Circumcision of boys: discussion in Switzerland
The Cologne regional court decided that the circumcision of boys for religious reasons is an offence. The discussion has now been launched in Switzerland, too. As a result of the verdict, the University Children’s Hospital Zurich has decided to temporarily suspend circumcisions.
The Cologne case
Starting point of the decision was the case of a 4 year-old Muslim boy who, according to his Muslim parents’ wishes, was expertly circumcised at a Cologne GP’s surgery in November 2010. Because the child was still suffering from haemorrhage two days later, the mother took the son to hospital as a consequence of which the public prosecutor’s office brought charges against the GP.
The regional court acquitted the GP since on the one hand he carried out the operation impeccably and on the other hand he could not know that he was committing an offence by circumcising the boy. The court found that the circumcision could not be justified by the parents as it was of no benefit to the child. The judges weighed the right of self-determination and the right to physical integrity as higher than the parent’s right to a religious upbringing of their child.
Parent’s right of education vs. rights of the child
Ritual circumcision constitutes a fundamental element of Jewish and Muslim religions grown over years and forms a vital sign of religious affiliation to both religions. In Jewish faith, for example, the circumcision ceremony (brit milah) is considered as the entry into a covenant with god and can roughly be compared to the Christian ritual of baptism. Ritual circumcision of a boy on his 8th day of life is a divine precept, except for if the baby is weak or ill; in this case it is postponed. The Koran does not expressly mention circumcision but all the same it is a norm passed down in Islam, widely spread as an exemplary action of the prophet and performed between youth and adolescence. But circumcision is not only performed in a religious context. Some parents have their boys circumcised because this is supposed to have positive influence on hygiene, and preventative medical effects such as less common occurrence of penis cancer or urinary tract infections have also been proven by the WHO.
Looking at basic and human rights it is evident that the state is in a conflict with respect to his duties which can only be solved by a careful of interests: Art. 18 Para. 4 of the International Covenant on Civil and Political Rights ensures the states to guarantee the parents the religious and moral education of their children in conformity with their own convictions. Thanks to the freedom of religion the state is not allowed to restrict religious rituals without providing overwhelming reasons. The state has to respect decisions of parents taken in their child’s interest (Art. 5 Convention of the Rights of the Child)
regardless of the possible motives for a circumcision. But it is not only the parents but also the state that carries a responsibility for the protection of the rights of the children. Doubtlessly circumcision as an operation is an interference with the physical integrity of the child which enjoys particular protection in many legal systems (e.g. in Switzerland in Art. 11 of the Federal Constitution). In addition, the state has to become active and take steps in order to protect children and to abolish old traditions which are harmful to the health of the children as states Art. 24 Para. 3 of the Convention on the Rights of the Child (CRC). It is also of importance that the children also have the right and possibility to voice their preference Art. 12 CRC.
Both state and parents are responsible to take into account these preferences according to age and maturity of a child. If a circumcision is carried out at a neonatal or very early age, the formation and expression of an opinion is impossible for a child. The situation is different if the circumcision takes place at a later age.
Legal position in Switzerland
The Cologne court decision also led to a heated debate in Switzerland as to whether or not the circumcision of boys is considered as an offence. Since July 2012, the «mutilation or significant and lasting injury of the female genitals» is prosecutable. With respect to male circumcision the Members of Parliament followed the line of argument of the legal commission. In its report on female genital mutilation it states that it «does not consider the circumcision of male genitals as fundamentally problematic». Swiss legislators have not yet treated the question of whether or not the physical and psychological effects of a circumcision have such a great impact on the boys that they should interfere.
Swiss lawyers take different positions on the question of whether or not the circumcision of boys is an offense at present. Some take the opinion that the parents should be allowed to decide for their children and that the circumcision falls within the range of parent’s right according to their religious belief. The opposing party supports the rights to own decision and physical integrity of the child and finds that therefore circumcision should be an indictable offence. In addition, experts of criminal law discuss on the severity of the physical injury inflicted. According to perspective, it can be an offence that is liable to public prosecution or one that is not subject to automatic prosecution.
Because of the unclear legal basis the University Children’s Hospital Zurich for the time being does no longer perform any religiously motivated circumcisions and is currently waiting for the cantonal legal department and the internal ethics forum to decide whether or not the circumcision of boys is prosecuted. All other hospitals refrain from a moratorium for the time being.
Commentary by humanrights.ch
Whereas the circumcision of boys doubtlessly is in a certain relationship of tension compared to the rights of the child as defined on an international level, only little discussion has taken place in Switzerland on this tradition. In the Anglo-Saxon world, social debate has been running for quite some time now between groups supporting and opposing circumcision, in Switzerland, however, politics and the public have not discussed the topic although there would have been a golden opportunity to do so during the discussion on female circumcision. At the time, the Federal Council barely wrote somewhat evasively that an expressive ban of female genitals can only be justified insofar as that the severity of the injury of the genitals goes way beyond the main case of male circumcision.
The question of legal relevance can only be assessed with respect to the individual case in which the possible risks and consequences of the procedure on body and psyche are compared to its medical benefit. A general ban of male circumcision is highly improbable in view of the current scientific findings. All the same it is desirable that further research is performed so as to find out more. A debate in general proves to be difficult and reserve is important since circumcision up to now has mainly been seen under the perspective of religion and circumcision for purely hygienic, health aesthetic or other motives are left out.
At present, from a human rights perspective, prevention and education by governmental institutions and doctors are essential, since the well-being of the child is at risk. Beyond religious dogmas it is desirable to discuss on further measures and alternatives to the benefit of the child. If nothing else, this would allow to strengthen those positions within the Jewish and Islam communities who advocate alternative solutions such as a symbolic circumcision or the postponement of the operation.
- LG Köln Urteil vom 7. Mai 2012 Az. 151 Ns 169/11
Cologne Regional Court decision, 7 May 2012 (in German)
- Kinderspital Zürich stoppt Beschneidungen
Article in TagesAnzeiger, 20 July 2012 (pdf, 2 pages in German)
- Häufigster Eingriff in der Kinderchirurgie
Article in Neue Zürcher Zeitung, 21 July 2012 (pdf, 2 pages in German)
- Neue Kontroverse um die Knabenbeschneidung
Article in Neue Zürcher Zeitung, 25 July 2012 (pdf, 2 pages in German)
- Zwischen Elternrechten und Kindswohl
Guest commentary in Neue Zürcher Zeitung, 27 July 2012 (pdf, 4 pages in German)
- Mehrheit spricht sich für Beschneidung aus
Article on Spiegel online, 17 July 2012 (in German)
- Beschneidung aus religiösen Gründen ist strafbar
Article on Spiegel online, 26 June 2012 (in German)
- Der Primat des Zuwartens
Article on NZZonline, 12 August 2012 (in German)
- Male circumcision - Global trends and determinants of prevalence, safety and acceptability
WHO and UNAIDS study 2007 (pdf, 41 pages)
- Voluntary medical male circumcision for HIV prevention
WHO factsheet, July 2012
- Male circumcision for HIV control
- Stellungnahme zur Debatte um die Knabenbeschneidung
Political statement ot the Schweizerischer Israelitischer Gemeindebund, platform of the liberal Jews in Switzerland, 20 July 2012 (pdf, 2 pages in German)
- Parlamentarische Initiative Verbot von sexuellen Verstümmelungen - Bericht der Kommission für Rechtsfragen des Nationalrates
Legal Affairs Committee report, 30 April 2010 (pdf, 22 pages in German)
- Parlamentarische Initiative Verbot von sexuellen Verstümmelungen - Stellungnahme des Bundesrates
Policy brief by the Federal Council, 25 August 2010 (pdf, 6 pages in German)
- Religiöse Rechtfertigung? Die Beschneidungen von Knaben zwischen Strafrecht, Religionsfreiheit und elterlichem Sorgerecht
Abstract of the paper «Religiöse Rechtfertigung? Die Beschneidung von Knaben zwischen Strafrecht, Religionsfreiheit und elterlichem Sorgerecht» by Bijan Fateh-Moghadam, criminal law expert, University of Münster, in Zeitschrift für rechtswissenschaftliche Forschung, April 2010 (in German)
- Rechtliche Grenzen der Zirkumzision bei Minderjährigen
Holm Putzke, criminal law expert, University of Passau,(pdf, 5 pages in German)