Oregon Supreme Court Considers Circumcision of 12-Year-Old Boy

No graphic for this post, tempted though I am . . . .

On November 6, the Oregon Supreme Court heard a dispute between parents over the circumcision of their 12-year-old son. The father, who has recently converted to Judaism and has full custody of the boy, wants him circumcised. The mother is trying to stop the procedure and argues that it is both sexual and physical abuse. The lower court dismissed her challenge but would not permit the circumcision to occur until all appeals were exhausted.

There’s been plenty of talk about this case over at Law Blog. Reading the comments provides a snapshot of the debate over whether the United States should continue its practice of male infant circumcision. Law Blog has comments about the procedure’s health benefits and associated risks; assertions about whether circumcised males experience less sexual pleasure than uncircumcised males; and questions about whether one can criticize male circumcision and avoid being labeled anti-semitic.

I’ve argued elsewhere that even non-religious infant male circumcision is driven primarily by cultural concerns, not medical ones. Sociological research has shown that many parents decide to circumcise because they want their son to resemble his father or his peers. Moreover, the cultural ubiquitousness of infant male circumcision substantially affects the debate that surrounds the practice. Doctors, academics and judges cannot help but be influenced by the fact that they are likely to be circumcised themselves (particularly if they are Caucasian), or to have only been exposed to circumcised sexual partners, or to have decided to circumcise their own children. This cannot help but color the debate, probably in ways that even the participants themselves are unaware.

The Oregon case provides an interesting twist because the child is 12. At Law Blog, readers have emphasized the OUCH factor and argued that the boy can decide whether to undergo circumcision when he turns 18. But some other cultures believe that circumcision is too painful and traumatic for newborns; instead, they circumcise boys during late elementary school, as part of a passage into manhood.

An article in the NY Sun quotes Geoff Miller at NYU as stating that he would “be quite shocked or at least surprised” if the Oregon Supreme Court reverses the lower court. Miller has good reason for his opinion, as courts have been unsympathetic to non-custodial parents who seek to prevent the circumcision of infants, and to custodial parents who claim the procedure was done without their informed consent. Still, this case may turn out differently than the rest. The Pacific Northwest has the lowest circumcision rates of anywhere in the county. The boy is 12. The combination of these two factors may mean that judges in Oregon view this case through a different cultural lens.

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12 Responses

  1. Has anyone thought to ask the kid what he wants? I think that all are blowing this way out of proportion. This is a circumcision, not a beheading. A simple medical procedure, no more complicated than receiving stitches.

  2. Sarah Waldeck says:

    The child’s wishes are not clear, although the mother filed an affidavit stating that the child did not want to be circumcised. The father has argued that the child’s opinion is not relevant.

    Sarah Waldeck

  3. adhum says:

    Thanks for your coverage and perspective on this case.

    My view is that a 12-year old should not be forced into a circumcision. I think what the boy wants matters more than what the father wants. I hope the court agrees. The father is arguing he can force any kind of unnecessary, cosmetic surgery he wants on his kids, even if they’re perfectly healthy and explicitly don’t want it. Ridiculous.

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  5. Steven Lubet says:

    There are at least three affidavits in the record — from the father, from the urologist who will perform the procedure, and from the child’s half-brother — stating that the child intends to convert to Judaism and that he understands and wants to undergo circumcision.

    The mother filed a contrary affidavit.

    It should be obvious, however, that the procedure could not go forward over the child’s objection, because no physician would perform a circumcision on an unwilling 12 year old.

  6. adhum says:

    It should be obvious, however, that the procedure could not go forward over the child’s objection, because no physician would perform a circumcision on an unwilling 12 year old.

    No, that is not obvious. I wish it were, but is not.

  7. anon says:

    There is some interesting history between the two parents in this case.

  8. Hans Bader says:

    It’s the kid’s wishes that should control, given his age.

    Parents have the right to make the decision for infants.

    But constitutional rights often have temporal or other limits — for example, you have (in general) a First Amendment right to run for office, but not if you miss the filing deadline.

  9. What would happen if it were a 12-year-old girl and her mother remarried an Indonesian Muslim who insisted on a clitorodotomy? Abuse is abuse, regardless of sex.

  10. Hugh says:

    It is not just “a simple medical procedure, no more complicated than receiving stitches”. Have a look at a video of an infant one and turn the sound up.

    Parents may currently have the legal right to cut the most sensitive part of a boy’s penis off, but no moral right.

    Circumcision is life-long. If the child were a girl, not just a clitoridectomy, but any non-medically-indicated genital surgery at all would be illegal, with no exemption for culture or religion, or even, in some jurisdictions, an adult woman’s informed consent.

    Your third paragraph is very wise.

  11. adhum says:

    Sarah, can you comment on what you consider some of the potential outcomes of this case which include protection for this boy, and what effect those outcomes would have on the wider sociomedical controversy in the United States over involuntary non-therapeutic circumcisions?

  12. Sarah Waldeck says:

    If the Oregon Supreme Court refused to allow the circumcision, I don’t think that the case would have much (any?)effect on routine infant circumcision. A ruling that prevented the circumcision would have to acknowledge that the procedure is a serious one. But the boy’s age makes it very easy to distinguish his situation from what routinely occurs in the United States.

    From a legal standpoint, I think that a no-circumcision ruling would be used mostly for precedent about what sort of non-therapeutic cosmetic procedures custodial parents can consent to on behalf of their minor children. According to reports, this was one of the lines of questions at oral argument.

    To my knowledge, no guardian ad litem has been appointed to represent the boy. This case seems to cry out for one. Thanks to Lubet, we know that there is contradicting evidence about the boy’s desire. Family law is not my area, so if anyone wanted to explain why no guardian has been appointed, I’d appreciate it.