A Guide to the Recommended Reforms

The reforms recommended are grounded upon five guiding principles. These principles are based upon a reasoned appraisal of the available empirical evidence, and should have broad appeal within Australia. The five principles are discussed in detail below.

(1) Circumcision is a procedure which should only be able to be performed legally when there are strong and widely accepted reasons for its performance.

The foreskin is a natural and healthy part of the male body, and circumcision is not a necessary procedure for either good heath or a fulfilling life for the vast majority of Australians. Circumcision has inherent known and potential costs, including: a negative impact on several aspects of the circumcised person’s health (see discussion from page 16), and the risk of the person circumcised suffering from complications ranging from greater than expected bleeding to death (see discussion from page 19). Most circumcisions involve a financial cost. The circumcision of an incapable minor also involves an encroachment on one or more aspects of the child’s autonomy (see discussion from page 32). Because of these costs circumcision is considered, for the purpose of devising the recommended reforms, to be a procedure which should not be performed unless there are strong and widely accepted reasons to do so.

(2) Uncircumcised adults, and capable minors, should have the right to determine their own circumcision status, and, generally, the right to determine the circumstances of their circumcision if they wish to be circumcised.

Adults, and capable minors, should be free to be circumcised if they consider there to be good cause for doing so. This principle is grounded upon the concept of autonomy which was discussed in detail in chapter two, and which has widespread support within Australia. The ability of an uncircumcised adult or a capable minor to determine their own circumcision status is, accordingly, one which should only be abridged in the rarest of circumstances. There may, for example, be value in setting minimum health and safety standards that must be met by circumcisers to discourage particularly abhorrent or unnecessarily risky practices for moral, paternalistic, or public cost reasons. However, it will generally be assumed, for the purpose of devising law reform recommendations, that there will be broad community support for allowing uncircumcised adults and capable children to determine their own circumcision status, and, generally, the circumstances of their circumcision if they wish to be circumcised.

(3) Not every reason for circumcising an incapable minor is equally strong and widely accepted.

Most Australians accept that an incapable minor’s body, especially their sexual organ, should not be interfered with without a strong and widely accepted reason to do so. This is evidenced by the nationwide prohibition on female genital mutilation.18 _{It is also evidenced by the support for other}

laws protecting interferences with the body of minors in various states and territories, such as the law prohibiting the tattooing of minors in South Australia.19 _{However, Australians differ on what}

18

Crimes Act 1900 (ACT) s 74; Crimes Act 1900 (NSW) s 45; Criminal Code 1983 (NT) s 186B; Criminal Code

1899 (Qld) s 323A; Criminal Law Consolidation Act 1935 (SA) s 33A; Criminal Code Act 1924 (Tas) s 178A;

Crimes Act 1958 (Vic) s 32; Criminal Code Act 1913 (WA) s 306. However, the prohibitions apply to both minor

and adult women.

19

they consider to be a strong reason, and reasonable circumstances, for interfering with the person of an incapable child. The following paragraphs assess the merit of the three main reasons for circumcising an incapable minor (namely: religious and ethnic, social tradition, and health). The assessments made shape the reforms recommended later in this chapter.

Many Australians will accept that religious or ethnic reasons ought to be regarded as capable of justifying the circumcision of some incapable children in at least some circumstances. The depth and strength of the support for religious and ethnically associated circumcision, particularly as it is practised by Indigenous Australians, Muslims, Jews, and some African Christian sects, was addressed in chapter two (see discussion of religious circumcision from page 8, and ethnicity associated circumcision from page 21). This support makes the legal proscription of the widely accepted aspects of the circumcision practices supported by these groups unlikely and arguably undesirable. Proscriptive law reform is also likely to be ineffectual in discouraging many proponents of religious circumcision. This is because some groups consider circumcising incapable children as an unbreakable commandment from God which ought to be followed regardless of the prevailing law.20

However, traditions, including religious and ethnic traditions, are often in a state of evolution, and the law ought to, to the extent it can do so efficaciously, encourage the modification of traditions towards better health and ethical standards.21 _{Less accepted aspects of traditional practices,}

particularly those which are neither mandated, nor particularly well regarded within a particular tradition or in society generally, such as the use of unsterile tools or methods, should rightfully be the subject of condemnatory law. The law should also endeavour to create conditions to encourage people to act in less dangerous and ethically contentious ways. Both South Africa and Sweden have adopted this approach to regulating traditional circumcision practices in their jurisdictions (see discussion from page 134). A similar regulatory approach, shaped to fit Australian circumstances, should be supported widely.

Most Australians, in contrast to their likely acceptance of at least some well accepted religious and ethnic associated circumcision traditions, are unlikely to accept circumcising incapable minors for secular non-ethnicity related social reasons in the future. Australia’s social and cultural circumcising tradition was discussed in detail in chapter two (see discussion from page 27). It is a tradition which, although once the norm, has since been abandoned by the majority of Australians. Nevertheless, a significant portion of the general populace still believe that there is some merit in circumcising their male children for several often ill-defined or empirically weak reasons (see discussion from page 27). It cannot be said, because of this support, that all Australians will immediately accept a prohibition on circumcisions performed on incapable children for these reasons.

20

Jewish circumcision has been banned or heavily discouraged on several occasions throughout history. Jewish sources suggest that King Antiochus IV Epiphanes who ruled Asia-minor instituted a ban, with severe punishments, on circumcision around 175 to 165BCE. For a brief discussion see: David Gollaher, Circumcision: A History of the

World’s Most Controversial Surgery (2000) 15-16. For an earlier source see: Book of Maccabes 1:46-67; 6:10. The

Roman Emperor Hadrian may also have regulated circumcision around 130CE prior to the Bar Kokhba Revolt, see: Alfredo Rabello, ‘The Ban on Circumcision as a Cause of the Bar Kokhba’s Rebellion’ (1995) 29 Israel Law

Review 176. The ancient Roman legal text The Digest of Justinian also bans circumcision in some circumstances,

see: The Digest of Justinian 48:8:11. The Soviet Union prohibited Jewish circumcision at times. For an interesting discussion of circumcision in one part of the Soviet Union see: Elissa Bemporad, ‘Behavior Unbecoming a Communist: Jewish Religious Practice in Soviet Minsk’ (2008) 14 Jewish Social Studies: History, Culture, Society 1.

21

This point has been made in work considering the regulation of traditional circumcision practices in South Africa, see: Louise Vincent, ‘Cutting Tradition...’, above n 16, 86.

However, the practice of circumcising incapable children for secular social and cultural reasons is not unshakeably entrenched. The reasons commonly proffered by proponents of secular social circumcision are not accepted as valid for most other irreversible external body modifications on incapable children. This is an area in which law reform should, and could, effectively take the lead. The law should endeavour to extinguish what is a weakening and increasingly ethically contentious tradition of irreversibly altering the sex organs of incapable boys for aesthetic, empirically unsound, or weakly entrenched and unsubstantiated social reasons. Legal measures, in combination with education campaigns and social influences, should be able to, and should aim to, do away with the remnants of the tradition.

The merit of the third main reason for circumcising incapable children, that of conferring circumcision’s prophylactic benefits on them, is perhaps the most difficult to assess. The evidence and potential significance of circumcision’s prophylactic benefits were discussed in detail in chapter two (see discussion from page 12). This discussion noted that circumcision is, quite simply, not necessary for the maintenance of a person’s good health. It seems that the widespread adoption of circumcision would not be likely to confer anything more than a negligible improvement to public health in Australia, even if the potential health costs were not considered and circumcision’s potential benefits are accepted at their strongest. The potential individual benefits of circumcision are, for the average Australian, also likely to be negligible. Most of Australia’s medical community, and its public health policy makers, do not currently believe that an increase in circumcision is capable of providing a significant individual or population health benefit in Australia. The Royal Australasian College of Physicians’ most recent policy statement on the merit of circumcision as a health treatment for male infants concludes that routine infant male circumcision is not warranted in Australia.22

Furthermore, the prophylactic benefits do not currently seem to feature prominently as a reason for circumcision in Australia, and are perhaps even less likely to do so in the future. The vast majority of boys born in Australia in the decade just past (approximately 80% around Australia, and seemingly more than 90% in Tasmania, the Northern Territory, the Australian Capital Territory, Western Australia and Victoria) were not circumcised as children. Only an infinitesimal number of men in Australia request circumcision for prophylactic health reasons as adults. Circumcision’s health benefits are not motivating the vast majority of Australia’s medical community and health policy makers to offer, let alone suggest, the procedure for health reasons. The potential benefits are not motivating adults to circumcise themselves, and they are not motivating most Australian parents to circumcise their young boys.

However, a small minority, including some in Australia’s medical community, do believe that circumcision’s health benefits justify a parent circumcising their incapable child prior to the child being able to determine the matter for themselves.23 _{This minority view is, for various reasons,}

which were addressed in chapter two, influential (see discussion from page 21). This minority do one or more of the following when weighing the costs and benefits of circumcising an incapable child:

• give circumcision’s health benefits significantly greater weight than most Australians, the

vast majority of Australia’s medical community, and most people informed of the relevant evidence, are willing to do;

22

Royal Australasian College of Physicians, Circumcision of Infant Males (2010) 5.

23

See for example: David Cooper, Alex Wodak and Brian Morris, ‘The Case for Boosting Infant Male Circumcision in the Face of Rising Heterosexual Transmission of HIV’ (2010) 193 The Medical Journal of Australia 318.

• give less weight to the value of allowing an incapable minor to make an autonomous decision

later in life on whether they want to undergo the procedure;

• give less weight to the known and potential health costs of the procedure, at least when it is

performed on a child.

The difference in the weight given to the first and third point is sometimes due to an insufficient understanding of either the relevant evidence supporting circumcision’s benefits, or the context in which the evidence of circumcision’s benefits can be interpreted meaningfully. Outdated information and social biases skew the understanding of the relevant evidence. Reforms should, at the least, aim to improve the understanding in the general public of the relationship between circumcision, health and harm, so that more people can take an informed position on the matter. There is unlikely to be greater consensus until there is wider understanding of both the medical evidence associated with circumcision, and, perhaps more importantly, the relevance of the evidence in an Australian context.

This thesis takes the position on the available evidence that there is currently no good reason for any government in Australia to encourage the circumcision of incapable minors for prophylactic reasons. Circumcision is not a procedure which needs to be performed on a minor, and it is not a procedure likely to confer a substantial health benefit to the average Australian. It is likely that most Australians, including the vast majority of Australia’s medical and health policy professionals, with an accurate understanding of the evidence and its context, would support measures to discourage the routine circumcision of incapable minors for health reasons. However, the influence of supporters of circumcision for health reasons may pose an obstacle to the enactment of such measures in the short term. Reform may be difficult to implement until: education and information campaigns are initiated; developments occur in public health, and/or in science’s understanding of the interrelationship between circumcision and health; and these begin to generate greater consensus on the merit, or perhaps rather the lack of merit, of circumcision as a health measure in Australia.

(4) The law regulating circumcision in Australia should endeavour to improve the health and ethical standards of all circumcisers to the greatest extent practicable.

There is, as discussed in chapter two, significant support within Australia for improved health and ethical standards for all circumcisers (see discussion from page 21).

(5) The form of the law regulating circumcision in Australia should be as accessible, certain, consistent and enforceable as is practicable to achieve its substantive ends.

The weaknesses of the current form of the law regulating circumcision were identified at the end of each chapter. These weaknesses were summarised at the start of this chapter (see discussion from page 141). There would be broad community support for efforts to reform the law regulating circumcision to make it more accessible, certain, consistent, and enforceable.