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Bioethics ISSN 0269-9702 (print); 1467-8519 (online) Volume 29 Number 3 2015 pp 203–210

doi:10.1111/bioe.12077

GERMAN LAW ON CIRCUMCISION AND ITS DEBATE: HOW AN ETHICAL AND LEGAL ISSUE TURNED POLITICAL DIANA AURENQUE AND URBAN WIESING

Keywords German law on circumcision, the child’s welfare, ethical and legal issues, political discussion, balancing benefits and harms

ABSTRACT The article aims to illuminate the recent debate in Germany about the legitimacy of circumcision for religious reasons. The aim is both to evaluate the new German law allowing religious circumcision, and to outline the resulting conflict between the surrounding ethical and legal issues. We first elucidate the diversity of legal and medical views on religious circumcision in Germany. Next we examine to what extent invasive and irreversible physical interventions on infant boys unable to given their consent should be carried out for non-medical reasons. To this end, the potential benefits and harms of circumcision for non-medical reasons are compared. We argue that circumcision does not provide any benefits for the ‘child as a child’ and poses only risks to boys. We then set out to clarify and analyse political (rather than ethical) justifications of the new circumcision law. We demonstrate through this analysis how the circumcision debate in Germany has been transformed from a legal and ethical problem into a political issue, due at least in part to Germany’s unique historical context. Although such a particular political sensibility is entirely comprehensible, it raises particular problems when it comes to framing and responding to medical ethical issues – as in the case of religious circumcision.

On May 7th 2012, the District Court of Cologne1 in Germany declared that the ritual circumcision of boys constitutes an unlawful offence, thereby enabling parents and doctors alike to be prosecuted for requesting or performing circumcisions for religious reasons. The court’s ruling concerned the circumcision of a four-year-old Muslim boy in November 2010, which resulted in complications requiring immediate medical attention shortly after the procedure. The prosecution filed a lawsuit against the physician who had carried out the procedure, but the District Court of Cologne acquitted him on the grounds that he did not know it was an unlawful act. The

court, however, declared circumcision for religious reasons illegal. Even though ritual circumcision had been an accepted practice up to the point of the court’s decision, and parents had been allowed to decide on the child’s behalf whether to have the procedure done, the legal status of ritual circumcision has been questioned in Germany since 2008.2 The District Court of Cologne justified its ruling by defending the child’s right to bodily integrity and selfdetermination. In the four-year-old boy’s case, this particular procedure was claimed to have had no medical benefits, nor was it essential to his wellbeing. Moreover, 2

1

Cologne district court [Landgericht Köln]. 2012. Judgment from 7 May 2012, reference number 151 Ns 169/11. Available at http://www.ja -aktuell.de/root/img/pool/urteile_im_volltext/8-2012/151_ns_169-11.pdf [Accessed 6 Aug 2013].

H. Putzke. 2008. Die strafrechtliche Relevanz der Beschneidung von Knaben. Zugleich ein Beitrag über die Grenzen der Einwilligung in Fällen der Personensorge. In Festschrift für Rolf Dietrich Herzberg zum siebzigsten Geburtstag am 14. Februar 2008, Tübingen: 669–709. An English translation is available under: http://www.holmputzke.de/ index.php/kontrovers/religioese-beschneidung [Accessed 6 Aug 2013].

Address for correspondence: Mrs Diana Aurenque, University of Tubingen – Institute for Ethics and History of Medicine, Gartenstrasse 47, Tubingen 72074, Germany. Email: [email protected] or [email protected] Conflict of interest statement: No conflicts declared © 2013 John Wiley & Sons Ltd

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as a result of the procedure, the child’s body had been ‘permanently and irrevocably altered’.3 Such a procedure is only considered permissible if in the best interests of the child. It is ‘not necessary to perform a circumcision as a preventative measure in Central Europe’ because the procedure itself has no known or significant preventative health benefits. According to the ruling, ‘the circumcision at the behest of the parents should not have a justifying effect, since the parents’ rights to religious child-rearing practices do not prevail over the child’s right to bodily integrity and self-determination, with the consequence that granting consent for circumcision constitutes a contradiction with the child’s well-being’.4 Therefore, the procedure was said to constitute unlawful bodily harm. The court is therefore acting on the assumption that only medically induced procedures can benefit a child’s well-being, and on the claim that a child’s welfare takes precedence over the parents’ right to perform a certain religious ritual on their child. The freedom of religion and the parental right to direct the (religious) upbringing of a child are not being debated. The ruling merely declared – after careful consideration of a conflict between fundamental rights – circumcision without patient consent as unlawful. Usually, an individual can provide valid consent when (s)he has reached the age of religious maturity (issued from the 14th year of age).

RESPONSES The court’s ruling caused controversial debates, both within and outside of Germany. While jurists, physicians, child protective organisations and medical associations – for example, the German Society of Pediatric Surgery5 – welcomed the ruling with open arms, critics viewed it as an attack on the freedom of religious expression as a fundamental human right. Jewish and Muslim communities criticised it as an ‘antireligious’ ruling and demanded an immediate appeal. According to the president of the Central Council of Jews in Germany, Dieter Graumann, the court’s ruling poses a threat to the ‘Jewish people in Germany’6 and his predecessor, Charlotte Knobloch,

3

Cologne district court, op. cit. note 1. Ibid. 5 German Society for Pediatric Surgery [Deutsche Gesellschaft für Kinderchirurgie DGKCH]. 2012. Press Statement on the decision of the District Court of Cologne (about the illegality of not medically indicated circumcision in boys incapable of giving consent) from 7.5.2012. Available at: http://www.dgkic.de/index.php/presse/189 -pressemitteilung-juli-2012 [Accessed 6 Aug 2013]. 6 A. Wendt. 2012. Judgment on Religious Circumcision: Central Council considers Judaism in Germany at risk [Urteil zu religiöser Beschneidung: Zentralrat sieht das Judentum in Deutschland gefährdet]. FOCUS 14 July. Available at: http://www.focus.de/politik/ 4

questioned ‘if this country really still wants us here’.7 The German Chancellor Angela Merkel feared that Germany would become a ‘comedy nation’ (‘Komikernation’) if it were the only country to ban this central Jewish ritual.8 Shortly thereafter, a large majority of the German Parliament called upon the government to submit a proposal that would declare medically acceptable circumcision as unpunishable. In addition, the resolution of the German Parliament had emphasized ‘that the religious lives of Jewish and Muslim communities must remain possible in Germany’.9 The government responded with a bill stating that the ruling of the District Court in Cologne limits not only the parental right to direct a child’s upbringing but also the lives of Jews and Muslims in Germany: ‘Parents who prefer their child to be circumcised feel limited in their right to raise their children. Religious communities, such as Islam and Judaism, where circumcision has a central religious significance, feel that the ruling infringes upon their religious lives.’10 At the end of 2012, the German Parliament passed the bill with a large majority. This article will examine the ruling of the District Court of Cologne, the ethical and legal issues of circumcision in childhood as well as the political response of the German legislature. First, the basic issues concerning the religious circumcision of boys will be investigated from a legal and ethical perspective.

THE PROBLEM: FUNDAMENTAL RIGHTS The ruling of the District Court of Cologne is based on a specific answer to the question of whether circumcising a male child for nonmedical reasons infringes upon basic constitutional rights.11 There are two competing interpretations. For critics, early circumcision is unmistakably deutschland/urteil-zur-beschneidung-zentralrat-sieht-das-judentum-in -deutschland-gefaehrdet_aid_781855.html [Accessed 6 Aug 2013]. 7 C. Knobloch. 2012. Circumcision is the core of the Jewish identity [Die Beschneidung ist der Kern der jüdischen Identität]. Süddeutsche Zeitung 25 September. Available at: http://www.sueddeutsche.de/ politik/beschneidungen-in-deutschland-wollt-ihr-uns-juden-noch -1.1459038-2 [Accessed 6 Aug 2013]. 8 Evangelischer Pressedienst & PKU. 2012. Merkel: ‘We’re turning ourself into a comedy nation’ [Merkel: ‘Wir machen uns zur Komikernation’]. Die Welt 16 July. Available at: http://www.welt.de/ politik/deutschland/article108304605/Merkel-Wir-machen-uns-zur -Komikernation.html [Accessed 20 Mar 2013]. 9 German Bundestag. 2012. Printed matter of the German Bundestag 17/11295 from 5.11.2012: Draft law on the scope of the child’s care at the circumcision of a male child [Entwurf eines Gesetzes über den Umfang der Personensorge bei einer Beschneidung des männlichen Kindes]. Available at: http://dipbt.bundestag.de/dip21/btd/17/112/ 1711295.pdf [Accessed 20 Mar 2013]. 10 Ibid. 11 R. Merkel. 2012. About the Religiously Motivated Early Circumcision of Boys – Criminal and Legal Problems. Presentation at the plenary session of the German Ethics Council [Zur religiös motivierten früh-kindlichen Knabenbeschneidung – Strafrechtliche und

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German Law on Circumcision and Its Debate against the law, for ‘not a single civil right or liberty, of whatever kind or significance, grants permission to directly penetrate the body of another’.12 According to this interpretation, religious circumcision constitutes ‘a substantial violation of a child’s bodily integrity’.13 Proponents, on the other hand, claim that parental rights legitimize religious circumcision: ‘Only the kind of parental behaviour toward children that can no longer be regarded as care and upbringing, but rather as abuse and neglect, oversteps the boundaries of parental rights and thereby calls for the exercise of state guardianship.’14 Thus, circumcision for religious purposes does not apply.

MEDICAL ETHICS JUSTIFICATION: MEDICAL BENEFITS OF EARLY CIRCUMCISION In order to determine the legitimacy of circumcision without consent, one must consider not only medical but also other kinds of benefits and harm that could arise as a result of the procedure. For this purpose, scientific evidence is essential, especially in regards to potential harm. Medically speaking, circumcision consists of the surgical amputation of the prepuce (foreskin) from infants and children. Performing a circumcision on a male child without allowing anesthesia, as is practised in Judaism, is a painful experience that can be quite traumatic for the child. Putting the child under a general anesthetic to avoid the pain could rectify this problem, but it poses risks for newborns. There is evidence that local anesthetics for circumcision, which requires medical skills, works, whereas topical anesthesia seems to be insufficient.15 rechtsprinzipielle Probleme. Präsentation im Rahmen der Plenarsitzung des Deutschen Ethikrats], on 23 August 2012: 3. Available at: http:// www.ethikrat.org/dateien/pdf/plenarsitzung-23-08-2012-merkel -ppt.pdf [Accessed 6 Aug 2013]. 12 Ibid: 4. 13 R. Merkel & H. Putzke. After Cologne: Male Circumcision and the Law. Parental Right, Religious Liberty or Criminal Assault? J Med Ethics 2013; 39(7): 1–6. DOI:10.1136/medethics-2012-101284. 14 T. Hörnle & S. Huster. How Far Do Parental Rights Go? Using the Example of Circumcision of Boys. [Wie weit reicht das Erziehungsrecht der Eltern? Am Beispiel der Beschneidung von Jungen]. Juristen Zeitung 2013; 68(7): 328–339, 332. 15 See J.G. Lenhart, N.M. Lenhart, A. Reid & B.K. Chong. Local Anesthesia for Circumcision: Which Technique is Most Effective? J Am Board Fam Pract 1997; 10(1): 13–19; K.I. Gyftopoulos. The Efficacy and Safety of Topical EMLA Cream Application for Minor Surgery of the Adult Penis. Urol Ann 2012; 4(3): 145–149. The last study reports that next to the topical anesthesia ‘an additional type of anesthesia is likely to be necessary’ (p. 149). B.R. Paix & S.E. Peterson. Circumcision of Neonates and Children without Appropriate Anaesthesia is Unacceptable Practice. Anaesth Intensive Care 2012; 40(3): 511–516. Paix & Peterson summarize: ‘Local or regional anaesthesia for neonatal circumcision ideally requires a separate skilled anaesthetist (other than the

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Among the most common complications that could arise after circumcision are haemorrhage (about 1%)16 and meatal stenosis (narrowing of the opening of the urethra). A study shows that there is 21.4% difference in the incidence of meatal stenosis between circumcised and noncircumcised’ boys.17 In case of both urethral ischaemia and irritation, the probability of developing meatal stenosis is between 5–10%.18 Other less common but reported complications are infections, poor cosmetic results, and altered perception.19 There is also evidence that circumcision disturbs sexual functioning20 and decreases penile sensitivity.21 Moreover, it has also been reported that circumcisions performed on boys between the ages of 4 and 6 ‘can cause particularly grave psychotraumatic effects according to developmental psychology’.22 Additionally, the rate of complication increases with age; there are significantly fewer complications in infants.23 In the United States, the rate of complication is between 0.2% and 0.6%;24 most complications are not serious and can be easily treated, which results in the general opinion that it is a rather ‘simple procedure’.25 Other studies, however, maintain that the rate of complication is actually between 2% and 10%.26 However high the rate may be, one thing is certain: circumcision poses a health risk just like any other operation or anesthetic. What about the benefits? Before answering this question, one should pose yet another question: does circumcision in boyhood benefit the child, as a child, at all? The medical advantages of early circumcision in adulthood proceduralist) to monitor the patient and intervene if the anaesthesia is inadequate. Topical anaesthesia with lignocaine-prilocaine cream is insufficient.’ (p. 511). 16 E.N. Preston. Whither the Foreskin? A Consideration of Routine Neonatal Circumcision. J Am med Ass 1970; 213: 1853–1858. 17 R.S. van Howe. Incidence of Meatal Stenosis following Neonatal Circumcision in a Primary Care Setting. Clin Pediatr (Phila) 2006; 45(1): 49–54. 18 R.S. van Howe. Variations in Penile Appearance and Findings: a Prospective Study. Br J Urol 1997; 80: 776–782. 19 A. Stenram, G. Malmfors & L. Okmian. Circumcision for Phimosis: a Follow-up Study. Scand J Urol Nephrol 1986; 20: 89–92. 20 D.P. Lang. Circumcision, Sexual Dysfunction and the Child’s Best Interests: Why the Anatomical Details Matter. J Med Ethics 2013; 39: 429–431. 21 G.A. Bronselaer, J.M. Schober, H.F. Meyer-Bahlburg, G. T’Sjoen, R. Vlietinck & P.B. Hoebeke. Male Circumcision Decreases Penile Sensitivity as Measured in a Large Cohort. BJU Int 2013; 111(5): 820–827. 22 M. Franz. 2012. Freedom of Religion Can Not be a Licence for Violence [Religionsfreiheit kann kein Freibrief für Gewalt sein]. FAZ.NET 21 July. Available at: http://www.faz.net/aktuell/politik/ inland/offener-brief-zur-beschneidung-religionsfreiheit-kann-kein -freibrief-fuer-gewalt-sein-11827590.html [Accessed 6 Aug 2013]. 23 A.A.R. Tobian & R.H. Gray. The Medical Benefits of Male Circumcision. JAMA 2011; 306(13): 1479–1480. 24 Ibid. 25 Ibid. 26 M. Saqib Anwar, F. Munawar & Q. Anwar. Circumcision: a Religious Obligation or ‘the Cruelest of Cuts’? Br J Gen Pract 2010; 60(570): 59–61.

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cannot be advanced as an argument here. There doesn’t seem to be any significant benefits to having circumcision performed before the age of 14. All the advantages come to pass in later stages, and these are strongly contested. Contrary to the most recent, highly disputed recommendation for early circumcisions from the American Academy of Pediatrics (AAP), critics stress that the supposed preventative function of circumcisions (prevention of urinary tract infections, penile cancer, and transmission of some sexually transmitted infections, including HIV)27 ‘has some theoretical relevance in relation to infant male circumcision; namely, the possible protection against urinary tract infections in infant boys’.28 The latter could, however, ‘easily be treated with antibiotics without tissue loss’.29 The remaining preventative functions mentioned are, according to critics, ‘questionable, weak, and likely to have little public health relevance in a Western context’, so that these arguments ‘do not represent compelling reasons for surgery before boys are old enough to decide for themselves’.30 In developed countries, performing circumcision in order to facilitate penile hygiene is not necessary. In the same way and due to the epidemiological situation in Germany, there is also no need to recommend circumcision to prevent the incidence of HIV. However the advantages might be assessed, the prophylactic functions of circumcision are not at all significant for the child as a child but, at most, may become relevant for the circumcised individual later in life. Comparing circumcision to other preventative and socially accepted interventions – like vaccinations31 – is therefore inappropriate, as vaccinations benefit the child’s welfare and circumcisions do not. In short, only the rate of unwanted side effects is lower in early circumcision; all the medical benefits of circumcisions can also be achieved when performed on individuals who have reached the age of religious maturity. In 27

AAP Policy Statement on Male Circumcision, Journal Watch 2013 www.jwatch.org/. . ./2012/09/19/aap-policy-statement-male -circumcision; 2012:0 PA201209190000005; The AAP Task Force on Neonatal Circumcision: a Call for Respectful Dialogue J Med Ethics 2013; 39(7); medethics-2013-101456v1-medethics-2013-101456. 28 M. Frisch, Y. Aigrain, V. Barauskas, R. Bjarnason, S.A. Boddy, P. Czauderna, et al. Cultural Bias in the AAP’s 2012 Technical Report and Policy Statement on Male Circumcision. Pediatrics 2013; 131(4): 796– 800: 796. Also J.S. Svoboda & R.S. van Howe. Out of step: fatal flaws in the latest AAP policy report on neonatal circumcision. J Med Ethics 2013 Jul; 39(7): 434–441. 29 Frisch et al., op. cit. note 28. p. 796. 30 Ibid. 31 R. Spaemann. 2012. The Dream of Fateless: A German Court Prohibits and Condemns Circumcision as Bodily Harm. This is an unprecedented attack to the identity of religious families. [Der Traum von der Schicksallosigkeit: Ein deutsches Gericht verbietet Beschneidungen und verurteilt sie als Körperverletzung. Das ist ein beispielloser Angriff auf die Identität religiöser Familien]. Die ZEIT 28/2012 5 July. Available at: http://www.zeit.de/2012/28/Beschneidung [Accessed 6 Aug 2013]; Tobian & Gray, op. cit. note 23.

such cases, the individual has the opportunity to decide whether to expose himself to the risks of the intervention in order to receive the benefits. Again, there are no benefits for the child in the face of indisputable risks. Therefore, a cost-benefit assessment on a case-by-case basis is forced to make a negative judgement with regard to the medical benefits for the child.

NONMEDICAL BENEFITS OF CIRCUMCISION Of course, whether the intervention benefits the welfare of the child in another sense should still be clarified. In this context, a comparable example for a legitimate intervention of this kind is the correction of protruding ears. Even though the procedure is not medically necessary, it is usually done in the child’s best interest. Cosmetic surgery on children can be ethically acceptable if it promotes not only the physical but also the psychological well-being of the child, by preventing them from being teased or ostracized.32 The example demonstrates that the division between medical indications and others is not always clear-cut, and the benefit of a procedure can be viewed in various ways. Can religious circumcision be beneficial for the boy in a non-medical sense? The circumcised boy – especially newborns – will not gain non-medical benefits from the procedure because he is too young to comprehend the symbolic meaning of the ritual. At best, the advantages of being circumcised can only be communicated to him by way of feelings of security and setting an example of how to lead a good life. Thus, the question of whether a circumcision is non-medically beneficial to the boy must be answered by someone other than the boy. Who provides the answer should also be clarified: should it be a member of the religious group, or someone from outside the religious group? In a pluralistic society that allows different means of practising a pursuit of ‘the good life’, the perspective of the religious group should be taken into account. In this case it is usually the perspective of the parents. From their perspective, circumcision contributes to the wellbeing of the child in a broader sense. For Jews and Muslims, it is argued that the ritual represents the binding of male children to their religion. It contributes to a general wellbeing of the boy, inasmuch as he will be admitted by the religious community. The boy will be part of the same religious and cultural world as his parents and other family members. For defenders of the ritual, circumcision enables the boys to have access to a particular way of life, 32

H. Prantl. 2012. The Law of Circumcision. The Necessary Minimum. [Gesetz zur Beschneidung. Das nötige Minimum]. Süddeutsche Zeitung 12 December. Available at: http://www.sueddeutsche.de/politik/gesetz -zur-beschneidung-das-noetige-minimum-1.15492 [Accessed 6 Aug 2013].

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German Law on Circumcision and Its Debate a religious life, which is considered to be a good life. This could be construed as an argument in which circumcision is viewed as a practice that favours the wellbeing of the child. Indeed, in modern multicultural societies, what constitutes a ‘good’ life remains highly subjective and is usually accepted by the society. Nevertheless, that does not mean that any or every cultural or religious practice ought to be accepted. By forgoing the circumcision, another aspect has to be taken into account: The child could feel negative consequences which depend on the respective religious community. An uncircumcised boy may risk being ostracized from his community. However, this is only the case if a religious community responds to his forgoing the ritual by no longer regarding the child as a full-fledged member. This reaction is not necessary, since not all men are circumcised in Jewish or Muslim communities. If a religious community forgoes the ritual, tolerates forgoing it, or carries it out symbolically, because it infringes upon fundamental human rights, and consequently refrains from ostracism, there would be no drawback to forgoing circumcisions.

THE LEGAL JUSTIFICATION: THE PARENTAL RIGHT TO DIRECT A CHILD’S UPBRINGING AND THE CHILD’S WELFARE Considering both the risks and benefits of the procedure, another question presents itself as to whether circumcision falls under the parental right to direct a child’s upbringing. The state limits parental rights to decisions that benefit the child’s welfare and personality development. Therefore, circumcision would only be covered by parental rights if the procedure is in the child’s best interests. This would be the case if a) a medical indication is presented, b) the procedure benefited the child’s welfare or c) parents are allowed to decide what is in their child’s best interest. As has already been mentioned, a) is not given and b) is quite controversial. Therefore, it is necessary to look into whether c) can function as a possible justification for the procedure. Support for this argument originates in the fact that parents have a right, to some extent, to direct their child’s upbringing. A medically unnecessary circumcision is covered by this parental right, since ‘parents have primacy when it comes to determining what is best for their child’s well being’33 and ‘there is an asymmetrical 33

W. Höfling. 2012. Circumcision (not medically indicated) from a Fundamental Rights Dogmatic Point of View. Presentation at the plenary session of the German Ethics Council [Die (medizinisch nicht indizierte) Zirkumzision aus grundrechtsdogmatischer Sicht. Präsentation im Rahmen der Plenarsitzung des Deutschen Ethikrats]

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situation’ in which ‘one should presume that parental rights have primacy over the state’.34 Even though the state has now reduced parental rights to determining actions that benefit the child’s welfare and personal development, it has been fairly reserved in assuming authority over the interpretation of child welfare. As long as the state assumes an ethically neutral position toward differing life styles, it is not the responsibility of the state to determine what exactly child welfare entails. The state is willing to accept the pluralistic nature of this issue, and will only intervene if there are unreasonable parental interpretations of child welfare. Accordingly, child welfare is seen as something that the state should protect; however, the state can only determine the limits of what child welfare actually entails. This is precisely where proponents and opponents clash in their opinions about early circumcision: is child welfare objectively given in the sense that parents merely have to recognize it and put it into practice, or does child welfare first have to be defined by parents by utilizing their own interpretation of the term? Based on their own values and conceptions of ‘the good life’ – according to the supporters of early circumcision – parents should be able to put the ‘child’s welfare’ into concrete terms35 and consequently make room for an interpretation that incorporates circumcision as well. Despite all the leeway in parenting, state interventions are necessary if parents have an unreasonable view of what child welfare entails. There are some well known examples of this. Female circumcision, although a cultural tradition, is not allowed in modern societies, and the old tradition of ‘bride kidnapping’ is no longer considered a valid form of marriage, but rather a sex crime. Hörnle and Huster name and comment on the following criteria that make the parents’ view of the welfare of the child unreasonable:36 all acts that degrade or physically or psychologically harm the child constitute violations against the child’s welfare. Furthermore, acts that impede the future of the child or irreversibly alter it in any way are regarded as possible criteria for limiting parental rights. Does the new law on circumcision take these criteria into consideration?

THE LAW AND ITS JUSTIFICATION: A POLITICAL RESPONSE On December 12th, 2012, the German Parliament passed with a large majority the following law to protect religious circumcision (§ 1631d): from 23.08.2012: 5. Available at: http://www.ethikrat.org/dateien/pdf/ plenarsitzung-23-08-2012-hoefling-ppt.pdf [Accessed 6 Aug 2013]. 34 Hörnle & Huster, op. cit. note 14, p. 332. 35 Ibid. 36 Ibid: 332–334.

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(1) Care and custody also includes the right to consent to a medically unnecessary circumcision of a male child who is unable to reason or make judgments for himself as long as it is performed according to the standards of medical practice. This does not apply if the circumcision – with regard to its particular purpose – jeopardizes the child’s welfare in any way. (2) In the first six months after birth, an individual authorized by a religious community and with adequate training may perform the procedure (according to para. 1) without a being a medical doctor.37 The bill permits medically unnecessary circumcisions in paragraph 1, and only as late as in paragraph 2 does it mention a religious aspect in which authorized groups are noted. With that, a problem arises: the standards of medical practice, which are mentioned in paragraph 1, are not limited to the circumcision itself but extend to preventing pain, for example, through anesthetics. However, non-medically educated individuals cannot master this area of medical practice, for in Germany and many other countries it must be carried out by medically trained professionals. Thus, the bill is either contradictory in itself or it presumes that the person trained in the practice of circumcision – the Jewish circumciser (mohel) – must also be a physician trained in anesthetics, or that in addition to the mohel an anesthesiologist provides sufficient pain control. There is little evidence yet to see that situation as realistic. In total, six arguments can be derived from the legislature’s argumentation: First, the legislature classifies a circumcision that is performed lege artis as a procedure with ‘few complications’.38 However, this view is a point of contention, and even the legislature is aware that complications can arise, although rare; circumcision is by no means free of any complications. The motion even called upon the German government to put forward a bill that ensures that male circumcision is generally permitted as long as it is performed without inflicting unnecessary pain (p.1). This raises the question as to whether there is ‘necessary’ pain. In any case, the Parliament and the reasoning behind the bill seem to accept that complications and pain are indeed associated with circumcision. The reasoning behind the bill repeatedly stresses that the circumstances surrounding the risks of circumcision are unclear and contradictory. Due to this uncertainty, it seems prudent to assume that the risks are indeed high, simply in order to avoid inflicting harm on the child. The reasoning for the bill, however, does not err on the cautious side, assuming less risk despite this uncertainty. But

the legislature still acknowledges the risks of circumcision and attempts to minimize them by way of medical standards, albeit contradictorily. Second, the bill stresses the prophylactic effect of circumcision and states that it would be useful for the child as a form of preventative health care. Therefore, the legislature regards the circumcision of a young boy as a medically beneficial procedure ‘in and of itself’. This argument, however, is not based on objective examination, since there are no measurable benefits of having the procedure done before the age of religious majority. Third, the reasoning behind the bill refers to a broad understanding of child welfare. According to this conception, religious circumcision as a demonstration of ‘acceptance into a religious community’ can serve the ‘welfare of the child’.39 This argument is, however, merely speculative and solely dependent upon the reactions of the religious community. Religious communities can still contribute to a child’s spiritual wellbeing without his circumcision. The argument of avoiding harm in a broader sense is only valid if the religious community would not support or would ostracize uncircumcised children. Fourth, the law allows parents to decide whether circumcision benefits the child’s wellbeing. ‘Parents may regard non-medically induced circumcision of their male child [. . .] as beneficial to his wellbeing for different reasons.’40 With that, the legislature leaves the concrete structuring of a child’s wellbeing up to the parents. In any case, the view that circumcision benefits the child is not sufficiently unreasonable to warrant state intervention, provided that – as stated in the last sentence of paragraph 1 – the circumcision is not performed for reasons that could jeopardize the child’s welfare. Therefore, the legislature does not link child welfare to bodily integrity but to the purpose of the procedure: circumcision can benefit the child’s wellbeing for certain purposes, but not for others.41 The bill does not address these purposes. An unacceptable reason could be, for example, punishment. Religious reasons obviously do not fall in this category. Fifth, the legislature prioritizes parental rights over the fundamental rights of children. The reasoning behind the law has repeatedly stressed that the state only acts as a guardian, meaning that it is not responsible for ‘ensuring – against the parents’ wishes – what it considers to be the best in the development of the child’. If the circumcision is performed lege artis for reasons that benefit the child, then the state should not intervene.42 However, this causes difficulties: what is the difference between a circumcision performed for reasons that benefit the child and one performed arbitrarily or for reasons that could inflict harm on the child? The procedure is not necessarily 39 40

37 38

German Bundestag, op. cit. note 9, p. 16. German Bundestag, op. cit. note 9, p. 9.

41 42

Ibid: 22. Ibid: 21. See Merkel & Putzke, op. cit. note 13, pp. 5–6. German Bundestag, op. cit. note 9, p. 24.

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German Law on Circumcision and Its Debate based on ‘grounds that benefit the child’. And, even if the procedure is performed lege artis, there are always risks, many of which – such as death or mutilation – should be classified as ‘particular risks’. Therefore, the legislature allows harm to be inflicted upon a child within the parental right to direct a child’s upbringing – something the legislature tries to avoid elsewhere. Sixth, the legislature points out that a ban on religious circumcision of young boys could cause more harm: ‘After all, the fact that circumcisions are frequently regarded as a “basic religious need” allows one to draw the conclusion that banning circumcision would not logically lead to its practice being abandoned.’43 Thus, the legislature brings forward a rather pragmatic argument: a ban would be unreasonable due to the fact that circumcisions would still be performed. In all probability, they would be performed in secret and perhaps in even poorer hygienic conditions. Moreover, a ban could even lead to ‘circumcision tourism’. This argument is indeed plausible. If this is the only convincing argument left, the legislature has curtailed fundamental rights for pragmatic reasons. In summary, throughout the 26 pages of the bill, there are very few uncontroversial arguments regarding the key legal and ethical problems of religious circumcision. Furthermore, the orientation of whether it is conducive to child welfare is rather vague. The legal and pragmatic considerations remain the most convincing arguments.

FROM AN ETHICAL TO A POLITICAL ISSUE How can the rather prompt passage of this bill be explained with such a fragile argument? The court’s ruling in Cologne sparked a political debate that has a particularly sensitive historical roots in Germany, for religious circumcision is not only practised by Muslims but also constitutes a central ritual in Judaism. Since the Third Reich’s oppressive politics, ultimately culminating in the unspeakable terrors of the Holocaust, Germany is extremely sensitive to the problems and needs of the Jewish community. Banning a Jewish ritual of such importance was simply inconceivable. Thus, Heribert Prantl rightly demands that one should put oneself in the shoes of a German criminal court judge ‘who convicts a religious Jew for performing a circumcision and puts him in jail for six months’.44 With this, the legal and ethical problem has immediately turned into a historico-political one.45 Just how necessary it is to have a law permitting religious circumcision was mainly expressed by religious 43 44 45

Ibid: 10. Prantl, op. cit. note 32. See Merkel, op. cit. note 11, pp. 16–17.

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communities (including Christian communities). They were in search of a law that would not restrict the lives or traditions of Jewish and Muslim communities in Germany. The focus of the debate was on topics such as integration, cultural tolerance, and religious freedom in Germany. The influential weekly paper ‘Die ZEIT’ spoke of a very ‘important decision in cultural history’.46 Without trying to deny the historical responsibility Germany has toward the Jewish people, consideration should still be given to the extent to which legal and ethical problems may be influenced by politics – inasmuch as the politically biased debate has ignored the subject at hand. The court focused on child welfare, not the legitimacy of a particular religious ritual or religious upbringing as a whole. To call the decision of the District Court an ‘unprecedented attack on the identity of religious families’47 is misplaced, for the ethical and legal problem was not a matter of religious upbringing but was actually concerned with the lawfulness of irreversible and permanent changes to a child’s body that provide no benefit whatsoever for the child.

A POLITICAL ANSWER TO A LEGAL AND ETHICAL ISSUE A religiously grounded regulation that requires intrusion into the bodily integrity of children will always conflict with the fundamental law of bodily integrity. But, considering this particular context, enforcing a ban on the practice of circumcision was politically unrealistic: in the face of German history, the legislature was forced to find a solution that would ensure political peace. The normative orientation has its origin in legal pragmatics as well as the more highly valued parental right to direct a child’s upbringing, although this view accepts the risk of harm to the child. The legislature simply tried to limit the amount of harm done by placing demands on the procedure. Therefore, the law is oriented not toward a complete and utter avoidance of inflicting harm on the child – in contrast to an outright ban – but rather toward minimizing harm (harm reduction principle) via procedural stipulations that are contradictory in terms of pain management. If it is presumed that prohibition would not stop parents from performing the procedure themselves or having it performed by a layperson (which could inflict even more harm upon the child), then there would be a stronger justification for permitting circumcisions. However, it must be emphasized that this decision was 46 A. Kreuzer. 2012. Circumcision of boys should be regulated, but not banned. [Beschneidung von Jungen regulieren, aber nicht verbieten]. Die ZEIT 20 November. Available at: http://www.zeit.de/gesellschaft/ zeitgeschehen/2012-11/beschneidung-regierungsentwurf-bundestag [Accessed 6 Aug 2103]. 47 Spaemann, op. cit. note 31.

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made in a state of political urgency; furthermore, it was taken into account that rights like that of physical integrity, which are in all actuality non-negotiable rights, were made negotiable in the context of the parental right to direct a child’s upbringing. In other contexts beyond that of traditional religious rituals, the state would not have defined the parental right so broadly. For example, circumcising a child as a form of punishment is unacceptable, but that very same circumcision performed as part of a religious ritual is acceptable. Furthermore, it remains unclear as to whether circumcisions are legitimate when called for by a religious community as a form of punishment. However the conflict between bodily integrity and parental rights is assessed, one is forced to reach a compromise that compares things beyond comparison and weighs them against each other. This is a dilemma that cannot be resolved. Opponents of the new law describe circumcisions as ‘barbaric’, as an ‘abominable, archaic custom’ and as an ‘instrument of oppression’.48 This is even more urgent when it comes to controversial methods of circumcision, such as the Metzitzah B’Peh practiced by the ultraOrthodox Jewish community. The lawfulness of this custom whereby the mohel sucks the blood from the circumcision wound on the child’s penis was discussed in court in New York in 2012. Ultimately, this custom was deemed lawful provided that the parents gave their informed consent. According to the New York State Department of Health, ‘within eleven years, eleven male babies [. . .] were infected with the herpes simplex virus, two of whom died’ as a result of this practice.49 For this 48

N. Kelek. 2012. Circumcision – a Useless Sacrifice for Allah. [Die Beschneidung – ein unnützes Opfer für Allah]. Die WELT 28 June. 49 S. Wüstemann. 2012. Circumcision: Caution, Herpes! Pediatricians Criticize Metzitzah B’peh [Beschneidung: Vorsicht, Herpes! Kinderärzte kritisieren Metzitzah B’peh]. Jüdische Allgemeine 16 August. Available at: http://www.juedische-allgemeine.de/article/view/ id/13733 [Accessed 6 Aug 2013].

reason, even the Israel Ambulatory Pediatric Association (IAPA) disapproves of this method.50 Therefore, it might be reasonable to call upon religious communities to adjust these customs and to rethink the symbolic character of religious rituals, within reason. A religious community could replace invasive circumcisions with an alternative symbolic ritual.51 In such a case, parents could perform a symbolic ritual after the birth of the child that does not compromise the child’s wellbeing. Consequently, the decision to undergo a circumcision would be left up to the child once he has reached an age of religious maturity. However, the question remains as to who is actually entitled to call upon a religious community to reinterpret their rituals. Nowadays, it is a highly complicated and controversial issue. The conflict surrounding circumcision can also be regarded as an unreasonable demand of the modern age or even a challenge to society’s tolerance of religious communities.

Acknowledgements The authors would like to thank Yvette van der Eijk for comments and editing on the manuscript. Diana Aurenque, PhD, is a Researcher and Lecturer in the Institute for Ethics and History of Medicine at the University of Tuebingen, Tuebingen, Germany. Urban Wiesing, MD, PhD, is Professor of Medical Ethics and Director at the Institute for Ethics and History of Medicine at the University of Tuebingen, Tuebingen, Germany. 50

Jewish Telegraphic Agency. 2012. Israeli Pediatric Association Calls for End to Circumcision-related Rite. The Times of Israel 12 August. Available at: http://www.timesofisrael.com/israeli-pediatric-association -calls-for-end-to-circumcision-related-rite/ [Accessed 6 Aug 2013]. 51 See R.D. Herzberg. 2012. Circumcision. The Right Judgment! Circumcision? Individuals Must Decide for Themselves. A Reply. [Beschneidung. Das richtige Urteil! Beschneidung? Die Betroffenen müssen selbst entscheiden. Eine Erwiderung]. DIE ZEIT (29) 12 July. Available at: http://www.zeit.de/2012/29/Beschneidungsdebatte/ komplettansicht [Accessed 6 Aug 2013].

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