Category: Law

Flawed Circumcision Defense: Wesley J. Smith (Yet Again)

Wesley Smith is back again in National Review to demonstrate he does not understand genital mutilation. Last week he urged President Trump to sign HR 6100, The STOP FGM Act of 2020, which seeks to resolve the concerns of the federal court that dismissed prosecution in Michigan under the Anti-FGM Act of 1996. Within the bill:

“(a) Except as provided in subsection (b), whoever, in any circumstance described in subsection (d), knowingly—

“(1) performs, attempts to perform, or conspires to perform female genital mutilation on another person who has not attained the age of 18 years;

“(2) being the parent, guardian, or caretaker of a person who has not attained the age of 18 years facilitates or consents to the female genital mutilation of such person; or

“(3) transports a person who has not attained the age of 18 years for the purpose of the performance of female genital mutilation on such person,

shall be fined under this title, imprisoned not more than 10 years, or both.”

A principled individual would read that in its most direct application: non-therapeutic genital cutting on an individual who can’t consent is prohibited, full stop, without exceptions. Alas, like far too many people, Smith believes this applies to only some children, and cites this language from the bill as a foundational defense of discrimination:

It shall not be a defense to a prosecution under this section that female genital mutilation is required as a matter of religion, custom, tradition, ritual, or standard practice.

It shall not be a defense to a prosecution under this section that female genital mutilation is required as a matter of religion, custom, tradition, ritual, or standard practice to impose on a child who neither needs nor consents to surgical intervention. This is so blindingly obvious as a principle that it requires severe mental gymnastics to escape the implication to male (and intersex) children. Smith engages in those gymnastics.

I am a strong defender of religious freedom and the free exercise thereof. But the right is not absolute. The Smith case (which I oppose and hope the SCOTUS will overturn) stripped protection for religious freedom when laws are of general application — as is this bill. In other words, the bill does not single out a particular faith or group in the prohibition.

If the law protects all children, as it should, not a single word of that paragraph needs to change, excluding the parenthetical, which I’ll get to in a moment. Basically, Wesley Smith acknowledges that, under current law and precedent, restricting a religious freedom is permissible when the law is generally applicable and furthers a legitimate state interest. There is nothing more generally applicable than “you can’t mutilate the genitals of a healthy child”. And if that isn’t a compelling state interest, the state literally shouldn’t exist because it will have ceased to defend the rights of its citizens least capable of defending themselves.

Smith’s parenthetical demonstrates that he acknowledges a law prohibiting non-therapeutic genital cutting on boys without exemption for religion is the correct interpretation under current law, or he wouldn’t worry about the case in this context to protect religious “rights” at the expense of human rights he doesn’t value. In America, it’s impossible to argue that circumcision is a strictly religious practice, or that any prohibition would only stop religious parents from circumcising. Every male child can be mutilated at the request of his parents, so a law protecting his right is generally applicable. Thus, everything Smith tacks on after this is special pleading for lawless human rights violations.

That designation certainly applies to a law that prohibits the mutilation of minor girls, which, I should note, is not required by the Koran or any holy book of which I am aware and is done for the express purpose of suppressing the victim’s normal sexual functions. FGM is a direct attack on the equal intrinsic dignity of females and hence, an assault on the human exceptionalism philosophy of our societies.

He just praised the text of the bill that dismisses any claim of a religious requirement, so the fact that he’s not aware of any requirement is irrelevant. Of course, if Smith bothered to look, he’d find interpretations that conclude a requirement exists. I have no doubt Smith would – correctly – dismiss these claims as undermining this prohibition. So, his concern here is, again, special pleading to pretend that a religious requirement matters when he praised the text making it clear it doesn’t.

His belief that parents who cut their daughters always do so with the express purpose of suppressing the victim’s normal sexual functions is also unsupported with even a minimal amount of searching. That is usually the outcome, and it’s always a violation of their body and rights, but Smith assumes his opinion is fact because it’s the narrative, not because he has evidence or has studied the topic beyond a cursory review.

It’s also odd to believe that we need to defend against a direct attack on the equal intrinsic dignity of females by protecting them from what he expressly demands we continue permitting on their brothers. Where is the equality? Where is the dignity? Where is the principle he claims to defend, other than “what we do is good, what they do is bad”? If it’s wrong to cut, it’s wrong to cut.

I anticipate that the “intactivists,” that is, zealots who want to outlaw male infant circumcision, will say that their cause is the same as prohibiting FGM. It is not. First, circumcision is a specific religious requirement of Judaism that brings the infant into the faith, and is also strongly promoted for religious reasons in Islam. Second, it does not destroy sexual function, nor is that the purpose of the procedure. Third, it is not undertaken as a means of oppression. Finally, medical associations believe that the decision to circumcise — regardless of religious issues — should be up to the parents as there is a modest hygienic benefit attained by the procedure.

Of course non-therapeutic genital cutting is one cause, regardless of sex. Non-therapeutic cutting of the prepuce of a non-consenting male violates his bodily autonomy the way such a surgery on a girl’s prepuce would. They both have the same property right in their own body. The only ethical position is that we won’t cut children. This shouldn’t require a law, but it does because people violate their children in this manner. And again, the state has an interest in protecting the rights of every citizen, not just those with the correct cultural favor.

And Smith already demonstrated why his concern that circumcision is a specific religious requirement is irrelevant to whether or not we should protect male minors. Laws of general applicability are generally applicable, not narrowly applicable in blatantly discriminatory ways.

Contra Smith’s opinion, circumcision destroys sexual function. Refusing to acknowledge that the normal anatomical structure of the penis, foreskin included, follows the same biological concepts as every other part of the body, including female genitalia (with foreskin), does not render the removal of the foreskin a non-destructive act inflicting no permanent harm. All surgery is battery. It is harm. The STOP FGM Act of 2020 does not make distinction for degrees of harm or intent to cause harm. The act itself is harmful to the child, and would be prohibited. Some forms of FGM are considerably more severe than a normal male circumcision. Some forms are considerably less severe. All forms will be illegal if Trump signs the bill. There is no “as long as it’s not too harmful” threshold to save male circumcision from ethical rejection.

If Smith actually cared about the complexities in this issue, he’d know that FGM is often undertaken to “improve” the girl, not to oppress her, and at the request of her female relatives over the objection of her male relatives. It still oppresses her, despite any “good” intentions, but we’re talking about the outcome, not the intent, which is what the law explicitly criminalizes.

Smith is correct that parents (generally) do not intend to oppress their sons when they circumcise. It still oppresses them. It is a form of permanent sexual control. “Your genitals will be what I approve of” is control. “You will have this potential benefit through surgical intervention, even if you’d rather just wear a condom” is control.

Having gotten this far in Smith’s shallow analysis leaves no doubt that he hasn’t assessed what “medical associations” say, such as in the APP’s policy statement. It’s an appeal to authority, except the most-often-cited authority’s policy is deeply flawed, misleading, and unethical. The very statement¹ he thinks supports a conclusion that the benefits outweigh the risks ignores the costs (i.e. harms) entirely to reach a conclusion satisfactory to people who will ponder circumcision as superficially as Smith. From the section on ethics, for example, “[r]easonable people may disagree, … how the potential medical benefits and potential medical harms of circumcision should be weighed against each other.” Reasonable people includes the human being who will live with the consequences of others choosing the most radical intervention for him as a prophylactic against mostly minor future risks that can be generally resolved with non-invasive treatments, which is the approach we take with their sisters.

So, yes. Male genital cutting is the same as female genital cutting in causing permanent harm, its ultimate violation, and the irrelevance of its religious nature on the prohibition of its imposition on children.

¹ The AAP doesn’t have a policy statement on male circumcision, because the technical report from 2012 explicitly states “[a]ll technical reports from the American Academy of Pediatrics automatically expire 5 years after publication unless reaffirmed, revised, or retired at or before that time.” It’s now eight years since this statement, and it has not been reaffirmed, revised, or retired.

False Distinction, Not False Equivalency

Note: I’m not going to write about the charges directly here. Anything involving a cursory glance of my work here will let you know I understand, abhor, and reject FGM in every form. If guilty of the charges, the doctors should serve the maximum sentence allowed.

I noticed something both fascinating and infuriating in this USA Today version of the Detroit Free Press article on the arrest of three doctors in Michigan on charges of mutilating the genitals of female minors. Specifically, this section:

As some medical experts on the topic stated in a 2015 article by The Atlantic:

“Male circumcision does no harm. Female gender mutilation does. Male circumcision cuts the foreskin, FGM cuts the clitoris — the two things cut are not even remotely the same. For male circumcision to be equivalent to FGM, the entire tip of the male’s penis would need to be cut off … Constantly trying to claim they are equivalent practices when they are not takes away from the unique seriousness of female ‘circumcision/mutilation,’ as most cases are performed during a traumatic developmental period and remove most sexual sensation, which is not true with male circumcision.”

Two things immediately jumped out. Who are the medical experts? Where is the link to the Atlantic article? Seeing that this is the USA Today version, I investigated to determine if the link was dropped from the original Detroit Free Press version, which is here. Nope. The link isn’t there. And not only is the link not there, those two paragraphs were removed and replaced. (More on the latter in a moment.) So I checked the Wayback Machine to see if the USA Today version is different or out-of-date. Predictably, it’s out-of-date, because the first version was what USA Today still presents. My hunch was that the reporter, Tresa Baldas, (or an editor) made an inexcusable mistake, which was then erased (incompletely, because the internet is mostly forever). It’s the conclusion I draw, but I’m open to more facts.

I found the referenced Atlantic article, “How Similar Is FGM to Male Circumcision? Your Thoughts”. It contains Baldas’ paragraph from two excerpted, merged comments. The quoted “medical experts” are a commenter called Tyfereth and a commenter, Jim Eubanks, who is an MD candidate, according to his Facebook profile. Half-right, I guess, except the initial comment is the one drawing the alleged distinction. Tyfereth’s comment:

Male circumcision does no harm. FGM does. Male circumcision cuts the foreskin, FGM cuts the clitoris, the two things cut are not even remotely the same. For male circumcision to be equivalent to FGM, the entire tip of the males penis would need to be cut off. Now that would be a harm, but cutting off the foreskin isn’t harmful.

This is ridiculous logic. (It is also incomplete knowledge of the various types of FGM.) Cutting inflicts harm. This is indisputable, except for foolish attempts such as this. Declaring that cutting the body and removing a normal, healthy body part is somehow harmless, like touching a raindrop, should raise skepticism in every reporter (and editor). That it didn’t immediately demonstrates a problem Ms. Baldas (and/or her editor) should question in her continuing coverage. Instead, she quoted Tyfereth as a medical expert on nothing more than a lame “nuh-unh!”.

At least Mr. Eubanks appears to be closer to an expert. But he isn’t making the same argument, so he shouldn’t be lumped in with Tyfereth’s nonsense. In his complete comment, he’s a bit more nuanced.:

False equivalency. You can stand against both practices, but constantly trying to claim they are equivalent practices when they are not takes away from the unique seriousness of female “circumcision/mutulation” as most cases are performed during a traumatic developmental period and remove most sexual sensation, which is not true with male circumcision. We can oppose both but take them on their own terms please.

He’s still wrong, of course. There is no false equivalency in the principle. Non-therapeutic genital cutting on a non-consenting individual is unethical. The right involved is a human right based in consent, not a female right based in degree of harm¹. The cutting done on an individual is a matter for penalty, not whether both violations or just those of females should be treated as crimes. The boy who is cut has as much right to his normal, healthy body² as the girl who is cut has to hers.

This is apparent with analysis of a more recent article Ms. Baldas wrote, “Report: Girl’s genital mutilation injury worse than doctor claims”.

A doctor’s findings, however, contradict that claim. A juvenile protection petition filed on behalf of the victims in Minnesota, along with federal court documents, cite scarring, a small tear, healing lacerations and what appears to be surgical removal of a portion of her genitalia.

I have or had all four of those injuries. I can’t state they are to the same degree, of course, so I’m not declaring that here. I’m stating the comparison is valid because non-therapeutic genital cutting without consent violates the individual. There is no false equivalency in stating that everyone has the same right to be free from unneeded, unwanted harm.

————-
Here are the paragraphs that replaced the reference to the medical experts in the Atlantic.

Medical associations also have cited health benefits to male circumcision, but have found no such benefits to female genital mutilation, which has been condemned by medical organizations worldwide.

For example, The American Academy of Pediatrics and the U.S. Centers for Disease Control have both found that the health benefits of newborn male circumcision outweigh the risks, though both groups say the final decision should be left to the parents as it may involve religious or cultural beliefs. The benefits cited by both groups include the prevention of sexually transmitted diseases, including HIV, and a lower risk for urinary tract infections in infants.

Neither group, however, endorses female genital mutilation in any form and has cautioned physicians against practicing it. The same goes for the World Health Organization, which has condemned female genital mutilation, but has recognized health benefits to male circumcision, stating: “There is compelling evidence that male circumcision reduces the risk of heterosexually acquired HIV infection in men by approximately 60%.”

First, the “FGM has no medical benefits” argument is a false distinction. It’s true, but irrelevant in the comparison. Most, if not all, opponents do not oppose FGM because it has no medical benefits. They oppose it because it violates the girl and inflicts harm on her. It’s a “spaghetti against the wall” argument. If researchers were to find (potential) benefits, the harm would still be real. Few opponents would change their mind. Rightly, of course, but it demonstrates the argument’s irrelevance.

Next, the American Academy of Pediatrics did not “find” that the health benefits outweigh the risks. They declared it to be true in the same way Michael Scott declared bankruptcy. The ethics section (Pg. 759) of its 2012 technical report states:

… Reasonable people may disagree, however, as to what is in the best interest of any individual patient or how the potential medical benefits and potential medical harms of circumcision should be weighed against each other. …

This is obviously true. The value of a potential risk reduction at the expense of risk and an objective physical cost with the lost foreskin is a subjective conclusion based on the individual’s personal preferences. Yet the Abstract misrepresents what’s in the Technical Report when it declares, “preventive health benefits of elective circumcision of male newborns outweigh the risks of the procedure”. The AAP knows this is not a factual statement. Lazy, uncritical journalism perpetuates this subjective conclusion as fact.

Even the alleged bioethicist involved in the Task Force knows the truth, despite what he signed off on with the Abstract. Dr. Douglas Diekema said, “Not everyone would trade that foreskin for that medical benefit.” All individual tastes and preferences are unique. I think the potential benefits probably have merit. I don’t care. I don’t want them in exchange for my foreskin. I’d rather have my foreskin and a (tiny) higher absolute risk of a foreskin-related problem than my circumcision. This is true in spite of my parents preferring me circumcised. The proper analysis is cost-benefit, not risk-benefit. The risks are a relevant cost, but the loss of the foreskin is the primary cost of circumcision. For indefensible reasons, most – including the AAP and CDC – ignore it completely.

The reference to the CDC is curious for another reason. Its proposed guidelines have not proceeded beyond the flawed draft recommendations from 2014. Again, uncritical journalism is probably to blame. Most treated the draft as final, despite it clearly stating “draft” and open to review. I assume this happens due to laziness and confirmation bias. Insert your own theory why. It doesn’t matter. The result is misinformation spreads further.

With respect to FGM, the AAP briefly proposed a ritual nick as an alternative, which has implications for the “false equivalency”. But it is correct they don’t endorse it today. The WHO, however, is clueless and/or hypocritical. From its FGM factsheet, it states:

Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.
…

FGM has no health benefits, and it harms girls and women in many ways. It involves removing and damaging healthy and normal female genital tissue, and interferes with the natural functions of girls’ and women’s bodies. Generally speaking, risks increase with increasing severity of the procedure.

Everything there that isn’t the “spaghetti against the wall” argument (and “total removal” for the pedants, although it occurs) is true of male circumcision. WHO recognizes FGM as “a violation of the human rights of girls and women”. It is a violation of human rights, not female rights. Injury to the genitals without need or consent is the problem, not the form of the body part.

¹ Even though, yes, what is done to females is usually more harmful than what is done to males.

² This applies to intersex children, too. Obviously.

Circumcision without consent reveals

I have two caveats applicable to my analysis of this story. I am not an attorney. The charge against the individual is an allegation.

Ocala Police said they arrested a man who allegedly attempted to circumcise his 1-year-old nephew while babysitting Saturday.

Police said Larry Leroy Floyd was watching the boy while his father was at the store. They do not know why Floyd attempted to circumcise him.

The boy was taken to the hospital. Ocala police arrested Floyd and charged him with domestic aggravated battery.

For the sake of analysis, I’ll assume that Floyd attempted to circumcise his nephew and did so without permission of either of the boy’s parents. There are many implications from that. I want to analyze this more than I should. I’ll choose prudence instead, based on my first caveat.

Circumcision is surgery. Surgery inflicts some level of harm, regardless of the benefit(s) pursued. Harm is battery. Circumcision, as surgery, is battery. That much is simple and should be non-controversial.

Not all surgery is legally actionable. Informed consent is a defense against surgery. Consent is why we don’t prosecute doctors for performing surgery. Again, this is simple and should be non-controversial.

This (alleged) surgery is legally actionable, obviously. If circumcision didn’t categorically (and objectively) constitute harm, the criminal charge would need to be something else, if anything at all. But circumcision involves harm, as all surgery involves harm. That presents the proper issue in the debate about non-therapeutic child circumcision. Whose consent to this harm should be required?

Too often the assumption in favor of parental choice via proxy consent ignores harm. (e.g. AAP) Society defends parental choice for non-therapeutic circumcision by favoring irrelevant, flawed distractions focused only on an overblown applicability of potential benefits and a minimized view of risks. The inevitable harm from circumcision matters. Harm must inform who should – and should not – be permitted to consent. For non-therapeutic male child circumcision, society needs a rethink.

Swedish, Danish medical groups call for respecting rights of children

1/31/15 Edit: This news is from last January. I first saw it in this story posted this week. I looked for other news articles and used the one in this post because the quote from Mr. Ullenhag was more complete. I noticed the date of January 26th, but missed that it was from last year, unlike the link above. My analysis is the same, obviously, but the mistake is mine.

Interesting news:

Large medical associations in Sweden and Denmark recommended banning non-medical circumcision of boys.

In Sweden, the recommendation came in a resolution that was unanimously adopted last week by the ethics council of the Sweden Medical Association — a union whose members constitute 85 percent of the country’s physicians, the Svenska Dagbladet daily reported on Saturday.

It recommended setting 12 as the minimum age for the procedure and the boy’s consent. Jewish ritual circumcision, or brit milah, is performed eight days after birth. Muslims typically circumcise boys before they turn 10.

In Denmark, the Danish College of General Practitioners — a group with 3,000 members — said in statement that non-medical circumcision of boys amounted to abuse and mutilation, the Danish BT tabloid reported Sunday.

I don’t know that 12 is the right minimum age, but I’ve long been willing to accept an age below that of majority as long as the boy can offer his informed consent. I have concerns about how informed it could be at earlier ages, but I’m willing to leave the option for consideration.

The resolution is non-binding, which is still fine for this process. Less change is needed in Scandinavia than in the United States, but change is still needed. This is a step in demonstrating that even well-intentioned non-therapeutic circumcision constitutes harm, and the boy himself has the sole right to request or reject non-therapeutic circumcision for himself.

Any effort at respecting ethics in this area always brings some variation of this quote, with little variation:

“I have never met any adult man who experienced circumcision as an assault,” [Sweden’s minister for integration, Erik] Ullenhag said. “The procedure is not very intensive and parents have the right to raise their children according to their faith and tradition. If we prohibit it, we must also address the issue of the Christian ritual of baptism.”

Mr. Ullenhag has apparently done little research on the issues of circumcision and ethics. He is ignorant of what many adult men think of their parents making this choice. He does not understand the principle against direct physical harm involved that distinguishes circumcision from baptism or virtually any other ritual of any religion in which parents may want their children to participate. His approach implies no limits on parental authority. Surely he does not believe that is valid.

These recommendations are progress. These medical authorities, unlike American medical authorities, grasp the issues involved for the child. They are taking a principled stand. It is a positive and, more importantly, necessary step in the process to achieving proper protection for the rights and bodies of all children.

Flawed Circumcision Defense: Daulton Gatto defends Mike Gatto (no relation)

Remember back to the ballot initiative in San Francisco that sought to protect the same genital integrity rights for boys in San Francisco that are already protected for girls throughout America. In response to that, California Assemblyman Mike Gatto drafted a bill in 2011, AB768, which Gov. Jerry Brown signed into law that October. That’s when I wrote about Mike Gatto:

California Assemblyman Mike Gatto is an authoritarian. He believes that male children do not have human rights equal to the rights of their fellow citizens. Mike Gatto believes that freedom and liberty involve parental ownership of the genitals of their male children. He believes that the individual right involved in child genital cutting is exclusively the right to cut a male child without medical need. He believes that subjective, non-medical “affiliative benefits” are enough to justify surgery on a child, even if the child does not or might not want to be forcibly affiliated. California Assemblyman Mike Gatto prefers mindless, unquestioned deference to parental choices about non-therapeutic male child genital cutting.
…

California already established that there is no arbitrary, unspecified age before which parents own the genitals of their female children. They may not allow someone to take a scalpel to the genitals of their daughters for non-therapeutic reasons, even if those reasons include a parental preference for forced “affiliative benefits.” The only factor involved in any decision to cut female minors is the presence or lack of medical need. That is the ethical, scientific view, which succinctly demonstrates that genital integrity exists within human rights. Mike Gatto believes that male children have only a mere subset of human rights, a subset that does not include genital integrity. It is a flaw in his character that Mike Gatto believes the full range of human rights only belong to male adults, female adults, and female children.

That is still accurate upon current reflection almost three years later. Look at the bill proposed and signed into law. It states that “[m]ale circumcision has a wide array of health and affiliative benefits.” Even if the first argument is assumed robust and true, discussion of the risks and costs of circumcision is nowhere to be found. Gatto, those who voted for it, and Gov. Brown all willingly enacted propaganda into law. Without a full consideration of what’s involved, including costs and the implications to human rights, they abdicated their responsibility to represent the interests and rights of every California citizen in favor of only those with power. That was, and remains, unethical.

Yesterday, I received a comment (#4 on the post) and pingback on that article from Daulton Gatto, who states that he is unrelated to Mike Gatto. The best writing is brief, so in that respect, Gatto’s comment succeeds. He uses the first twelve words of his comment to offer a brilliant insight into its author. Bravo.

The pingback is to his blog post, And Now, Another Episode of “Mike Gatto vs. the Bizarre Foreskin Crusaders”, which is in response to “Flawed Circumcision Defense: California Assemblyman Mike Gatto”. It’s a pretty good troll job, with plenty of ad hominem and not a word of rebuttal to my criticism of Mike Gatto’s flawed argument. It’s impressive. I suspect he’s having a laugh to amuse himself. Whatever. Taking it “seriously” will be interesting. The relevant part (graphic, immature, dudebro language, but you probably guessed that):

Which brings me to this piece of shit blog post, written by some crackpot wacko identified only as “Tony.” Tony is evidently a large pussy and a giant douchebag too frightened to admit full authorship of his own work and too stupid to employ anything resembling sound logic in his juvenile and laughable arguments. I will let his barely comprehensible babbling speak for itself while I cackle in laughter at the very suggestion that “Tony” is capable of recognizing a flawed argument in the first place.

In the meantime, I just want to once again explain on behalf of Mike Gatto and whatever cool dudes are still left in this douchebaggy world we live in just why it is that foreskin sucks and isn’t sweet at all.

Chicks much prefer dudes with circumcised dicks. Circumcised dicks get more pussy and they get to jizz on more chicks’ big tits. That’s a proven scientific fact. Mike Gatto, as a well-established sweet dude and charismatic stud, is clearly working harder to ensure the next generation of Californians get to fuck as many of the hot-ass chicks walking around this state as possible.

Now please tell me, “Tony,” just what the hell is wrong with that?

I’m not convinced by that long-winded version of “nuh-uh”. But it’s still sweet trolling ad hominem.

There is a question for me at the end. So, Daulton, just what the hell is wrong with that? You haven’t linked to anything suggesting this stunted fantasy is a scientific fact. Generalizations based on whatever gave you that limited worldview don’t eliminate the risks or direct harms from circumcision. They don’t discredit the human rights principle already in California law. You haven’t made any argument applicable to anyone other than yourself or someone who shares your particular preferences. That isn’t a valid basis for laws permitting the violation of the rights of others.

You did manage to link to a circumcision fetish website. It’s the same site with a history of endorsing¹ female genital cutting as a fetish. Good job.

If you have a coherent rebuttal, I’m willing to listen. If you only have more ad hominem, I’m always up for another good laugh. If your trolling was a limited, one-time engagement, thanks!

¹ The Internet is forever, no matter how vigorously Circlist’s operator(s) tried to hide the past with the content you see today. I’ll guess that research is a mysterious stranger to you. Convince me I shouldn’t guess that.

The AAP Discounts Its Patients’ Right to Physical Integrity

In “Cultural Bias in the AAP’s 2012 Technical Report and Policy Statement on Male Circumcision”, Morten Frisch, MD, PhD, et al (pdf) criticize the AAP’s revised policy statement on circumcision. In part, they state:

The most important criteria for the justification of medical procedures are necessity, cost-effectiveness, subsidiarity, proportionality, and consent. For preventive medical procedures, this means that the procedure must effectively lead to the prevention of a serious medical problem, that there is no less intrusive means of reaching the same goal, and that the risks of the procedure are proportional to the intended benefit. In addition, when performed in childhood, it needs to be clearly demonstrated that it is essential to perform the procedure before an age at which the individual can make a decision about the procedure for him or herself.

They raise many issues surrounding the AAP’s focus on UTIs, penile cancer, STDs, and HIV. They conclude that non-therapeutic circumcision “fails to meet the commonly accepted criteria for the justification of preventive medical procedures in children.” Even ignoring their critique of the applicability of the scientific studies involved in the AAP’s revised policy statement, they are convincing. Their ethical argument is powerful.

The response by the AAP’s Task Force on Circumcision is intriguing and bizarre. It’s intriguing because it raises potential issues with what Frisch et al wrote about the science. This section is worth discussing, but not by me. I see the points on both sides. It’s difficult for either to squeeze every helpful detail into a few pages. For this, I’ll leave it with my usual statement. I am willing to accept the claimed benefits, however faulty they may be. The ironclad ethical case against non-therapeutic child circumcision is no weaker if all of the AAP’s criticisms have full merit.

Its response is bizarre for the ethical issues the Task Force continues to dismiss and ignore.

First, responding to the claim that the Task Force suffered from cultural bias:

… Although that heterogeneity may lead to a more tolerant view toward circumcision in the United States than in Europe, the cultural “bias” in the United States is much more likely to be a neutral one than that found in Europe, where there is a clear bias against circumcision. …

That (claimed) neutrality is the problem in the AAP’s revised policy statement on male circumcision. They imagine that there is no right answer to this ethical question. Here, the physical integrity of a healthy child is surgically violated without his consent. The law recognizes a single correct answer for female minors on the same ethical question. The implicit conclusion that male minors possess a lesser right to their physical integrity than their sisters is indefensible. It doesn’t matter that potential benefits exist from circumcision. Frisch et al demonstrate this in analyzing the difference between consent and proxy consent for a non-therapeutic intervention.

The AAP continues its challenge:

… Yet, the commentary’s authors have, at no point, recognized that their own cultural bias may exist in equal, if not greater, measure than any cultural bias that might exist among the members of the AAP Task Force on Circumcision. If cultural bias influences the review of available evidence, then a culture that is comfortable with both the circumcised penis and the uncircumcised penis would seem predisposed to a more dispassionate analysis of the scientific literature than a culture with a bias that is either strongly opposed to circumcision or strongly in favor of it.

So, basically, the AAP’s Task Force is saying “I’m rubber, you’re glue”.

To the point, Frisch et al show that the cultural acceptability of circumcision is not a valid defense because there is a right answer to the ethical question involving this prophylactic surgical intervention on healthy children. The AAP missed the essential issue in its recommendation. The ongoing American experiment with circumcision is a reasonably-inferred explanation. Frisch et al emphasize the child in non-therapeutic child circumcision. The AAP continues to emphasize only circumcision, with the children being a distant abstract. That is the problem, regardless of the reason.

For the purpose of those paragraphs, I pretended that the AAP’s claim that the US is neutral on infant circumcision isn’t laughable nonsense. On the basis of individual opinions, I think we’re probably the fifty-fifty nation they imagine. Institutionally, both medically and politically, we are very much a pro-circumcision nation. The Task Force stated a truth, while missing it, in its Technical Report:

… Reasonable people may disagree, however, as to what is in the best interest of any individual patient or how the potential medical benefits and potential medical harms of circumcision should be weighed against each other. …

The factually-unprovable statement in the Abstract that the “preventive health benefits of elective circumcision of male newborns outweigh the risks of the procedure” is the evidence that the AAP is not a pillar of neutrality on non-therapeutic male child circumcision. The Task Force thinks the subjectivity it mistakenly presents as a valid general conclusion in its Abstract may reasonably be taken into consideration for circumcising an individual by proxy consent. If they understood the ethical implications, they would acknowledge that it must only be taken into consideration by the individual for his own healthy body. The neutral position presents facts and lets the individual choose. The biased position lets someone else impose a permanent, unnecessary intervention for the individual.

The Task Force includes a section, Age at Circumcision, in which their argument is that many minors make their sexual debut before the age of majority and some of those people are irresponsible with regard to condoms. The Task Force argues these two facts render it acceptable for parents to make their son’s circumcision decision for him. It views parents through an ideal, rather than the reality of human decision-making where a child must live with the permanent consequences of an unnecessary decision. Individuals are just part of a statistic.

When the Task Force finally gets to the ethical issues, it whiffs again:

… The authors’ argument about the basic right to physical integrity is an important one, but it needs to be balanced by other considerations. The right to physical integrity is easier to defend in the context of a procedure that offers no potential benefit, but the assertion by Frisch et al of ‘no benefit’ is clearly contradicted by the published scientific peer-reviewed evidence. …

Because there are potential benefits, we may discard the supremacy of the basic human right to physical integrity for the healthy child? That’s ridiculous. They don’t say it directly, but their conclusion for parents making their son’s choice endorses it in reality. With this thinking, any number of extreme surgical interventions could be justified on a healthy child because they might offer some benefit at some point. We should at least research any possible intervention to make sure we’re not missing some benefit that could decrease some risk, if that really is an acceptable approach. Or we could be rational and set aside our long-held cultural acceptance of this unethical procedure, but that’s harder to defend than fear, I guess.

The second statement, the “assertion by Frisch et al of ‘no benefit'”, is not supported by my reading of their paper. They do not state there is ‘no benefit’ to circumcision. They question the strength of the benefits and their applicability to children, particularly because less intrusive methods to achieve these benefits are available. The Task Force builds a straw man instead of confronting the ethical issues.

Finally, the Task Force asserts the “right to grow up circumcised“:

Frisch et al appeal to the ethical precept “First, do no harm,” but they fail to recognize that in situations in which a preventive benefit exists, harm can also be done by failing to act. Whereas there are rare situations in which a male will be harmed by a circumcision procedure, …

I’m interrupting the excerpt to correct this inaccurate statement. Every circumcision inflicts harm, including loss of normal tissue and nerve endings, as well as scarring. Some circumcisions inflict more harm than expected or intended. The Task Force conflates intent and outcome.

… it is also true that some males will be harmed by not being circumcised. Simply because it is difficult to identify exactly which individuals have suffered a harm because they were not circumcised should not lead one to discount the very real harms that might befall some men by not being circumcised. …

I don’t discount the real harms some will experience from the risks in being alive with a normal human anatomy. I dismiss their relevance in this context. It’s a dumb standard for evaluating what may be done to a healthy child without his consent. Life can never be lived without risk. If a male is worried enough about the minimal risks posed by his foreskin, he can elect to be circumcised with his own informed consent. But the reverse is not true. A male who is circumcised at birth can’t recover his foreskin if he would not trade his foreskin¹ for the proposed benefits. Individual choice is the valid, superior ethical position.

Their conclusion:

… There is no easy answer to this issue ethically. Regardless of what decision is made on behalf of a young male, harm might [ed. note: will, if the decision is circumcision] result from that decision. That is precisely why the AAP task force members found that this decision properly remains with parents and that parents should have information about both potential benefits and potential harms as they make this decision for their child.

There is an easy answer to this issue ethically. Non-therapeutic genital cutting on a non-consenting male is unethical. It inflicts guaranteed harm to minimize already tiny risks. This is the same easy answer we draw for females. We know parents shouldn’t make this decision unless it is “necessary to the health of the person on whom it is performed” when the person on whom it is performed is female. We’ve legislated this knowledge. The right to physical integrity is easy to defend. The AAP has an ethical duty to defend it for all children, including males.

¹ Full quote from AAP Task Force on Circumcision member Dr. Douglas Diekema: “[Circumcision] does carry some risk and does involve the loss of the foreskin, which some men are angry about. But it does have medical benefit. Not everyone would trade that foreskin for that medical benefit.”

International Day of Zero Tolerance to FGM, 2013

Today is International Day of Zero Tolerance to Female Genital Mutilation. The WHO statement on this is lacking, which I don’t find surprising. (emphasis added)

The International Day of Zero Tolerance to Female Genital Mutilation is observed each year to raise awareness about this practice. Female genital mutilation of any type has been recognized as a harmful practice and violation of the human rights of girls and women. WHO is committed to the elimination of female genital mutilation within a generation and is focusing on advocacy, research and guidance for health professionals and health systems.

Female genital mutilation (FGM) refers to all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. Female genital mutilation has no known health benefits. On the contrary, it is associated with a series of short and long-term risks to both physical, mental and sexual health and well-being.

FGM is affecting about 140 million girls and women, and more than 3 million girls are at risk every year. A special focus for WHO this year, is the troubling trend of health-care providers increasingly being the ones performing female genital mutilation, and thereby contributing to legitimize and maintain the practice.

Today, I’m not going to discuss the comparison to male circumcision beyond the one inherent in this sentence. I am going to use WHO’s approach to male circumcision to compare why its last sentence shouldn’t be a surprise.

Stating that FGM has no known health benefits works from the premise that the possibility of benefits could justify FGM. No benefit could justify forced FGC (i.e. mutilation). The human rights principle is superior. WHO should state that as its foundation, and be consistent and repetitive. In reminding readers about this lack of benefits, WHO almost apologizes for being against FGM. The absence of benefits is not why this shouldn’t be done.

Think back to when the AAP issued a revised policy statement on FGC, later retracted. As I wrote here and here, I didn’t/don’t think it said what people read into it. But the reaction was universal and swift. On the idea that permitting limited forms of genital cutting could prevent greater harm to females, activists stood on the absolute principle. Whether or not this makes sense is a worthwhile discussion. (My posts linked above set out my thoughts on the issue. The principle still matters more.) Regardless, that incident demonstrates that activists would never excuse FGC/M if benefits were proposed or found. Can anyone imagine a scenario where any scientific committee allowed research into possible benefits? For those inclined to accept possible benefits as a justification, everyone else must discourage this thinking. Lazy statements that lack the courage to defends what is morally and ethically correct fail that goal.

WHO’s approach, which informs its stance on male circumcision, enables the predictable problems described in the last sentence. Because the organization refuses to stand for principle where courage is necessary, it creates the conflict of legitimizing genital cutting through “medical” male circumcision programs. I know of no populations that cut females that don’t also cut males. So, WHO drives campaigns to legitimize genital cutting while driving campaigns to delegitimize genital cutting. The flaw is obvious. The principle and consistency matter.

We Were All Female. We Are All Humans.

Here’s a fantastic video from AsapSCIENCE:

It’s an oversimplification, but barely, to say that we all have the same parts. They look different but start as the same. We are equal. There is no reason to imagine that the damage from non-therapeutic cutting of male genitals is acceptable in the way we reject as obvious for any female genital cutting. We all begin with a common foundation. Yes, the intent – and often, extent – can be quite different. We must not forget or ignore that. But that isn’t enough. It’s possible to recognize the rights of boys without minimizing or easing protection against what is done to girls. The issue remains that permanent harm results from non-therapeutic genital cutting.

Society has developed irrational rules that somehow the basic human rights to genital integrity and bodily autonomy splinter after the first six weeks of fetal development. Females maintain this right, but once the Y chromosome becomes dominant, legal and ethical concern for this right inexcusably diminishes among too many. We should not behave this way. The above video demonstrates that this distinction is false. Boys deserve their human rights, too.

Video via Geeks are Sexy.

Walter Russell Mead’s Warped View of Circumcision

Commenting on the expected and predictably flawed bill to permit non-therapeutic ritual circumcision of male minors in Germany, Walter Russell Mead describes the situation (emphasis added):

We’ve been on the lookout for something like this happening, since both Germany’s leaders and the parliament have previously voiced opposition to the earlier barbaric court ruling which had the effect of criminalizing a key ritual practice of Judaism and Islam. We leave the last word to Dieter Graumann, the president of the Central Council of Jews in Germany: “It is a clear political signal that Jews and Muslims are still welcome in Germany. We are happy that Jewish commandments and Jewish life are not being pushed into illegality.”

Somehow, the correct version of the world according to Walter Russell Mead is this: Surgically altering the healthy genitals of their children – sons only, of course, of course – is a “basic human freedom” for parents. The effort to protect the rights of those boys to their physical integrity and self-determination – rights their sisters unquestionably possess for their legally-protected prepuces – should be described as “barbaric”.

Walter Russell Mead needs to have a think on a few critical human rights topics and what freedom means.

AAP Circumcision Policy – Flawed Ethics

Much has already been said on the flaws in the AAP’s revised policy statement on non-therapeutic male child circumcision. (Here’s an additional plug for the exceptional rebuttal by Brian D. Earp.) I want to comment directly on its recommendations and the ethical issues addressed – or unaddressed – in the technical report. First, from page 757:

The Task Force made the following recommendations:

  • Evaluation of current evidence indicates that the health benefits of newborn male circumcision outweigh the risks, and the benefits of newborn male circumcision justify access to this procedure for those families who choose it.
  • …
  • Parents should weigh the health benefits and risks in light of their own religious, cultural, and personal preferences, as the medical benefits alone may not outweigh these other considerations for individual families.

These two statements conflict. Stating that the benefits outweigh the risks is a judgment call based on subjective valuations of the various inputs. The task force recognizes this when acknowledging that some parents would value other considerations more than the AAP’s evaluation of the net effect. That same possible difference of opinion applies to the cost-benefit analysis itself, which should include actual costs (i.e. the foreskin) rather than just risks.

The AAP is stating that it’s possible to disagree with the task force, but only to an extent because it reviewed the data and drew a conclusion. That’s wrong because the evaluation requires subjective weightings rather than objective criteria. It’s one thing to question the possible benefits altogether, as some do. It’s also possible to accept the potential benefits while not valuing them more than the costs involved. All individual tastes and preferences are unique. AAP Circumcision Task Force member Dr. Douglas Diekema said as much prior to the release of the revised policy statement. Why is that not reflected here in place of this incorrect statement that the benefits definitively outweigh the risks (and the unmentioned costs/harms)?

Further discrediting its recommendation on this, the ethics section (Pg. 759) states:

… Reasonable people may disagree, however, as to what is in the best interest of any individual patient or how the potential medical benefits and potential medical harms of circumcision should be weighed against each other. …

The highlighted statement is the ethical argument. This accurate statement contradicts the conclusion the AAP presents that the potential benefits definitively outweigh the risks it considered. It is more relevant in the context of what the individual being circumcised might value. How will he – rather than his parents – want the benefits, risks, and costs weighed against each other for his normal, healthy foreskin? That’s the ethical core that the AAP Task Force sidestepped. Its recommendation for proxy consent for non-therapeutic circumcision is indefensible.

Moving on to the Ethical Issues section (pp. 758-760):

As a general rule, minors in the United States are not considered competent to provide legally binding consent regarding their health care, and parents or guardians are empowered to make health care decisions on their behalf.9 In most situations, parents are granted wide latitude in terms of the decisions they make on behalf of their children, and the law has respected those decisions except where they are clearly contrary to the best interests of the child or place the child’s health, well-being, or life at significant risk of serious harm.10

Sure. But that doesn’t support non-therapeutic male child circumcision. Proxy consent for permanent, amputative surgery must require something approaching objective need. Legally, we already require this for non-therapeutic genital cutting on female minors, including that which is analogous to or less harmful than a typical male circumcision. The comparison to be made for non-therapeutic male circumcision is whether or not parents are given this same non-therapeutic, cultural latitude in cutting the genitals of their daughters. They are not, which demonstrates that it shouldn’t be about the parents but about the child.

(a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years …

Subsection (b) establishes that only therapeutic genital cutting is legal for female minors. Subsection (c) rejects all parental preferences, whether cultural or religious, for non-therapeutic genital cutting on their daughters. It’s improper for the AAP Task Force to treat non-therapeutic male child circumcision as if it’s just a health care decision. It’s unlike any other decision we allow. If nothing else, circumcision guarantees (i.e. “significant risk”) the child’s normal, healthy foreskin will be removed forever (i.e. “serious harm”). Do male minors ever become reasonable people who may disagree about the weighting of the benefits and risks?

Revisiting “reasonable people may disagree”:

Parents and physicians each have an ethical duty to the child to attempt to secure the child’s best interest and well-being.11 Reasonable people may disagree, however, as to what is in the best interest of any individual patient or how the potential medical benefits and potential medical harms of circumcision should be weighed against each other. This situation is further complicated by the fact that there are social, cultural, religious, and familial benefits and harms to be considered as well.12 It is reasonable to take these nonmedical benefits and harms for an individual into consideration when making a decision about circumcision.13

It is not reasonable. The individual who must live with the permanent consequences of the decision, if the decision is to circumcise, is not the person taking these non-medical benefits and harms into consideration. (Here, based on my earlier excerpt from this paragraph, benefits such as a reduced risk of heterosexually-acquired HIV should be evaluated as non-medical because they are a non-therapeutic justification for surgical intervention via proxy consent. Or remedy my rebuttal to “these medical benefits, non-medical benefits, and harms” if my precision focused on the lack of need irritates.)

In footnote 13, which is Diekema’s “ethics” perspective on Boldt v. Boldt, he concludes:

(3) Absent a significant medical indication, circumcision should not be performed on older children and adolescents in the face of dissent or less than enthusiastic assent.

This is important. Infants can’t consent, of course, but there is no reason that an inability to consent should be construed as a “yes” in favor of his parents’ preferences. Not even benefits that reasonable people may determine do not outweigh the risks (and costs). From the Ethical Issues section of the policy statement technical report:

Parents may wish to consider whether the benefits of the procedure can be attained in equal measure if the procedure is delayed until the child is of sufficient age to provide his own informed consent. These interests include the medical benefits; the cultural and religious implications of being circumcised; and the fact that the procedure has the least surgical risk and the greatest accumulated health benefits if performed during the newborn period. Newborn males who are not circumcised at birth are much less likely to elect circumcision in adolescence or early adulthood. Parents who are considering deferring circumcision should be explicitly informed that circumcision performed later in life has increased risks and costs. Furthermore, deferral of the procedure also requires longer healing time than if performed during the newborn period and requires sexual abstinence during healing. Those who are already sexually active by the time they have the procedure lose some opportunities for the protective benefit against sexually transmitted infection (STI) acquisition, including HIV; moreover, there is the risk of acquiring an STI if the individual is sexually active during the healing process. (See the section entitled Sexually Transmitted Diseases, Including HIV.)

First, note that it references a section on STDs, including HIV. Condoms are a cheaper, ethical way of achieving the same benefits and in greater than equal measure. They’re also still necessary after circumcision to prevent STDs, including heterosexually-acquired HIV. Yet, the word condom appears¹ zero times in the body of the technical report. Why?

The same applies to the other benefits, or there are safe, effective, non-invasive treatments available. It’s also reasonable to infer that, since people may disagree based on their preferences for whether the benefits outweigh the risks, people may also differ on whether the cited gains from infant circumcision rather than voluntary, adult circumcision are worth the trade-offs of their foreskin and their choice. The “greatest accumulated health benefits” isn’t enough to justify circumcising the individual who will not want to be circumcised.

The most crucial sentence in that excerpt is the third. Males left with their normal genitals are less likely to elect (or need) circumcision. This is too often portrayed as something akin to weakness or cowardice in the autonomous male, for which parents can be the brave, responsible decision-maker. (e.g. Brian Morris et al.) That’s a bad framing device. Instead, this unwillingness (i.e. less likely) is the most powerful indicator that males left with their foreskin value something more than being circumcised. Even if that is merely a desire to avoid the (perceived) pain of the surgery, it is proof of their preference against being circumcised. It is not better to guarantee that pain by forcing it on them in infancy. The typical defense is that they won’t remember it, which is so ridiculous that it could justify any intervention. As AAP Task Force member and bioethicist Douglas Diekema said, “Not everyone would trade that foreskin for that medical benefit.” If the AAP had reflected that view in its recommendations, the revised policy statement could’ve been ethical.

For the remaining sentences, parents who are considering deferring circumcision should be explicitly informed that circumcision performed later in life has a very low likelihood of being necessary. Why leave this point out to focus only on one side of the equation if parents should be fully informed? It shouldn’t be included as an abused throwaway in a technical report most parents will never know exists.

In cases such as the decision to perform a circumcision in the newborn period (where there is reasonable disagreement about the balance between medical benefits and harms, where there are nonmedical benefits and harms that can result from a decision on whether to perform the procedure, and where the procedure is not essential to the child’s immediate well-being), the parents should determine what is in the best interest of the child. In the pluralistic society of the United States, where parents are afforded wide authority for determining what constitutes appropriate child-rearing and child welfare, it is legitimate for the parents to take into account their own cultural, religious, and ethnic traditions, in addition to medical factors, when making this choice.11

It is not legitimate. The Task Force’s own words demonstrate that it’s possible for the individual male to not value circumcision. He is in his parents’ care for 18 years. (Per Diekema’s recommendation, his parents may be able to choose non-therapeutic circumcision for only a few of those years.) He will then be an autonomous adult for what will likely be another 40 to 80 years. What will he believe is in his best interest about his normal body for that time period? If his parents circumcise him, he will never be autonomous on this question. (As his sister(s) will be by law, contra the absurd idea that parents should be afforded wide authority to determine what constitutes his best interest forever.)

This decision involves informed proxy consent, not informed consent. For this, non-therapeutic circumcision, there is no reasonable disagreement about the lack of need. What is in the child’s best interest is to not undergo unnecessary surgery for reasons he may not value. He can choose it later, or his parents can choose it should genuine medical need arise while he remains their responsibility. He can’t unchoose it once it’s imposed.

The technical report does not support the AAP’s recommendations because it contains omissions and contradictions. Both the technical report and the condensed versions are irresponsible documentd that will perpetuate the violation of the bodies and rights of newborn males. They should be retracted.

¹ It appears once in a footnote as part of the title of a source.