21 Winter 2015-2016 In the current context, the question to be determined is whether when the child reaches adolescence or adulthood, he will wish that he had been circumcised as an infant or not.45 Both logic and the limited available evidence46 suggest that the vast majority of Jewish males would, in fact, wish to have been circumcised as children.47 Accordingly, if we take the view that the purpose of the child’s right to selfdeterminism is to bring him “to the threshold of adulthood with the maximum opportunities to form and pursue lifegoals that reflect as closely as possible an autonomous choice,”48 we might conclude that not circumcising a Jewish child is, in fact, a breach of that child’s autonomy.49 The Child's Right to Freedom of Religion and Culture Article 14 of the CRC requires State Parties to “respect the right of the child to freedom of thought, conscience and religion” and to “respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of child.”50 The latter provision clearly recognizes that a child’s freedom of religion is dependent upon allowing his parents to teach and guide him in religious practice. It is important to emphasize that this provision is protecting the child’s rights, and not only that of the parents. Article 14(3) strengthens the requirement to respect the child’s right to freedom of religion by providing that “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.”51 Moreover, Article 30 provides specific protection for a child belonging to an ethnic or religious minority, who should “not be denied the right . . . to enjoy his or her own culture and, to profess and practice his or her own religion . . . .”52 It is abundantly clear that forbidding brit milah violates the child's freedom of religion and denies him the right to practice his own religion and enjoy his own culture. In particular, within Judaism, whilst the parent has the responsibility for circumcising his son, the brit milah has religious significance for the child as denoting the relationship between him and his Creator and a spiritual sanction is imposed on non-circumcised males.53 Accordingly, the parent’s act in arranging for the circumcision to be performed clearly comes within the meaning of providing direction to the child in the exercise of his religion in Article 14(2).54 The Child's Right to Identity Under Article 8 of the CRC, States undertake to respect the right of the child to preserve his or her identity. Ya’ir Ronen maintains that protection of identity “necessitates exploration of culture as a context of personal meaning and is founded on empathic understanding of an individual child’s experience.”55 It seems clear that identity must include religion, as well as culture, at least in so far as these have any meaning to the child. Bearing in mind that circumcision has historically been and still is treated as a primordial sign of identification and of belonging to a religious group for both Jews56 and Muslims,57 any 45. Michael D.A. Freeman, A Child's Right to Circumcision, 83 BJU INTERNATIONAL, Suppl. 1, at 74, 76 (1999). 46. James Badger, Consent to Circumcision Survey (2014), available at www.circlist.com/surveys/badger-03.html (last visited Nov. 11, 2015) (a large general survey published on the internet, in which most of the men questioned did not express regret about being circumcised and indicated that they had or would circumcise their sons. There is no breakdown of the reasons for circumcision but clearly many were not ritual because in 32% of cases the doctor had made the decision to circumcise and in 26% of cases the interviewee did not know who had made the decision. 47. Freeman, supra note 45, at 76; Mazor, supra note 29, at 426 claiming that most Jewish males would choose to be circumcised as adults, if they had not been circumcised as infants. 48. John Eekelaar, The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism, 8 INT’L J.L. & FAM. 42, 53 (1994). 49. Circumcision does not prejudice the child’s right to an ‘open future’ in the sense used by Joel Feinberg (Joel Feinberg, FREEDOMAND FULFILLMENT 76–97 (1992)). Whilst there is always a chance that the child will later abandon his religion, he may still be satisfied with the medical benefits of the circumcision. In any event, the circumcision does not restrict the child’s future religious freedom, as it does not in any way require him to practice his religion or preclude him from joining another religion. 50. CRC 1989, supra note 2, art. 14(1)-(2). 51. Id. art. 14(3). 52. CRC 1989, supra note 2, art. 30; id. 53. Accordingly, the comment in the PACE Explanatory Memorandum, supra note 1, at para. 21, that a naming ceremony can be an alternative to circumcision displays complete ignorance of the religious imperative of brit milah. 54. Simon Baum, Religious Circumcision: Free from Interference? 1999 UCL JURISPRUDENCE REV. 1, 18 (1999). 55. Ya’ir Ronen, Redefining the Child’s Right to Identity, 18 INT’L J. L. POL’Y & FAM. 147, 148 (2004). 56. Sefer Hachinuch, supra note 15 (stating that one of the purposes of circumcision is to distinguish between Jews and other nations). 57. Effect of Circumcision on … Children, supra note 7, at 6 (describing circumcision as a sign of social belonging in Turkey).
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