Consent and Parental Rights

Parents’ rights to consent for their children are not limited by notions of bodily integrity and medical benefit alone and includes the right of parents to elect circumcision for their children. 

Minors, by definition, are incapable of making decisions for themselves. Therefore, consent on behalf of minors is routinely provided by parents where parents determine what is in the best interests of the child. This right is not limited by notions of bodily integrity and medical benefit alone. Rather, in securing the best interests of a child, parents rightly consider “social, cultural, religious, and familial benefits and harms” in addition to medical benefits and harms when making decisions. Although regulated, a parent’s right to make decisions on behalf of a child is acknowledged as fundamental and universal, even for practices which can cause harm to the child and carry no medical benefit.  As a religious rite made safe through medicalization, the decision to circumcise a child, male or female, is ultimately the right of parents to make.  

Parental consent is routinely given for participating in elective yet dangerous activities. These include signing injury waivers for sports and entertainment, where the potential for injury is substantial. There is no question that a parent has the right to authorize activities like swimming, gymnastics, skateboarding, playing football, etc. despite risks of head injuries, drowning, paralysis, and death. The risk of these activities is assumed by the parent on behalf of the child. These risks are mitigated by regulations (e.g. helmets, lifeguards) rather than outright and overly broad bans on the activities themselves.

Consent is also required for medical procedures with potential for harm. The primary example is immunizations against communicable disease. Immunizations are a public health imperative despite the documented (though rare) potential for adverse effects. These effects range from minor to severe allergic reactions and fatalities. Though vaccinations are necessary to prevent health risks to the public, the presence of these risks demonstrates that the individual right of a child to be protected from possible harm is not absolute.  In the United States, vaccinations are often functionally required.

Parents further have a right to consent to a number of purely aesthetic procedures. There is no medical indication nor benefit from body piercings on children, and ear piercing (the most prevalent type) is known to have a number of complications including allergies, tearing of the earlobe, deformation of the auricle, and infection with purulent discharge, the latter of which occurs in 24% of all piercings. More serious complications that require surgical intervention have also been observed. Even delaying piercings to adolescence is not without risk; in one study, 80% of children pierced after the age of 11 developed unsightly ear growths (keloids). The risks of piercing is such that the American Academy of Pediatrics does not condone ear piercings for infants.

Male circumcision is by far the most prevalent procedure on male infants, and despite attempts to ascribe significant health benefit to it, it remains primarily a religious rite. The procedure is not without risk, but since it is deemed culturally and legally acceptable, it is often overseen by medical professionals and performed in sanitary and controlled environments. Although there are variants of male circumcision which have proved fatal, such as metzitzah b’peh which caused 24 cases of herpes in male infants since 2000 of which two had brain damage and two died, the practice, and specifically the practice of metzitzah b’peh, is allowed to continue. Male circumcision is an excellent example of a religious procedure of contested health benefit that is nevertheless legally protected and made largely safe due to medicalization and regulation.

Clearly, mere risk of potential harm is not sufficient to override parental consent authority; however, parental authority for consent can be nullified in the case of actual serious harm. However, mere “bodily integrity” is clearly not a sufficiently compelling interest to override parental authority.

It is our assertion that female circumcision, if performed correctly under medical supervision, causes no harm – a practice which was briefly endorsed by the American Academy of Pediatrics, and still promoted as an ethical alternative to unsupervised and unregulated genital cutting that is deemed to cross the medically-safe line. As has been noted elsewhere on this site, female circumcision is anatomically similar to male circumcision, it is a nick or small removal of a portion of the clitoral hood, which is an analogous structure in females as the foreskin is in males.

Just as with the examples of parental consent, medical oversight and regulation, not prohibition, is the standard for preventing serious harm. Medicalization is why male circumcision is safe. The AAP admits to some health benefit with regards to AIDS prevention for male circumcision, but not enough to justify universal circumcisions for male newborns. Nevertheless, parents are protected in their right to have the elective surgery performed on their male children. The AAP did briefly support a “ceremonial nick,” a procedure like female circumcision, for female infants until public outcry forced them to retract. It is clear that in the opinion of the medical community, neither a ceremonial nick like female circumcision nor male circumcision falls into the category of serious harm, and therefore there is no reason that parental consent is not sufficient to permit the procedure.

 

Further Reading

NOTE: The content of the below articles do not necessarily represent the position of this website.  Any opinions expressed in the linked or hosted articles are the author’s own.

Volokh, Eugene, and Eugene Volokh. “Opinion | Religious Exemptions And The Detroit Female Genital Mutilation Prosecution”. Washington Post. May 23, 2017.

Available at: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/23/religious-exemptions-and-the-detroit-female-genital-mutilation-prosecution/?utm_term=.eb491f74c2bc

Professor Eugene Volokh is an expert on United States’ religious freedom and church-state relations law.  He discusses the US laws that may be used in the defense of a Detroit doctor accused of practicing female circumcision–specifically the claim of religious exemption.  As the US government does not seem to grant an absolute right of bodily integrity to children, Professor Volokh finds that if the practice of female circumcision is not deemed to result in long-term medical harm, the Detroit doctor may be granted a religious exemption for practicing female circumcision.

 

 

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