Justifying FGM and Male Circumcision

?Female Genital Mutilation and Male Circumcision: A Justifiable Double Standard?

By Andrew DeLaney

[email protected]

St. John?s University School of Law

International Human Rights Law

Professor McGuinness

May 13, 2013

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PREFACE

?Have you made a decision yet?? The young couple seated across from the doctor seems apprehensive and unsure as he asks the question. They are anticipating the birth of their first-born son and are faced with one of the first parenting decisions all American families who are having a boy are confronted with: whether or not to circumcise. The doctor informs them that while the procedure is not necessary, he recommends it for a number of reasons: lessened risk of infections, STD?s and overall improved hygiene. Furthermore, the procedure is extremely safe and rarely results in any complications. When the couple voice their concern and ask whether the baby will feel any pain, the doctor allays their concerns by saying that the procedure is quick, simple and that any pain the baby feels he will never remember anyway; far better to have the procedure get done and over with, rather than wait until later when it is more painful, difficult and risky. He also informs them that, although they don?t have any religious requirement for it, they should consider social and cultural factors, namely that not getting the procedure done might make it difficult for him to fit in with his peers. The couple agrees. In the end, they decide that their son will be circumcised.

Across the Atlantic Ocean, in Mauritania, a family is faced with a similar decision but with a twist that might seem bizarre to those who have never travelled outside of the United States or Europe:[1] it is their daughter, not their son, whom they are deciding whether or not to have ?circumcised.?[2] For several months preceding the birth of their daughter, they had spent considerable time with and grown extremely close to a Peace Corps. volunteer who had been living in their village, Allison Slack, to the point where they wanted to name their daughter after her. They also spent considerable time discussing with her the decision of whether or not to ?circumcise? their daughter: something that most families considered as a given to do. 80-90% of girls in the country undergo the procedure within two weeks of birth, and those who don?t face potential social ostracization and diminished marriage potential. As such, there is tremendous familial pressure to conform and have the procedure done. This family, however, has reservations about the practice. They have taken to heart much of what their newly made Peace Corps. friend has told them: the physical and psychological problems that stem from the procedure and that the procedure is unheard of in most other parts of the world, where it is considered mutilation. In the end, they decide not to have their daughter ?circumcised,? confident that their prominent and well-respected standing in the community will render them and their daughter immune from a lot of the stigmatization another family might face.

INTRODUCTION

To some, it might seem bizarre or even offensive to treat the families? respective decisions in the preceding hypothetical as being in any way comparable to one another. After all, male circumcision[3] is somewhat of a social norm in the United States, is a religious mandate for two major religions[4] and for a long period of time has been touted as having a host of medical benefits. Female ?circumcision,? often referred to as female genital mutilation[5], on the other hand, is virtually unheard of as a contemporary practice in western countries, and, as this paper will discuss, has received wide condemnation over the past several decades as a human rights abuse. To someone who lives in a culture where MC is the norm and whose only exposure to FGM is through media reports highlighting it as a severe human rights violation, it might be extremely difficult to reconcile a practice that seems ?normal,? and that they themselves have undergone or have chosen for their kids, MC, with one that is deemed a violation of human rights, FGM. This factor, combined with the variety of controversial factors mixed into the issue, makes it an extremely difficult one to discuss rationally and evenhandedly without letting personal biases get in the way; religious rights, parental rights, children?s rights, pain inflicted on children, sexuality, social norms, cultural biases, and imperialism all play into both FGM and MC. As a result, a slew of factors that are likely to result in emotionally charged responses all exist in both FGM and MC, making truly factual assessments of the two practices extremely difficult. Nonetheless, this paper will examine the varying manner in which international law treats FGM in comparison with MCand whether the physical and/or cultural differences in the two practices are such to warrant any differing treatment under international law. The paper will look at any similarities or differences in medical rationales, cultural or religious rationales, harms that result and whether the international law that has condemned FGM as a human rights violation can be reconciled with the fact that MC, for the most part, has gone largely unaddressed from a legal standpoint.

INTERNATIONAL LAW ON FGM

Recently, at the end of 2012, the UN for the first time drafted a resolution calling for the outright ban of all forms of FGM.[6]In drafting it, the UN noted that its resolution was the culmination of over three decades of work by activists seeking to draw international attention to FGM and that it was a consolidation of several treaties, comments, findings and recommendations addressing the specific harms of FGM.[7] It recognizesFGM as irreparable, irreversible abuse that impacts negatively on the human rights of women and girls and as a harmful practice that constitutes a serious threat to the psychological, sexual, and reproductive health of women and girls, specifically noting that it increases vulnerability to HIV, and can cause adverse obstetric/prenatal outcomes, with fatal occurrences to mother and newborn possible.[8]It also noted its concern about an increasing number of the procedures being carried out by medical personnel and the fact that up to 140 million women and girls have had it done to them and that it is practiced in 26 countries.[9]

Prior to the adoption of this resolution calling for an outright ban, the UN has taken a number of steps to frame FGM as a violation of human rights and has done so on a number of different grounds. One of the most prominent grounds for FGM being a violation of human rights under international law is that it is a form of discrimination against women.The first step in regulating FGM on these grounds came with the UN?s adoption of CEDAW[10] in 1979, a treaty that addresses violence against women and gender based violence.[11] While the treaty itself does not specifically mention FGM, the language it uses created a precedent for regulating FGM as a form of gender based violence. It defines gender based violence as any violence directed against a woman merely because she is a woman that affects women disproportionately, including acts that inflict physical, mental or sexual harm or other deprivations of liberty.[12]Furthermore, article 5 of the treaty urges states parties to take measures to eliminate ?customary and all other practices which are based on the idea of the inferiority or superiority of the sexes or on stereotyped gender roles.?[13]Using this language, FGM was specifically brought within the ambit of the treaty in 1992 with general recommendation 19, which states that FGM is a manifestation of traditional attitude where women are subordinate and confined to stereotypical roles, and that the practice is a means of controlling women.[14]Moving forward from that point, the UN has continued to refer to FGM as a discriminatory act of violence against women.[15]

In 2003, the African Union followed the same approach in calling for an end to FGM.[16] In the Maputo Protocol, it defined ?discrimination against women? as any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects destroy the recognition, enjoyment or the exercise by women and ?violence against women? as all acts perpetrated against women which cause or could cause them physical, sexual, psychological and economic harm. As such, Article 5 states that ?state parties shall prohibit/condemn all forms of harmful practices which negatively affect human rights of women and which are contrary to international standards.?[17] It defines ?harmful practices? as all behavior, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity and specifically includes FGM within this category, regardless of whether the procedure is carried out in medical or non-medical settings.[18]

FGM has also been regulated on the grounds that it is a dangerous and harmful practice in and of itself, irrespective of whether or not it discriminates against women, so much so that it has been found to be sufficient for an asylum claim on the basis of ?past persecution.?[19] Regardless of the method or severity[20] of the form of FGM,[21]it has been found to be a ?painful, physically invasive, psychologically damaging and permanently disfiguring process of mutilation?[22] that ?clearly inflicts harm or suffering on those who endure it?[23] and is grave enough to consistently constitute persecution.[24] In terms of the specific harms that arise from FGM, courts have cited to findings made by the WHO[25] that show a number of physical and other harms stemming from the procedure. It is extremely painful, temporarily incapacitating, and permanently disfiguring.[26] It exposes the girl or woman to risk of serious, potentially life threatening complications such as bleeding, infection, urine retention, PTSD, shock, psychological trauma, and damage to urethra.[27] It can also result in permanent loss of genital sensation and can adversely affect sexual and erotic functions, according to the INS Resource Center.[28]While the Kasingacase involved the severest form of FGM, the WHO has found that even milder forms of FGM can cause problems like infection and hemorrhaging.[29] The UN specifically addressed the physically damaging elements of the practice in 2002, saying that cultural practices that involve severe pain and suffering and that do not respect the integrity of the female body must receive maximum international scrutiny and attention, specifically including FGM as a cultural practice that ?brutalizes the female body.?[30]

Some countries have gone as far as to label FGM torture and a violation of CAT[31] and the European Convention on Human Rights[32]. Under article 16 of CAT, states ?shall undertake to prevent acts of cruel, inhuman, or degrading treatment or punishment?[33] and under article 30 of the ECHR, ?no one shall be subjected to torture or to inhuman or degrading treatment or punishment.?[34] On these grounds, England[35] and Canada, labeling FGM a ?torturous custom,?[36] have both granted asylum to women fleeing countries in which FGM is practiced. The European Court of Human Rights has done the same, saying FGM amounts to ill treatment contrary to article 30 of the ECHR.[37]The UN has also said that FGM constitutes ?torture or ill-treatment.?[38]

As far as the increasing proportions of FGM?s that are being carried out by medical personnel, ICESR[39] has been used to address this. Under article 12(1) of the treaty, every person has the right to the highest standard of physical and mental health[40] and states are obligated to prevent women from having to undergo traditional practices, like FGM.[41] As such, the medicalization of FGM does not in any way make the practice acceptable and where public hospitals carry it out, common in some countries, it constitutes a violation of human rights.[42] Anytrained medical personnel who nonetheless carry out FGM are not only violating the human rights of those who are undergoing the procedure, they are acting in direct defiance of the medical ethic ?Do No Harm,?[43] since there is ?no legitimate reason? for FGM according to the WHO.[44]

The final grounds by which FGM has been regulated is as a violation of the rights of children under the Convention of the Rights of the Child[45] (when the procedure is carried out on minors). Under article 24(3) of the CRC, state parties ?shall take all preventive and appropriate measures with a view to abolishing practices prejudicial to the health of children.?[46]Furthermore, state parties shall ensure children?s rights without discrimination of any kind, irrespective of the child?s or his/her parent?s race, color sex, language, religion, political or other opinion, national, ethnic or social origin.[47] State parties shall also protect the child from all forms of physical and mental violence, injury/abuse and maltreatment while in the care of parents[48] and no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.[49] On these grounds, Canada granted asylum to a Somali refugee, who feared her daughter would be forced to undergo FGM if they remained in Somalia.[50] In granting refugee status in the United States, a court found that ?the consent or involvement of parents (in FGM) does not change the analysis.?[51] The WHO affirmed this status by explicitly labeling FGM a violation of the rights of children when it is carried out on minors.[52]

It is important to note that under international law, neither religion, culture, nor social acceptance may be invoked to provide any excuse for FGM to be practiced.Under article 27 the International Covenant on Civil and Political Rights[53], ethnic, religious and cultural minorities are granted the right to profess their own religion, with the right to freedom of thought, conscience and religion.[54] There are limits to this general right, however. It is subject to the limitations prescribed by law and necessary to protect public safety, order, health, or morals or fundamental rights and freedoms of others.[55] With this being the case, the UN, in a move that predated the adoption of the CRC, stated in 1981 that ?practices of a religion or beliefs in which a child is brought up must not be injurious to his physical or mental health or to his full development.?[56] As such, the UN has asserted on multiple occasions that states should not invoke custom, tradition or religious considerations to avoid their obligations with respect to their obligations to eliminate FGM.[57]

Furthermore, whether FGM constitutes a human rights violation is not predicated on the social and cultural context in which it is carried out. As courts have held in granting asylum on the basis of FGM, the subjective intent to harm is not necessary for FGM to be deemed ?persecution.?[58] In fact, persecution being widespread within a given society, as is often the case with FGM, does not alter the normal approach to determining refugee status or make a particular claim less compelling,[59] nor does its cultural acceptance.[60] Persecution simply requires that the perpetrator cause victim suffering or harm and does not require that the perpetrator have any malevolent intent.[61] It cannot depend on whether it is rational from the point of view of the persecutors.[62] Thus, a given culture?s acceptance of FGM does not make the practice justifiable under international law.

DOMESTIC LAW ON FGM

As international law has largely condemned FGM, individual states have passed laws of their own towards the practice. In part in response to the increased awareness that the Kasingacase brought to the Western world in regards to FGM, the United States passed a law banning FGM in 1996.[63]While providing an exception for the health of the woman, or for medical purposes connected to childbirth, it grants no exception for a person?s good found belief that it is part of custom, ritual or religion, stating that ?Whoever knowingly circumcises, excises, or infibulates all or? part of the labia majora, or labia minora or clitoris of another person who has not attained the age of 18 shall be fined?or imprisoned not more than five years.?[64]In passing the law, Congress made the following findings: 1.) FGM results in the occurrence of physical and psychological health effects that harm the women involved, 2.) FGM infringes on the guarantees of rights secured by federal/state law and 3.) FGM can be prohibited without abridging the exercise of any rights guaranteed under the Freedom of Religion Clause.[65]

More noteworthy is the fact that several nations in which FGM was an entrenched practice have taken legal steps against it. Benin (2003), Burkina Faso (1996), Ivory Coast (1998), Djbouti (1995), Egypt (1996), Ghana (1994), Niger (2003), Senegal (1999), Tanzania (1998), Togo (1998)[66] and Indonesia (2006)[67] have all passed laws banning FGM. It should be noted, however, that Indonesia repealed its ban in 2010 when it was found that the practice was being driven underground and increasingly being done under more dangerous conditions.[68] It should also be noted that, aside from Burkina Faso (where 400 prosecutions for FGM have been brought), prosecutions for carrying out FGM are rare to the point of being unheard of.[69]Thus, considering the abject lack of action on the part of the majority of these states, one is left to wonder whether they truly take seriously their commitment to ending FGM or they are merely passing nominal bans in response to international pressure.

REGULATION OF MALE CIRCUMCISION UNDER INT?L/DOMESTIC LAW

Compared to FGM, regulation of MC under both international and domestic law has been more scant up to this point. It is only within the past 10-15 years that MC has started to gain more widespread attention as a potential human rights violation. The UN formally addressed MC for the first time in 2002,[70] by introducing a report from anti-circumcision NGONOCIRC, in which several points were addressed. First, it claims discrimination on the basis of sex is barred under article 13 of the UN Charter, article 2 of the ICCPR, article 2 of the CRC and article 7 of the Universal Declaration of Human Rights[71], which states that ?all are equal before the law and are entitled without any discrimination to equal protection of the law?, and that in light of the harms of MC, it is in fact discrimination to regulate FGM, but not MC under the law.[72] It notes that MC entails significant pain, causing permanent and severe harm, with extensive loss of erogenous tissue and that false beliefs perpetuate the practice.[73] It also points to several instances in which MC against the will of the person undergoing it was addressed as a violation of human rights. In 1991, Germany awarded asylum to a Turkish man based on his fear of enforced circumcision, saying: ?There may be no doubt that a circumcision which has taken place against the will of the person affected shows a violation of his physical and psychological integrity, which is of significance to asylum.?[74]More recently, a report from Indonesia noted with concern that Christians were being forcibly circumcised and women being forced to undergo FGM.[75]Nonetheless, aside from introducing the anti-circumcision NGO?s report, the UN has done little to nothing in terms of taking a formal legal stand against MC like it has done for FGM. In fact, a UN Special Rapporteur on FGM has explicitly stated that in her consideration, ?the harmful effects of male circumcision cannot in any way be compared or equated with the violence, danger and risk faced by girls.?[76][77]

Under domestic law, the only country to have taken some steps to regulate MC under the law is South Africa.[78] In a law modeled on the CRC, MC in boys under the age of 16 is banned on the grounds that it is every child?s right to ?refuse to be circumcised,? but the law?s exceptions substantially weaken its efficacy.[79]

Aside from this, however, efforts to make MC illegal elsewhere have been met with strong resistance. In 2012, a regional court sitting in the Cologne region of Germany ruled that MC was a criminal offense under German Civil and Criminal Code, in a case involving a Muslim boy who was to be circumcised. In ruling MC to be ?grievous bodily harm? in violation of the law, the court held that ?the fundamental right to bodily integrity trumps parental rights? and that ?the right of the parents to raise children in a religion does not override the rights of the child.?[80] The court further held that religious freedom would not be impaired by the ruling since the boy could decide for himself if he wanted to be circumcised later on.[81] The ruling sparked an outcry among both Muslims and Jewish groups in Germany and abroad, to the point that the German ambassador to Israel was called before a Parliamentary Committee.[82] Germany eventually relented to the pressure, acquitting the doctor who had performed the circumcision[83] and even passed a law later that year that expressly legalizes MC.[84]

Efforts to have MC made illegal have met similar resistance in the United States. In 2011, a group of activists in San Francisco gathered enough signatures to put a proposed ban of circumcision on a referendum ballot. The proposed law provided that ?it is unlawful to circumcise, excise, cut or mutilate the whole or part of the foreskin or penis of another who has not attained the age of 18.?[85] The only exception was if it was ?necessary to physical health because of clear, compelling and immediate medical need with no less destructive alternative treatment available.?[86] There would be no account made for religious belief under the proposed law. A similar proposed bill was introduced in Santa Monica, but before either bill could go to a vote, a backlash against the proposed measure ensued among Jewish groups raising claims of anti-Semitism.[87] The state of California responded to this pressure by passing a law that would ban any bans of circumcision by municipal or other local statutes.[88] The law precludes local statute from ?prohibiting or restricting the practice of male circumcision or the exercise of parental authority with respect to male circumcision.?[89] In doing so, it found that ?male circumcision has a wide array of medical and affiliative benefits? and that the 14^th amendment allows parents to direct the upbringing of their children.[90] A group of 11 U.S. representatives[91] introduced a similar bill that would have made any local or state bans of MC illegal under federal law.[92] It provided that ?no state (or local subdivision) may adopt or continue a law that prohibits or regulates the circumcision of males under 18 and whose parents has consented unless the law 1.) applies to all circumcisions and 2.) is limited to ensuring that all such circumcisions are performed in hygienic and safe manner.?[93] Its findings included that 1.) ?male circumcision carries significant medical benefits, including lower risk of STD?s, certain kinds of infection and overall improved hygiene,? and 2.) ?male circumcision is important part of many world religions, including Judaism and Islam, and observers have safely embraced its practice for generations.?[94] The proposed bill died in the House.[95]

The only successful means of regulating MC in the United States have been small restrictions placed on certain forms of circumcision and limiting government payment for MC. One such small restriction has been on a method of MC common among many Jewish groups.[96] In this method of MC, the rabbi, or Mohel, places his mouth on the boy?s wound after the circumcision is complete.[97] In response to several babies contracting Herpes from rabbis (11 confirmed cases), with two babies dying and two others becoming brain damaged, the City of New York attempted to regulate the practice by prohibiting ?oral suction? by rabbis without the consent of parents.[98] Groups such as the Anti-Defamation League[99] were outraged at the attempts being made to regulate what they saw as a sacred tradition to the Jewish religion.[100] The ADL?s attempts to have the practice be allowed to continue without parental consent failed, however, and it is now a requirement in New York for rabbis to obtain the consent of parents before they perform ?oral suction? following a circumcision.[101]

Another means that has been used to regulate MC, has been limiting the ability of insurance or other third party payers to cover the procedure, something that previously had been a common form of payment for MC. Starting in 1965, Medicaid began covering MC under Title XIX of the Social Security Act[102] and since then, 29% of all MC?s performed have been covered under Medicaid.[103] Some state governments (18 in total)[104] have eliminated payment for MC under their state Medicaid programs, labeling the procedure as ?cosmetic.?[105] Aside from these limited measures, however, MC remains entirely legal and unregulated within the United States.

ANALYSIS OF DIFFERING LEGAL TREATMENT OF MC/FGM

As has been discussed, there is a tremendous difference in how the law treats FGM in comparison to MC; the former is addressed under international law and widely condemned while the latter has gone largely unregulated with the few exceptions noted above. The question is whether this approach is justifiable under international law based on the reasons given for taking such a strong stand against FGM (that it is discriminatory against women based on both intent and disproportionate resultant harm, that it is a form of torture, that it deprives women of the right to the highest standard of medical care and that it violates the rights of the child when done on minors).

As discussed, one of the primary reasons for regulating FGM under international law is that it is discriminatory against women. Based on CEDAW and the laws that have followed it, FGM has been regulated on the grounds thatit is discriminatory in its intent and the disproportionate harm to women that results as an outcome (two necessary prongs to be considered discriminatory under the law).[106] Assessing whether this is a proper means of regulating FGM under the law, starting with prong 1 (discriminatory intent), first requires an understanding of the origin of the FGM eradication movement and the effect its initial presentation had on shaping the perception of the practice. It might come as a surprise to some that the contemporary FGM movement is not only relatively young, but that its origin in the 1970?s can be traced almost entirely to one individual: an American activist who spent time in Africa, named Fran Hosken. It was her 1979 report[107], based on witnessing FGM while visiting Sudan, that later provided a substantial part of the framework for how FGM was presented through the UN and other international human rights bodies. Prior to this point, FGM was barely a blip on the radar screen as far as the international human rights community was concerned and sporadic attempts by religious missionaries to have the practice abolished throughout the earlier parts of the 20^th century were unsuccessful.[108]Hosken, however, was far more successful in bringing international attention to FGM, in part because of the unique socio-political situation that existed at the time that made the western world and the international human rights community particularly receptive to the points she was making. The Civil Rights Act of 1964, the founding of NOW[109] in 1966, the passage by Congress of the Equal Rights Amendment in 1972[110] and the Sexual Revolution of the late 1960?s and early 1970?s all helped in bringing women?s rights into the general public consciousness. Thus, when Hosken presented FGM as ?an obscene cruelty invented by men to control and debase women? and that African men ?dominate their societies and impose genital mutilations,? it had an enormous impact on those who likely had little familiarity at all with FGM or even African culture in general. This framework was adopted by UNICEF, which describes FGM as ?a manifestation of deep rooted gender inequality that assigns women an inferior position within society? and a practice rooted in ?gender violence,?[111] the WHO, which describes FGM as reflecting ?deep rooted inequality between the sexes and constituting extreme form of discrimination against women,?[112] Amnesty International, which claims it is rooted in patriarchy and gender identity, and others who describe it as a means of subjugating women in deeply patriarchal societies, used as a tool to control female sexuality.[113] This framework has been instrumental in shaping the approach to FGM under international law.

Hosken?s presentation of FGM, however, is not a true and accurate representation of FGM and the motives behind it. The facts suggest the motivations behind FGM are far more varied and nuanced than the universal patriarchal motivation Hosken imagined in it. For one, the practice of FGM is almost exclusively carried out by women, with men playing almost no role in the practice whatsoever.[114] In fact, it is often men, more so than women, who favor discontinuing the practice.[115] Many women in countries that practice FGM even look upon the practice positively,[116] with one anti-FGM activist conceding that the practice is viewed as empowering by the women of the societies in which it is practiced.[117] As such, when Kenya was under British colonial rule in the 1950?s and a group of men ruled that FGM would be banned, the women of the country were outraged and girls responded by performing it on one another as an act of empowerment and rebellion from colonial rule.[118] Furthermore, a survey of mothers in Egypt done by the Institute of Nursing at Zagizaig University showed that the vast majority of those who had undergone FGM themselves would do the same for their daughters. Of those surveyed, only 4% resented having the procedure done to them and even they said FGM eradication was not a pressing issue.[119] A survey of Sudanese women showed similarly high levels of approval. Among 3805 women surveyed, 89% of whom had undergone FGM, 96% said they would do it to their daughters and 90% favored the continuation of FGM generally.[120] Generally, African women perceive FGM eradication efforts as condescending and derogatory towards their culture, with one Somali woman characterizing it as ?offensive to the black person or the Muslim person who believes in circumcision.?[121] Thus, to paint FGM with the broad stroke of being the tool used by men to enforce their dominance against unwilling women is not an accurate one.

While the support of FGM by women does not completely disavow the notion that it is driven by discrimination (there are some who believe that African women are incapable of determining for themselves and also some studies show waning support among women for the continuation of FGM[122]), the idea of discriminatory intent behind FGM is strongly undermined when the rationales for it are viewed in a side by side comparison with those for MC. This is made easier by the fact that there is almost no culture/society that practices FGM but not MC, and the rationales for each are remarkably similar.[123]One of the most common rationales is social/cultural conformity and tradition. With the practice of FGM dating back to 425 BC,[124] many feel that it reinforces the cultural/social link the custom establishes within their community and plays a crucial role in the creation of religious beliefs and social relations.[125] Thus, FGM is fundamental to tribal psychology, a mark of identity that allows a group to gain legitimacy as an autonomous unit,[126] with abandonment of the practice seen as a loss of status and protection.[127] In addition to this, according to UNICEF and Human Rights Watch, other motivations include the belief that the practice makes a woman cleaner, more hygienic and more beautiful, with women and girls not having undergone the procedure viewed as unhygienic and not as aesthetically pleasing.[128] Thus, there is tremendous social value in having the procedure done and women who have not undergone it are stigmatized and looked down upon by other women.[129] To be called ?uncircumcised? is a tremendous insult and as a result some women recall that they were excited once they were able to announce that they themselves had been ?circumcised.?[130] In fact, one female researcher experienced this stigma firsthand while working in a rural part of Africa where many women did not realize that ?non-circumcising? groups existed. Upon discovering that the researcher had not undergone the procedure like they had, the women in the village were disgusted and laughed jokingly, wondering aloud how she could find a husband being ?uncircumcised.?[131] While some note that societal peer pressure is the main reason why women and girls might view FGM favorably,[132] one need not even look outside of the United States to see that the same rationales are driving forces behind perpetuating MC, thus weakening any claim that these rationales are specific to FGM. The American Academy of Pediatrics, in their most recent policy statement on MC, highlights the importance of cultural beliefs in the practice and notes that these considerations may likely outweigh any medical benefits.[133] The group of House Representatives who attempted to introduce a bill banning any bans on MC noted ?overall improved hygiene? as one of the alleged benefits of MC.[134] Furthermore, when the issue of MC has come up on television programs, the idea of someone not having undergone it is frequently met with disgust, revulsion and derision.[135] This has led anti-FGM activist Hanny Lightfoot-Klein to state that: ?The reasons given for female circumcision in Africa and for routine male circumcision in the United States are essentially the same. Both promise cleanliness and the absence of odors as well as greater attractiveness and acceptability.?[136] With this being the case, the similarities between the rationales for MC and FGM are so strikingly similar, it is hard to see how these rationales for FGM could be used to advance an argument that discrimination is a motivating force.

There are two other rationales that if viewed on their own, not in conjunction with MC, might make a stronger argument for discriminatory intent. The first is that FGM is necessary to properly enforce gender roles.[137] This ignores the fact that many cultures that use this as their basis for FGM also use it as the basis for MC.[138] They believe that both sexes are androgynous at birth and that the ?male part,? the clitoris, must be removed from the girl and the ?feminine part,? the foreskin, must be removed from the boy before they can become women and men in civilized adult society.[139]Thus, when both procedures are done, it is often a celebratory event[140] that marks a coming of age of the participants into the full membership in the community.[141]

The other rationale that might provide the strongest argument for FGM being driven by the intent to discriminate, if not for a similar rationale existing for MC, is that the procedure is done in some cultures to reduce a woman?s libido and to ensure premarital virginity and marital fidelity.[142]On its face, this would seem to be compelling evidence that FGM is in fact driven by the intent to discriminate against women.There are several factors that undermine this argument as well, however. For one, the desire to control a woman?s sexuality is not universal to all cultures as a motivating force behind FGM. Both matriarchal (the Kono) and patriarchal (Kikuyu) tribes alike take part in the practice while some of the most patriarchal societies in the world (such as Saudi Arabia and Afghanistan) do not.[143] Among these cultures, the rationales for FGM vary.[144] Thus, it is inappropriate to make a blanket statement that FGM is done to control women?s sexuality, as if this is the sole driving force behind it, when this applies only to a select percentage of cultures that practice it. More importantly, when one traces back the origin of MC in the United States in the late nineteenth century, there are striking similarities in terms of the rationale given. Many are unaware of the fact that, before it was touted as having a host of medical benefits, MC was first introduced as a means of limiting the sex drive, in particular curbing masturbation.[145] Thus, while these claims provide the strongest support for a discrimination argument, it is not enough when taking into account the fact that MC was introduced into the United States for significantly comparable reasons and that a substantial proportion of the cultures practicing FGM do so for reasons completely unrelated to controlling sexuality.

The next question is whether the harms suffered by women are so much greater than those suffered by boys who undergo MC that the end result is a discriminatory outcome against women. There are several forms of FGM, with varying severity. In its most severe form, which is sometimes called ?infibulation? or Pharaonic circumcision, and which accounts for 15% of FGM?s (primarily in Sudan), there can be substantial harms and complications that result.^[146]These include shock, hemorrhage, urine retention, injury to nearby tissue, recurrent bladder infections/UTI?s cysts, infertility, increased risk of childbirth complications and even death.[147]This is the form that FranHosken sawprior to making her report that was instrumental in spearheading the modern FGM eradication movement[148] and is the form from which most of the health information is drawn regarding the negative medical outcomes.[149] The law, however, does not differentiate between degrees of FGM and all forms are equal under international law.[150] This is in part because medical problems predicated on the lack of skill ofthe practitioner and unsanitary tools, such as HIV,[151] tetanus,[152] bacterial vaginosis and Herpes[153] are dependent not on the severity of the FGM but rather the conditions in which it is carried out.[154] As 82% of FGM?s are done in non-medical settings,[155]a substantial percentage are subject to these potential conditions.Thus, included under the law is a form of FGM done primarily in Islamic countries, called ?sunna circumcision.? It accounts for 32% of FGM?s and is medically and physically comparable to MC, involving the removal of only the prepuce.[156]

With obvious physical differences only playing a role in differentiating MC from a portion of the forms of FGM that are regulated under international law, the question is whether the resultant harms of MC are insubstantial enoughcompared to the FGM?s covered under the law as to merit differing legal treatment. That is not the case given the facts. For one, problems that stem from unsanitary conditionsare not solely or disproportionately affecting girls and women. A study reflecting this shows that there are substantially higher HIV rates in virgins who have undergone both MC or FGM over those who have not.[157] It suggests that the increased rate of HIV(which the UN cites as one of its reasons for moving to ban FGM) is not limited only to girls,[158] since the medical problems stemming from unsanitary conditions can impact boys who undergo MC just as much as it can girls who undergo FGM. In fact, as the Herpes case discussed earlier shows,[159] this is a problem that is not limited to Africa, and has affected and killed boys undergoing MC in the United States as well. In terms of complications resulting in whole or part from lack of skill of the practitioner, these problems are not limited only to girls undergoing FGM either. In fact, one study shows that complications stemming from MC?s done in non-medical settings can be equally substantial to those resulting from FGM. In it, several boys in the village in which the MC?s were carried out died and 5% lost their entire penis as a result of complications stemming from the procedure.[160] Even MC performed in medical settings carries a risk of severe complications, including glanular necrosis (sometimes requiring amputation), excessive bleeding (sometimes requiring blood transfusions), severe infections, urethrocutaneous fistula, skin bridges, meatal stenosis, and even death.[161]

In terms of the adverse effect on ?sexual and erotic function?,^[162] this is not a harm that affects women solely or disproportionately either. There is evidence suggesting that MC can have an adverse effect on sexuality as well. A recent Belgian study involving over 1,000 men shows that MC substantially reduces sensitivity and sexual pleasure and that patients thinking of undergoing the procedure are entitled to this information from their medical practitioner.^[163]

Some might try to argue that the complications just discussed are unlikely scenarios not representative of most MC?s orthat it is unfair to equate MC?s that occur under non-medical, non-sterile settings to MC?s that occur in sterile, medical settings. These arguments have no merit, though, given the law on FGM. For one, the law does not distinguish between FGM done in medical settings and FGM done elsewhere,[164] despite the fact that the increasing medicalization of the practice in Somalia and elsewhere has drastically reduced the possibility of complications, problems and resultant harms.[165]The law also does not account for differences in the age of minors who undergo the procedure, despite the fact that problems associating FGM with infertility and childbirth can be eliminated almost entirely if the procedure is done in infancy, rather than later on.[166] In fact, when doctors at a Seattle hospital were faced in the mid-1990?s with a group of Somali immigrants who wanted their daughters (as well as their sons) ?circumcised? and responded by proposing a minimally invasive procedure far less severe in scope than MC, the proposal was met with outrage that, combined with the Kasinga case, eventually led to the U.S. law banning FGM.[167] Thus, the law against FGM governs all forms of the practice regardless of age of the minor or sterility of the setting in which it is carried out. This is based in large part on the case studies showing the worst possible outcomes,[168] which have resulted in perceived and often real exaggerations of the risk.[169] Along with the fact that UNICEF has conceded that data collection is extremely difficult in regards to the harms stemming from FGM,[170] it is inappropriate to conclude that the harms from FGM disproportionately affect women, given the host of problems, complications and harms that can and do result from MC.

Aside from being regulated on the grounds that it is discriminatory against women (both in intent and outcome) FGM has also been regulated on the grounds that it is a form of torture.[171] This is based on the fact that FGM causes severe pain,[172]and is a physically invasive practice that is psychologically damaging.[173] If this means of regulation is to apply to FGM, however, it must also apply to MC. The pain experienced during MC has been found to be ?severe,?[174] with substantially elevated cortisol and stress response levels in infants during the recovery process from the procedure.[175] Despite the fact that pain response levels are much higher than for blood samplings and injections and that anesthesia can reduce this pain somewhat,[176] anecdotal reports from nurses suggest that the only pain relief frequently given to infants undergoing the procedure is a pacifier dipped in sugar water.[177] This has led Soraya Mire, an anti-FGM activist who underwent FGM herself, to state that ?The painful cries of little boys being circumcised remind me of my own painful experience. It is the norm in my culture to mutilate girls as it is in the United States to mutilate boys.?[178] There are long-term consequences of the procedure as well, disavowing any belief that some might have that once the procedure is over, that infants have no recollection of it whatsoever. For a lengthy period of time after the procedure is over, 90% of infants display altered behavioral states, including disruption of sleep, irritability and latching/feeding disruptions.[179] A study also showed pain responses were stronger in circumcised infants when they were being vaccinated at 6 months than in infants who had not undergone the procedure, suggesting long-term effects that extend far beyond just the immediate recovery period.[180] Thus, if FGM is to be labeled a form of torture under the law, there is strong evidence that suggests the harms resulting from MC make it worthy of this recognition as well.

Another grounds used as a basis for regulating FGM is that it deprives women of the right to the highest standard of health care under the ICESR when done in medical settings.[181] This is often the case because doctors in countries where FGM is practiced have a financial incentive to carry out the procedure and make claims that the procedure will have no effect on the girl, her pleasure or her ability to have a child.[182] Thus, the argument goes that women undergoing FGM in medical settings are receiving inadequate/inaccurate advice from doctors and they are entitled to better medical care elsewhere. The rationale goes that there is ?no legitimate reason? for FGM.[183] This same argument, however, applies to the routine MC?s carried out by doctors on infants in the United States.

There is a strong belief that MC carries with it a litany of medical benefits. After all, both the United States and California House of Representatives described MC as having ?significant medical benefits?[184] and a ?wide array of medical and affiliative benefits?[185] respectively. This set of beliefs is reflected in the most recent Policy Statement on MC issued by the American Academy of Pediatrics.[186] It states that the benefits of MC outweigh the risks, noting a significant reduction in UTI?s the first year of life, lower risk of penile cancer, and lower risk of heterosexual acquisition of HIV[187]. It further claims that substantial complications are rare and that MC does not appear to adversely affect sexual function or sensitivity.[188]

This line of thinking, based on the idea that MC carries a host of medical benefits, is so severely at odds with the rest of the world that it makes the United States healthcare system, which is ranked 38^th in the world by the WHO,[189] appear frighteningly out of step with modern medicine. In response to the AAP?s report touting the benefits of MC, 38 doctors, from 17 different countries,[190] some of them heads or high-ranking members of medical associations in those countries, issued a report that strongly condemns the AAP?s position on MC.[191][192] It notes that the only legitimate medical grounds that might be advanced for MC out of all those touted by the AAP is the reduction of UTI?s, which it states affects only 1% of boys who have not undergone MC and can easily be treated simply with antibiotics.[193] As for the other medical problems (such as penile cancer), it notes that the risk of acquiring this is so insubstantial that it does not justify putting an infant through the procedure. It also notes that the AAP ignores the sexual loss that results from MC.[194] As for the purported increased risk of AIDS, it notes that this has no validity whatsoever in the context of the western world, despite the fact that the Israeli group Operation Abraham[195] is using this as a pretext for instituting mass circumcision worldwide.[196] In fact, a random population study in the United States shows no link between MC and lower HIV risk and the United States has a higher rate of HIV than Europe, where MC is rarely practiced.[197] Additionally, many of the same methodological flaws in the Sub-Saharan African studies used to advance MC as a form of HIV prevention[198] were used in a different study that showed significantly reduced rates of HIV in women who had undergone FGM,[199] perhaps highlighting the absurdity of using MC as a form of HIV prevention. These general sentiments were echoed by former Australian Medical Association?s Tasmanian President Haydn Walters, who said, ?There were a lot of myths around circumcision. They?ve almost all been debunked. Minimal advantages in some circumstances, particularly for infectious diseases, isoverwhelmingly balanced by disadvantages in other areas.?[200] Even within the United States, there are numerous doctors, such as Deborah Squire of Duke Pediatrics, who believe that there are no valid medical reasons behind MC.[201]

Nonetheless, statistics show that the majority of boys within the United States still undergo MC, an industry that generates $270 million for American doctors annually.^[202]Considering this, along with the fact that the AAP explicitly stated in their policy report that third party insurance payers should cover MC[203], there is evidence to suggest that doctors may in part be motivated by financial incentives in their zeal to promote MC here. This is particularly compelling given the fact that the United States is so out of touch with the rest of the medical community worldwide when it comes to MC. In fact, this is not unlike the doctors in a country like Indonesia (which practices FGM), touting the benefits of FGM and reaping the financial rewards.[204] While it might be difficult to reconcile that the United States and its medical industry would be so wrong, it becomes easier to understand when one considers the fact that the U.S. is ranked 38^th in healthcare and stands virtually alone in its touting of medical MC. It would be as if Oman, ranked higher than the U.S. in healthcare at number 8,[205] began widely touting the benefits of FGM. The United States? singular promotion of MC is equally ridiculous. As such, infants subjected to MC by American doctors who are biased based on their cultural convictions or financial motivations, are being deprived of their right to the highest standard of health care under the ICESR, just as much as girls subjected to FGM in medical settings in their countries for similar reasons.[206]

The final grounds by which FGM is regulated is as a violation of the rights of children under the CRC.[207] Since the treaty covers the protection of children from physical injury,[208] torture,[209] regardless of the parent?s consent, [210] and without discrimination,[211] then if one were to accept the arguments just presented, they would apply equally to minor boys undergoing MC as they would to minor girls undergoing FGM under the CRC, since in neither case has the child consented to the procedure.

As a final note, discrimination on the basis of sex is barred by the UN under article 13 of the UN Charter, article 2 of the ICCPR, and article 7 of the UDHR.[212] Thus, if one accepts the arguments in regards to the harms caused by MC, there is no legal basis for a law against FGM but not MC.

RELIGIOUS FREEDOM

Based on how the law on FGM has been structured, along with language in the UN Charter and the United States? common law regarding religious freedom, a legal argument aiming to shield MC from regulation that uses religious freedom as its basis would be hard to come by. For one, the law on FGM mandates that states not invoke religious considerations to circumvent their obligations to ban FGM.[213] This is in part based on the idea that the practice is not a legitimate part of Islam, an idea that was reinforced by the Egyptian high court?s ruling affirming this sentiment,[214] and a statement by a UN Special Rapporteur that FGM is not prescribed by Islam.[215] The practice of FGM is referenced as being preferable in several Hadiths, however, and a former rector of Al-Azhar University, Sheikh Gad al-haq, said that FGM could not be banned under Islamic law.[216] Thus, given the fact that there is some support for FGM as a religious practice, particularly among those who practice it who feel there is a religious element behind it,[217] it is implicit that the harms of the practice are so substantial that they outweigh any concern for religious freedom, especially given the fact that the law expressly states that religious considerations are not to be invoked.[218]

This presents a major problem to those who might seek to defend MC on religious freedom grounds, if one takes the harms of MC discussed in this paper seriously, given domestic law on religious freedom as well as the UN Charter and related treaties. For one, it has been established that the harms of FGM are such that they outweigh religious freedom arguments. Additionally, Article 1, paragraph 3 of the UN Charter states that it is the UN mission to ?encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.?[219] The ICCPR article 27 goes on to state that religious and cultural minorities are free to practice their own religion. Since the UN has made a law against a practice that has at least some degree of religious backing from those who practice it on the implicit grounds that it is harmful, it follows that if the harms of MC can be equated at all with those of FGM, religious groups who practice MC would not be able to defend their practice unless the UN were to give them special, preferential treatment in violation of Article 1, paragraph 3 of the UN Charter and article 27 of the ICCPR.

Under U.S. domestic law, a regulation against MC could very well be legally justified given the facts and law. A law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice.[220] Additionally, one?s religious beliefs cannot excuse one from complying with an otherwise valid law prohibiting conduct the state is free to regulate.[221] As applied to MC, the harms that have been discussed in regards to MC could create grounds for a compelling government interest. After all, infants have died as a result of the procedure,[222] the potential complications are numerous and severe,[223] there is sexual loss associated with the procedure,[224] and any medical support for the procedure within the United States has been the subject of international condemnation by the medical community abroad.[225] Given that a law regulating MC would have a compelling basis given these facts, coupled with the fact that all forms of MC, not just those associated with a particular religion would be covered under a law, the incidental burden on the religious practices of Jews and Muslims would have a difficult time being invoked, based on the law of Smith, which grants no religious excuse for practices that fall within legitimate government regulation.

SOCIAL NORMS AND RELIGIOUS BIAS

In the area of MC and FGM, however, the law takes a back seat to social norms when it comes to driving the perceptional and legal differences between the two practices. These normsdeeply affect not just behavior, but also the way in which data is interpreted. Information that complies with whatever the given norm is tends to be exaggerated while information that does not is discounted in a process known as confirmation bias. When this occurs, people cling to beliefs more than is logically warranted and those initial beliefs may persevere in the face of subsequent invalidation of evidence that the initial belief was based on.[226]Thus, people with strong opinions on complex social issues don?t evenhandedly evaluate relevant empirical data. In the process, hypotheses may become unfalsifiable and might be encouraged by patterns of data that should be troubling.[227]

In few areas is this more evident than in the comparative assessments of FGM and MC. It is safe to say that MC is a norm in the United States, despite any activists? efforts to raise awareness about it. In the words of one law professor describing her generation, ?Everyone was circumcised.? While it may not have scientific muster, it provides some idea of the normality of MC within American culture. FGM, on the other hand, is likely a completely foreign idea to the vast majority of people living in the United States or the rest of the western world, with the only exposure to it being horrific reports that are presented based on cases or reports out of Africa.[228] With this being the case, moral objection to the practice of FGM is taken as self-evident,[229] with research and activism being conflated[230] and data on FGM that is sometimes not actually investigated taken as true.[231] All the while, MC occurs as a completely normalized practice.

Additionally, there is evidence that religious bias plays in as well. It goes without saying that MC is an important part of both Judaism and Islam.[232] By comparison, FGM is expressly forbidden by the Jewish religion.[233] As such, attempts to compare MC and FGM, regardless of what the facts may say, are often met with outright hostility. The ADL has stated that any comparison is ?deeply offensive to all Jews, Muslims and other parents who choose to circumcise their male children.?[234][235] Additionally, a Special Rapporteur for the UN investigating FGM grew verbally abusive at an NGO member?s attempts to question her on why MC was not being investigated with the same degree of rigor as FGM.[236] She berated him by saying that no non-Jews are in a position to discuss MC and that it was against her religion to even discuss such a comparison.[237] An explanation for this comes in part from Jenny Goodman, who claims that any challenge to MC evokes among Jews a collective memory of oppression, whether consciously or unconsciously.[238] Given this, and the facts discussed throughout the paper regarding the harms of MC compared to FGM, the driving force behind the differing treatment of FGM and MC is grounded far more in social norms, misperception and religious bias, than it is in factual reality.

CONCLUSION

Given the facts, there is no meaningful difference between FGM and MC, as shocking a claim as that may be to some, and there is no legal or moral justification for differing treatment under the law. Perhaps because of the sameness of life experiences of human rights activists, who are unable to see beyond their own cultural/religious biases, perhaps because those who do see the facts for what they are, are afraid to be trouble makers or rabble rousers who speak up first and voice their honest opinion, the UN has adopted a course that sends a strong message to the rest of the world that it will only pursue their stated objectives to the extent that it does not conflict with the interests of powerful political and religious groups. With the facts showing such strong similarities between MC and FGM going completely unaddressed both in popular discourse and under the law, one is reminded of the story of The Emperor Has No Clothes, where a situation is so obvious that nobody wants to say anything. That being the case, now is the time for the UN to address this situation. It must either soften its view towards certain forms of FGM, outlawing only those forms of FGM that are truly differentiable from MC and truly cause a disproportionate degree of harm in comparison to MC, or it must stand up to religious and cultural interest groups and take a stand against MC.

 

AUTHOR NAMES AND AFFILIATIONS[239]

1. Morten Frish MD PhD (Dept. of Epidemiology Research, Statens Serum Institut, Copenhagen and Center for Sexology Research, Department of Clinical Medicine, Aalborg University, Aalborg, Denmark)

 

2. Yves Aigrain MD PhD (Dept. of Pediatric Surgery, Hospital Necker EnfantsMalades, Universite Paris Descartes, Paris, France)

 

 

3. VindmantasBarauskas MD PhD (Lithuanian Society of Pediatric Surgeons, Kaunas, Lithuania)

 

4. Ragnar Biarnason MD PhD (Department of Pediatrics, Landspital University Hospital, Reykjavik, Iceland)

 

5. Su-Anna Boddy MD (Children?s Surgical Forum of the Royal College of Surgeons of England, London, UK)

 

6. Piotr Czauderna MD PhD (Polish Association of Pediatric Surgeons, Gdansk, Poland)

 

7. Robert de Gier MD (Working Group for Pediatric Urology, Dutch Urological Association, Utrecht, Netherlands)

 

8. Tom de Jong MD PhD (Department of Pediatric Urology, University Children?s Hospital, Amsterdam, Netherlands)

 

9. Gunther Fasching MD (Austrian Society of Pediatric and Adolescent Surgery, Klagenfurt, Austria)

 

1. William Fetter MD PhD (Pediatric Association of the Netherlands, Utrecht, Netherlands)

 

1. Manfred Gahr MD (German Academy of Pediatrics and Adolescent Medicine, Berlin, Germany)

 

2. Christian Graugard MD PhD (Center for Sexology Research, Dept. of Clinical Medicine, Aalborg University, Aalborg, Denmark)

 

3. Gorm Greisen MD PhD (Department of Pediatrics, Rigs Hospitalet, Copenhagen, Denmark)

 

4. Anna Gunarsdottir MD PhD (Department of Pediatric Surgery, Landspitali University Hospital, Reykjavik, Iceland and Karolinska University Hospital, Stockholm, Sweden)

 

5. Wolfram Hartmann MD PhD (German Association of Pediatricians, Cologne, Germany)

 

6. Petr Hauranek MD (Department of Pediatric Surgery, Thomayer Hospital, Charles University, Prague Czech Republic)

 

7. Rowena Hitchcock MD (British Association of Pediatric Urologists, London, UK)

 

8. Simon Huddart MD (British Association of Pediatric Urologists, London, UK)

 

9. StaffronJanson MD PhD (Committee on Ethics and Children?s Rights, Swedish Pediatric Society, Stockholm, Sweden)

 

1. Paul Jaszcak MD PhD (Ethics Committee of the Danish Medical Association, Copenhagen, Denmark)

 

1. ChristophKupferschmid MD (Ethics Committee of the German Academy of Pediatrics and Adolescent Medicine, Berlin, Germany)

 

2. TuijaLahdes-Vasama MD (Finnish Association of Pediatric Surgeons, Tampere, Finland)

 

3. Harry Lindahl MD PhD (Department of Pediatric Surgery, Helsinki University Children?s Hospital, Helsinki, Finland)

 

4. Noni MacDonald MD (Department of Pediatrics, IWK Health Centre, Dalhousie University, Halifax, Nova Scotia)

 

5. TrondMarkestad MD (Ethics Committee of the Norwegian Medical Association, Oslo Norway)

 

6. MatisMartson MD PhD (Estonian Society of Pediatric Surgeons, Tallinn, Estonia)

 

7. SolveigNordhov MD PhD (Norwegian Pediatric Association, Tromso, Norway)

 

8. HeikkiPalve MD PhD (Finnish Medical Association, Helsinki, Finland)

 

9. Aigars Petersons MD PhD (Latvian Association of Pediatric Surgeons, Riga, Latvia)

 

1. Feargal Quinn MD (Department of Pediatric Surgery, Our Lady?s Children?s Hospital, Dublin, Ireland)

 

1. NielsQvist MD PhD (Department of Surgery, Odense University Hospital, Odense Denmark)

 

2. ThrainnRosmundsson MD (Department of Pediatric Surgery, Landspitali University Hospital, Reykjavik, Iceland)

 

3. HarriSaxen MD PhD (Department of Pediatrics, Helsinki University Children?s Hospital, Helsinki, Finland)

 

4. OlleSoder MD PhD (Swedish Pediatric Society, Stockholm Sweden)

 

5. Maximilian Stehr MD PhD (Department of Pediatric Surgery, Dr. V. HaunerschesKinderspital, Ludwig-MaximiliansUniversitat, Munich, Germany)

 

6. Volker vonLoewenich MD (Commission for Ethical Questions, German Academy of Pediatrics, Frankfurt, Germany)

 

7. JohanWallander MD PhD (Swedish Society of Pediatric Surgery, Stockholm, Sweden)

 

8. Rene Wijnen MD PhD (Dutch Society of Pediatric Surgery, Rotterdam, Netherlands)

 

[1] Slack, Allison. 10 Human Rights Quarterly.?Female Circumcision: A Critical Appraisal,? 1988. This story is derived from Allison Slack?s experience in Mauritania while in the Peace Corps.

[2] The use of the term ?circumcision? to describe the various mutilating procedures that girls in some African and Islamic nations undergo is extremely controversial. As this paper will discuss later, there are those who feel it invokes an improper comparison with male circumcision. It is the word that is used by the family making the decision in Allison Slack?s story, so it will be used in this anecdote.

[3] It will be shortened to ?MC? from this point forward.

[4] Judaism and Islam

[5] It will be shortened to ?FGM? from this point forward.

[6]United Nations General Assembly, 67^th Session, 3^rd Committee, Agenda Item 28(a), ?Intensifying efforts of Elimination of FGM?, 16 November, 2012, A/C.3/67/L.21/Rev.1.

[7] Id.

[8] Id.

[9] Id.

[10] Convention on the Elimination of all Forms of Discrimination Against Women.

[11] United Nations General Assembly, Convention on the Elimination of all Forms of Discrimination Against Women, 18 December 1979, A/Res/34/180.

[12] Id.

[13] Id.

[14] UN Doc. A/47/38, 1992.

[15] UN Doc. A/56/128, 2001. UN Doc. S-23/2, Women 2000: Gender Equality, Development and Peace of the 21^st Century, 16 November 2000.UN Doc. 53/117, Traditional or Customary Practices affecting the Health of Women and Girls, 1999. UN, Report of the Fourth World Conference on Women, A/Conf.177/20/Rev.1, Beijing, 4-15 September 1995. UN, Report of the World Summit for Social Development, Commitment 6, A/Conf.166/9, Copenhagen, 6-12 March 1995. UNFPA, Report of the International Conference on Population and Development, 7.35, Cairo, 5-13 Sept. 1994. UN Doc. 48/04, Declaration on Elimination of Violence Against Women, Article 2(a), 20 December 1993.

[16] African Union, Protocol to the African Charter on Human and People?s Rights of Women in Africa, 11 July 2003, Maputo.

[17] Id.

[18] Id.

[19]Kourouma v. Holder, 488 F.3d 715, CA Dist. Ct., 2007.

[20] As will be discussed in more depth later in the paper, the WHO defines several different categories of FGM based on their severity and degree of tissue loss.

[21]Barry v. Gonzales, 445 F.3d 741, CA Dist. Ct., 2006.

[22]Mohammed v. Gonzales, 400 F.3d 785, CA Dist. Ct., 2005.

[23]Matter of Kasinga. 21 I&N Dec. 357 (BIA 1996).

[24]Abay v. Ashcroft, 368 F.3d 634, 9^th Cir. 2005.

[25]World Health Organization.

[26]Kasinga.

[27] Id.

[28] Id.

[29]Mohammed.

[30]UN. Report of Special Rapporteur on Violence Against Women. E/CN.4/2002/83, para. 6, 31, 31 January 2002.

[31] Convention Against Torture.

[32] ECHR

[33] UN High Commissioner for Human Rights, Convention Against Torture, 10 December 1984, A/Res/39/46.

[34]Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5.

[35]Fornah v. SSHD, UK House of Lords, UKHL, 2006.

[36]Farah v. Canada, Immigration and Refugee Board of Canada, 1994.

[37]Emily Collins and Ashley Akaziebie v. Sweden, European Court of Human Rights, Application no. 23944/05, 8 March 2007.

[38] UN Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 15 January 2008, A/HRC/7/3.

[39] International Covenant on Economic, Social and Cultural Rights

[40]United Nations General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, A/Res/21/2200.

[41] UN Committee on Economic, General Comment 14: Social and Cultural Rights (CESCR), Right to Highest Attainable Standard of Health, paragraph 35, 11 August 2000, E/C.12/2000/4.

[42] A/HRC/7/3 (see footnote 37, above).; Maputo Protocol (see footnote 15 above).

[43]A/HRC/7/3 (see footnote 37/41, above).

[44]Kasinga. (see footnote 22, above).

[45]CRC.

[46] United Nations, Convention on Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.

[47]ID at article 2.

[48]Id at article 19.

[49]Id at article 37.

[50]Farah (see footnote 35, above).

[51]Faruk v. Ashcroft, 378 F.3d 940, 9^th Cir. 2004.

[52] WHO, Fact Sheet No. 241, 2012.

[53]ICCPR.

[54] United Nations, International Covenant on Civil and Political Rights, 23 March 1976, 999 U.N.T.S. 171.

[55] Id; United Nations General Assembly, Declaration on Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, A/Res/36/55.

[56]A/Res/36/55 (see footnote 54, above).

[57]UNHCR Guidance Note on Refugee Claims Relating to FGM, May 2009; UN Doc. 48/04 (see footnote 14, above).

[58]Kasinga. (see footnote 22, above).

[59]Ndom v. Ashcroft, 384 F.3d 743, 9^th Cir. 2004.

[60]Mohammed (see footnote 21, above).

[61]Pitcherskaia v. INS, 188 F. 3d 641, 9^th Cir. 1997.

[62]Montecino v. INS, 915 F.2d 518, 9^th Cir. 1990.

[63] 18 U.S.C. 116: Female Genital Mutilation.

[64] Id.

[65] Id.

[66]Lewnes, Alexia. UNICEF Report on FGM, 2005.

[67] AFP-Jiji, ?Female Circumcision not Mutilation: Jakarta,? Japan Times, 25 March 2013.

[68] Id.

[69] PLAN, ?Tradition and Rights: Female Genital Cutting in West Africa, 2005.

[70] UN Commission On Human Rights, Economic and Social Council, 2002, E/CN.4/Sub.2/2002/NGO/1

[71]UNDHR.

[72] (See footnote 69, above).

[73] (See footnote 69, above).

[74] (See footnote 69, above).

[75] United Nations General Assembly, Elimination of all forms of Religious Intolerance, 31 July 2001, A/56/253.

[76] United Nations sub commission on the Promotion and Protection of Human Rights, Fifth Report on the Situation Regarding the Elimination of Traditional Practices Affecting the Health of Women and Girl Child (Halima EmbarekWarzazi), 4 July 2001, E/CN.4/Sub.2/2001/27.

[77] This comment and others by this particular Special Rapporteur will be addressed later in the paper to assess whether this line of thinking, that MC and FGM are in no way comparable, is proper and defensible given the facts.

[78]Children?s Act of 2005 (South Africa). No. 38 of 2005, 19 June 2006.

[79] Id at article 12 (8-10);

[80] Eddy, Melissa, ?In Germany, Ruling over Circumcision Sows Anxiety and Confusion,? New York Times, 13 July 2012.

[81] Id.

[82] Id.

[83] Id.

[84]German Civil Code.?1631(d), 28 December 2012.

[85] San Francisco Police Code (proposed), Section 5001, 2011.

[86]Id at Section 5002.

[87]Landsberg, Mitchell, ?Campaign Against Circumcision Evokes Images of Anti-Semitism,? Los Angeles Times, 4 June 2011.

[88] California AB 768, Section 1, Part 10, Division 106, 17, 2 October 2011.

[89] Id.

[90] Id.

[91] Brad Sherman (sponsor of the proposed bill; D-CA27); Gary Ackerman (D-NY5); Howard Berman (D-CA28); Andre Carson (D-IN7); Keith Ellison (D-MN5); Eliot Engel (D-NY17); Steve Israel (D-NY2); Sander Levin (D-MI12); Jerrold Nadler (D-NY18); Henry Waxman (D-CA30); Steve Cohen (D-TN9).

[92] H.R. 2400 (112^th), ?Religious and Parental Rights Defense Act of 2011,? 24 June 2011.

[93] Id.

[94] Id.

[95] Govtrack.us/congress/bills/112/hr2400.

[96]Central Rabbinical Congress of U.S. & Canada v.New York City Department of Health & Mental Hygiene, No. 12 Civ. 7590 NRB, SDNY 2013.

[97] Id.

[98] Id.

[99]ADL.

[100] Id.

[101] Id.

[102]42 U.S.C. ?1396.

[103] Adler, Peter, 19 JLM 335, ?Is it Lawful to use Medicaid to Pay for Circumcision?? 2011.

[104] Colorado (2011), South Carolina (2011), Louisiana (2005), Idaho (2005), Minnesota (2005), Maine (2004), Montana (2003), Utah (2003), Florida (2003), Missouri (2002), Arizona (2002), North Carolina (2002), California (1982), North Dakota (pre 1999), Oregon (pre 1999), Mississippi (pre 1999), Nevada (pre 1999), Washington (pre 1999).

[105] Walker, Andrea, ?Which States don?t Cover Circumcision?? Baltimore Sun, 21 August 2012.

[106] See footnotes 10/11 and accompanying language stating that it must be practice directed at women because they are women and whose results affect women disproportionately.

[107]Hosken, Fran P., ?The Hosken Report: Genital and Sexual Mutilation of Females,? Fourth Revised Edition, Women?s International Network News: Lexington, MA, 1993. This is the fourth revised edition of her initial report to the WHO in 1979.

[108]Natsoulas, Theodore, ?The Politicization of the ban on Female Circumcision and the Rise of the Independent School Movement in Kenya: The KCA, the Missions and the Government, 1929-1932,? Journal of Asian and African Studies, XXX111(2): 137-158, 1998.

[109]National Organization for Women.

[110] It was defeated in 1982.

[111]Lewnes (see footnote 65, above).

[112] WHO (see footnote 51, above).

[113]Rosenwald, George and Ochberg, Richard, ?Storied Lives: The Cultural Politics of Self-Understanding,? Yale University Press, 1992.

[114] Corbett, Sarah, ?A Cutting Tradition,? New York Times, 10 February 2008; Platt, Jessica, ?Female Circumcision: Religious Practice vs. Human Rights Violation,? Rutgers Journal of Law and Religion, Vol. 3, 2002.

[115] PLAN (see footnote 68, above).

[116] See Ahmadu, Fuambai, ?Ain?t I a Women too: Challenging Myths of Sexual Dysfunction in Circumcised Women,? Rutgers University Press, 281-83, 2007; Boulware-Miller, Kay, ?Female Circumcision: Challenges to Practice as Human Rights Violation,? 8 Harvard Women?s L.J., 1985; Njambi, Warimu, ?Dualisms and Female Bodies in Representation of African Female Circumcision: A Feminist Critique,? Feminist Theory, Dec. 2004 vol. 5, no. 3 281-303.

[117]Toubia, Nahid, ?Female Circumcision as a Public Health Issue, New England Journal of Medicine, 1994.

[118] La Barbera, Maria Caterina, Multi-Centered Feminism: Revisiting the Anti-Female Genital Mutilation Discourse, Diritto&Questioni, 2009.

[119] Lane, Sandra D., Rubinstein, Robert, ?Judging the Other: Responding to Traditional Female Genital Surgeries,? Hastings Center Report 26, 1996.

[120]Shweder, Richard, ?What about Female Genital Mutilation? And why Understanding Culture Matters in the First Place,? MIT Press, Dedalus, Vol. 129 No. 4, The End of Tolerance: Engaging Cultural Differences, Fall, 2000.

[121]Althaus, Frances, ?Female Circumcision: Rite of Passage or Violation of Human Rights?? International Family Planning Perspectives Vol. 23, No. 3, Sept ember 1997.

[122]UNICEF (see footnote 65, above).

[123]Shweder (see footnote 120, above).

[124]Kouba Leonard and Muasher, Judith, ?Female Circumcision: An Overview,? 28 Afr. Stud. Rev. 95, 1985.

[125] La Barbera (see footnote 118, above).

[126] Id.

[127]UNICEF (see footnote 65, above).

[128] UNICEF (see footnote 65, above) and WHO (see footnote 51, above).

[129] Shell-Duncan, Bettina, Female Circumcision in Africa: Culture, Controversy and Change, Lynne Rienner Publishers, 2000.

[130]UNICEF (see footnote 65, above).Lane/Rubenstein (see footnote 119, above).

[131]Lane/Rubenstein (see footnote 119, above).

[132]UNICEF (see footnote 65, above).

[133] Blank, Susan (American Academy of Pediatrics Task Force on Circumcision), ?Circumcision Policy Statement,? Pediatrics Vol. 130 No. 3 585-86, August, 2012.

[134] (See footnote 92, above).

[135] See Seinfeld, Sex and the City, Jersey Shore, Jimmy Kimmel Live,

[136]Lightfoot-Klein, Hanny, Prisoners of Ritual: An Odyssey into Female Genital Circumcision in Africa, Routledge, 1989.

[137] UNICEF (see footnote 55, above); WHO (see footnote 51, above).

[138]Bromlee, Sharon, ?In the Name of Ritual: An Unprecedented Legal Case Focuses on Genital Politics,? U.S. News and World Report Vol. 116, no. 5, pp. 1-4, 1994.

[139] Id.

[140] La Barbera (see footnote 118, above).

[141]UNICEF (see footnote 65, above).

[142] WHO (see footnote 51, above); UNICEF, ?Female Genital Mutilation/Cutting: A statistical Exploration,? 2005.

[143]Shweder (see footnote 120, above).

[144] Id.

[145]Waldeck, Sarah, ?Using Male Circumcision to Understand Social Norms as Multipliers,? 72 UCINLR 455, 2003.

[146] McLean, Scilia, ?Female Circumcision, Excision and Infibulation: the Facts and Proposals for Change,? Minority Rights Group Report No. 47, 1980.

[147] WHO (see footnote 51, above).

[148]Hosken (see footnote 107, above).

[149]McClean (see footnote 146, above); Shell-Duncan, Bettina, ?From Health to Human Rights: Female Genital Cutting and the Politics of Intervention,? 110 American Anthropologist 225, 2008.

[150] See footnotes 5 and 18-19, above.

[151] See footnotes 5-7.

[152] WHO (see footnore 51, above).

[153]UNICEF (see footnote 65, above).

[154] Id.

[155] WHO (see footnote 51, above).

[156]Uwer, Thomas and Osten-Sacken, Thomas, ?Is Female Genital Mutilation an Islamic Problem?? Middle East Quarterly, Winter 2007, Volume XIV, Number 1, pp. 29-36; Coleman, Doriane, ?Seattle Compromise: Multicultural Sensitivity and Americanization,? Duke Law Journal, February 1998; McClean (see footnote 146, above).

[157] Brewer, DD; Potterat, JJ; Roberts, JM; Brody, S, ?Male and Female Circumcision Associated with Prevalent HIV Infection in Virgins and Adolescents in Kenya, Lesotho and Tanzania,? Interdisciplinary Scientific Research, Seattle, Washington, March 2007.

[158] See footnotes 5-7.

[159] See footnote 96, above.

[160]Crowley, IP and Kesner, KM, ?Ritual Circumcision (Umkhwetha) amongst the Xhosa of the Ciskei,? British Journal of Urology, 1990, 66:318-321.

[161] Krill, Aaron, Palmer, Lane and Palmer, Jeff, ?Complications of Circumcision,? Scientific World Journal, 2011 December 26, 2458-2468.

[162] See footnote 27, above.

[163]Bronselaer, Guy, Schober, Justine, Meyer-Bahlburg, Heino, T?Sjoen, Guy and Hoebeke, Piet, ?Male Circumcision Decreases Penile Sensitivity as Measured in a Large Cohort,? BJUI International Vol. 111 Issue 5, May 2013.

[164] See footnotes, 8, 17, 39 and 41, above.

[165]Obiora, L?Amede, ?Bridges and Barricades: Rethinking Policies and Intransigence in Campaign Against Female Circumcision,? 47 Case Western Law Review 275, 1997.

[166]Lane/Rubenstein (see footnote 119, above).

[167]Coleman (see footnote 156, above).

[168]Hosken (see footnote 107, above); Shweder (see footnote 120, above).

[169]Shell-Duncan (see footnote 149, above).

[170]UNICEF (see footnote 65, above).

[171] See footnotes 34-37, above.

[172] WHO (see footnote 51, above); also

[173] See footnotes 7, 15-16 and 21, above.

[174]Anand, Kanwaljeet, Hickey, Paul, ?Pain and its Effects in the Human Neonate and Fetus,? New England Journal of Medicine, 1987, 317: 1321-9.

[175] Gunnar, Megan, Malone, Stephen, Vance, Gail and Fisch, Robert, ?Coping with Aversive Stimulation in the Neonatal Period: Quiet Sleep and Plasma Cortisol Levels During Recovery from Circumcision,? Child Development, 1985, 56:824-34.

[176]Williamson, PS and Evans, ND, ?Neonatal Cortisol Response to Circumcision with Anesthesia,? ClinPediatr.Phila.1986, 25: 412-15.

[177] Having watched a video of the procedure firsthand, during a college class, it is nothing short of barbaric and viscerally shocking. The baby is tied down to a board at four points spread eagle and given no anesthesia. The entire procedure takes over ten minutes, during which time the baby screams uncontrollably and vomits. Any claims that the procedure is quick, simple, or ?no big deal? are completely without merit after having seen what happens.

[178]Stated in her endorsement of the film ?Whose body, whose rights?Examining the Ethics and the Human Rights Issue of Male Circumcision.?

[179]Waldeck (see footnote 145, above).

[180] Id.

[181] See footnotes 17 and 38-43, above.

[182]AFP-Jiji (see footnote 66, above).

[183] See footnote 43, above.

[184] See footnotes 92 and 94, above.

[185] See footnotes 88 and 90, above.

[186] Blank (AAP), see footnote 133, above.

[187] This is based on an earlier set of studies which will be discussed in more depth later. This one set of studies was the impetus for an Israeli group called Operation Abraham to advocate mass circumcisions in areas in which it is not part of the culture to circumcise as a means of HIV prevention. It has also instituted lobbying efforts to have Medicaid funding restored in states that have eliminated it. It has received substantial funding from Bill Gates. See operation-ab.org.

[188] Id.

[189]WHO, World Health Report 2000, Geneva, 2000.

[190] 12 of the 17 countries represented are ranked higher in the WHO?s rankings of healthcare systems.

[191] Frisch, Mortonet. al, ?Cultural Bias in the AAP?s Technical Report and Policy Statement on Male Circumcision,? Pediatrics, Vol. 131, No. 4, April, 2013, 796-800.

[192] See last page for full list of authors and affiliations.

[193] Id.

[194] Id.

[195] See footnote 187, above.

[196] Id.

[197]Waldeck (see footnote 145, above).

[198] Id.

[199]Kanki, Phyllis, M?Boup, Souleymane and Marlink, Richard, ?Risk Determinants of Human Immunodeficiency Virus Type 2 and HIV 1 in West African Female Prostitutes,? American J. Epidemiology 136 (7) 895-907, 1992.

[200]ABC News.?Doctors Back Call for Circumcision Ban,? abcnews.net.au/news/2007-12-09/doctors-back-call-for-circumcision-ban/981976, 9 December 2007.

[201]Coleman (see footnote 156, above).

[202]Waldeck (see footnote 145, above).

[203] Blank (AAP), see footnote 133, above.

[204] See footnote 66 and 182, above.

[205] WHO (see footnote 189, above).

[206] As a matter of law, the United States has signed not ratified this treaty. As a result, it has no application as of now, but could play a role if and when the U.S. does ratify it.

[207] See footnotes 44-51.

[208] See footnote 47.

[209] See footnote 48.

[210] See footnote 50.

[211] See footnote 46.

[212] See footnotes 69-70, above.

[213] See footnotes 14 and 56, above.

[214]Platt (see footnote 114).

[215] See E/CN.4/Sub.2/2001/27 (footnote 75, above).

[216]Uwer (see footnote 156, above).

[217] See E/CN.4/Sub.2/2001/27 (see footnote 75, above).

[218] See footnotes 14 and 56, above.

[219] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

[220]Church of LukumiBabalau Aye v. City of Hialeah.508 U.S. 520 (1993).

[221]Employment Division v. Smith.494 U.S. 872 (1990).

[222] See footnote 96, above.

[223] See footnote 161, above.

[224] See footnote 163, above.

[225] See footnote 191, above.

[226]Waldeck (see footnote 145, above).

[227] Lord, Charles, Ross, Lee and Lepper, Mark, ?Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence,? Journal of Personality and Social Psychology, 37(11), 1979.

[228] See footnotes 22, 28 and 107.

[229]Shweder (see footnote 120, above).

[230] Davis, Dena, ?Cultural Bias in Responses to Male and Female Genital Surgeries,? American Journal of Bioethics, Vol. 3, No. 2, Spring, 2003.

[231]Obermeyer, Carla, ?Female Genital Surgeries: The Known, the Unknown and the Unknowable,? Medical Anthropology Quarterly 13, 1999.

[232] See footnotes 92 and 94.

[233]Werblowsky, R.J. Zwi and Wigoder, Geoffrey, Oxford Dictionary of the Jewish Religion, Oxford University Press, 1997.

[234]ADL. Adl.org/religious_freedom/circumcision-qa.asp.

[235] Compare to footnote 121.

[236] Svoboda, Stephen (Executive Director; Attorney for Rights of the Child), ?UN Criticized for Sex Discrimination Against Males,? arclaw.org/resources/articles/united-nations-criticized-discrimination-against-males-0, 15 August 2001.

[237] Id.

[238] Goodman, Jenny, ?Jewish Circumcision: An Alternative Perspective,? 83 Brit. Journal of Urology Int?l 22, 1999.

[239] See footnotes 191 and 192, above.