The Legal and Constitutional Issues
Charles A. Bonner
Presented at The Second International Symposium on Circumcision, San
Francisco, California, April 30-May 3, 1991.
Michael J. Kinane
Circumcision has origins dating back 4,000-5,000 years, to a time before
Abraham and his covenant with God to circumcise his people. Through the
ages, civilization has witnessed numerous forms of child abuse enjoying
significant popularity, including sterilizations, female circumcision,
infanticide, ritual sacrifice, binding of the feet, and ritual piercing
and mutilations. While almost 80% of the world's populations have ceased
or avoided the ritual of circumcision, nearly 60% of American infant males
and the majority of Moslems and Jews still suffer this mutilation.
Anthropologists, psychologists, and psychiatrists have offered a variety
of explanations for the practice: enhanced sexual performance, decreased
sexual pleasure to prevent moral degeneration, social prestige, sacrifice
to fertility gods, tribal signs, tests for endurance, reincarnation, and
hygienic reasons. However, with the exception of Jews, for whom circumision
has long been a tribal sign, widespread circumcision in the United States
appears to be largely a late ninetenth century development. For non-Jews,
it serves neither as a means of tribal integration, or separation and
identification, nor as an initiation rite to establish male identity.
The customary justification for male genital mutilation is hygienic but
it seems to have been primarily grounded is anti-masturbation hysteria
of the late 1800s and flourished following mass military circumcisions
during WWII. (23
Constitutional and legal issues
Circumcision is an unnecessary medical treatment, raises four major
legal issues, beyond traditional malpractice cause of action for a negligent
Limitations of Parents' Consent
- Do parents have the authority, constitutional or statutory, to consent
to unnecessary medical surgery for their infant son?
- What is the extent of the State's interest in protecting children
from unnecessary surgery?
- What is the standard for third party consent to obtrusive surgery?
- What civil or criminal remedies are available to victims of circumcision?
Decisions regarding child rearing, care and education have been recognized
as being entitled to protection as a fundamental right of personal liberty
under the Constitution. [Walen v. Roe (1977) 429 U.S. 589, 599-600;
Peoples v. Privitera (1979) 23 Cal 3rd 697, 702; In re Roger
S. (1977) 19 Cal 3rd 921, 928.] However, this parental duty and right
is subject to limitations "if it appears that parental decisions will
jeopardize the health or safety of the child, or have a potential for
significant social burdens. [Wisconsin v. Yoder (1972) 406 U. S. 205, 234; People v. Privitera,
supra, 703; In re Roger S., supra, 928.] If these
conditions are present the state may assert important intests in safeguarding
health and safety and in maintaining medical standards. [Roe v. Wade
(1973) 410 U.S. 113, 153-154; People v. Privitera, supra,
703.] In Privitera, the Supreme Court recently held that when important
interests of health and safety are involved the States's regulations shall
be tested under the rational basis test. [People v. Privitera,
supra, 702, fn. 2, 703.]
A parent's right to consent to medical treatment is not statutory in
California, but rather derives from the common law. In Kate's School
v. Department of Health (1979) 155 Cal. Rptr. 529, - a case regarding
a parents right to prescribe their treatment of choice for their mentally
disordered children, the court held that "the regulation of intrusive
and possibly hazardous forms of treatment of mentally disordered children,
such as involved in behavior modification therapy through corporal punishment,
is a proper exercise of the state's police power and bears a rational
relation to the state's interest in the protection of the health and safety
of the children..." This decision establishes that parents' rights to
consent to treat ment are not unlimited. Surgical removal of an infant's
foreskin, without medical justification, presents a more serious threat
to the health and safety of the child than corporal punishment, thereby
justifying exercise of the state's police power.
In an unpublished 1987 decision of the Court of Appeal, 1st District
No. A03040, London v. Glassner et al., petition for review denied,
parental consent to "any ... medical treatment" is found to be without
apparent limitation, regardless of purpose. Civil Code 25.8 cited as authority
for this decision provides: Either parent if both parents have legal custody,
or the parent or person having legal custody or the legal guardian of
a minor may authorize in writing any adult person into whose care the
minor has been entrusted to consent to any X-ray examination, anesthetic,
medical or surgical diagnosis or treatment and hospital
care to be rendered to the minor under the general or special supervision
and upon the advice of a physician and surgeon licensed under the
provisions of the Medical Practice Act or to consent to an X-ray examination,
anesthetic, dental, or surgical diagnosis or treatment and hospital care
to be rendered to the minor by a dentist licensed under the provision
s of the Dental Practice Act or to consent to an X-ray examination, anesthetic,
dental or surgical diagnosis or treatment and hospital care to be rendered
to the minor by a dentist licensed under the provisions of the Dental
Practice Act." (emphasis added.) This court then held "(a) circumcision
is a medical, surgical treatment," rejecting plaintiff's public policy
argument that children should be protected from suffering unjustifiable
pain or risk - based on the premise that parents cannot consent to surgical
procedures which have no medical purpose." While this section dose not
specifically grant any direct authority for parental consent, the trial
court found the legislative history was to extend the common law authority
The London decsion is unsupported and contradicted by the California
Supreme Court's decision in Conservatorship of Valerie N. v. Valerie
n., (1985) 219 Cal. Rptr. 387. The case deals with the rights of parents
of a mentally incompetent adult to consent to sterilization, a recognized
medical treatment. The court found that the parents as "conservators were
not entitled to have conservatee, who was unable to consent to sterilization,
sterilized inasmuch as there was neither evidence of necessity ... nor
sufficient evidence that less intrusive means ... were not presently available
to conservatee." This court further holds "... as to those medical procedures
permitted after court authorization the Legislature has required a judicial
determination that the condition of the conservatee `require the recommended
course of medical treatment'" as provided in Cal. Probate Code Section
2357. subh. (h)(1). Infants, legally mentally incompetent, are therefore
protected from nonrequired m edical treatments under the Probate Code.
The state's interest in circumcision
The State's interest in circumcision, beyond financial considerations
of Medi-Cal coverage and the maintenance of ethical medical standards
and procedures, involve the protection of an infants rights to Liberty,
Privacy, Safety, and Happiness under the California Constitution Article
I, the Federal protection against arbitrary deprivation of Due Process
and Equal Protection under the Fourteenth Amendment, and the violation
of criminal statutes against child and sexual abuse.
The States' interest in an infant's First Amendment constitutional rights
to Safety, Liberty, Privacy, and Happiness exceed the State's interest
in protecting parent's constitutional rights.
Parental rights to the custody and control of their minor children are
as old as civilization itself. Modern judges refer to parents' custodial
rights as "sacred," as a matter of "natural law" and as "inherent natural
rights," for the protection of the rights of the individual to life, liberty,
and the pursuit of happiness, oru government is formed." 23 J. Fam. L.
337. The generalized claims of parental constitutional rights have not
been without challenge; courts at all levels of the judicial heirarchy
have accasionally intruded into the family relationship to protect children.
Ibid. The most important Supreme Court cases reflecting state and judicial
intervention are Prince v. Massachusetts, 321 U.S. 158 (1944), and the cases involving
the rights of teenage females to have abortions, Bellotti
v. Baird 443 U.S. 622 (1979); Cary
v. Population Service International, 431 U.S. 678 (1977). Ibid.
The essence of the Prince decision is captured in the statement
that "parents may be free to become martyrs themselves. But it does not
follow they are free ... to make martyrs of their children before they
have reached the age of full and legal discretion when they can make that
choice for themselves." Prince, supra, 170. Under Yoder,
supra 234, parental authority and discretion may be challenged
"if it appears that parental decisions will jeopardize the health and
safety of the child ..." This demonstrates that the child's right to safety
overcomes parental constitutional rights.
In California, Valerie N., supra, the court held that
"The courts have ... recognized individual Liberty in things of the body
as a touchstone," (Note, Due Process, Privacy and the path of progress
(1979) U. Ill. L. Forum 469, 504-505, 515; see Union Pacific R. Com.
v. Botsford (1891) 141 U. S. 250, 251-252 (common law right of personal
injury plaintiff to be free of compulsory physical examination), cited
in Roe v. Wade
(1973) 410 U.S. 113,152; Schmerber
v. California (1966) 384 U.S. 757, 778-779 (dis. opn. of Douglas);
Breithaupt v. Abram
(1957) 352 U.S. 432, 441-442 (dis. opn of Warren, C.J.); Id., at 443-443
(dis. opn. of Douglas, J.). "The preservation of one's bodily reproductive
functions is a fundamental right, and the termination thereof constitutes
a serious invasion of the sanctity of the person." Guardianship of
Tully (1978) 83 Cal. App. 3d 698, 705. "Liberty means more than freedom
from servitude, and the constitutional guarantee is an assurance that
the citizen shall be protected in the right to use his powers of mind
and body in any lawful calling." Smith
v. Texas (1914) 233 U. S. 630, 636. "Although the Court has not
assumed to define `liberty' with any great precision, that term is not
confined to mere freedom from bodily restraint. Liberty under the law
extends to the full range of condict which the individual is free to pursue,
and it cannot be restricted except for a proper governmental objective."
(Bolling v. Sharpe
(1954) 347 U.S. 497, 499-500). There is no proper government objective
which justifies restricting the infant's right to keep his bodily parts
intact and enjoy a full use of his sexual organs.
In the California discussion of sterilization of mental incompetents,
Valerie N., supra, it cites with approval In Matter of
Guardianship of Hayes, 93 Wash. 2d 228, where the Washington court
concluded: "In the rare case sterilization may indeed be in the best interest
of the retarded person ... However, the court must exercise care to protect
the individual's right to privacy, and not unnecessarily invade
that right. Substantial medical evidence must be adduced, and the burden
on the proponent ... will be shown by clear, cogent and convincing evidence
that such a procedure is in the best interest of the retarded person."
Valerie N., supra, goes on to find that it is necessary to "preserve
the right ... to be free of intrusive medical and surgical procedures
The State's interest in protecting an infant's rights to due process
and equal protection is derived from the incompetency of his age and the
accident of birth, his sex. To deprive a baby boy of his constitutional
rights of Liberty, Safety, Privacy and Happiness must serve a "compelling
state interest." While ensuring the constitutional rights of parents in
care and child rearing is an important state interest, that interest is
subordinated to the child's when the parental discretion may jeopradize
the health or safety of that child. A reasonable method to protect the
child's due process rights, would be to provide for a judicial hearing,
with the child represented by a disinterested guardian ad litem, to insure
the necessity of a medical procedure risking the health and safety of
the incompetent minor. See Hayes, supra. In order to justify
routine circumcisions for male infants which are not required or allowed
for female infants, requires a "compelling state interest" to meet established
equal protection analysis requirements. No state interest of any kind
is served by the policy of sexually discriminatory routine circumcisions,
and it therefore violates both the State and Federal Equal Protection
claueses of the Fourteenth Amendment.
Standard for third party (parental) consent
Hayes, supra cited with approval in Valerie N..,
supra, provides a reasonable framework establishing a standard
for third party consent to intrusive medical and surgical procedures.
While Hayes and Valerie concern cases of sterilization is
medically indicated as the last and best resort for the individual. Can
it be shown by clear, cogent and convincing evidence, for example that
other methods of birth control are inapplicable or unworkable?"
"The decision can only be made in a superior court proceeding in
which (1) the incompetent individual is represented by a disinterested
guardian ad litem, (2) the court has received independent advice based
upon a comprehensive medical, psychological, and social evaluation of
the individual, and (3) to the greatest extent possible, the court has
elicited and taken into account the view of the incompetent individual."
"Within this framework, the judge must first find by clear, cogent
and convincing evidence that the individual is (1) incapable of making
his or her own decision
, and (2) unlikely to develop sufficiently
to make an informed judgment
in the foreseeable future." "Next,
it must be proved by clear, cogent and convincing evidence that there
is a need
" "Finally, there must be no alternative
The judge must find clear, cogent and convincing evidence (1) all less
have been proved unworkable or inapplicable,
and (2) the proposed method
entails the least invasion of the body
of the individual. Valerie N., supra, 466-467.
Neonatal circumcision shares sufficient characteristics with sterilization
of mental incompetents to justify utilizing the same standards to approve
third party consent. Both practices remove a natural, healthy part of
the anatomy without therapeutic necessity, in an irreversible procedure.
Both restrict the full and complete enjoyment of the reproductive organs.
Both have a tradition of government supported abuse. Both force the acceptance
of an involuntary risk of surgical complications and death. Both restrict
the patient's individual constitutional rights to Privacy, Liberty, Safety,
Happiness, Due Process, and Equal Protection.
The primary difference between third party consent in the cases of neonatal
circumcision and involuntary sterilizations of incompetents is that infants
will one day be competent to make their own choices.
The court in Valerie, supra, 448, justifies the necessity
of granting a third party consent for mental incompetents to protect their
constitutional right to procreative choice. "We do not pretend that
the choice of the (incompetent's) parents, her guardian ad litem, or a
court is her own choice. But it is
one designed to further the
same interests she might pursue had she the ability to decide for herself."
In re Grady, supra, 426 A.2d at 481. This justification
for granting third party consent for circumcision can not survive review.
Civil and Criminal Remedies for Neonatal Circumcision
to the issue of civil liability, absent medical negligence, is the lack
of actual or "informed consent." The well recognized legal incompetence
of an infant precludes direct or personal consent. An operation or medical
procedure without valid consent constitutes battery and false imprisonment.
(See Rainer v. Community Memorial Hospital (1971) 18 Cal. App.
3d 240, 255; City of Newport Beach v. Sasse (1970) 9 Cal. App.
3d 803, 810.) Third party consent to a surgical procedure can be granted
with validity, conditional upon the circumstances, by a parent, guardian
ad litem, or the courts. (See Valerie N., 219 Cal. Rptr. 3877) The substituted
consent doctrine is often invoked to permit consent by parents or guardians
for surgery on an incompetent conservatee or minor. (See Probate Code
2353, 2355, 2357) However, "even as to those intrusive medical procedures
permitted after court authorization, the Legislature has required a judicial
determination that the condition of the conservatee 'requires the recommended
course of medical treatment.'" (emphasis added) (Valerie N.,
supra, 452.) Civil Code 25.8 which generally provides a right for
parents to extend consent for any medical treatment rendered, upon
the advice of a physician and surgeon must meet the same standard
as specified under the Probate Code, that is the child "requires
the recommended course of medical treatment."
The Code of Medical Ethics prohibits a physician from advising unnecessary
medical or surgical treatment. The AAP has declared there is "no
absolute medical indication for routine circumcision." Certainly,
if there is a recognized medical indication for an individual neonatal
circumcision, the attending physician would have no difficulty advising
that the procedure is required. This medical determination and advice
would allow the parents, guardians, or court to make a valid "informed
consent" on the part of the minor, for the surgical procedure of
circumcision. Absent a recognized medical indication and physician advice,
no third party would be in a position to make a valid "informed consent."
Absent a valid "informed consent" the physician and those assisting
(parents, staff, hospital) in the non-consensual, intentional confinement
and operation on a minor can be held liable for battery and false imprisonment.
Suits for damages against surgeons, hospitals, and conceivably parents,
are possible because malice in the sense of ill will or a desire to cause
injury is not essential to sustain a recovery for intentional wrong doing.
It is enough for the plaintiff to show that the defendant knowingly and
intentionally did the act which caused the damage and that damage was
substantially certain to follow. The limitation posed by suits for negligence
in this area is grounded in societally determined assumptions and expectations
which are slowly changing to recognize circumcision as mutilations. (See
23 J.Fam.L. 337)
Once it is shown that a child has been subject to an injury to his sexual
organ, without valid "informed consent" or medical necessity,
a case may be made for enforcement of existing state laws prohibiting
assault and battery, conspiracy to assault and batter, child abuse, and
sexual abuse. However it will be extremely difficult to get a conviction,
since circumcision is not culturally acknowledged as child abuse at the
present time. Additionally, in some jurisdictions it may be difficult
to establish the requisite criminal intent. For this reason, the civil
law presently offers more fruitful avenues of approach to prevent genital
Perhaps a promising approach would be a civil rights class action against
hospitals designed to prevent routine neonatal circumcisions, that is,
in cases where circumcision is not medically warranted. A class action
suit would focus on the individuals most culpable since competent surgeons
are aware that routine neonatal circumcision is not good medical practice.
It would also avoid the constitutional issues of parental rights, as well
as religious issues, since the Orthodox Jewish circumcision ceremony is
not normally performed in medical centers by medical personnel. (23 J.Fam.L.337)
Charles A Bonner,
J.D., is in private practice in Sausalito, California, with a specialty
in personal injury and medical malpractice.
Michael J. Kinane is a law student at the Hastings School of Law,
San Francisco, California
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