Thursday, September 27, 2012

BERLIN: How Germany plans to break its own Basic Law

September 24, 2012

Germany abandons religious test for non-consented circumcision, opts for "medical"

The German Justice Ministry has released further details of its proposed law to enable unnecessary circumcision of non-consenting minor boys. They abandon the idea of an exemption for religious circumcision, but bring it under the rubric of "medical" circumcision. This is in spite of the fact that the change is being made specifically to allow religious circumcision. (There is virtually no demand in Germany for "cultural" circumcision like that in the USA.)
Circumcision of boys - Key Elements of a Regulation
I. Text of the Proposed Rules:

"Circumcision of the male child

(1) The child's care includes the right to consent to a medically not-indicated circumcision of a child who is not old enough to comprehend or consent, if these are carried out according to the rules of medical science. This does not apply if the child's welfare in endangered by circumcision, taking into account its purpose.

(2) In the first six months after birth, circumcision of a male child may be also carried out by individuals designated by religious groups, without being physicians, if they are specially trained."

II. Background

With the (legally binding) judgment of 7 May 2012 (document number: 151 Ns169/11, NJW 2012, 2128), the Regional Court of Cologne concluded that the circumcision of a 4-year-old boy was an illegal assault within the meaning of § 223 paragraph 1 of the Criminal Code (CC), even if undertaken in accordance with the rules of the medical profession and performed with the approval of the Muslim parents for religious reasons.

Parental consent was irrelevant because circumcision is contrary to the requirements of child custody to serve the child's best interests.

To address the resulting legal uncertainty, the German Bundestag requested the following of the federal government by order of 19 July 2012 (Bundestag printed paper 17/10331) [There was no "legal uncertainty" - non consented infant circumcision breaks the Basic Law - there is only a religious demand and political pressure.] :

"Taking into account the constitutionally protected parts of child welfare, physical integrity, freedom of religion and the right of parents to educate [but not to modify] as they see fit, submit [to us] a bill that ensures that a medically professional male circumcision without undue pain is generally admissible."
[Nowhere do they address the breach of gender-equality implicit in this. How will they resist, when Muslim parents demand the right to have doctors "circumcise" their daughters - minimally, surgicaly - under the same law?]

III. Key points of the proposed rule:

Custodial approach: The discussion centered on the question of the reach of parental authority. A regulation therefore should be enshrined and made clear with the Children's Law (§ 1631d BGB) that the parents (with custody under Article 6 Section GG 2, § § 1626, 1631 BGB) may consent to the circumcision of their son under certain conditions.

Parental consent shall preclude any claims of illegality of the procedure with the consequence that properly performed circumcision of boys cannot be punished as assault and no liability for damages shall trigger. [This seems to forclose the man's later right to sue for the wrong that has been done to him.]

Confinement of the proposed regulation to circumcision of boys unable to give consent: Only actually problematic circumcisions of boys unable to give consent would be governed by the judgment of the Court of Cologne.

Religious or ritual-traditional circumcisions are regularly performed at an age where children lack insight and judgment and therefore cannot render effective consent to the procedure. [An excellent reason not to do it to them without consent.] In Judaism, this means on the eighth day after birth. In Islam depending on the sect and culture it could mean anywhere from the seventh day after birth to about the end of primary school age.

Medically indicated circumcisions are excluded: Medically necessary (= Medically indicated) circumcisions are not the subject here, as there is common ground that parents have the authority to consent to medically indicated circumcision of children too young to comprehend and consent, as with any other medically necessary treatment of their child. [Thus any claims of medical benefit are irrelevant.]

No special religious requirement: The law shall be deliberately designed such that the requested circumcision is not dependent on a religious motivation to be legal. Otherwise legal practice would face before all else the difficult task of having to determine the content and specifics of religious beliefs. [Yet this is the sole reason for the "necessity" of a change to the law.]

Apart from religious bases, parents can appropriately elect the globally-now-common [No, only in the United State] , even though not medically indicated, circumcision of their son for an assortment of reasons having to do with beliefs about the welfare of their child. (See, for example, the opinion of the American Academy of Pediatrics from August 2012 that states the health benefits of newborns circumcision outweigh the risks. Pediatrics 2012, 130: 585-586 [Annotated here, video rebuttal here] ).

A scheme recognizing solely religiously-motivated circumcision of boys would not encompass all the varying valid reasons for choosing circumcision and would therefore not be fair or legally enforceable.

Conditions in the interests of the child: The consent of the parents must be bound up with child welfare-oriented conditions for the circumcision, which are increasingly being mentioned in the public debate on this issue (see Ethics, press release of 23 August 2012).

Parents should be able to provide consent for circumcision that is not medically indicated, on their son who cannot give consent, under the following conditions:

• Circumcision must be carried out according to the guidelines of medical science: This includes a professional execution of the procedure, hygienic conditions - as this is also covered by the rules of medical science - and the provision of effective pain management appropriate to individual cases and with respect to medical standards.

• Duty of circumcisers to fully educate parents before the procedure: A comprehensive explanation to parents of the consequences and risks is already a prerequisite for their effective consent under applicable law.
Properly warranted consent to a medically non-indicated intervention into someone's physical integrity is mandatory under current law. It requires an appropriate and more comprehensive explanation to the legal interest holder or - as here - his legal representatives. An additional mention of this requirement in the text of the proposed regulation is therefore not necessary.

• About the caveat of attention to the welfare of the child in paragraph 1, sentence 2, the constitutional protection mandate may be taken into account, if the circumstances of the individual case result in a hazard to the child. In this context any contrary will of the child may ["may"? Why not "must"?] also be take into account.

In Germany, the circumcision of children - even those carried out on religious or traditional grounds - is performed by physicians in a great many cases. However, religiously motivated circumcisions may also be performed by persons designated by a religious society.

The proposed plan allows such designated persons  to carry out circumcisions when they have been specifically trained and exhibit circumcision qualifications comparable to those of a surgeon. The conditions and requirements set out in Paragraph 1 above also shall apply to circumcisions by such persons.

The proposed regulation should limit the assessment of religious freedom on the one hand and the health interests of the child on the other hand to strictly the first six months after the child's birth. [Do children magically gain constitutional rights six months after they are born - or are they just easier to hold down? Is this all just about Germans being squeamish about forcibly circumicising boys old enough to complain?]

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