Is circumcising an infant or boy a form of physical assault? A German court ruling unleashed a heated debate on this question a few months ago, and now a new law is expected to provide clarity.
The German government wants to enshrine the circumcision of Jewish and Muslim boys in law. To this end, Justice Minister Sabine Leutheusser-Schnarrenberger presented the cornerstones of her new proposal to the state governments and relevant associations on Tuesday (25.09.2012).
The new plans were set in motion by a Cologne court judgment in May, which ruled that removing the foreskin from a newborn or boy constituted a violation of his bodily integrity. The verdict, which is not binding for other courts, attracted international attention and sparked considerable outrage among Jews and Muslims. In response, the lower house of German parliament, the Bundestag, called on the government to draw up a legal ruling.
Leutheusser-Schnarrenberger wants religious circumcision to be legal. A new paragraph is to be added to the relevant child protection laws to make clear that parents are allowed to approve the circumcision of their son - under certain conditions. In other words, the operation must be carried out according to medical standards, including anesthetic "if necessary."
A spokesman for the Justice Ministry said several concerns had been addressed to ensure that the circumcision be carried out as painlessly as possible. The procedure should only follow a thorough education of the parents as of its implications, and parents must take the child's own will into account. Exceptions will also be made if a child's health could be endangered by the circumcision - for instance if he is a hemophiliac.
Generally a doctor should carry out the circumcision, but in the first six months of a child's life, a person designated for the task by the religious community will also be permitted, as long as they are just as competent as a doctor.
Jewish approval, doctors' warning
Dieter Graumann, president of the Central Council of Jews in Germany, expressed satisfaction with the proposal, which met many of the Jews' demands. "The Justice Ministry deserves respect and recognition for making such a clever suggestion," he said, adding that though the document was a good basis for discussion, details still had to be ironed out. The debate, he said, should now finally be carried out soberly.
But doctors and human rights organizations warned against the consequences of circumcision and called for more research into the religious practice.
Impractical and scandalous
Reinhard Merkel, legal expert at the University of Hamburg, has little time for the ministry's cornerstones. He admitted that it was plausible that the proposal was not aimed at establishing the parents' religious motivation.
"They wanted to avoid giving the impression that they were making a special religious exemption - though of course people can see that that is basically what it is," he said. "If some ideological group had called for little boys to be circumcised for aesthetic reasons, it would not have been allowed under any circumstances."
He said the problem was now that any motive, regardless of how extravagant or strange, would allow parents to have their child circumcised. Merkel said there are enough people who think that circumcision is more aesthetic. Now they have the legal sanction to impose their own will on their child.
"One could imagine even stranger motives - for example the young surgeon who says, 'Oh you're allowed to now. I need the practice, so I'm going to try circumcising my son,'" Merkel said, adding that such a practice would in theory be legally admissible.
Protecting children enshrined in the constitution
But Merkel's criticism went further. He said he considers it scandalous that the obligation to provide an adequate anesthetic has been "watered down."
"The ministry thinks it's covered that by referring to medical standards - which would include adequate anesthetic," he said. "But at the same time, babies under the age of six months can be circumcised by non-doctors. Does that mean that Jewish mohels [those trained in circumcision] are allowed to apply an anesthetic that they have no idea about?"
In 90 percent of circumcisions, the anesthetic is provided by a piece of cloth impregnated with red wine, which is put in the baby's mouth.
Merkel also said he thinks that the child's veto has also been weakened. "The 'natural veto' means when the child defends itself and refuses to take part," he said. "They apparently wanted to avoid writing this natural veto into the proposal, because with an eight-day old baby, the age they are circumcised at in Judaism, even a scream could be seen as the articulation of a natural veto."
Bijan Fateh-Moghadam of the University of Münster has a very different take. For him, circumcising a child is "a relatively easy operation with low risks and well-recognized medical advantages." As far as he is concerned, parents' approving a male circumcision is not an abuse of their duty of care.
Bonn legal expert Martin Böse said he believes the legal debate still has a long way to go, and added that the final say could well go all the way to the German Court of Justice or the Constitutional Court.
Böse said he does not think much of the idea of bringing in a special law to allow religious circumcision. He pointed out that lawmakers are currently drawing up a law specifically to ban religious female circumcision.
"If we now create a regulation that grants religious traditions a special privilege and exempts them from criminal law - that would be a regulation whose consequences can hardly be predicted," he said.
Fateh-Moghadam agreed that a special circumcision law is possible, but neither useful nor necessary.
"It would be better if the legal situation could be clarified through a high court, possibly by the Constitutional Court," he said. "Then we could avoid having to formulate this very tricky special law."
Both experts agreed that the matter could well finally end up before the European Court of Justice. That would mean that the circumcision debate could last a few more years still.