ok
----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
518-445-3386 (p)
518-445-3363 (f)
paul.finkel...@albanylaw.edu
www.paulfinkelman.com
________________________________
From: Perry Dane <d...@crab.rutgers.edu>
To: religionlaw@lists.ucla.edu
Sent: Thursday, July 12, 2012 6:07 PM
Subject: Circumcision
My answers
here should also be informed by Marty's sensible third category of likely
regret. But I'll limit myself to the two categories I tried to
outline in my earlier post.
(1)
Tattooing: I don't like tattoos. I actually often find myself
physically repulsed by them. My own religion forbids them.
But if parents had a serious religious reason for tattooing their
underage child (note that I'm limiting myself here to religious reasons),
I would not want the state to intervene unless the tattooing were of a
sort that involved severe pain or was likely to have genuinely harmful
long-term physical, psychological, or sociological consequences for the
child.
(2)
Sterliziation: The state could reasonably conclude that forcibly
sterilizing a child produces the grave harm of eliminating that child's
ability to make future reproductive choices. Here, the issue of
competent consent is inextricably tied up with the procedure.
Adults who have themselves sterilized are making a reproductive choice;
children who are sterilized without their consent are deprived of all
future such choices.
(3)
Pregnancy: It does seem to me that society could reasonably
conclude that pregnancy by a 14-year-old is developmentally inappropriate
for both physical and psychological reasons. To be sure, we should
respect the kid's autonomous rights in this context, at least to the
extent of, for example, not allowing either the state or the kid's
parents to force her to have an abortion. But, as Eugene
emphasizes, that doesn't mean that we do or should "excuse" the
culpable role that others might play in getting the kid
pregnant.
Obviously,
one of the issues in all these comparisons is my sense that circumcision
is not as big a deal as some would suggest. Apart from its
religious significance for many folks, it does seem to have serious
health benefits, including but limited to helping to prevent HIV
infection, which is why there's a major campaign in parts of Africa to
have as many men as possible sterilized. Moreover, it clearly does
not eliminate sexual sensitivity or gratification, or even reduce it to
the extent that millions upon millions of circumcised men are heard
lamenting their fate. Indeed, the jury is out as to whether it has
any real effect on sexual sensitivity or gratification at all. And
even if it did lead to some small reduction in sheer physical
sensitivity, that would strike me as only dubiously relevant: it
assumes that the quality of sex is tied in a purely linear way to the
quantity of a particular physical stimulus.
Add to all
this the point I made earlier: To the extent that the act of
circumcision itself is potentially disturbing or physically complicated
for the one being circumcised, that's much more true for adults than for
eight-day-year-old baby boys.
Let me,
though, throw out a hypothetical of my own. Say that baby is born
with a very large and very visible and, by most lights, unsightly mole on
his or her face. The mole poses no health risk to the child.
But it is very ugly. The doctors tell the parents that they can
remove the mole completely with very little risk to the child.
Having the mole removed as an adult would be possible, but somewhat more
complicated. In any event, if the procedure were put off, the child
would grow up with the mole still on his or her face.
The
parents decide to have the mole removed (1) for aesthetic reasons and/or
(2) because they're concerned that the sense of social identity or
psychological health of the child will be impaired if they do not have
the mole removed.
Should the
state intervene in this decision? Should it be entitled to?
Would these parents' aesthetic and psychological concerns be more worthy
of respect than the religious motives of parents who have their baby boys
circumcised? Should it matter that the aesthetic judgment of the
mole is culture-specific, or that in some other cultures such a mole
would actually be thought to be a mark of great beauty?
If a
response to this hypo is that circumcision is different from mole-removal
because it cuts off a sexually sensitive part of the body, then I can
tweak the hypo slightly to assume the mole removal (1) will have a
minimal negative consequence such as, say, ever-so-slightly blunting the
kid's sense of smell, and (2) it will also have some positive medical
consequences, such as reducing the risk of certain sorts of infections,
and I can further assume that the parents, taking into account these
facts in addition to their aesthetic and psychological concerns, still go
ahead with asking the doctors to remove the mole. I'm not sure
these tweaks change the equation very much.
If,
though, the answer is that circumcision is different simply because moles
are "defects" while foreskins are natural parts of the male
human body, that reaction would strike me as just physically
essentialist. What if the aformentioned mole weren't all that rare,
but actually appeared on 5% of babies, but almost all parents in a given
culture (or religion) whose baby fell into that 5% group nevertheless
decided to have it removed? What if it appeared on 20% of
babies? 40%? 75%? 99.99999%? At what point would
the mole stop being a "defect" and turn into a
"natural" feature whose removal should be left to the kid to
decide when he or she becomes an adult? (I'm not being flippantly
post-modern here. We should indeed be essentialist about lots of
physical features. I would gladly let the state override a parent's
decision, even if grounded on religious beliefs, to remove one of a
baby's kidneys or lungs or limbs. But neither moles nor foreskins
are like kidneys, lungs, or limbs.)
Perry
From: "Volokh, Eugene"
<vol...@law.ucla.edu>
>Date: Wed, 11 Jul 2012 15:21:04 -0700
>
>
I would think that a distinction between physical alteration of a child's
body and other actions would indeed be a sensible one (though not always
a dispositive one), and one that is consistent with our general view that
physical alteration of another's body is an especially serious intrusion
on that person. But let me ask Perry what he thinks of these
hypotheticals:
>
>
(1) California law, as best I can tell, categorically bans all
tattooing of under-18-year-olds. Let's go back to a time when
tattoos were essentially permanent. Would parents nonetheless have
a constitutional right -- just as the exercise of their parental rights
-- to tattoo a child, especially one too young to have a view on the
subject? Or could the state say that this is a decision that should
be left to the person whose body this actually is, at a time when the
person can make the decision?
>
>
(2) Say that parents decide to sterilize their child, perhaps
because they believe that either God or Gaea doesn't want more children
to be born on the planet, or perhaps because they have some genetic
condition that they do not want the child to risk spreading. (Set
aside the special case when the child is mentally retarded, unable or
unwilling to use contraceptives, and unlikely to ever be able to make an
informed decision about sterilization.) Do parents have a
constitutional right to do this, or should this be left for the child to
decide when he or she becomes an adult? I take it that whatever one
might say of sterilization, one wouldn't say that it is necessarily an
"unquestionably grave harm, physical or psychological"; quite a
few sane adults choose to be sterilized. Of course it may be an
unquestionably grave harm when done without the subject’s informed
consent; but why wouldn’t removal of a functioning and an apparently
quite sexually sensitive part of the body likewise be seen as a
sufficiently grave harm? (Or is the point simply that it is
“questionabl[e]” whether the removal really does affect sexual
sensitivity?)
>
>
(3) Say that parents have a doctor perform an artificial
insemination of their 14-year-old daughter, with the daughter’s
agreement; assume the daughter is sufficiently sexually mature that the
pregnancy poses no medical risk. (There’s also no sex involved, so
it isn’t a statutory rape question.) Perhaps one of the parents is
dying and wants the experience of being a grandparent as quickly as
possible, or perhaps they take “be fruitful and multiply” to mean “as
soon as possible.” I take it having a baby, even at 14, is not as
such an “unquestionably grave harm, physical or psychological”; and I
don’t think the problem here is really that pregnancy is not
“developmentally appropriate” as such. Rather, it seems to me that
it’s reasonable for the state to say that the decision about whether and
when (and with what sperm) to become a parent is a decision that should
optimally be made by an adult, or at least by someone older than
14. (While of course the 14-year-old could get pregnant the
old-fashioned way, assume the law also prohibits that, by making it
statutory rape on the man’s part, and by making any adults who facilitate
or encourage such an action accessories to statutory rape.)
>
>
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