Older minors and circumcision: Questioning the limits of religious actions

Abstract

On two occasions the Court of Appeal in England has addressed the legality of non-therapeutic circumcision performed on a minor unable to provide consent. Both cases involved disputes in post-separation families where one parent sought a male child's circumcision against the wishes of the other parent. In January 2008, the Supreme Court of Oregon was faced with a similar factual situation in the case of Boldt v Boldt. However, the boy at the center of the dispute in Boldt was significantly older than in the English cases. The Supreme Court therefore concluded that the testimony of the boy himself, who is now 13, was required and remanded the case for a re-hearing in order that the trial court could specifically address his wishes with regard to circumcision. In this paper, we offer a critique of the Oregon Court's somewhat elliptical reasoning in the Boldt case. We argue that cases involving male circumcision of older children raise important ethico-legal issues, which the Boldt judgments gloss over, and which English courts have yet to confront in the context of circumcision. Consequently, our aim in this paper is to use Boldt as a lens through which to explore and inform UK practice. We argue that this case fits into a characteristic pattern according to which judges, law makers, and professional bodies shy away from confronting key ethico-legal questions raised by the tolerance in Anglo-American society of non-therapeutic genital cutting of male infants. In raising explicitly for the first time the position of older minors, the factual situation in Boldt affords us an opportunity to begin to address the limits of parents' rights to determine the future religious identity of their children. In seeking to analyze how Boldt and the questions to which it gives rise might inform UK law we focus on three issues. The first is the right of the boy at the center of the dispute to determine which medical treatments or interventions to his body are permissible. The father's subsequent petitions for reconsideration and for certiorari mean that, when the boy's testimony is finally heard by a court, it is likely that he will be 14 or 15 years of age. We aim to assess how a UK court might respond if faced with the task of determining whether a minor could choose circumcision for himself in such a scenario. A subsidiary question here is the extent to which circumcision procedures are appropriately categorized as medical treatment. Finally, we offer some more tentative thoughts on what limits may legitimately be placed on parental rights to make choices for their children when their choices are motivated by religious belief.