Newborn Male Circumcision Is It Ethical; Is It Legal?

Newborn Male CircumcisionIs It Ethical; Is It Legal? J. Steven Svoboda, J.D., M.A.Attorneys for the Rights of the Child (with Peter W. Adler, J.D., M.A. & Robert Van Howe, MD, M.S.) Pitts Lectureship in Medical EthicsMedical University of South CarolinaCharleston, South CarolinaOctober 18, 2013

The Norm • Normal genitalia • Every boy and girl born genitally intact • Circumcision is the exception • 70% of men worldwide intact • Circumcision rare in the Western world • Men don’t choose it for selves • U.S. is the exception in the developed world

American Academy of Pediatrics (2012) • Although health benefits not great enough to recommend circumcision for all male newborns, benefits are sufficient to justify access for families choosing it and to warrant third-party payment (Medicaid) • Do other medical associations agree that benefits justify circumcision? Let’s see…

Ethics in Position Statements by Medical Organizations

AAP 2012: Many Problems (1) • “Health benefits > risks” (AAP 2012) • Contradicted by AAP 2012: “incidence of complications unknown” • “Circumcision helps prevent HIV” (AAP 2012) • Contradicted by AAP 2012: Numbers from African men not shown to apply to American newborns: “key studies were performed in poverty-stricken African populations with HIV burdens that are epidemiologically different from HIV [burdens] in the United States.” • Two years out of date when issued • Very selective review of data (e.g., no case reports) • Not recommending procedure, yet supporting Medicaid funding. Why the balancing act ?

AAP 2012: Many Problems (2) • Omits the anatomy or function of the foreskin and the losses caused by its removal (lost tissue, sexuality) • Ethics absent —no mention of foundational ethical principles (autonomy, beneficence, non-maleficence, justice) and how they bear on permissibility of procedure. • No meaningful discussion of the law. Parents not granted wide latitude in decisions re children. Except in emergencies, parents’ actions with regard to children limited--Prince v. Massachusetts (1944). • No discussion of human rights—”supreme law of land” (Paquete Habana 1900)

AAP 2012 Contradicts AAP Bioethics Committee (1995) • The child is the patient, not the parent • Not “reasonable” (Brady 2013) for physicians to operate on healthy boys for religious, cultural, or personal reasons regardless of parental wishes • All decisions that can be deferred, must be deferred

First, Do No Harm (1) • Cannot harm the healthy • The cardinal rule, “First, Do No Harm” • Must respect human rights and medical ethics. • “If health benefits including lower complication rates were not lost by deferring [procedure] to a later age, the decision would clearly be to defer” (Brady 2013) • Does circumcision have enough benefits? Let’s see.

Potential Medical Benefits? 1. Urinary Tract Infections • Only argument for infant male circumcision with any possible relevance to children (Frisch 2013) • Circumcise at least 100 boys to benefit one (Frisch 2013) • The 100 circumcisions cause twocases of hemorrhage, infection, or even more serious complications such as death (Frisch 2013) • Treatment/prophylaxis with antibiotics • Safe • Inexpensive • Non-invasive • Widely available • CONCLUSION: NO (Frisch 2013)

Potential Medical Benefits? 2. Penile Cancer • Penile cancer occurs in old age, so boys are not at risk of it. Washing, not smoking help greatly reduce. (American Cancer Society 2009; Shabbir 2013) • One of rarest forms of cancer in the Western world. • American men as likely to be struck by lightning as by penile cancer. (Adekoya 2005) • Rates of penile cancer in the United States exceed rates in Denmark (Iversen 1997), Norway (Frisch 1995), Finland (Maiche 1992), and Japan (Swafford 1985), where circumcision rare. • CONCLUSION: NO. (Frisch 2013)

Potential Medical Benefits? 3. Reduce Risk of STDs Including HIV? • Infants of course not at risk of sexually transmitted HIV or other STDs. • Africa is not the United States • Absolute risk reduction only 1.3% in very high risk African population (Boyle 2011) • Numbers from African men not shown to apply to American newborns (AAP 2012) • Recent evidence suggests no protective effect among American men, “challenge[s] common beliefs regarding protective nature of circumcision.” (Gonzalez 2013, Van Howe 2013 agrees) • Protection “negligible or nil” (Garenne 2013) • Condom still required and suffices w/o circ so what is gained? (Garenne 2013) • CONCLUSION: NO. (Frisch 2013) • EVEN IF YES, PUBLIC HEALTH ARGUMENTS CAN’T TRUMP ETHICS. • Because: "Cardinal medical question not whether circumcision can prevent disease, but how disease can best be prevented.” (Frisch 2013)

First, Do No Harm (2) • Irreversible, unnecessary, non-therapeutic, invasive • Not recommended by any national medical association in the world • Performed without a diagnosis on healthy boys • Regret as adults (Hennen 2013, Johnson 2013) • Loss of function • Circumcision ablates the most sensitive parts of the penis (Sorrells 2007) • Orgasm difficulties in men and frequent sexual difficulties in women (Frisch 2011)

MEN’S VOICES “When you do it to a baby, there's no way back. I’ll never know what sex would be like with a foreskin. It makes me angry that somebody else decided for me, to do something that I probably would not have done if I was deciding for myself.”

MEN’S VOICES “I have never been able to accept the fact that someone cut part of my penis off when I was a baby. The sheer monstrousness of it haunts every waking moment of my life.”

First, Do No Harm (3) Angelo Ofori-Mintah died June 2012 blood loss; David Reimer suicide May 2004; Brayden Tyler Frazier died March 2013 blood loss

Circumcision Analogies (1) • Let’s examine other procedures that are analogous to male circumcision. • We’ll start by listing all the other procedures that share the following characteristics: • Not medically necessary • Done in absence of problem or emergency • Irreversibly removes functional tissue • Non-consenting child

Circumcision Analogies (2) • Here is the list of analogous procedures:

Two Questions Re Ethical Principles • Is it ethically acceptable to surgically alter the natural genitals of a child, when no compelling therapeutic reason exists? • Who is the appropriate person to give permission for elective, non-therapeutic cutting of anyone’s genitals?

Ethical Concerns Mounting • “If we view a child's foreskin as having a valid function, we are no more justified in amputating it than any other part of the child's body unless the operation is medically required treatment and the least harmful wayto provide that treatment.”* • Margaret Somerville, MD, The Ethical Canary: Science, Society, and the Human Spirit. Toronto, 2000. • “Child circumcisions are in conflict with medical ethics.”* * Finnish Medical Association, 2012

Neonatal Circumcision: Core statement of the ethical problem • Circumcision is a • non-therapeutic • medically unnecessary • irreversible amputation • of a normal, healthy, functional body part • from a non-consenting person.

The Easy Ethical Solution: Wait • “minors may only be exposed to medical treatments if illness or abnormalities are present” • “Non-therapeutic circumcision of male minors conflicts with the child’s right to autonomy and physical integrity.” • “put off circumcision until…the boy himself can decide” — Royal Dutch Medical Association (KNMG), 2010. Non-therapeutic Circumcision of Male Minors.

Disadvantages if We Don’t Wait— Dangerous • Acknowledgement of “untoward events” (AMA 1999) • 2%-10% (Williams 1993), 20%+ (Joudi), unknown (AAP 2012) • Denudation, concealed penis, skin bridges, chordee, cysts, lymphedema, hypospadias, epispadias, urinary retention, and rare but severe events including scalded skin syndrome, necrotizing fasciitis, sepsis and meningitis, urethrocutanous fistulas, necrosis, and partial amputation of the glans penis (AMA 1999) • Many “botched” circumcisions • High rates of surgical repairs • Loss of the entire glans or penis does occur • >100 deaths per year in the U.S. alone (Bollinger 2010)

Real Life Complications • “In a two-year period, I was referred >275 newborns and toddlers with complications of neonatal circumcision.” • “45% required corrective surgery.” — David M. Gibbons, Pediatric Urologist, Georgetown University Hospital • 7.4% of all visits to pediatric urologist at Massachusetts General Hospital over five years were for circumcision complications (Krill 2011)

Postoperative Complications if We Don’t Wait • Bleeding.* • Long-term aggravated response to pain. (Taddio 1997) • Infection. (Neonatal incidence 1%; O’Brien 1995) • Meatal Stenosis. (20% Joudi 2011) • Glandular Necrosis. • MRSA is twelve times more likely in circumcised boys. (Nguyen 2007) • Severe permanent disability or death.* * Joshua Haskins died Sept 2010 and Brayden Tyler Frazier died March 2013 from circumcision blood loss.

CDC 2007: Advantages of Circumcising Newborns? • Advantages for whom? • Easier to restrain a newborn • Consent of patient himself not required • More complications in circumcisions done during neonatal period (Machmouchi 2007) • What about loss of tissue? Psychological damage? Other complications? (Pain sensitivity)

Are Physicians Well-Trained? • “Lack of formal instruction” • “May explain complications, unsatisfactory results” • “Many unaware of contraindications and most non-surgeons can’t handle common complications” — Jorge de Maria et al. 2013 Let’s see if we can answer the questions we posed earlier.

Ethical Question #1 Q1: Is it ethically acceptable to surgically alter the natural genitals of a child, when no compelling therapeutic reason exists? A: NO • Childhood circumcision only acceptable in vanishingly rare cases in which medically necessary and conservative interventions have failed.

Ethical Question #2 Q2: Who is the appropriate person to give permission for elective, non-therapeutic cutting of anyone’s genitals? A: The owner of the penis, i.e. the male himself, when he is old enough to give his own informed, voluntary consent. • No ethical problem with circumcision of consenting, adequately informed adults.

Ethical Justification--NO A medical benefits or 'therapeutic' justification for a procedure requires that: • benefits sought outweigh the losses* • only reasonable way to obtain these benefits,* and • necessary to the well-being of the child.* None of these conditions is fulfilled for routine infant male circumcision.* *Margaret Somerville, MD, The Ethical Canary: Science, Society, and the Human Spirit. Toronto, 2000.

Is Circumcision Ethical? 1. Violates Four Fundamental Ethical Principles • Autonomy/Privacy • Does it respect the individual’s right to make his own decisions? • Beneficence • Is it reasonably expected to do good? • Non-maleficence • Does it avoid doing unnecessary harm? • Justice • Is it fair?

Is Circumcision Ethical? 2. Autonomy—fundamental ethical rule • Patient autonomy is a fundamental ethical rule violated by circumcision • Autonomy necessary to protect • freedom • privacy • self-determination • making important decisions about one’s body for oneself • All decisions that can be deferred must be deferred (AAP Committee on Bioethics 1995)

Is Circumcision Ethical? 3. Prohibited as Unnecessary Surgery • Violates AMA Ethical Opinion 2.19 • Physicians should not provide, prescribe, or seek compensation for medical services that they know are unnecessary

Is Circumcision Ethical? 4. Commercial Use of Human Tissue • Violates AMA Ethical Opinion 2.08 • No commercial use of human tissue • Foreskins sold without patient consent violate medical ethics.

Is Circumcision Ethical? 5. Physician’s Duty Is to the Patient Alone • A physician’s duty is to the patient alone • The patient is the child, not the parent. (AAP Bioethics Com. 1995) • Based on patient’s needs alone • Independent of parents’ desires • Physicians cannot operate on healthy boys for religious, cultural, or personal reasons regardless of parental wishes. (AAP Bioethics Committee, Informed Consent, Parental Permission, Assent 1995) • Ethical rule of proportionality also applies—benefits must be proportional to risks and losses (Diekema 2006) • A physician could not amputate a broken leg if it could be put in cast.

Neonatal Circumcision: Core statement of the legal problem • Do boys, like girls, have a right to bodily integrity? • Do physicians have right to circumcise healthy boys? • Do parents have legal right to approve circumcision? • Parents must act in the child’s best interests • Precludes making medical decisions for non-medical reasons (AAP Bioethics Committee 1995) • Advantages don’t exceed disadvantages • Violates freedom, autonomy, privacy rights • Removes healthy, functional body part, taking away right to decide for oneself

Legal Concerns Mounting (1) • Legal decisions upholding child’s right to protection against circumcision Legal settlement upheld right in US to recover damages for circumcision with proper “consent” and no unusual results (not a “botch”)—Virginia, 2003 Circumcision irreversible, not medically necessary, and not in best interests of child.— Zutphen, Austria, 2007 Circumcision is bodily injury, and doctors can be criminally liable. Procedure can and should be safely delayed until age at which boy can choose for himself— Cologne, Germany, 2012 Mother cannot have doctors perform male circumcision on healthy, normal six-year-old child because of psychological damage it could cause him — Hamm, Germany, 2013

Legal Concerns Mounting (2) • On September 24, 2013, Swedish legislators introduced a bill that would outlaw circumcision of males younger than 18 years of age for non-medical reasons. • On October 1, 2013, Council of Europe passed Recommendation 2023 endorsing child's right to physical integrity and Resolution 1952 opposing male circumcision

Is Circumcision Already Illegal? 1. Human Rights: “Supreme Law of the Land” • General Rights • Right to life, liberty, and security of person • Right to freedom from cruel, inhuman, and degrading treatment • Right to equal protection before the law. • Special Rights For Children • Right to opportunities to develop physically, mentally, morally, spiritually, and socially in a healthy and normal manner, and in freedom and dignity. • Right to protection from all forms of mental and physical violence, injury, or abuse, including sexual abuse. • Right of protection from traditional practices prejudicial to the health of children.

Is Circumcision Already Illegal? 2. Tort Law—Tort is Civil Wrong • Defense • Consent: “to willing person, no injury is done” • Children do not consent • List published of over fifty circumcision-related lawsuits and settlements--highest $32M ►Circumcision is a tort • Assault • Intentional; causes harmful or offensive contact; Imminent apprehension • Battery • Intended, offensive, bodily contact • False imprisonment • Intentional confinement; Aware of confinement • No consent to confinement; Not privileged

Is Circumcision Already Illegal? 3. “Consent” Invalid • Must be an actual medical need • Not valid for non-therapeutic procedures • Fully informed parental consent required; otherwise assault and battery (89 A.L.R.3d 32)“All risks potentially affecting decision must be unmasked” • Parents not fully informed/misinformed (Longley 2009, Ciesielski-Carlucci 1996)

Is Circumcision Already Illegal? 4. Boys’ Rights Trump Their Parents’ Rights • Boys have an absolute, inalienable right to be left intact • Bodily integrity and security of person (5th, 14th Amendments) • Parents’ rights are subordinate • Constitutional rights adhere to individuals • One person’s constitutional rights end at another person’s body—Prince v. Massachusetts (US Supreme Court 1944) • German court held that boys’ rights trump their parents’ rights • Congress has said the same about girls’ rights

Is Circumcision Already Illegal? 5. Beyond the Scope of Medicine • Having a foreskin not a medical condition or disease • Medical associations: circumcision is not medically justified • Circumcision is beyond the scope of medicine

Is Circumcision Already Illegal? 6. Unlawful to Use Medicaid to Pay for Circumcision • Medicaid only covers necessary medical care • Cosmetic, elective, ritual procedures not covered • Correction: 18 states did not defund after AAP 1999. • Twelve states defunded after AAP 1999. • Six states (CA, MS, ND, NV, OR, WA) defunded before AAP 1999.

Is Circumcision Already Illegal? 7. Equal Protection: Males and Females Must be Treated Equally (5th and 14th Amendments) Symbolic FGM OK—AAP April 2010 All forms of FGM Wrong—AAP June 2010 “How can it be wrong to surgically alter the genitals of a baby girl … but okay to surgically alter the genitals of a baby boy?”— Soraya Miré, Survivor, FGM Activist

Conclusion for Dr. Walling: Easy Legal Solution: Wait • The Facts • Many disadvantages, no meaningful net benefits • Not medically justified • Already Unethical • Violates many ethical rules • Inconsistent with the fundamental principle of autonomy/privacy • Already Illegal • Boys, like girls, have the right under many laws to normal bodies and genitalia • Physicians cannot operate on healthy boys • Successful lawsuits inevitable in US • The boy is the patient, not the parent • Circumcision is not in his best interests Angelo Ofori-Mintah died June 2012 blood loss; David Reimer suicide May 2004; Brayden Tyler Frazier died March 2013 blood loss

Thank You! J. Steven Svoboda, J.D., M.A. Executive Director Attorneys for the Rights of the Child www.arclaw.org

Newborn Male Circumcision Is It Ethical; Is It Legal?