22 No. 57 JUSTICE circumcision is not in the best interests of these children66 seems untenable in light of the evidence that this is what most such children would want67 together with the medical, social and emotional benefits thereof. Furthermore, it should be remembered that under Article 3 of the CRC, the best interests of the child is not the sole or even the principal consideration in decisions concerning children, as long as it is one of the main considerations and that therefore it is permissible to take into account interests of the parents.68 Outlawing brit milah would be a serious violation not only of the parents’ freedom of religion, but also of their parental autonomy,69 an interest that also protects the child.70 attempt to outlaw the practice of circumcision of children cannot be consistent with respecting the right of the child to preserve his identity.58 Indeed, a decision of the Finnish Supreme Court that ritual male circumcision is lawful relied inter alia on the benefits to the child in developing his identity and his attachment to his social and religious community.59 The Child's Right to Highest Attainable Standard of Health Article 24 of the CRC provides that States “recognize the right of the child to the enjoyment of the highest attainable standard of health” and Article 24(2)(f) mandates States to develop preventative health care services.60 The child’s right to health has been defined as “the right to opportunities to survive, grow and develop, within the context of physical, emotional and social well-being, to each child’s full potential.”61 On the basis of the medical evidence of the prophylactic effects of male circumcision, it can be argued that outlawing the practice prevents children from enjoying the highest standard of health. Not only does such a ban increase the risk that children will suffer from certain illnesses, but it may also have a negative effect on emotional and social welfare of those children who belong to communities in which circumcision is a religious imperative and/or has great social significance. Accordingly, even though, in light of the lack of consensus in relation to the medical benefits of circumcision, there would not seem to be any obligation upon States to make circumcision available to all children, any attempt to prevent those parents who wish to circumcise their children from doing so can be seen as a violation of children’s right to health. The Best Interests of the Child Article 3(1) of the CRC provides that “[in] all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”62 In addition, the ‘best interests of the child’ standard is to serve as a principle of interpretation in cases where the scope of the rights in the Convention is not clear or there are conflicts between different rights.63 Thus, for example, assuming that brit milah were considered a breach of the child's right to physical integrity, the conflict between that right and other rights of the child, which are promoted by brit milah, should be resolved by the best interests principle. However, there are formidable difficulties in applying the best interests standard to the issue of ritual male circumcision at the collective level,64 since the circumstances of Jewish and Muslim children cannot possibly be compared to those of other children.65 Indeed, the claim that 58. Freeman, supra note 45, at 74. 59. Heli Askola, Cut-Off Point? Regulating Male Circumcision in Finland, 25 INT J L. POL’Y & FAM. 100 at 108 (2011). 60. CRC 1989, supra note 2, at art. 24(2)(f). 61. Comm. on the Rights of the Child, General Comment No. 15 (2013) Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art. 24), ¶ 1, U.N. Doc CRC/C/ GC/15 (Apr. 17, 2013), available at tbinternet.ohchr.org/_ layouts/treatybodyexternal/Download.aspx?symbolno=C RC%2fC%2fGC%2f15&Lang=en (last visited Nov. 11, 2015). 62. CRC 1989, supra note 2, at art. 3(1). 63. Comm. on the Rights of the Child, General Comment No. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (art. 3, Para. 1), ¶¶ 1, 9, U.N. Doc. CRC/C/GC/14 (May 29, 2013), ¶ 33 available at www2.ohchr.org/English/bodies/crc/ docs/GC/CRC_C_GC_14_ENG.pdf (last visited Nov. 11, 2015); although this may lead to circular reasoning since the Children's Rights Committee enjoins us to bear in mind the child's rights when assessing his best interests; see Schuz, supra note 3, at 377-78. 64. As opposed to the case of a dispute between the parents, when the court can consider the impact of circumcision on the particular child, as in the two English mixed-faith cases, In Re J [1992] 2 FCR 34; Re S [2004]EWHC 1282. 65. Mazor, supra note 29, at 422-27. 66. Made by the Cologne court Landgericht Köln [LG] [Regional Court of Cologne] May 7, 2012, No. 151 Ns 169/11 at 2 (Ger.) and by Resolution 1952, supra note 1, ¶7.4. 67. See supra notes 46 and 47 and accompanying text. 68. General Comment No. 14 ,supra note 63, ¶ 39 69. Adrian Viens, Value Judgment, Harm and Religious Liberty, 31 J. OF J. MED. ETHICS 241, 245 (2004), at 246 (concluding that parental interests must be protected because it has not been proven that male circumcision is harmful). 70. Inter alia by limiting external interference which might destabilize the family unit. See e.g. Joseph Goldstein, Anna Freud & Albert Solnit, BEFORE THE BEST INTERESTS OF THE CHILD 9 (1979).
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