A report by the Tasmanian Law Reform Institute has condemned the open slather approach to non-therapeutic circumcision of male minors and recommended much tighter regulation of the practice. The report analyses the borderline legal status of circumcision in Australia and the risks this uncertainty creates for both boys and circumcision practitioners, and makes fourteen recommendations for reform. These include a proposal for the outright prohibition of medically unnecessary circumcision of “incapable minors” (infants and young boys), with an exception for recognized religious and ethnic groups who traditionally practise circumcision (Jewish, Muslim and some Aboriginal communities). The report also recommends that circumcision always require the authorization of both parents, and that if parents disagree about whether a boy should be circumcised the operation may not be performed unless authorized by a court. It also proposes uniform standards of competence, disclosure and operational procedure for providers of circumcision services.
The report has been hailed by child health and human rights experts as an impressive first step towards giving boys some degree of protection against needless destruction of their foreskins. Dr Robert Darby told Circumcision Information Australia that the report was a trailblazing effort that raised the discussion of non-therapeutic circumcision of minors to a new level. “For its scientific precision, its comprehensiveness, its human rights and bioethical awareness, and the good sense and practicality of its recommendations, the report could hardly have been bettered”, Dr Darby said. “Even though the recommendations apply only to Tasmania, any reforms there will set a new benchmark that other states will have to consider, and by which their own efforts at child protection will be judged. Coming on top of the Cologne decision that non-therapeutic circumcision is bodily harm, the TLRI report further revolutionizes the debate: the issue is no longer whether circumcision has so called “health benefits”, but whether it is legally and morally permissible.” Dr Darby said that a particularly valuable recommendation was to extend the time allowed for an individual who believes he has been harmed by circumcision to bring a legal action for damages against his circumciser. "This proposal recognises the sad (but often suppressed) truth that many men resent having been circumcised and would have preferred to go through life with an entire penis, or at least to make their own decision on such a personal matter. Existing legal rules, however, make it very difficult for them to seek legal redress, leaving the false impression that most men "don't mind" one way or the other. You can be pretty sure that if the playing field is made a little bit more level, the lawsuits will start to flow thick and fast."
The recommendations of the Tasmania Law Reform Institute report on circumcision are as follows.
1. The Institute supports the enactment of legislation to reform the law governing circumcision.
2. The Institute recommends reform to provide a clear legislative basis for the legality of circumcision performed at the request of an adult or capable minor.
3. The Institute recommends the enactment of a new and separate offence generally prohibiting the circumcision of incapable minors in Tasmania. The new legislation ought to create an exception for the performance of some well-established religious or ethnicity motivated circumcision on incapable minors.
4. The Institute recommends the enactment of legislation to require joint parental authorisation for the circumcision of an incapable minor.
5. The Institute recommends the enactment of a law to require court authorisation for a circumcision whenever parents disagree about the desirability of performing a circumcision.
6. The Institute does not recommend the enactment of legislation mandating court authorisation for the circumcision of minors.
7. The Institute recommends the enactment of a law to require that all circumcisers provide accurate information as to:
8. The Institute recommends that health policy, community and industry leaders use non-legislative avenues of reform to improve the dissemination of accurate information on the known and potential effects and significance of circumcision.
9. The Institute recommends the enactment of a criminal law that sets general principles against which to judge the acceptability of a circumciser’s practice. These principles should set minimum standards that all circumcisers of incapable minors must meet in the provision of their service. Parliament should give an existing health regulatory body the responsibility of formulating regulations to qualify the general standards set in statute. The Institute recommends the setting of standards as to matters such as:
The standards set by statute and in regulations ought to reflect the minimum standards the community would expect circumcisers to meet at the time of the operation in the circumstance in which they are operating. In particular, the standards should ensure that no minor be put at a needlessly high risk of pain or complication from a circumcision.
10. The Institute recommends further investigation into whether the law governing the use and sale of human tissue would benefit from reform.
11. The Institute does not recommend reform to the law regulating the commercial aspects of a circumciser’s service.
12. The Institute recommends the enactment of reform to create a uniform period in which individuals harmed by a circumcision as a minor may bring an action against their circumciser. This period should extend for an appropriate time after the harmed person has reached the age of majority. This new limitation period should be enacted in a provision in a new
Circumcision Act.
13. The Institute recommends the enactment of legislation to require circumcisers to transmit information relevant to actions that may be brought for harm they cause to a minor to an appropriate government authority.
14. The Institute does not recommend the enactment of a no-fault compensation scheme for harm caused by a circumcision performed upon an incapable minor.
The full report is available from the TLRI website
Warwick Marshall summarises the TLRI report at The Conversation
Warwick Marshall, Master of Laws thesis on legal status of circumcision in Australia
Dr Robert's Darby's submission to the TLRI circumcision inquiry at SSRN network