20 No. 57 JUSTICE prophylactic medical benefits,32 it is not clear how it can be distinguished from immunization.33 In particular, it should be noted that that the degree of bodily interference involved in immunization is by no means de minimis and in some ways not significantly less invasive than brit milah.34 In addition, where ritual circumcision is concerned, there are likely to be emotional and social benefits in addition to the medical ones.35 In this respect, it might be noted that various aesthetic invasive procedures, which involve more risks than circumcision, are quite commonly carried out on children purely on the basis of the emotional benefit.36 The relevance of different types of benefit in determining legitimacy of interference with bodily integrity is supported by the philosophical claim that it is only “within a particular moral narrative that one can determine whether specific uses of the body are to be praised, condemned, or regarded as morally neutral”37 and that accordingly, “every alteration or apparent violation of the human body must be considered in its own medical, religious, and cultural context.”38 In this connection, it is pertinent to point out that Judaism forbids violation of bodily integrity in general and that the only reason that circumcision is allowed is because it is a divine command.39 This apparent paradox surely means that careful consideration and analysis are required before branding brit milah as a prohibited violation of the right to bodily integrity. The Child's Autonomy and Participation Rights It is claimed that circumcision of young children involves a breach of the child’s autonomy, synonymously referred to as his right to self-determination, because he does not consent to the operation. This claim is based on Article 12 of the CRC, which recognizes the child’s right to participate in decisions concerning him and to have due weight attached to his views in accordance with his age and degree of maturity. It is argued that the child’s participatory rights require delaying the making of important decisions that have irreversible consequences until the child has the capacity to participate in the decision-making, unless such delay is likely to be prejudicial. Accordingly, the PACE Resolution on Physical Integrity and other opponents of circumcision take the view that brit milah should be delayed until the child is old enough to make the decision for himself. However, the assumption that delay is not prejudicial can be refuted inter alia because circumcision of an older child or adult is a much more complex and risky procedure, both from a medical and psychological perspective.40 In addition, delay means that the child is deprived of the medical and other benefits of circumcision during his childhood41 because a later decision by the child to undergo circumcision cannot bring back the years when he was not circumcised. Moreover, he is now placed in the unenviable situation of having to contend with the unpleasant physical, emotional, and psychological implications of undergoing circumcision as an adolescent or adult. In the case of Jewish young adults, the implications of such a choice might well give rise to considerable anxiety and even cause an identity crisis. Thus, Mazor argues that since “we cannot provide the child with—even roughly—the same choice facing the parents once he attains majority,” there can be no breach of his right to self-determination.42 Accordingly, the best way to give effect to the child’s participatory rights in cases where delaying making a particular decision may be prejudicial, is to assess how the child would decide if he had the capacity to do so, in accordance with Rawls’ concept of “substitute judgment.”43 This approach in turn involves considering what is likely to be the child’s view about the decision in the future.44 32. Between Prophylaxis, supra note 21, at 35. 33. Michael J. Bates et al., Recommendation by a Law Body to Ban Infant Male Circumcision, 13 BMC PEDIATRICS 136, 141 (2013). 34. The vaccine, which may contain a live, albeit weak, strain of the disease itself, permeates into the blood stream and is designed to have a long lasting effect. Moreover, relatively minor adverse reactions to vaccinations are common and they carry a small risk of serious disability and even death. 35. This seems to be the basis of the holding of the English court in Re J [1992] 4 All ER 614 that a decision by both parents to ritually circumcise their child is lawful. 36. These include cosmetic orthodontic surgery, correction of a simple harelip and administration of human growth hormone to short children. See Allan J. Jacobs, The Ethics of Circumcision of Male Infants, 15 ISR. MED. ASS’N J. 60, 63 (2013). 37. Dekkers, Hoffer & Wils, supra note 27, at 179. 38. Id. 39. Indeed, the removal of the foreskin is seen as perfecting the body and not detracting from its integrity, supra at text accompanying note 17. 40. Morris et al., supra note 23, at 683; see also Jacobs, supra note 36, at 63 (“Adult circumcision simply is not a reasonable substitute for infant circumcision.”). 41. Between Prophylaxis, supra note 21, at 37; see Morris et al., supra note 23. 42. Mazor, supra note 29, at 422-25 43. John Rawls, A THEORY OF JUSTICE 208 (revised ed. 1999). 44. Gerald Dworkin, Paternalism, in PATERNALISM 19, 28 (Rolf Sartorius ed., 1984) (referring to this approach as “futureoriented consent”).
RkJQdWJsaXNoZXIy MjgzNzA=