With the proclamation of the South African Children’s Act in April 2010, South African boys now have a significant level of legal protection against unwanted circumcision. The act gives children the right not to be subjected to social, cultural and religious practices detrimental to their well-being, and prohibits circumcision of male children under the age of sixteen except in cases where there is a valid religious reason, or if the operation is medically necessary for therapeutic purposes. Although these are significant loopholes, the act still gives South African boys considerably greater legal protection than is enjoyed by boys in Australia or most other countries.
The relevant sections of the act are printed below.
Best interests of child standard
7. (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely –
… (l) the need to protect the child from any physical or psychological harm that may be caused by (i) subjecting the child to maltreatment, abuse, neglect, exploitation* or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person.
Best interests of child paramount
9. In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.
Social, cultural and religious practices
12. (1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being.
(8) Circumcision of male children under the age of 16 is prohibited, except when –
(a) circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed; or
(b) circumcision is performed for medical reasons on the recommendation of a
medical practitioner.
(9) Circumcision of male children older than 16 may only be performed –
(a) if the child has given consent to the circumcision in the prescribed manner;
(b) after proper counselling of the child; and
(c) in the manner prescribed.
(10) Taking into consideration the child’s age, maturity and stage of development, every male child has the right to refuse circumcision.
* NOTE: The Act defines “exploitation”, in relation to a child, as “all forms of slavery or practices similar to slavery, including debt bondage or forced marriage; sexual exploitation; servitude; forced labour or services; child labour prohibited in terms of section 141; and the removal of body parts."
As you can see, although this is a great step forward, it is not without problems. For a start there is gross gender discrimination, in that girls are given blanket protection against any kind of harm, but boys have to make do with qualified and limited protection. The exception for “religious purposes” allows practising Jewish and Muslim parents to circumcise without constraint, but the failure to specify the religions accorded the exemption provides a loophole for anybody who wants to invent his own religion – as occurred in a recent Canadian case, where the father decided that the religion he had just invented allowed him to circumcise his four-year-old. Even more seriously, the reference to “medical reasons” fails to define what they are. If what is meant is a situation where circumcision is necessary to treat an injury, deformity or disease that has failed to respond to conservative treatment after reasonable efforts, that is one thing, and the provision will provide a significant level of protection.
If, on the other hand, what is meant is circumcision performed in the belief that it will reduce the risk of contracting diseases to which the child may be exposed at some later date (i.e. prophylactic or precautionary circumcision), that is quite another, and the provision will provide no protection at all against the circumcision promoters. Most non-religious circumcision is prophylactic circumcision, but it should not be confused with therapeutic circumcision (i.e. treatment for an existing problem). It is significant that in its paper on the legal status of circumcision of male minors the Tasmania Law Reform Institute is careful to explain that prophylactic circumcision is not therapeutic.
Still, South Africa is way ahead of Australia and most developed nations in making some attempt to crack this difficult nut.
In a letter dated 23 June 2011, the South African Medical Association has stated that it does not support the practice of circumcision of infants as a means of preventing HIv transmission and that it considers circumcision of infants to be both unethical and illegal. The letter was signed by Ms Ulundi Behrtel, Chairperson of the Human Rights, Law and Ethics Committee. The full text of the letter follows:
23 June 2011
Mr Dean Ferris, Co-Director
National Organisation of Circumcision Information Resource Centres
South Africa
Dear Mr Ferris
CIRCUMCISION OF BABIES FOR PROPOSED HIV PREVENTION
We refer to the above matter and your email correspondence of 16 February 2011. The matter was discussed by the members of the Human Rights, Law & Ethics Committee at their previous meeting and they agreed with the content of the letter by NOCIRC SA. The Committee stated that it was unethical and illegal to perform circumcision on infant boys in this instance. In particular, the Committee expressed serious concern that not enough scientifically-based evidence was available to confirm that circumcisions prevented HIV contraction and that the public at large was influenced by incorrect and misrepresented information. The Committee reiterated its view that it did not support circumcision to prevent HIV transmission. We trust that you will find this in order.
Yours faithfully
Ms Ulundi Behrtel
Head: Human Rights, Law & Ethics unit
Obo Chairperson: Human Rights, Law & Ethics Committee
SA Medical Association
A pdf of the letter is available on request.
A correspondent in South Africa has sent a long letter explaining that, despite its apparent prohibition of circumcision, the South African Children’s Act does not protect boys from circumcision, but actually makes it easier for parents and government authorities to get them circumcised. This is disturbing news, revealing that massive violations of human and child rights are occurring in South Africa, with the connivance of the United Nations and without any protests from international human rights bodies. The only groups that seem to be protesting are anti-circumcision organisations such as Nocirc South Africa, and (surprisingly) the South African Medical Association, which has consistently rejected schemes to promote circumcision as a response to South Africa’s high prevalence of HIV infection. The letter shows circumcision is now being promoted by an authoritarian government, with a high level of propaganda, bullying and other coercion.
With regard to the information on your website about the South African Children’s Act, it is not accurate that South African law protects boys from unwanted circumcision, especially minor boys. I am a South African, and it is clear to me that parents take boys for circumcision up to the age of 16, whether they like it or not.
Section 8 of the Children’s Act states that circumcision of male children under the age of 16 is prohibited, except when (a) circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed. But there is no regulation to determine how religious a parent is or which religions can legitimately circumcise. An atheist can say “I believe in Allah” and there is no contest: that is sufficient, as attendance at Mosque, church or any participation is not required for the circumcision to be categorised as religious. Any person can say they circumcise because they are Jewish, or like a friend who said she was Israeli, but a Christian rather than Jewish. The Zulu people used not to circumcise, but they have decided to start circumcising, and suddenly claim that it is their culture and 100% legal: all the Zulu king had to say is “I support Circumcision”, and now it is mandatory for all Zulus to be circumcised.
Sub-section (b) allows an exception for circumcision to be performed for medical reasons on the recommendation of a medical practitioner. But this is not interpreted to mean that there is a medical condition requiring circumcision: HIV prevention is recognised as a medical reason, and there are no guidelines to limit which medical reasons may be appealed to. It is confirmed that HIV prevention is a valid reason. South African authorities accept that circumcision reduces the risk of HIV infection and therefore that it is “medical reason”. Furthermore any person who is registered under Health Professions Act 1974 (including dentists) is a medical practitioner by law. Even a dentist’s recommendation is valid under this law, which does not require a recommendation to come from the child’s GP.
Another popular misconception is the meaning of Section 10: “Taking into consideration the child’s age, maturity and stage of development, every male child has the right to refuse circumcision.” This section requires the child to be of sufficient “age” and “maturity“ and “well developed” to be entitled to refuse. Because of the word AND, all those criteria must be met before his right to refuse is valid. There is no legal definition of maturity or stage of development, and on this point there are two schools of thought: some say the age of consent is 12 for medical procedures, meaning that the boy must be at least 12 to refuse or to be legally recognized in a medical procedure. Others reason that the law makes special provision for consent for circumcision at age 16 and older. The right to refuse means the right to withhold consent, which is applicable only when the boy turns 16. If a parent or guardian provides surrogate consent for a boy under 16, then the medical practitioner may circumcise him, and no consent from the boy himself is required. This makes it difficult to determine whether a boy under 16 can actually refuse to consent or whether his consent is required. It is likely that circumcising a boy under 16 against his expressed wishes will still be legal, while it is certainly legal to circumcise a boy under 12 against his will.
To take an example, let say the boy is 13 and has still has a non-retractable foreskin. The doctor say he has incurable phimosis and must be circumcised or he will be at risk of cancer later. The boy refuses because he is scared and does not understand the seriousness of the problem. Would that mean the parents no longer have any say because he chooses to refuse? Of course not: in that case the parents can consent, and whether he likes it or not that phimotic foreskin must be removed. But the law does not make any distinction between a phimosis and HIV prevention. In terms of the circumcision law “medical reasons” mean that one is as valid as the other. Both are medical reason deemed beneficial to the child’s interest.
Social pressure
Another aspect is social pressure, with schools and the media promoting circumcision. When a parent wants a boy circumcised, he is already conditioned to think that its expected and it is the right thing to do, so he is unlikely to resist even if he does not like the idea. Parents tell boys that they must be circumcised because of the benefits (“It’s better, girls like it more” etc) and scare him with stories of what will happen if he doesn’t cooperate. That also causes boys not to resist and to believe they have to cooperate.
Furthermore, boys generally lack knowledge and are easily intimidated by the authority of parents, thus leading them not to question or argue. For this reason a friend of mine who is a nurse says that minor boys are queued at hospitals for circumcision regardless of whether they like it or not. A boy who protests falls under the category of “All children are scared of medical procedures, even the dentist, so just try to keep him calm so that we can proceed”. For practical reasons Section 10 places no limits on parental power when boys are under 16.
The only area where the laws on circumcision are often enforced is with illegal non-medical practices and forced circumcision of boys older than 16. But these legal actions are very few. There has never been a case where the law has been invoke to protect or avenge a boy under 16.
It is a professional opinion of a legal practitioner that; prior to the new law there was no law protecting parents who circumcise boys or protection for practitioners or for government to promote circumcision in formal ways. Government cannot promote it and parents cannot insist on it if the legal position is uncertain. Under the new legal framework circumcision is now officially legal, there are less risk for both parents and practitioners to circumcise boys as long as it is within the law. This seems to increase the incidence of circumcisions rather than decrease it. Furthermore the age for consent for medical procedures is 12, but they made special exception with male circumcision to set it at 16. This will cause boys not to be able to consent when under 16. This was also done to upscale circumcision by allowing parents to circumcise boys up to older ages without their consent being required.
Pressure from World Health Organisation and aid agencies
The next consideration is that the Children’s Act was written in 2005 – before it became official policy that circumcision reduces the risk of HIV infection, and before the South African government committed itself to the United Nations’ requirement to circumcise 80% of men by 2015. The legal framework helps to mobilize government to encourage circumcision officially, as there is a legal position for it which gives legal and official sanction to mass circumcision programs, while schools and teachers preach the benefits of circumcision for school boys and girls. This sort of pressure leads boys to give in to circumcision more easily, and encourages girls to put pressure on boys to get circumcised in order to be cool or accepted as manly or sexy.
While circumcision was always a 100% male thing as a native tradition, only 30% of men support it, compared with 80% of women. By having circumcision legal in terms of the law and to give parents right to consent on the boys’ behalf now gives mothers the legal right to decide on circumcision for their boys. With 90% of single parents being mothers they are in a stronger position to make that decision than men. Further, the rights of the biological mother applies also give her more decision making power. Only if a father can prove in court that circumcision is harmful for the boy would her ability to consent not apply anymore. While the law recognizes circumcision as legal and beneficial it is unlikely that any court would take away the mother’s right to consent.
The law also requires all circumcision to be done medically and formally, which means that gender equality laws apply. This means that at least 50% of doctors and nurses who perform these circumcisions must be women. This helps to empower women and stop female exclusion from the practice. Professors at universities even speculate that the law may be amended to accommodate South Africa’s commitment to upscale circumcision, as the current law was drafted before the commitment to circumcise 80% of men. The only restrictions on circumcision being contemplated relate to the non-medical (bush) circumcisions performed by the Xhosa.
While many used to escape circumcision on account of the high death rate, calling it unsafe and thus giving more voice for intactivists and other circumcision critics, the new law ensures that boys are circumcised by doctors or nurses in clinics or hospitals. This makes the operation safer and undermines the arguments of anti-circumcision critics. This also increases the incidence of circumcision.
The circumcision rate in South Africa is growing rapidly, and the pressure on men and boys to be circumcised is greater than ever before. Organisations such as USAID, UNAIDS, UNICEF, MRC, WHO, CDC, Brothers for life, Engender Health, Section27, PEPFAR all sponsor and promote the upscaling of circumcision. Hundreds of millions of dollars are now invested in mass circumcision programs, and circumcision clinics are popping up like mushrooms. Circumcision is here to stay and will become the new norm. If anything the Children’s Act helped to upscale male circumcision and to turn it into a cultural norm more than anything else.
The upscaling of circumcision is driven international aid agencies. WHO requires 14 African countries to upscale circumcision to 80% of men between ages 15 and 49, and many practices target boys around 14. The South African government is supporting it, and even TV and radio ads are aired all the time to encourage it, while big billboards encourage men to get circumcised and the benefits of circumcision is also tough at schools. This is South africa’s HIV prevention program. Similar policies are being urged or followed in Rwanda, Tanzania, Swaziland, Zimbabwe, Zambia, Uganda, Kenya, Botswana, Ethiopia, Malawi, Namibia, Lesotho, Mozambique. Basically, according to the WHO, all African countries who do not normally circumcise, have to start circumcising men now. Details at:
http://www.who.int/hiv/topics/malecircumcision/male-circumcision-info-2014/en/
The Bill and Melinda Gates foundation and PEPFAR have been two major sponsors of circumcision in South Africa. For details see:
http://www.bpmcc.co.za/research.htm
http://southafrica.usembassy.gov/us-government-partners-with-higher-education-medical-male-circumcision-campaign2.html
In South Africa, every province has created a number of circumcision clinics where men and boys can be circumcised for free. As mentioned, the Xhosa people in South Africa practice circumcision of late teenage boys as a rite of passage. The Zulu people did not, but in 2006 the king made it a compulsory part of their tradition. The government’s major concern is that about 100 boys die each year as a result of this practice. The main focus of the Children’s Act now is not to stop circumcision, but to make it safer and ensure that it is done medically. The reason so many boys die is because guys from the townships take boys into the bush and use pieces of glass or old blades to circumcise them. Often these guys are not even experienced, let alone qualified. The boys are initiated and have to live without food and water in the bush under harsh conditions. Many end up with dehydration that causes death, or infections or injuries that causes many to loose their genitals completely. Therefore, the first priority is to ensure that no boy goes into the bush and get circumcised with pieces of glass, but rather has it done by a doctor or nurse. If it is done medically in hygienic conditions the risk of complications is much lower. The law allows circumcision, but now makes it a criminal offence now for unqualified thugs to go around kidnapping boys and cutting them in dangerous ways. All boys must have it done in a medical setting.
Further information
http://www.news24.com/SouthAfrica/News/Botched-circumcision-death-toll-rises-20140704
New medical practices for mass circumcision program in Africa: (1) All bush circumcision becomes medicalised circumcision. (2) All-male practices becomes practices with both male and female medical practitioners.
http://www.cdc.gov/globalhealth/countries/southafrica/partners/winnie.htm
http://www.ubuzimabwacu.com/inama/4664/rwanda-bugesera-male-circumcision-encouraged-reduce-hivaids-stds-infections/
http://thepump.jsi.com/reducing-the-spread-of-hiv-through-voluntary-medical-male-circumcision-jsis-experience-in-east-central-uganda/
Bill boards like this pop up everywhere to promote circumcision
http://www.aidscirc.org/2012/07/how-circumcision-solution-in-africa.html
http://www.avert.org/voluntary-medical-male-circumcision-vmmc-hiv-prevention.htm
http://www.eurojewcong.org/News%20and%20Views/10273-circumcision-as-defence-against-hiv.html
http://blogs.scientificamerican.com/guest-blog/2011/04/04/whats-the-deal-with-male-circumcision-and-female-cervical-cancer/
Women are encouraged to encourage their partners and sons to get circumcised; some of the media looks like this:
http://www.c-hubonline.org/sites/default/files/resources/main/SMC%20Stand%20Proud%20Get%20Circumcized_Billboard%201.jpg
http://www.c-hubonline.org/sites/default/files/resources/main/SMC%20Stand%20Proud%20Get%20Circumcized_Billboard%202.jpg
http://www.c-hubonline.org/sites/default/files/resources/main/SMC%20Stand%20Proud%20Get%20Circumcized_Disruptive%20Poster.jpg
http://www.c-hubonline.org/sites/default/files/resources/main/SMC%20Stand%20Proud%20Get%20Circumcized_Rural%20Poster%201.jpg