By Brian Earp
This is a rough draft of a lecture delivered on October 1st, 2012, at the 12th Annual International Symposium on Law, Genital Autonomy, and Children’s Rights (Helsinki, Finland). It will appear in a substantially revised form—as a completed paper—at a later date. If you quote or use any part of this post, please include the following citation and notice:
Earp, B. D. (forthcoming, pre-publication draft). Assessing a religious practice from secular-ethical grounds: Competing metaphysics in the circumcision debate, and a note about respect. To appear in G. C. Denniston, F. M. Hodges, & M. F. Milos (Eds.), Proceedings of the 12th Annual International Symposium on Law, Genital Autonomy, and Children’s Rights, published by Springer. * Note, this is not the finished version of this document, and changes may be made before final publication.
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My name is Brian Earp; I am a Research Associate in the philosophy department at the University of Oxford, and I conduct research in practical ethics and medical ethics, among some other topics. As you saw from the program, my topic today is the ethics of infant male circumcision—specifically as it is performed for religious reasons.
The AAP report on circumcision: Bad science + bad ethics = bad medicine
For the first time in over a decade, the American Academy of Pediatrics (AAP) has revised its policy position on infant male circumcision. They now say that the probabilistic health benefits conferred by the procedure just slightly outweigh the known risks and harms. Not enough to come right out and positively recommend circumcision (as some media outlets are erroneously reporting), but just enough to suggest that whenever it is performed—for cultural or religious reasons, or sheer parental preference, as the case may be—it should be covered by government health insurance.
That turns out to be a very fine line to dance on. But fear not: the AAP policy committee comes equipped with tap shoes tightly-laced, and its self-appointed members have shown themselves to be hoofers of the nimblest kind. Their position statement is full of equivocations, hedging, and uncertainty; and the longer report upon which it is based is replete with non-sequiturs, self-contradiction, and blatant cherry-picking of essential evidence. Both documents shine as likely examples of a “lowest common denominator” mélange birthed by a divided committee, some of whose members must be well aware that the United States is embarrassingly out of tune with world opinion on this issue.
Tony Nicklinson is 58, and suffers from locked-in syndrome. His mind is as sharp as it ever was, but for the last seven years, as the result of a stroke, he has been entirely physically dependent on others, able to move only his eyes and eyelids. Just recently, his condition has worsened, and he is in constant pain and discomfort. As seems entirely reasonable, he wants to die. But of course he will need assistance to do so, and anyone who helps him will run the risk of prosecution for murder.
Nicklinson, along with another man in a similar position, recently applied to the High Court. Their lawyers had two main arguments. The first was that the ‘necessity’ defence for murder in the common law should be extended to cover cases such as Nicklinson’s, since forcing him to continue to live is not a reasonable option. They argued also that taking that option would violate his right under article 8 of the European Convention, contrary to s1 and 6 of the Human Rights Act 1998. That article provides that:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Nicklinson’s lawyers argued that forcing him to continue to live violates his autonomy and dignity and is therefore a violation of Article 8.
The High Court decided (see paras. 75-87) to allow Nicklinson’s torment to continue, primarily because it believed that, as was claimed in the earlier cases of Bland and Inglis, it is for Parliament to decide whether to change the law on euthanasia: the issues are too complicated and opinions too varied for the court to be competent to make a decision; any change would be controversial and so a matter for Parliament; and it might also lead to bad consequences, such as pressure’s being put on the vulnerable to end their lives.
These seem to me somewhat weak arguments. The issues are in fact quite clear, and it is not the job of a court to seek to enforce any public opinion, even majority opinion (if it were, the death penalty would have to be reintroduced for child-killers). It is true that any change would be controversial, and certainly it is an issue that Parliament should discuss (and surely would have done, were Nicklinson’s request to have been granted). But the job of the court was to decide whether Nicklinson’s human rights are being violated and to let Parliament deal with the wider issues. Finally, the judgement says nothing about how the Justices assessed the consequences of acceding to Nicklinson’s request. Certainly, leaving things as they are will lead to some very bad consequences, for Nicklinson and others in his position. Nor do courts usually take what are almost certainly very small risks into account when deciding matters of law. It is not the role of a court to consider such consequentialist factors when making its decisions. That is a matter for those making the law, not those executing it, as H.L.A. Hart and John Rawls demonstrated clearly many years ago. Of course, were voluntary euthanasia to be made legal, there would be need for a proper procedure to ensure informed consent. And it would be be the role of Parliament to develop such a procedure, once the Court’s decision had been passed down.
Para. 19 of the judgement says:
The common law is declared by the courts, which have the power to develop it. Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
Since it is so plausible that there is a serious violation of human rights in forcing a citizen to undergo serious pain and discomfort, perhaps for many years, on the basis of an unsubstantiated claim about minor risk to others which could anyway be dealt with by Parliament, it seems likewise plausible that the High Court has acted unlawfully in this case. What makes things even worse is that its decision provides yet another precedent on which further inhumane and unjust decisions may be based in the future.
VIDEO DEBATE LINKED TO BELOW – ARI KOHEN AND I DISCUSS THE ETHICS OF RELIGIOUSLY-MOTIVATED CIRCUMCISION
Ari Kohen doesn’t like my recent post about circumcision—the one in which I argue that it is unethical to remove healthy tissue from another person’s body without first getting his permission. I then go on to say that religious justifications cannot override this basic principle. Here’s that post again.
Ari is a professor of political theory and human rights at the University of Nebraska at Lincoln. In this blog post, he takes me to task for failing to take seriously the religious commitments of Jews in framing my arguments. And while he gets some things wrong about, for example, the relevance of “sexually-sensitive tissue” to my overall reasoning; and while he misses the point of my bringing up female genital cutting entirely (I’ve since edited my post to clear up any lingering ambiguity) – he is probably right that my approach to debating this issue is unlikely to win me any converts from within the ranks of the religious.
On the ethics of non-therapeutic circumcision of minors, with a post script on the law
By Brian D. Earp (Follow Brian on Twitter by clicking here.)
Seattle, 1985. I escaped the hospital with my penis intact. Lucky for me. Routine neonatal circumcision in boys is unethical, unnecessary, and should be made illegal in the United States. Or so I argue in this post.
Yet lawmakers in California, it is now being reported, have introduced a bill with the opposite end in mind. They wish to ban legislation that could forbid circumcision-without-consent. Read that sentence again. What could be going on?