NOCIRC Amicus Curiae Brief
The following amicus curiae brief was prepared by:
JAMES J. MOLOUGHNEY, ESQ.
on behalf of the National Organization of Circumcision Information Resource Centers.
The brief has been entered into the record of the case of Jennifer Price, plaintiff v. James W. Price, defendant, Docket Number FM-18-826-00 on Tuesday, January 16, 2001, in the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Family Part, which is seated in Somerville, New Jersey.
The question before the court is: Should Matthew Price, age 3, be circumcised?
Amicus Curiae Brief
The National Organization of Circumcision Information Resource Centers (NOCIRC) was founded in 1986 with the announced purpose of providing accurate information about the practice known as male neonatal circumcision, to overcome the misinformation which was then prevalent in the United States, and to protect children from the high level of unnecessary and injurious non-therapeutic neonatal circumcision which prevails in the United States and, to some extent, in other nations. NOCIRC is an IRC 501(c)(3) non-profit educational organization and a non-governmental organization (NGO) in Roster status with the Economic and Social Council of the United Nations. NOCIRC maintains the world’s largest collection of documents relating to male circumcision.
There has been little litigation regarding the practice of neonatal
circumcision in the United States and in other jurisdictions. The outcome
of the Matthew Price case is, therefore, of interest to the educational
efforts of NOCIRC. NOCIRC desires that the best interests of Matthew
Price be accurately and carefully determined and offers its expertise
to the court. NOCIRC, therefore, enters the Matthew Price case as a
friend of the court.
The Rights of the Child
Matthew Price (Matthew hereinafter) is a minor who is legally incompetent. Nevertheless, Matthew is a person with rights of his own. He, therefore, deserves special protection under domestic1 and international law.2 Matthew has a right to protection of his security.3
Matthew’s minor status does not deprive him of general rights enjoyed by all.4 Among these is the right to bodily integrity. The right to bodily integrity derives from the common law of England and was affirmed by the U.S. Supreme Court in 18915 and reaffirmed in 1992.6 The right to bodily integrity is known as the right to bodily security in international law and is guaranteed by Article 3 of the Universal Declaration of Human Rights (1948).7
Matthew also enjoys a right of privacy.8 The right of privacy is the right to be left alone.9 The constitutional right of privacy inures to the individual and not to the family,10 so Matthew enjoys a right against unnecessary intrusions by family members or others.
Matthew should also enjoy the right to protection of his genital organs from surgical alteration and mutilation. Povenmire writes:
Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.12 Matthew is a natural-born citizen of the United States and enjoys the privileges and immunities of citizens of the United States, including the right to equal protection of the law."13 The law already protects the genital integrity of females.14 Matthew, therefore, has a right to have his genital integrity protected. Matthew also has a right to equal protection under international instruments, which prohibit discrimination on the basis of gender.15"For female infants, the right to the integrity of the genital organs is protected against surgical “mutilation” by federal law and United Nations resolutions. Under the law, the right of bodily integrity is deemed so fundamental that it displaces any consideration of the parents’ cultural or religious beliefs. Unfortunately, no similar recognition has been extended to male infants in the United States. The failure of the law to provide equal protection to males can find no "exceedingly persuasive" justification, and is unconstitutional."11
Matthew has a right to have his best interests promoted in the proceedings of the court.16
Matthew has various rights under the UN Convention on the Rights
of the Child 1989 (UNCCR),17 including
the right to special protection "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,”18 the right to freedom from “traditional
practices prejudicial to the health of children,"19
and the right to "freedom from torture or other cruel, inhuman or degrading
treatment or punishment."20 Matthew has
a right to express his views in matters affecting him.21
Matthew is entitled to have his views considered in judicial proceedings
The Nature of the Foreskin
The male foreskin or prepuce is popularly regarded as being a useless flap of skin. Medical scientists, however, have documented that the foreskin is a unique and sophisticated complex structure with various important physiological functions that are essential to the health, well being, proper sexual function, and happiness of the individual and his spouse.
Early development. The penis and prepuce are in an immature developmental state at birth.23 The inner surface of the prepuce is fused with the underlying glans penis by a common epithelial membrane (synechia),24 and cannot be retracted without trauma to the child. Nature normally makes the preputial orifice narrow in the infant and young child, and the prepuce is also non-retractile because of this narrowness. The growth and development of the prepuce from infancy through puberty has been studied by medical science. Gairdner (1949) reported that the prepuce is non-retractile in 96 percent of newborn boys.25 Gairdner reported that 90 percent of boys should have a retractile prepuce by age 3. Later research, however, has shown this figure to be inaccurate. Øster (1968) found that the 90 percent retractile prepuce rate is not reached until age 16.26 Øster reported that 77 percent of boys in the 6-7 year-old range have a non-retractile prepuce due to some combination of a normal developmental phimosis (preputial stenosis), "tight foreskin," or lingering preputial "adhesions."Kayaba and colleagues reported that only 16.5 percent of 3-4-year-olds have a fully retractile "type V" prepuce.27 The non-retractable prepuce of an infant becomes retractable over a widely variable span of years and may not be completed until after puberty and sometimes not until a male is in his mid-twenties. A non-retractile foreskin, therefore, is the normal condition in a 3-year-old boy.
Innervation. Winkelmann (1959) reported that the prepuce is the site of the mucocutaneous boundary of the penis. The various mucocutaneous boundaries are the sites of acute sensation in humans and have an important role in sexual arousal and sexual response.28 Taylor and colleagues (1996) conducted original anatomical and histological research into the prepuce (the first work of this nature since the 15th century). Taylor reported that the prepuce is richly vascularized and innervated with sensitive Meissner’s corpuscles (nerve endings) in discrete ridges, which are arranged in a ridged band that encircles the inner surface of the preputial opening near the mucocutaneous boundary of the foreskin.29
Sexual function. The double layer of the foreskin makes the skin of the penis loose and movable. The movable nature of the foreskin provides a “gliding mechanism,”30 which is essential in intercourse for comfort, safety, and pleasure. The motion of the foreskin stimulates the internal nerve endings to produce sexual pleasure.31 A recent survey of women found that women derive greater satisfaction from intercourse with an intact male with a foreskin.33 The presence of the foreskin in the male may contribute to marital happiness and lower divorce rates.34
The inner surface of the prepuce and the covering of the glans penis are mucosal tissue, while the outer surface of the prepuce is epidermis.35 The mucosa requires moisturizing to protect it, which is supplied by normal body secretions under the prepuce.36
Immunology. The prepuce has immunological functions that protect
the body from infection with pathogenic organisms.37 The narrow preputial orifice is equipped with
muscle fibers arranged in a swirl,38 which
keep the tip of the prepuce closed to protect the individual against
infection. The preputial cavity develops as the prepuce separates from
the glans penis, which usually does not occur until after age 3. There
is no preputial cavity in the young boy to harbor pathogenic organisms.
Urine, which is normally sterile, flushes out the tip of the prepuce
to maintain cleanliness and prevent infection.39
Subpreputial moisture contains lysozyme,40
an enzyme that breaks down cell walls of pathogenic organisms.41
Lysozyme also is active against human immunodeficiency virus (HIV).42
Recent studies have demonstrated that circumcised men, who lack the
protection of the prepuce, are at increased risk of contracting gonorrhea,
syphilis, and genital warts.43 Storms
reported that at least four studies have shown HIV infection to occur
more commonly in circumcised men.44 Van
Howe reported slightly lower rates of HIV in non-circumcised males with
an intact prepuce.45
Balanitis is an inflammation of the glans penis. Posthitis is an inflammation of the prepuce. Balanoposthitis is an inflammation of both the glans penis and the prepuce. Stedman’s medical dictionary defines inflammation as:
An inflammation is not necessarily caused by an infection. Stedman’s medical dictionary defines infection as:"A fundamental pathologic process consisting of a dynamic complex of cytologic and chemical reactions that occur in the affected blood vessels and adjacent tissues in response to an injury or abnormal stimulation caused by a physical, chemical, or biologic agent, including: 1) the local reactions and resulting morphologic changes, 2) the destruction and removal of the injurious material, 3) the responses that lead to repair and healing. The so-called "cardinal signs" are: rubor, redness; calor; heat (or warmth); tumor; swelling; and dolor, pain; a fifth sign, functio laesa, inhibited or lost function is sometimes added. All of the above signs may be observed in certain instances, but no one of them is necessarily always present. [L. inflammo, pp. -atus, fr. in, in, + flamma, flame]"46
Escala and Rickwood (1989) state that balanitis in boys is usually self-limiting.48 They also report that it is exceptionally difficult to distinguish between the redness and swelling caused by an infection, and the redness and swelling caused by physical injury resulting from "foreskin fiddling."49"Multiplication of parasitic organisms within the body; multiplication of usual bacterial flora of the intestinal tract is not usually viewed as infection."47
Physical trauma, irritants, excessive washing, soap, or infection with pathogenic organisms cause balanitis (inflammation), which may be protozoal, fungal, viral, bacterial, or amoebic in nature.50 The causative factor is difficult to diagnose. Escala & Rickwood51 recommend taking a swab; Birley52 and Edwards53 recommend a biopsy.
The correct diagnosis of the causative factor determines the appropriate treatment. If balanitis is caused by trauma such as "foreskin fiddling" or premature forcible retraction, the traumatic action should be stopped. If balanitis is caused by recurrent washing and/or the use of soap or another irritant, the washing should be stopped, the irritant avoided.54 If balanitis is caused by infection, the appropriate drug should be selected to fight the specific infectious organism.55 The proper treatment is medical, not surgical.56
Escala & Rickwood (1989) advise circumcision of boys only "after recurrent attacks of balanitis which cause appreciable discomfort." (emphasis added)57 Birley and colleagues (1993) hesitate to recommend circumcision except in cases of plasma cell (Zoon's balanitis) and lichen sclerosus, but state that it may be helpful if the balanitis is recurrent.58 They note, however, that several of their balanitis patients were circumcised men, which means that circumcision did not prevent balanitis. Edwards (1996) recommends circumcision only when the balanitis is Zoon's balanitis or the balanitis of Queyrat.59 Circumcision may not reduce the incidence of balanitis in boys. Preston states, "[b]alanitis is uncommon in childhood when the prepuce is performing its protective function."60 Van Howe (1997) found more balanitis in circumcised boys than in intact non-circumcised boys.61
Premature Forcible Retraction of the Foreskin
As discussed supra, the non-retractable prepuce of the infant male spontaneously becomes retractable over a widely variable span of years. Premature forcible retraction occurs when a caregiver (parent, grandparent, babysitter, doctor, nurse, etc.) forcibly retracts the foreskin before it is developmentally ready to retract. The forcible retraction of the narrow part of the prepuce over the wider glans penis can cause the delicate foreskin to split. Also, forcible retraction may rip the fused inner surface of the foreskin from the glans penis in a manner similar to ripping apart strips of Velcro® fastener.
Premature forcible retraction produces raw, reddened, bleeding surfaces on the glans penis and the inner surface of the foreskin that may become infected. The raw surfaces may later heal together producing an adhesion that will not spontaneously separate and that may have to be surgically lysed with a blunt probe by a pediatric urologist.
The tight part of the foreskin may lodge in the coronal sulcus behind the glans penis and produce a condition know as paraphimosis. The tight foreskin lodged in the coronal sulcus may act as a tourniquet cutting off the blood supply to the head of the penis. Prolonged loss of circulation may result in necrosis and gangrene of the distal end of the penis. The interruption of circulation may cause edema, and the edematous tissues are much harder to return to their proper location over the head of the penis. Paraphimosis becomes a medical emergency if not promptly reduced. It too can be reduced medically without circumcision.62
Premature forcible retraction produces trauma to the penis, which results in redness and swelling as part of the inflammatory and healing process. The swelling and redness is easily confused with the redness and swelling of balanitis.63
The American Academy of Pediatrics states:
Premature forcible retraction without valid consent, an offensive touching, is a tort and is an assault. If performed by a physician, it is a negligent act.67"Foreskin retraction should never be forced. While the foreskin is still attached to the glans of the penis, do not try to pull it back, especially in an infant. Forcing the foreskin to retract before it is ready may harm the penis and cause pain, bleeding, and tears in the skin."64
The Circumcision Operation
Male circumcision is a surgical operation to remove a substantial portion of the skin and mucosal covering of the penis. The part removed is known as the foreskin or prepuce. Taylor, Lockwood & Taylor (1996) found that circumcision removes 51 percent of the skin and mucosa of the penis.68 The part removed contains the mucocutaneous boundary and the highly innervated and vascularized ridged bands.69
Complications are common. The incidence of complications is controversial and is dependent upon definition of a complication. The best and most careful study performed, which prospectively followed boys home from the hospital, found a complication rate of 55 percent.70 Leitch (1970) reported a 15.5 percent complication rate in a prospective study. Gracely-Kilgore (1984) reported a 15 percent complication rate from post circumcision adhesions alone.71 Williams & Kapila (1993) surveyed the medical literature and more conservatively estimated a complication rate of 2-10 percent.71 None of the complication rate studies considered psychological complications or sexual impairment.72
Bleeding and hemorrhage are common complications because the prepuce is highly vascularized to support its neurological sensory erogenous functions.73
Infections of the open wound are common. Infections range from minor to life threatening. Case reports include tuberculosis,74 meningitis,75 staphylococcus scalded skin syndrome,76 Fournier's gangrene,77 and others.
Matthew is three years old. If he is circumcised, he will probably be given general anesthesia. General anesthesia always involves intubation and total dependency on medical equipment and the skill of the operator. Hypoxia is possible, with a risk of irreversible brain damage and even death.81
Male circumcision causes psychological injury. Anna Freud82 wrote,
Cansever studied and tested Turkish boys before and after circumcision. Cansever summarized her findings as follows:"(iv) Operations . - Ever since the discovery of the castration complex analysts have had ample opportunity in their therapeutic work to study the impact of surgical operations. on normal and abnormal development. By now it is common knowledge that surgical interference with the child's body may serve as the focal point for the activation, reactivation, grouping and rationalization of ideas of being attacked, overwhelmed and (or) castrated. The surgeon's action, from minor surgery to major operations, is interpreted by the child in terms of his level of instinct development, or in regressive terms. What the experience means in his life, therefore does not depend on the type or seriousness of the operation but on the type and depth of the fantasies aroused by it. If, for example, the child's fantasies are concerned with his aggression against the mother projected on to her person, the operation is experienced as a retaliatory attack made by the mother on the inside of the child's body (Melanie Klein); or the operation may be used to represent the child's sadistic conception of what takes place between the parents in intercourse, with the child in the role of the passive sexual partner; or the operation is experienced as a mutilation, i. e., as punishment for exhibitionistic desires, for aggressive penis envy, above all for masturbatory practices and oedipal jealousies. If the operation is actually carried out on the penis (circumcision, if not carried out shortly after birth), castration fears are aroused whatever the state of libidinal development. In the phallic stage, on the other hand, whatever part of the body is operated on will take over by displacement the role of an injured genital part.  The actual experience of the operation lends a feeling of reality to the repressed fantasies, thereby multiplying the anxieties connected with them. Apart from the threatening situation in the outer world, this increase in anxiety presents an internal danger, which the child's ego has to face. Where the defense mechanisms available at the time are strong enough to master these anxieties, all is well; where they have to be overstrained to integrate the experience, the child reacts to the operation with neurotic outbreaks; where the ego is unable to cope with the anxiety released, the operation becomes a trauma for the child."83
Rhinehart (1999) has documented four cases of Post Traumatic Stress Disorder in adult males, in which the stressor was a childhood circumcision.85"In order to evaluate the psychological effects of circumcision, a small study was arranged in which twelve children, from average and low socio-economic level, were given Goodenough and DAM test, CAT, Rorschach, and two sets of stories, prior to the operation and following it. The results of the tests showed that circumcision performed around the phallic stage is perceived by the child as an act of aggression and castration. It has detrimental effects on the child's functioning and adaptation, particularly on his ego strength. By weakening the controlling and defensive mechanisms of the ego, and initiating regression, it loosens the previously hidden fears, anxieties, and instinctual impulses, and renders a feeling of reality to them. What is expressed following the operation is primitive, archaic and unsocialized in character. As a defensive control and protection against the surge of the instinctual forces coming from within and the threats coming from outside, the ego of the child seeks safety in total withdrawal, this isolates and insulates itself from disturbing stimuli."84
Circumcision can be a particular wound to the psychology of the male with a devastating impact. Goldman86 (1999) writes:
"Negative feelings about the penis are related to the idea of body image; this includes value judgements about how the body is thought to appear to others, and can have a great impact on how men live their lives are conducted [sic]. In addition, the concepts of self and body image are interconnected and affect personal psychology. A diminished body image can diminish a person's social and sexual life. Those who have a bodily loss fear the judgement of others and the weakening of personal relationships. For example, psychological sexual and social effects have been reported in women after a mastectomy. They felt less attractive, less desirable and had less sexual satisfaction after their surgery. Poor body image can also affect motivation and reduce feelings of competence, status and power. In addition, depression and suicidal attitudes have been noted. Although there are differences between the circumstances and age at the time of loss, the feeling that an important part of the body is missing is common to mastectomy and circumcision (for some men). The feeling of ‘not being a whole man’ can be especially distressing.
The Circumcision Industry
The American circumcision industry was founded in 1870 by New York physician, Lewis A. Sayre, who treated a boy for paralysis with circumcision.87 Miraculously the operation appeared to succeed.88 Thereafter, circumcision was relentlessly promoted as treatment for all sorts of illnesses.89 Circumcision soon was firmly established in the American psyche as a beneficial and desirable procedure.
By the 1930s, 50 percent of all newborn boys were circumcised during the neonatal period; by 1970, 85 percent or more of newborn boys were circumcised during the neonatal period.
In 1970, Leitch in Australia,90 and Preston91 in the United States, independently disproved the false claim that male circumcision could prevent penile cancer. In 1971, the American Academy of Pediatrics (AAP) stated that "there are no valid medical indications for circumcision in the neonatal period."92 Thereafter, the incidence of neonatal circumcision started a slow decline, which continues to the present day. The AAP later tried to undo the damage to the circumcision industry by revising the statement to read "There is no absolute medical indication for routine circumcision of the newborn," but the truth (like murder in Shakespeare’s Macbeth) was out.93
Although the claimed medical benefits have been disproved, male neonatal circumcision continues to flourish today, but to a lesser extent than previously. In 1998, 57 percent of newborn boys were circumcised in hospital, down from 85 percent in 1970.94 The 1999 Task Force on Circumcision of the American Academy of Pediatrics placed the annual cost of circumcision at $150 million to $270 million.95 These figures severely understate the total revenue received from circumcision in America because they only include the doctor's fee. Mansfield, Hueston & Rudy surveyed circumcision practices in 1990-1991 and found that male neonatal non-therapeutic circumcision causes mother and baby to remain in hospital about six hours longer than if a circumcision was not performed.96 The total cost of additional hospital services consumed was placed at $234 million to $527 million beyond costs for the procedure itself.97 Costs have, of course, escalated since this data was obtained. HCIA-Sachs, a medical industry statistical service, reported the cost of an in-hospital neonatal circumcision in 1999 to be $1,869, for a total annual cost to the nation of $2.1 billion.98 These figures do not include additional costs for repair of botched circumcisions and treatment of complications such as meatal ulceration, meatal stenosis, and infection. The cost of repairing the damage is unknown but must be substantial. With so much money at stake, it is understandable that the practice of non-therapeutic neonatal male circumcision still has many defenders within the medical profession.
Medical societies are political associations of medical doctors formed for the purpose of advancing the interests of their physician members. One such interest is the preservation of the American practice of male non-therapeutic circumcision. Thus, official policy statements on non-therapeutic circumcision tend to exaggerate the claimed benefits and minimize the risks, complications, and disadvantages of circumcision. The American Academy of Pediatrics calls the unproven claimed benefits potential benefits.99 The American Medical Association recently published a policy report, which properly identified neonatal circumcision as non-therapeutic, but it also minimized the adverse effects.100
There may be fear of a massive class-action lawsuit against the medical
profession as suggested by Brigman.101 Whatever the reason, official medical statements
regarding male circumcision often lack candor, so the Court is properly
urged to regard official statements by medical societies regarding male
circumcision with caution.
Pediatric Medical Ethics and U.S. Law
Informed consent. Medical ethics and the law102 require that patients be given all material information regarding proposed treatment as well as alternative treatments before valid consent can be obtained for a treatment or surgery. The right of an adult competent patient to consent is very full and complete.
The U.S. Supreme Court limited parental rights when it stated:
When the patient is a child, usually a parent grants proxy consent. The parental power to grant proxy consent is sharply limited by the courts and is much narrower than the power of an adult to consent for himself. There can be no parental right to consent to the injury of a child by non-therapeutic circumcision (circumcision in the absence of medical indication and without medical benefit). For a fuller discussion see Povenmire.104“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, 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.”103
Dwyer argues that parental rights derive from parental duties to the child.105 Since no healthy child needs a circumcision, there can be no inherent parental right-to-circumcise.
Parents have a general duty to protect a child from bodily injury. Consent to non-therapeutic circumcision is a gross violation of that duty.
The Committee on Bioethics of the AAP developed new guidelines for consent in pediatric cases in response to court decisions and the new era of children's rights.106 The new guidelines develop the concept of a child as a person with rights and privileges that exist independently from his parents. The Committee on Bioethics advised that parents cannot give informed consent. Instead, parents can give informed permission for diagnosis and treatment of disease or illness.107 If there is no illness, then parental permission under these guidelines cannot be given. Non-essential procedures should be deferred until the child can decide for himself. The Committee on Bioethics says that “pediatric health care providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses.”108
These guidelines pose serious problems for non-therapeutic male circumcision and the circumcision industry because the newborn male infant typically is not ill and does not require treatment. The 1999 AAP Task Force on Circumcision chose to ignore these rules and declared instead:
The 1999 AAP Task Force’s position thus is sharply in conflict with the position of the AAP Committee on Bioethics as well as general U.S. law."In the case of circumcision, in which there are potential benefits and risks, yet the procedure is not essential to the child's current well being, parents should determine what is in the best interest of the child."109
The General Medical Council (GMC) is the regulatory body for medical practice in the United Kingdom. The GMC recently adopted new guidelines for consent in the United Kingdom. The guidelines state in part:
Povenmire argues strongly that parents should not have a right to circumcise at will:"You [a medical doctor] should seek the court’s approval where a patient lacks capacity to consent to a medical intervention which is non-therapeutic or controversial, for example contraceptive sterilisation, organ donation, withdrawal of life support from a patient in a persistent vegetative state."110
The Court should reject the position of the 1999 AAP Task Force on Circumcision and adopt the position of the AAP Committee on Bioethics and the position of Povenmire, which are essentially similar."The amputation of the male foreskin in the United States is unique in medical practice for not requiring any medical justification, and for the widely accepted view that the amputation may be authorized at the sole discretion of a parent. This attitude is completely at odds with legal and medical practice regarding other forms of amputation and must be challenged. It is time to consider a judicial presumption that a minor would choose not to have a normal healthy piece of his body removed. It is also time to limit the ability of parents to authorize circumcision to the highly exceptional case where the procedure is medically necessary. This is especially appropriate in view of the fact that the option of removing the foreskin is not foreclosed to the minor upon reaching legal maturity.”111
Developments in the Law of Other Nations
Certain other nations also share the English common law. There are certain developments in the law in those nations of which this Court should be aware.
United Kingdom. The House of Lords held in Gillick v. West Norfolk and Wisbech Area Health Authority (1985) that "parental rights exist only to the extent that they are necessary for the protection of the child."112 The Children Act 1989 legislates that "the child’s welfare shall be the court’s paramount consideration."113
The Family Court heard a case regarding male circumcision in 1999.114 The Court ruled that circumcision of male children is a lawful procedure in the United Kingdom under certain circumstances.115 The court ruled that therapeutic circumcision is lawful if a medical indication is present and one parent consents.116 Non-therapeutic circumcision is lawful if both parents consent in accordance with their shared religious values.117 In the absence of consent by both parents, non-therapeutic circumcision requires a court order,118 however, the court first must find that a non-therapeutic circumcision would be in the best interest of the child.119
More recently the Court of Appeal reviewed the law in the case of the conjoined twins.120 The Court said: "…the parental rights and powers exist for the performance of their duties and responsibilities to the child and must be exercised in the best interests of the child." The Court also said that "[b]est interests are not limited to best medical interests."121 Furthermore, the Court said, "…best interest encompasses medical, emotional and all other welfare issues."122
Canada. The Supreme Court of Canada ruled in a case in which consent to sterilize an incompetent girl was sought by a parent:
The court concluded:"While the scope of the parens patriae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with its underlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person in need of protection and not for the benefit of others. It must at all times be exercised with great caution, a caution that must increase with the seriousness of the matter. This is particularly so in cases where a court might be tempted to act because failure to act would risk imposing an obviously heavy burden on another person."
The Court, citing the non-therapeutic nature of the proposed procedure, reversed the decision of the Supreme Court of Prince Edward Island en banc and denied the request of Mrs. E. to sterilize Eve.The court undoubtedly has the right and duty to protect those who are unable to take care of themselves, and in doing so it has a wide discretion to do what it considers to be in their best interests. But this function must not, in my view, be transformed so as to create a duty obliging the court, at the behest of a third party, to make a choice between the two alleged constitutional rights-the right to procreate or not to procreate-simply because the individual is unable to make that choice. All the more so since, in the case of non-therapeutic sterilization as we saw, the choice is one the courts cannot safely exercise.
Australia. The High Court of Australia also has heard a case in which parents sought to sterilize a minor retarded female (Marion's Case).124 The High Court followed the Supreme Court of Canada in Eve and drew a sharp distinction between therapeutic procedures and non-therapeutic procedures. The High Court ruled that parents lacked the power to consent to a non-therapeutic procedure, and, moreover, the Family Court lacked the power to approve a non-therapeutic procedure. The High Court defined therapeutic and non-therapeutic as follows:
The Law Reform Commission of Queensland applied Marion's case to the circumcision of male children. A special research paper concluded in part:"It is necessary to define what is meant by therapeutic medical treatment. I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. "Non-therapeutic" medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychiatric disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes."125
A recent Australian law review article argues forcefully for the protection of male children from genital cutting.127"If any surgical procedure to be performed on a child, whether "therapeutic" or "non-therapeutic" is not in the particular child's best interests, it cannot proceed. Further, if the procedure is performed in an unskilled manner the person performing the procedure may be criminally as well as civilly liable for the consequences, irrespective of the validity of the consent obtained prior to the procedure.
Grace T. Calimlim, M.D., F.A.A.P., is Matthew’s doctor. Dr. Calimlim made a recommendation to Matthew’s parents that the child's foreskin be prematurely forcibly retracted.(See Drs. Notes of February 3, 2000). This is in direct conflict with the recommendations of the AAP, of which she is a Fellow.
As a result of following the Doctor’s orders, Matthew’s baby-sitter improperly forcibly retracted Matthew’s non-retractile foreskin ("foreskin fiddling"128) causing pain, trauma, and raw surfaces of his penile tissue. This is similar to pulling one’s hangnail and the resulting redness and pain due to the blood rushing to the area. Matthew naturally had pain with urination because of the raw tissue surfaces. Matthew was taken to the emergency room because of his painful urination and his traumatized swollen penis.
Dr. Calimlim was consulted after Matthew's visit to the emergency room. Dr. Calimlim then diagnosed Matthew's condition as “balanitis”, without specifying the cause. In reality, it appears as though Matthew was suffering trauma-induced inflammation as a result of continued premature retraction done on Dr. Calimlim's orders. Escala & Rickwood note that balanitis is a difficult diagnosis.129 The error was compounded when she ordered continued foreskin retraction. Dr. Calimlim did not take a swab or perform a biopsy to assist in the diagnosis of an infection-induced balanitis, although, as stated supra, informed medical opinion indicates that a biopsy is required if bacterial or viral balanitis is to be diagnosed when other causes, such as irritants, have been ruled out. Dr. Calimlim was negligent in her diagnosis of "balanitis" and in not noting the obvious cause, i.e. the forcible retraction ordered by Dr. Calimlim herself.
The foreskin of a young boy such as Matthew normally is non-retractile. Dr. Calimlim confused this normal condition with a pathological condition and improperly made a diagnosis of phimosis. Basically, phimosis cannot be diagnosed until after puberty when the penis is fully developed. Phimosis is a narrowing of the opening of the prepuse, preventing its being drawn back over the glans. In a child of Matthew’s age, the prepuse is not supposed to be able to be drawn back over the glans. This is a natural condition. The elasticity of the opening occurs as the penis develops. These notations by the doctor seem to indicate a lack of understanding of this developmental process. (This is no surprise as, until recently, it has not been a part of the normal medical school curriculum.)
Dr. Calimlim made a recommendation for circumcision, but Dr. Calimlim carefully noted that this was her personal opinion and not her medical opinion.131 A medical opinion must be based on science, medical reports, studies, and other medical evidence. Dr. Calimlim could not issue such a medical opinion because the medical evidence does not support such an opinion.
On the other hand, a personal opinion may be founded in culture, feelings, fears, imagination, guesses, and other such subjective experiences. Dr. Calimlim , a native of the Philippine Islands, where almost all males are circumcised and a practitioner of medicine in the United States where a majority of males are also circumcised, may have a personal opinion based on her culture of origin and/or the culture where she normally practices medicine. Her personal opinion is not based on "medical" necessity.
Dr. Calimlim has demonstrated her lack of knowledge of the normal growth and development of the prepuce in boys and of the care of the normal complete penis. Moreover, she improperly diagnosed Matthew's inflamed and swollen penis and, unfortunately, continues to give improper advice on the care of Matthew's penis.
Dr. Calimlim’s lack of consideration of many of these natural processes brings into question her qualifications as an expert in this case, on this topic.
Dr. Calimlim referred Matthew to Joseph G. Barone, M.D, F.A.A.P. Dr.
Barone is a participant in the circumcision industry. Dr. Barone examined
Matthew, but Dr. Barone did not do a biopsy or take a swab to determine
the nature of Matthew's condition.132
Dr. Barone would be unable to diagnose Matthew as having a pathological
condition and select proper treatment without taking a swab or performing
a biopsy. Dr. Barone stated in a letter that it is his personal
opinion that Matthew will have a chronic problem so he is "personally
leaning toward circumcision.";133 Dr.
Barone was careful not to state this as a "medical" opinion because
there is no "medical" evidence to support such a conclusion. Dr. Barone,
like Dr. Calimlim, did not understand that Matthew’s balanitis
was caused by trauma (mechanical irritation of the foreskin). Dr. Barone
also misdiagnosed Matthew's condition. Dr. Barone's personal
opinion may quite possibly be influenced by a variety of sources such
as his perception of the "norm" in society or even his own financial
gain from engaging in the practice of performing circumcisions. He cannot
be regarded as a disinterested party.
The Duties of the Court
There should be a judicial presumption that bodily integrity is the best interest of the child.134
The New Jersey Supreme Court, in its decision In the Matter of Lee Ann Grady, 85 NJ 235, 426 A.2d 467 (1981), decided many issues which are relevant to the case at bar. In Grady, the Court held that "It must be the Court’s judgment, and not just the parent’s good faith decision, that substitutes for the incompetent’s consent." Id. at 251. The Supreme Court distinguished its finding from its ruling in In Re Quinlan (where it permitted the parents to give substituted consent), because "a decision to choose life or death will rely on instinct more than on reasoned calculation." Id. at 251.
In Grady the Court found that the issue of sterilization "involves a variety of factors well suited to rational development in judicial proceedings, a court can take cognizance of these factors and reach a fair decision of what is in the incompetent’s best interest." Id. at 252. It is respectfully submitted that the same holds true as to the issue of circumcision, and therefore it is ultimately the Court’s decision to make, rather than the parents. Id. at 264.
Our Courts routinely make decisions as to what is in a child’s best interests in adoption and child custody cases. Id. at 252. See also Hoy v. Willis, 165 N.J. Super 265, 398 A.2d 109 (App. Div. 1978); Vannucchi v. Vannucchi, 113 N.J. Super. 40, 272 A.2d 560 (App. Div. 1971). Those issues, as well as issues of sterilization, and now circumcision, all entail serious and permanent consequences. It is submitted that the New Jersey Supreme Court’s remand for a hearing requires virtually the same procedure as it held was necessary in the Grady, (supra. at 253-254) matter. See also Grady at 264.( As to guardian ad litem and independent evaluations.)
The burden of proof shall be on the party alleging the necessity of the procedure. Id. at 254. The trial judge must find that the incapacity of the individual is not likely to change in the foreseeable future. Id. at 265. The trial Court should be reluctant to substitute its consent for any person who may be capable of making a decision for himself. Id at 265. Lastly, the trial Court must be persuaded by clear and convincing evidence that the procedure is in the person’s best interest. Id at 266.
In this case, the Court has the duty to exercise its parens patriae authority to protect Matthew from unnecessary bodily, emotional and sexual harm. Before the Court can properly order a circumcision, the Court must have clear and convincing evidence that:
Generally the removal of healthy tissue from an incompetent person is not permissible.136 The Louisiana Supreme Court set a high standard for its state in the case of In Re Richardson:.1. Matthew has a condition that requires treatment immediately.
NOCIRC is unaware of previous cases similar to Matthew's case in the United States. There is, however, a British case in which it was determined that a circumcision is not in the best interest of a 5-year-old boy.137 "J", like Matthew, had no current medical problems. As in Matthew's case, the parents were in disagreement. The court considered the possibility of complications of circumcision, the likelihood of psychological injury, and the loss of sexual function. The court properly concluded that a circumcision would not be in the best interest of "J"."I am of the opinion that before the court might exercise its awesome authority in such an instance and before it considers the best interest of the child, certain requirements must be met. I am of the opinion that it must be clearly established that the surgical intrusion is urgent, that there are no reasonable alternatives, and that the contingencies are minimal."136
Matthew has a right to self-determination. Matthew should be allowed
to decide for himself when he is of age if he is to be circumcised.138
The court should protect that right.
This case would be a comedy of errors if not for the fact it involves a small boy who is being injured as a result of poor medical advice. It is clear that Matthew does not now have either pathological or chronic balanitis. Matthew has been the victim of medical ignorance and mismanagement. (This is not intended as an attack on the physicians as it is understood they routinely receive little or no training on this subject and simply go along with what has been considered the "norm".) Months have passed, the inflammation (not infection) caused by trauma and premature retraction has cleared, and there is no further need for special medical care of his penis. It needs to be left alone by his parents, his doctors, and this Court.
Since this is an issue which lends itself to rational development in judicial proceedings, and reasoned calculation; and due to the permanency of the action being sought, it would be appropriate for the Court to make the final determination of necessity under the doctrine of parens patriae. However, since Matthew will be competent to make the decision for himself in the foreseeable future; and as there is no clear and convincing evidence of any emergent need to act; this Court should be reluctant to substitute its own judgment. Absent extreme circumstances (which do not now exist) Matthew has the right to make this decision for himself, in the future.
Dr. Calimlim’s personal opinion is irrelevant to the issue of medical necessity, or the best interests of Matthew. The Court should grant this no weight.
Dr. Barone failed to perform the necessary tests or biopsy to confirm any diagnosis of balanitis or support his “personal” opinion that this will be a recurring condition. There is no indication that the doctor took an appropriate history that may have revealed to him the actual source of irritation (ie. the forcible retraction of the prepuse). Dr. Barone fails to acknowledge the importance of genital integrity and protecting children from genital surgery. The fact that Matthew has had no recurrence since everyone has stopped manipulating his foreskin, indicates that the “personal” opinions of these doctors are proven to have no basis in medical fact.
Circumcision is an amputative surgical procedure. The performance of a circumcision ensures permanent destruction of body tissue which performs important immunological, sexual, protective, and sensory functions.
Matthew's proper care requires that his penis be left alone. The foreskin should be left forward over the glans in its normal position. There should be no attempts to retract the foreskin, wash the glans penis, or otherwise “fiddle with it.” The proper care of the child's penis is set forth in a NOCIRC pamphlet139 which states:
The position of the AAP in regard to the care of the foreskin in childhood is virtually identical to that of NOCIRC.140The intact penis needs no special care. The foreskin should never be retracted by force.
If Matthew’s foreskin is left in place, his body will supply the natural lubrication that it needs for good health.141
The Court should take positive action to ensure that Matthew's penis is protected from "fiddling" by adult caregivers.
Matthew does not need a circumcision. He would suffer irreparable physical, sexual and emotional injury if subjected to penile surgery.
Matthew has a right to bodily and genital integrity. No clear and convincing
evidence has been produced or is likely to be produced to support an
order for circumcision. The Court should follow the lead of the British
court in Re "J" (child’s religious upbringing and circumcision)142
and issue an Order to prohibit the circumcision of Matthew Price.
JAMES J. MOLOUGHNEY, ESQ.
TABLE OF APPENDIX