Zenas Baer: the Medical System and the Judiciary ignore the illegality of Circumcision

Zenas Baer (J.D.) discusses the events that led him to study the legal issues surrounding the circumcision of children.

(slightly modified)

I am circumcised.

My first child was born in 1989—a son—and we had a birthing plan which basically said “No circumcision”. I really had no stake in [that particular decision]; my wife [had done] the research, [and she] said there is no reason for it, so I just went along for the ride—it didn't bother me one way or the other as to whether or not my son was circumcised. So, [the issue] hadn't come up on my consciousness's level. All three of my sons were [not] circumcised.

Then came along Jody McLaughlin and Duane Voskuil, early pioneers in [the Intactivist Movement]. They asked me to review a case against the state of North Dakota, [where legislators] had just adopted the [ban of] female genital mutilation [(FGM)] in 1996; [they] asked me to sue the state based on equal protection [(based on the fact that a girl's genital tissue is protected, but a boy's genital tissue is not]).

It was a novel approach. Initially I [was uncertain of the idea]. I talked to some of my brothers about it, and they were sort of indifferent [and thought it is] “a weird issue”. I reflected on it some more, and I thought it really is a classic violation of equal protection, so I went for it, and that's how I became involved in the issue, and I have become more and more convinced that [circumcision] is a barbaric procedure that serves no medical purpose. As a human right, [a male] needs to be able to make that decision when he reaches the age of majority.

The foreskin is a natural covering for the penis; it is part of a human being. The Constitution of the United States at least guarantees that no property will be deprived of an individual without due process of law; the basic human right is the right to bodily integrity, which is guaranteed by a number of international conventions and the United States' Constitution, and the constitutions of most of the [individual] states, as well. So, it is that basic human right that is impacted by routine circumcision [(that is, by the forcible circumcision of a completely healthy child)].

Personally, I don't have an ax to grind; I don't have any anger—that I'm aware of, at least—other than my disappointment that the legal system does not honor the constitutional rights of [a] one-day old infant—[the powers that be] allow the parents' discretion and the medical doctors with their surgical intruments to trump that one-day old infant's constitutional rights.

I subscribe to a library service for lawyers called Westlaw, and [when] I [do a search for] “circumcision informed consent”, 5 of the first 20 cases that pop up are my cases; the first case that I find is:

Fishbeck v. State of North Dakota

That was the initial, landmark challenge to the FGM statute which had been recently adopted in the state of North Dakota, through the efforts of Jody McLaughlin and Duane Voskuil to sue the state of North Dakota for not protecting the baby boy who was born and cut with the consent of the father over the objection of the mother; that case was dismissed out of hand without [even] a hearing, on the basis that there was no standing: Mrs. Fishbeck could not get the foreskin back (the foreskin was gone), so there was no “remedy”—[thus], there was [supposedly] no case or controversy (I should point out that courts [many times] use this Article III “standing argument” to avoid making decisions).

So, I think it's necessary for [the Intactivism Movement] to take repeated runs at the Judiciary [in order] to force them into [this] absurd position of saying a person who has had the most sensitive part of his body removed—without any process at all, let alone due process—is not entitled to challenge a statute that protects female genital tissue but allows medical doctors and parents to diddle and cut off genital tissue [from] baby boys.

In the cases that I've handled, my experience has been that parents (who are the ones [eagerly] anticipating the birth of their child) [have their joyous occasion] interrupted by [being told by a medical professional that they face an immediate need to make a decision about circumcision]. Most of the parents [with whom] I have discussed [this] issue state that a nurse came into the room, asked them to sign a form or asked them “Have you made a decision on circumcision?”; if the parents [consent], they sign the form, or [the medical personel] just take the child away and circumcise [him]. So, there's very little discussion, at least according to the parents [to whom] I have talked.

Now, that may have something to do with [parents'] inability to remember everything that is said, but I suspect that it is ingrained in the [medical] system; circumcision has developed as a procedure that is [regarded as a] parental choice [beyond even the question of medical necessity], and the medical system—whether it be the hospital or the doctor—is there to please the parents:

Do you want fries with that [burger]?

This is the hospital's way of delivering this good to increase the revenue that the hospital gets [via] reimbursement from insurance companies or medicare/medicaid. So, [routine circumcision] is a revenue-driven procedure that is promoted by the hospital staff.

[Until the birth, many] parents don't know what gender their baby is going to be, so they don't know whether they have to make that decision; they're asked to make a decision on circumcision within a short window of time. I have had parents who have told me that the nurse came into their [hospital] room and [casually] asked “Have you made a decision on circumcision?” The parents looked at each other and said: “I guess...”, and [their child was taken away] and circumcised. These parents later told me that they had no clue that circumcision even [involves] the cutting of skin; it's a procedure [about which] at least these parents had no concept—they had never seen or had experience with an intact penis, and they [told] me that they would never have consented to the procedure if they [had] known there [are] risks:

  • meatal stenosis
  • skin bridges
  • loss of sensitivity
  • loss of functioning tissue
  • [death]
  • etc.

I've always been troubled by the federal (and some state) statutes that ban [female genital mutilation], because they're gender-specific; at least the [peoples] who [practice FGM actually practice genital cutting] on a gender-neutral basis: males and females [are] treated equally.

Now, I'm not suggesting that females ought to be altered and have their genitalia modified in any way—I think it's abhorrent to the individual rights of the person to whom it's being done—but I think we as a society are cultural snobs [when we confront] these tribes [who have] these customs that actually alter female genital tissue—[when we] make a hue and cry out of that procedure, yet turn a blind eye to the genital cutting that is [happening] on a daily basis [to] one-day old baby boys in our hospitals [at the hands of] medical doctors in white coats [who] are supposed to be caring for the children.

[This brings us to the debacle surrounding the failed attempt in 2010 by the American Academy of Pediatrics (AAP) to encourage doctors in the U.S. to help certain African and Muslim communities perform a ritual nicking of just the clitoral hood of a young girl as part of a religious rite]. I understand it was an attempt to accomodate the religious views of those people who [think] it is [an] important [part] of their belief system to have a ceremonial nick in the genital tissue of females. [Even though the AAP tried to avoid outrage by officially noting that such a nicking would be far less extensive than male circumcision], the AAP apparently got an earful of objections to the throught that they would tolerate any cutting of [female] genital tissue—[criticism] which I think they ought to review and adopt for boys as well; unless there is [an immediate medical necessity, such genital cutting] should not be done.

I have reason for optimism.

I think part of my optimism stems from the fact that the foreskin is always going to be there—it is always going to be [viewed] in the eyes of the cutters [as] a nuisance that nature has put on your penis, [but] the genes are not listening to the cutters; that foreskin will always be there. [Eventually], those people in authority [will hear our remonstrance] that it is wrong to violate the individual rights of that baby boy to the [extreme] extent of cutting [away] the most erogenous tissue of that [person's] body.

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