Religious freedom does not extend to mutilating babies

While I believe in religious freedom, that is that everyone is free to believe what they will, the practice of those beliefs is permitted only when they do not infringe on the rights of others. A court in Germany has finally taken that seriously and declared that circumcision of children is bodily harm. If your religion wants you to be circumcised then that is your choice. However, a baby has not chosen their religion and you do not have the right to force your religious beliefs on your child. Furthermore the baby is not able to consent to the surgery. It can only be religion that could convince people that removing parts of the body with no consent is perfectly acceptable practice.

That’s not say circumcision is completely useless. There is some evidence that it can lessen the chance of HIV infection however the benefits do not override our ethical obligations to the child. Circumcision only lessens HIV transmission from heterosexual intercourse, at which stage the child should have become old enough to give consent. As the operation is not life-saving nor does it need to be performed early to work there is a great benefit from waiting. Parents need to make the best decisions possible for their children until they are able to make their own decisions but this is an issue which can be postponed for the child’s choice but which can’t easily be reversed. A child should be able to grow up with an intact body rather than one that has been modified in a way that they may not agree with.

This isn’t the first call for the practice to be banned. The BBC also has articles from when the Royal Dutch Medical Association wanted circumcision banned in the Netherlands and when a San Francisco judge stopped a proposal to ban male circumcision. The German decision is not legally binding but has set a precedent in the country. As the German court put it:

[The] fundamental right of the child to bodily integrity outweighed the fundamental rights of the parents.


8 thoughts on “Religious freedom does not extend to mutilating babies

  1. I’m not sure that the issue is quite as simple as you have characterised it here:

    1. In South African jurisprudence religious freedom doesn’t mean simply being entitled to practise your belief provided you don’t infringe the rights of others. Ours goes further. The Constitutional Court said in Christian Education that it means a right to express such belief in practice. Freedom of religion may be impaired by measures that coerce persons into acting OR refraining from acting in a manner contrary to their beliefs. In this case prohibiting circumcision prevents those who practice it (I think both Muslims and Jews do, though I’m not sure – I’m neither) from exercising their faith.

    2. I don’t think circumcision is a “choice” for the devout Jews (but, again, I’m not Jewish so someone may need to correct me on this). I think it is a commandment from God which binds both father and child independently. You’re obliged to do it at eight days and failure to do so results in the soul being cut off from God (Genesis 17:10 – 14). So the consequence of the prohibition for the religious believer is profound indeed.

    3. Whether we as non-believers (I’m a non-believer and I infer you are too) think circumcision is a good, bad or mad idea is not particularly relevant. We need to understand why the believer does it and what the consequence is to them of failure to comply, and what the consequence of circumcision is for the child.

    4. Parents make lots of decisions daily for children which will have profound effects on their adult lives. They pick schools, diet, allow them to take-part in potentially risky activities, expose them to risks etc. Why is this particular decision so different just because it’s carried out on the body?

    5. Finally I don’t think the characterisation of the German decision is correct. My understanding is that it is not binding.

    An interesting debate nevertheless with no easy answer. Thanks for making us think about these things.

  2. @Kevin: 1 – Religious beliefs and practices are not allowed to go against other people’s rights. I’m not 100% sure of how it is all treated in South Africa but you can’t, for example, harm people because it is part of your religion. I’m sure that the law here would not allow someone to beat their wife and then claim that their religion allows them to beat their wife, which no doubt some do. That won’t work as a defence. So there are limits to freedom of religious practice.

    2 – It is commanded in scripture, so in that sense it isn’t a choice. However there are many commandments in scriptures that are ignored. I’m not completely familiar with what the Jewish scriptures say, nor do I have a reference, but as far as I know it’s mostly the same as the old testament so I’d like to point you to a post by Jerry Coyne which shows two of the commandments by god which are regularly ignored by believers.
    Believers already pick and choose commandments but it’s also the responsibility of government and the law to protect citizens from other citizens. In this case to protect babies from those that would remove body parts for no good reason.

    3 – The important part is whether the action is harmful to the child and whether it violates the child’s rights. Just because it is part of a religion doesn’t make it acceptable. Would it be fine if some people suddenly decided to remove their children’s ear lobes?

    4 – They do make many important decisions but if those are not for the child’s benefit then government will intervene. A parent can decide a child’s diet but if that diet leads to the child being undernourished or includes alcohol or drugs then those parents can face criminal charges and the child can be taken away from them. This decision is no different from that, it’s just that it has more than a thousand years of history and tradition behind it that have effectively prevented it from being questioned.

    5 – I see my last paragraph wasn’t totally clear on that point. I’ll reword it now.

  3. 1. Agreed. A good example of this is in fact Christian Education, the case I relied on. Christian parents contended it was an infringement of their right to religious freedom if corporal punishment was not permitted in schools. They didn’t want corporal punishment meted out to other children, only to those children whose parents had voluntarily agreed to subject their children to it, The Constitutional Court was not prepared to allow this. It said “the concept of rights of members of communities that associate on the basis of language, culture and religion, cannot be used to shield practices which offend the Bill of Rights. These explicit qualifications may be seen as serving a double purpose. The first is to prevent protected associational rights of members of communities from being used to “privatise” constitutionally offensive group practices and thereby immunise them from external legislative regulation or judicial control.” So your instinct for the law is spot on.

    2. Agreed. I have no doubt that some commandments are followed while other are not. Circumcision seems to persist as a practice even amongst non-observant Jews. One can conclude from this, I think, that it must be important to Jews. In fact I think one can make the general conclusion that those precepts that are ignored are considered to be less important to the faithful than those which are followed. I have some discomfort in allowing a court to make decisions about which parts of a religious faith are sensible or should be followed. Where we differ is where you say that “…it’s also the responsibility of government and the law to protect citizens from other citizens. In this case to protect babies from those that would remove body parts for no good reason.” Whether or not there is a good reason for circumcision must be judged from the adherent’s point of view. To them, it may be intensely important. The Court recognised this problem in Christian Education. It said “The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not…” It also said “Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture.” The best summation of the tension by the Court is the following: “The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.” The Court accepted that corporal punishment “…is not merely a question of convenience or comfort, but an intensely held sense about what constitutes the good and proper life and their place in creation.” It proceeded on that basis. (It found that just because one couldn’t cane the child at school didn’t mean you couldn’t do it at all and the religious right was therefore restricted in a way that was acceptable). We must approach circumcision in the same way. Evaluate it in accordance with its importance to those who practice it, not based on our view of its importance, and consider the degree to which their religious right is infringed by disallowing circumcision until the child is older.

    3. I agree with you on this question. In fact, for me this is the key. Is it harmful to children. If not – why the prohibition? If so, that harm must be weighed up against the religious right. I don’t know if the practice is harmful or not, but without this info I don’t think one can easily evaluate how the balance should be struck.

  4. I think 2 and 3 are really looking at the same point here, about what is important to believers and whether that can be accepted by society in general. To me the line is drawn where the actions of believers violate the rights of another individual. Is circumcision in the sense that it impairs the child? No. But it is a non-essential, practically irreversible decision affecting another person’s body based on a belief system that they may or may not choose to follow. It’s just not a choice that someone else can make for them. The child’s rights come first.

  5. Our law does make the rights of the child paramount. In your calculus you are weighing up the tension between the right to religious freedom and the right to bodily integrity and using the rights of the child as the weight that tips the scales, preferring bodily integrity over religious freedom. There’s nothing wrong with that.

    This is ultimately a value choice on which different reasonably minded people might disagree. It’s why we have eleven judges on our constitutional court bench who represent a cross-spectrum of society, because these are ultimately value choices which become embodied in law. This is the law-less frontier where judges make-up the law for the rest of us as we go along. Whether the choices we make on such issues are good or bad ones will probably only be revealed by the passage of time.

    “Best interests of the child” sounds sensible but is hard to implement. How do you predict what decisions will, in the long run, benefit a child? Child-raising is so culturally specific and subjective and I think we have a natural tendency to say that any value or method of child-raising which comes from a culture other than our own is not in the best interests of the child. To a child who ultimately rejects Judaism, the decision to suspend circumcision until they were old enough to make their own decision would turn out to have been in their best interest. To the child who embraces Judaism, the fact that their soul has been cut-off from God for the length of their childhood because they weren’t circumcised may be something they hold against their parents or the State. The decision here wasn’t in their best interest.

    So I weigh the values differently to the way in which you do. In the absence of evidence that the practice harms the child in some way (whether physically or psychologically or developmentally or in any other way), I don’t see how it is against their best interests to allow the child to be circumcised. But my aim is not to persuade you to my view. We weigh values differently and it’s a debate with no resolution. Ask others and they’ll undoubtedly give different answers based on their personal life experiences and value systems.

    What’s important to me is to interrogate thoroughly the reasoning process which leads one to the view we ultimately take and to ensure that that reasoning process is sound. I’d be fascinated to see a South African test case on this.

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