A state court in Cologne has caused uproar among Jews and Muslims by criminalizing circumcision. But the legal row is far from over.
Circumcision is an ancient religious ritual. In Judaism it is meant to take place eight days after birth and is said to seal the "covenant with God." It is also a religious duty among Muslims, and is either carried out on babies, or later in childhood - often as part of a large family celebration.
But the state court in Cologne has an altogether more worldly take on the removal of a foreskin - as bodily injury, and therefore a violation of German law. Judges did clear a doctor charged with that crime on Tuesday, but only because the legal situation is yet to be clarified.
Religious freedom and the right to practice a faith are rights enshrined in the German constitution. But they do not stand above the law - they are invalidated when they interfere with other constitutional rights. Among these is the "right to physical integrity" - which is certainly affected by circumcision.
An adult can of course voluntarily agree to a circumcision, but not a baby. The big conundrum is therefore - do religious motives and parental permission make circumcision legal?
"No," says Holm Putzke of Passau University, who raised the question in an academic journal in 2008. The law professor is not convinced by the argument that circumcision is for the "good of the child" because it symbolically gives the child access to a religious community.
Along with other critics, Putzke says that ancient religious and cultural traditions should be measured against modern legal systems, and should change accordingly. He suggests one solution himself - to delay circumcision until the man is old enough to decide for himself. The professor described Tuesday's verdict as a "groundbreaking and courageous judgment."
Bijan Fateh-Moghadam, professor at Münster University, sees things very differently. He believes that childhood circumcision is a "relatively simple procedure with few risks and recognized medical advantages." He argues, therefore, that parental permission in this case does not constitute an abuse of custody rights.
The doctor in the case facing the Cologne court was acquitted of bodily harm and released, on the grounds that he could not have known he was violating German law, because the legal situation remains so unclear. But the verdict has also changed all that, much to Fateh-Moghadam's disappointment. "I think the Cologne state court's verdict will lead to considerable uncertainty among many parents, and doctors in urology clinics that offer circumcision," he said.
Complex official channels
The verdict has certainly not ended the legal debate, as Bonn-based law professor Martin Böse pointed out. He thinks that a higher court could easily make a completely different decision. As far as Böse is concerned, only the Federal Court of Justice or the Federal Constitutional Court will be able to make the final judgment.
But Böse thinks it would be a bad idea to create a special law allowing religious circumcision. Indeed, legislators are currently drawing up a law expressly forbidding female circumcision. "So if you make a regulation that privileges and exempts certain religious groups, it will have legal consequences that are completely unpredictable," he said. Circumcising the clitoris in young girls is outlawed in Germany and classified as grievous bodily harm.
Fateh-Moghadam thinks that a special circumcision law is theoretically possible, but is neither helpful or necessary. "It would be preferable if the legal situation were to be clarified by a higher verdict, perhaps even the constitutional court," he said. "Then we could avoid having to draw up a law that would be extremely difficult to formulate." Both law experts believe the matter could even end up at the European Court of Justice - a process that could take years.
But the matter may need to be cleared up more urgently. The Cologne verdict will not stop Muslim and Jewish parents in Germany continuing to circumcise their sons, though Fateh-Moghadam thinks many will travel abroad or have the procedure carried out in private. "I think the verdict could have a paradoxical effect - the level of protection for children will fall rather than rise," he warns.
Author: Michael Gessat / bk
Editor: Andreas Illmer