Memorandum submitted by Doctors Opposing
INTERNATIONAL HUMAN RIGHTS LAW AND THE CIRCUMCISION
The various codes of medical ethics that have
been enunciated by the medical societies of western nations require
medical doctors to respect the human rights of their patients.
1-7 It is, therefore, necessary to consider circumcision of children
in the light of international human rights law. According to The
United Nations Children's Fund (UNICEF):
Human rights are those rights which are essential
to live as human beingsbasic standards without which people
cannot survive and develop in dignity. They are inherent to the
human person, inalienable and universal.8
This chapter will examine the position of circumcision
of children (who are unable to consent to surgery) that was introduced
into medical practice in the nineteenth century, under international
human rights law, which was adopted by the nations of the world
in the twentieth century.
The era of human rights may be considered to
have started with the formation of the United Nations at San Francisco
in 1945 because the Charter of the United Nations
requires that body to promote universal respect and observance
of human rights for allwithout distinction as to race,
sex, language, or religion.9
Children possess two kinds of human rights:
General human rights that every human
possesses, universally, simply by reason of being a human being.
Special human rights that every child
possesses, universally, simply by reason of minority.
Human rights apply to all age groups; children
have the same general human rights as adults. But children are
particularly vulnerable and so they also have particular rights
that recognize their special need for protection. 10
Doctors who treat child-patients, therefore,
have an ethical duty to respect and honour both the general human
rights and the special human rights of the child-patient.
The General Assembly of the United Nations,
acting to fulfill its obligations under the Charter, adopted the
Universal Declaration of Human Rights (UDHR) in 1948. 11
The UDHR recognizes the rights of all to security of the person
(Article 3), to freedom from inhuman, cruel, or degrading treatment
(Article 5), and the rights of motherhood and childhood to special
protection (Article 25.2), all of which are applicable to circumcision.
The General Assembly adopted the Covenant
on Civil and Political Rights (CCPR) in 1966. 12 That Covenant
has several provisions, which are applicable to the circumcision
of children. Each nation that is a state-party under the CCPR,
which took effect in 1976, pledges to enforce those rights for
its citizens. The United States ratified this covenant on 8 September
1992 with various reservations, understandings, and declarations
that limit its value. Articles 7 and 24 are applicable
Article 7 provides:
No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical or
Article 9 provides:
1. Everyone has the right to liberty and
security of person.
Article 24 provides:
1. Every child shall have, without any discrimination
as to race, colour, sex, language, religion, national or social
origin, property or birth, the right to such measures of protection
as are required by his status as a minor, on the part of his family,
society and the State.
One must bear in mind that non-therapeutic circumcision
is a radical, irreversible operation that excises healthy, functional
tissue from the body of the child13 without medical justification
and without the consent of the child, and which permanently destroys
various physiological functions. According to Svoboda:
Reasons for concern with the procedure under
human rights principles include a profound loss of highly specialized
and sensitive sexual tissue, which also serves important protective
functions, loss of bodily integrity, traumatic and highly painful
disfigurement, complications with a range of severity up to and
including death, and the impermissibility of any mutilation of
children's sexual organs performed with neither their consent
nor medical justification. 14
Applicable general human rights include security
of the person and freedom from cruel or degrading treatment.
In addition, the two instruments recognize the right of the child
to special protection by reason of his minority.
The General Assembly of the United Nations has
acted twice to enunciate and protect the rights of the child.
First, in 1959, the General Assembly adopted the Declaration
on the Rights of the Child (DRC), 15 which expanded and further
defined the rights of the child to special protection. The DRC
enunciated ten general principles for the protection of children,
of which Principles 1, 2, 8, 9, and 10 are applicable to
1. The child shall enjoy all the rights set
forth in this Declaration. Every child, without any exception
whatsoever, shall be entitled to these rights, without distinction
or discrimination on account of race, colour, sex, language, religion,
political or other opinion, national or social origin, property,
birth or other status, whether of himself or of his family.
2. The child shall enjoy special protection,
and shall be given opportunities and facilities, by law and by
other means, to enable him to develop physically, mentally, morally,
spiritually and socially in a healthy and normal manner and in
conditions of freedom and dignity. In the enactment of laws for
this purpose, the best interests of the child shall be the paramount
8. The child shall in all circumstances be
among the first to receive protection and relief.
9. The child shall be protected against all
forms of neglect, cruelty and exploitation. He shall not be the
subject of traffic, in any form.
10. The child shall be protected from practices
which may foster racial, religious and any other form of discrimination.
The DRC, however, was binding on no one, so
in 1989, the United Nations General Assembly adopted the Convention
on the Rights of the Child (CRC), 16 which enunciated specific
rights which the states-party were required to implement in their
domestic laws. One-hundred one nations have become states-party
to the CRC. Two nations are not states-party to the CRC. They
are Somalia, which has no functional government, and the United
States, 17 where deep opposition exists. The implementation of
the CRC varies from nation to nation. In the United States, even
though the CRC has not been ratified by Congress, it still sets
a benchmark for the protection of children.
The CRC has a number of articles, which are
relevant to child circumcision. They include Articles 2, 3, 4,
6, 19, 24(3), 34, 36, 37, and 39. All nations except Somalia and
the United States, therefore, have pledged to implement the provisions
of the CRC for the protection of children within their respective
1. States Parties shall respect and ensure
the rights set forth in the present Convention to each child within
their jurisdiction without discrimination of any kind, irrespective
of the child's or his or her parent's or legal guardian's race,
colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other
This article establishes the universality of
child rights. As UNICEF says:
All children have the same rights. 18
There are no exceptions.
1. In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the
child such protection and care as is necessary for his or her
well-being, taking into account the rights and duties of his or
her parents, legal guardians, or other individuals legally responsible
for him or her, and, to this end, shall take all appropriate legislative
and administrative measures.
This article establishes "best interests"
as the guidance by which decisions concerning the child are made.
The second part establishes the obligation of the state to provide
protection and care for the well-being of the child.
States Parties shall undertake all appropriate
legislative, administrative, and other measures for the implementation
of the rights recognized in the present Convention. With regard
to economic, social and cultural rights, States Parties shall
undertake such measures to the maximum extent of their available
resources and, where needed, within the framework of international
Article 4 establishes the obligation of
the state-party to take action to implement the provisions of
1. States Parties recognize that every child
has the inherent right to life.
2. States Parties shall ensure to the maximum
extent possible the survival and development of the child.
Article 6 acknowledges that children have
the same right to life as adults. Article 6 is particularly
relevant to such countries as South Africa, where children regularly
lose their lives in "initiation schools" where they
are circumcised. It is also relevant to circumcision in the advanced
Western nations, where children sometimes die of bleeding or infection
1. States Parties shall take all appropriate
legislative, administrative, social and educational measures to
protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the care
of the child.
2. Such protective measures should, as appropriate,
include effective procedures for the establishment of social programmes
to provide necessary support for the child and for those who have
the care of the child, as well as for other forms of prevention
and for identification, reporting, referral, investigation, treatment
and follow-up of instances of child maltreatment described heretofore,
and, as appropriate, for judicial involvement.
Article 19 recognizes the right of children
to special protection from all forms of mental or physical violence
Article 24 recognizes the right of the
child to health. Article 24.3 is relevant to the traditional
and injurious practice of male circumcision.
3. States Parties shall take all effective
and appropriate measures with a view to abolishing traditional
practices prejudicial to the health of children.
Article 24.3 makes clear that children
have a right to protection from the traditional practice of child
States Parties undertake to protect the child
from all forms of sexual exploitation and sexual abuse.
The penis is a sexual organ, so circumcision
is a violation of this article.
States Parties shall protect the child against
all other forms of exploitation prejudicial to any aspects of
the child's welfare.
Doctors exploit the presence of the foreskin
on male children as an excuse to do a circumcision and collect
a fee for the surgery. Children have a right under this article
to protection from such exploitation.
a) No child shall be subjected to torture
or other cruel, inhuman or degrading treatment or punishment.
This article provides the child with a right
to freedom from cruel, inhuman, and degrading treatment. Circumcision
excises functional tissue from the human body and degrades the
sexual and protective functions of the prepuce. This is cruel,
inhuman, and degrading treatment.
States Parties shall take all appropriate measures
to promote physical and psychological recovery and social reintegration
of a child victim of: any form of neglect, exploitation, or abuse;
torture or any other form of cruel, inhuman or degrading treatment
or punishment; or armed conflicts. Such recovery and reintegration
shall take place in an environment which fosters the health, self-respect
and dignity of the child.
By this article, children have a right to whatever
treatment will help in the recovery from the effects of circumcision.
Smith, writing for the Netherlands Institute
of Human Rights (Studieen Informatiecentrum Mensenrechten),
reported that male circumcision is an obvious violation of the
human rights of the child, equivalent to female circumcision.
18 All members of society, including parents and professionals,
have a duty to protect the rights of children. 20 We shall see
in a later chapter how this impacts the medical ethics of the
circumcision of male children.
Two international instruments apply human rights
to medical ethics. Childrenwho lack the capacity to consentare
granted special protection.
European Convention on Human Rights and Biomedicine.
Article 20 of this convention states:
No organ or tissue removal may be carried out
on a person who does not have the capacity to consent under Article
Universal Declaration on Bioethics and Human Rights.
This Declaration by UNESCO states in Article
In applying and advancing scientific knowledge,
medical practice and associated technologies, human vulnerability
should be taken into account. Individuals and groups of special
vulnerability should be protected and the personal integrity of
such individuals respected. 22
Non-therapeutic excision of healthy tissue from
the human body quite clearly is an unethical violation of human
rights when carried out on a child because this amputative excision
of healthy functional tissue is a violation of human rights.
Circumcision of a child requires the consent
of a surrogate.
The violation of a child's rights by circumcision
occurs when a surrogate grants consent for circumcision. Circumcision
should only be carried out when an adult grants consent for his
own circumcision.We recommend, therefore, that Parliament make
granting of consent for circumcision by a surrogate unlawful.
1. World Medical Association International
Code of Medical Ethics. Adopted by the World Medical Assembly,
Venice, Italy, October 1983. Available at: http://www.wma.net/e/policy/c8.htm
2. Council on Ethical and Judical Affairs.
Principles of Medical Ethics. Chicago: American Medical
Association, 2001. Available at: http://www.ama-assn.org/ama/pub/category/2512.html
3. Code of Ethics. Ottawa: Canadian
Medical Association, 2004. Available at: http://policybase.cma.ca/PolicyPDF/PD04-06.pdf
4. Code of Ethics for Doctors. Oslo:
Norwegian Medical Association, 2000. Available at: http://www.legeforeningen.no/index.db2?id=297
5. Committee on Medical Ethics. The impact
of the Human Rights Act 1998 on medical decision making.
London: British Medical Association, 2000. Available at: http://www.bma.org.uk/ap.nsf/Content/HumanRightsAct
6. Code of Ethics. Barton: Australian
Medical Association, 2004. Available at: http://www.ama.com.au/web.nsf/tag/amacodeofethics
7. Code of Ethics. Wellington: New
Zealand Medical Association, 2002. Available at: http://www.nzma.org.nz/about/ethics/codeofethics.pdf
8. The Human Rights Framework. UNICEF
Available at: http://www.unicef.org/crc/index_framework.html
9. Chapter IX, Article 55. Charter of
the United Nations (1945). Available at: http://www.un.org/aboutun/charter/
10. Protecting and realizing children's
rights. UNICEF. Available at: http://www.unicef.org/crc/index_protecting.html
11. Universal Declaration of Human Rights,
G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). Available
12. International Covenant on Civil
and Political Rights. United Nations General Assembly Resolution
2200A [XX1]. 16 December 1966. Available at: http://www1.umn.edu/humanrts/instree/b3ccpr.htm
13. Taylor JR, Lockwood AP, Taylor AJ. The
prepuce: specialized mucosa of the penis and its loss to circumcision.
Br J Urol 1996;77:291-5. Available at: http://www.cirp.org/library/anatomy/taylor/
14. Svoboda JS. Routine infant male circumcision:
Examining the human rights and Constitutional Issues. In: (eds)
Denniston GC, Milos MF. Sexual Mutilations: A Human Tragedy.
New York: Plenum Press, 1997:205-15.
15. Declaration of the Rights of the
Child. United Nations General Assembly Resolution 1386 [XIV],
20 November 1959. Available at: http://www.unhchr.ch/html/menu3/b/25.htm
16. Convention on the Rights of the
Child. UN General Assembly Document A/RES/44/25, 20 November
1989. Available at: http://www.unhchr.ch/html/menu3/b/k2crc.htm
17. Path to the Convention on the Rights
of the Child. UNICEF. Available at: http://www.unicef.org/crc/index_30197.html
18. Understanding the Convention on
the Rights of the Child. UNICEF. Available at: http://www.unicef.org/crc/index_understanding.html
19. Jacqueline Smith. Male Circumcision
and the Rights of the Child. In: Mielle Bulterman, Aart Hendriks
and Jacqueline Smith (Eds.), To Baehr in Our Minds: Essays
in Human Rights from the Heart of the Netherlands (SIM Special
No. 21). Netherlands Institute of Human Rights (SIM), University
of Utrecht, Utrecht, Netherlands, 1998: pp. 465-498. Available
20. Promoting and protecting rights
for children. UNICEF. Available at: http://www.unicef.org/crc/index_30168.html
21. European Convention on Human Rights
and Biomedicine (1997). Adopted at Oviedo, 4 April 1997.
Available at: http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm
22. UNESCO. Universal Declaration on Bioethics
and Human Rights. Adopted by the UNESCO General Conference, 19 October