying power of Judea in 170 BCE, outlawed circumcision on penalty of death, one of the grievances leading to the Maccabean Revolt.
According to the Historia Augusta, the Roman emperor Hadrian issued a decree which banned circumcision in the empire, and some modern scholars argue that this was a main cause of the Jewish Bar Kokhba revolt of 132 CE. The Roman historian Cassius Dio, however, made no mention of such a law, instead, he blamed the Jewish uprising on Hadrian's decision to rebuild Jerusalem and rename it Aelia Capitolina, a city dedicated to Jupiter.
Antoninus Pius permitted Jews to circumcise their own sons. However, he forbade the circumcision of non-Jewish males who were either foreign-born slaves of Jews and the circumcision of non-Jewish males who were members of Jewish households, in violation of Genesis 17:12. He also banned non-Jewish men from converting to Judaism. Antoninus Pius exempted the Egyptian priesthood from the otherwise universal ban on circumcision.
Constantine the Great made it illegal to circumcise Christian slaves, and punished the owners who allowed it by freeing the Christian from slavery.

Ecclesiastical canon law in Christianity

Circumcision has also played a major role in Christian history and theology. The Council of Jerusalem in the early Christian Church declared that circumcision was not necessary for Christians; covenant theology largely views the Christian sacrament of baptism as fulfilling the Israelite practice of circumcision, both being signs and seals of the covenant of grace. Though mainstream Christian denominations maintain a neutral position on routine circumcision, it is widely practiced in many Christian communities.
Historically, the Lutheran Churches have also not practiced circumcision among their communicants. Currently the Catholic Church maintains a neutral position on the practice of non-religious circumcision. Today, many Christian denominations are neutral about ritual male circumcision, not requiring it for religious observance, but neither forbidding it for cultural or other reasons.
On the other hand, in Oriental Christianity, the Coptic Orthodox Church and Eritrean Orthodox Church require that their male members undergo circumcision.It is common but not required for members of the Ethiopian Orthodox Church. The Liturgy of the Ethiopian Church states "Henceforth, let us not be circumcised like the Jews. We know that He who had to fulfil the law and the prophets has already come."

Soviet Union

Before glasnost, according to an article in The Jewish Press, Jewish ritual circumcision was forbidden in the Soviet Union. However, David E. Fishman, professor of Jewish History at the Jewish Theological Seminary of America, states that, whereas the heder and yeshiva, the organs of Jewish education, "were banned by virtue of the law separating church and school, and subjected to tough police and administrative actions", circumcision was not proscribed by law or suppressed by executive measures.
Jehoshua A. Gilboa writes that while circumcision was not officially or explicitly banned, pressure was exerted to make it difficult. Mohels in particular were concerned that they could be punished for any health issue that might develop, even if it arose some time after the circumcision.

Albania

In 1967, all religion in Communist Albania was banned, along with the practice of circumcision. The practice was driven underground and many boys were secretly circumcised.

International law

Council of Europe

On 1 October 2013, the Parliamentary Assembly of the Council of Europe adopted a non-binding resolution in which they state they are "particularly worried about a category of violation of the physical integrity of children", and included in this category "circumcision of young boys for religious reasons". On 7 October, Israel's president Shimon Peres wrote a personal missive to the Secretary General of the Council of Europe, Thorbjørn Jagland, to stop the "ban", arguing: "The Jewish communities across Europe would be greatly afflicted to see their cultural and religious freedom impeded upon by the Council of Europe, an institution devoted to the protection of these very rights." Two days later, Jagland clarified that the resolution was non-binding and that "Nothing in the body of our legally binding standards would lead us to put on equal footing the issue of female genital mutilation and the circumcision of young boys for religious reasons."

European Union

A study commissioned by the European Parliament Committee on Civil Liberties, Justice and Home Affairs published in February 2013 stated that "Male circumcision for non-therapeutic reasons appears to be practiced with relative regularity and frequency throughout Europe," and said it was "the only scenario, among the topics discussed in the present chapter, in which the outcome of the balancing between the right to physical integrity and religious freedom is in favour of the latter." The study recommended that "the best interests of children should be paramount, while acknowledging the relevance of this practice for Muslims and Jews. Member States should ensure that circumcision of underage children is performed according to the medical profession's art and under conditions that do not put the health of minors at risk. The introduction of regulations by the Member States in order to set the conditions and the appropriate medical training for those called to perform it is warranted."

2013 Nordic ombudsmen statement

On 30 September 2013, the children's ombudsmen of all five Nordic countries – Denmark, Finland, Iceland, Norway, and Sweden – together with the children's spokesperson from Greenland and representatives of associations of Nordic paediatricians and paediatric surgeons, gathered in Oslo to discuss the issue, and released a joint declaration proposing a ban on non-therapeutic circumcision of male minors:

Modern laws by country

As of February 2018, no European country has a ban on male circumcision.
Whereas child custody regulations have been applied to cases involving circumcision, there seems to be no state which currently unequivocally bans infant male circumcision for non-therapeutic reasons, albeit the legality of such circumcision is disputed in some legislations.
The present table provides a non-exhaustive overview comparing legal restrictions and requirements on non-therapeutic infant circumcision in several countries. Some countries require one or both parents to consent to the operation; some of these have experienced legal battles between parents when one of them had their son's circumcision carried out or planned without the other's consent. Some countries require the procedure to be performed by or supervised by a qualified physician, and with anaesthesia applied to the boy or man.
CountryParental consentAnaesthesiaQualified physicianPaymentNotes
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Australia

The Royal Australasian College of Physicians finds that routine infant circumcision is not warranted in Australia and New Zealand and that, since circumcision involves physical injury, physicians ought to raise and consider with parents and considered the option of leaving circumcision until later, when the boy is old enough to make a decision for himself:
In 1993, a non-binding research paper of the Queensland Law Reform Commission concluded that "On a strict interpretation of the assault provisions of the Queensland Criminal Code, routine circumcision of a male infant could be regarded as a criminal act," and that doctors who perform circumcision on male infants may be liable to civil claims by that child at a later date. No prosecutions have occurred in Queensland.
In 1999, a Perth man won A$360,000 in damages after a doctor admitted he botched a circumcision operation at birth which left the man with a badly deformed penis.
In 2002, Queensland police charged a father with grievous bodily harm for having his two sons, then aged nine and five, circumcised without the knowledge and against the wishes of the mother. The mother and father were in a family court dispute. The charges were dropped when the police prosecutor revealed that he did not have all family court paperwork in court and the magistrate refused to grant an adjournment.
Cosmetic circumcision for newborn males is currently banned in all Australian public hospitals, South Australia being the last state to adopt the ban in 2007; the procedure was not forbidden from being performed in private hospitals. In the same year, the Tasmanian President of the Australian Medical Association, Haydn Walters, stated that they would support a call to ban circumcision for non-medical, non-religious reasons. In 2009, the Tasmanian Law Reform Institute released its Issues Paper investigating the law relating to male circumcision in Tasmania, it "highlights the uncertainty in relation to whether doctors can legally perform circumcision on infant males".
The Tasmania Law Reform Institute released its recommendations for reform of Tasmanian law relative to male circumcision on 21 August 2012. The report makes fourteen recommendations for reform of Tasmanian law relative to male circumcision.