Tortured bodies, tortured doctrines: Informed consent as a legal fiction inapplicable to neonatal male circumcision

Abstract

The doctrine of informed consent functions reasonably within its area of applicability of competent adults, though even in that setting it suffers from some difficulties both theoretical and practical. When applied by proxy to incompetent persons such as mentally incapacitated adults and newborn babies, the doctrine becomes a legal fiction, i.e., a legal construct created to force—fit a set of facts into an established legal analysis that is not literally applicable. The conceptual, ethical and practical difficulties are maximized with proxy permission to authorize circumcision of neonates. “Proxy consent” for neonatal circumcision is a legal fiction that cloaks a usurpation of agency allowing ostensibly hallowed principles of autonomy and self—determination to be violated with impunity. Such legal fictions conceal our violations from ourselves and others under the pretenses of legal authorization and compliance with ethics and human rights, and—in the circumcision context—the further pretense of medical authorization, masking our failure to properly safeguard human dignity and autonomy.