There is little enough warrant in Western law or custom to coerce a person for the sake of his own health; there is none at all for the proposition that a person should be forcibly deprived of a functioning body part for the benefit of an unknown third party. In this extract from her article "Using male circumcision to understand social norms as multipliers" the American legal scholar Sarah Waldeck explains why the idea of circumcising male babies to reduce the risk of cervical cancer in adult women is not permissible: in summary, it is impossible because the person bearing the risk and suffering the deprivation is not the person reaping the benefit.
The argument that circumcision affects cervical cancer has floated in and out of the medical literature for years, but most studies attempting to document the connection have been disregarded because of profound methodological flaws, such as women inaccurately reporting the circumcision status of their husbands. Indeed, the AAP’s 1999 policy statement does not even mention cervical cancer prevention as a potential medical benefit. However, in April 2002, the New England Journal of Medicine published a report suggesting that the female partners of circumcised males are less likely to get cervical cancer than the partners of uncircumcised males. Specifically, researchers pooled data from Spain, Colombia, Brazil, Thailand, and the Philippines, and concluded that women whose male partners had six or more sexual partners and were circumcised had a lower risk of cervical cancer than women whose male partners had six or more sexual partners and were uncircumcised. In addition, circumcised males in the study had a lower incidence of the sexually-transmitted disease HPV. Because exposure to certain strains of HPV is a significant risk factor for cervical cancer, researchers hypothesized that circumcision protects against the cancer by reducing the incidence of HPV infection.
As an editorial that accompanied the study explains, it does have some shortcomings. First, many risk factors for HPV are more common among uncircumcised men than circumcised men, such as poor genital hygiene and a history of multiple sexual partners. Because these variables are difficult to control for, they may help explain the higher incidence of HPV in uncircumcised males. In other words, because behavioral factors are so important, it is still not certain whether circumcision makes a quantitative difference in the rate of cervical cancer. In addition, progression from infection with a cancer-causing strain of HPV to invasive cervical cancer may take several decades. Therefore, at least some of the females in the study may have become infected by a different male partner, whose circumcision status is unknown. This sort of misclassification would either attenuate or exaggerate the association between non-circumcision and risk of cervical cancer. Finally, the study conflicts with some conducted in the United States which found that uncircumcised males have either the same or lesser incidence of HPV than circumcised males. Nonetheless, if the results of this most recent study are replicated elsewhere and become well-accepted, the medical utility of circumcision might be greatly enhanced.
However, the issue of distributional fairness has gone largely undiscussed in the reporting of the recent findings about cervical cancer: who would receive the benefits of circumcision and who would bear the risks. The notion of shared risk is embedded in most public health initiatives, particularly those that involve children. Think, for example, of inoculations, to which circumcision is often compared. Under a universal vaccination policy, each child bears the risk of a complication, just as each child gains immunity to disease. If cervical cancer becomes the “medical argument for circumcision,” however, the non-negligible risks and considerable pain are borne by males, while the medical benefit is reaped by females. Circumcision would be a unique prophylactic intervention, one in which the health of one population was put at risk for the benefit of another population.
From a legal prospective, the broad parental discretion to consent on behalf of the child is sharply curtailed when a medical procedure does not benefit the child but may aid third parties. The issue arises most frequently in the context of organ transplants. Whether the court uses a substituted judgment or best interest standard, the overarching focus is on what course of action will give the child the greatest net benefit. In answering this question, courts examine the relationship between the donor and donee, the effect of the procedure on the donor, the urgency of the donee’s need, and the probability that the procedure will be successful.
Evaluated by these criteria, circumcision could not be performed or recommended as a prophylactic measure to prevent cervical cancer. First, the beneficiary’s need is far from urgent; many years will elapse before the boy is sexually active. No analogy can be drawn to the cancer patient who needs a bone marrow transplant, or the kidney patient who is kept alive by dialysis. Second, the case law emphasizes the necessity of a close, existing relationship between the child and person who will benefit from the surgery. Here there is not yet a relationship between the boy and the woman who would benefit from circumcision. Moreover, even the most recent study suggests that circumcision offers a protective benefit only to the female partners of men who have six or more sexual partners or engage in other behavior that puts them at high risk for HPV; the boy may end up not fitting this profile. For that matter, the boy may be homosexual and never have female partners. Without knowledge about what sort of man the boy will become, preventive circumcision is highly speculative.
These considerations lead to the conclusion that if circumcision is done to prevent cervical cancer, it should be postponed until the boy is old enough to voice his own opinion on the matter. But while some cultures may believe that routine circumcision is more humane if done during adolescence, this is certainly not the American view: many parents say they circumcise during infancy to avoid the possibility that it will need to be done later. Thus, we can easily imagine a court assuming that any relationship between a male and his sexual partner will be close, and that if the procedure is going to be done at all, it has to be done during infancy. But even given these assumptions, circumcision would not pass muster under the usual standards for evaluating medical procedures that are performed for the benefit of third parties.
When altruistic surgeries are performed on minors, the beneficiary is usually desperate and helpless. No alternative treatments are available, and without the aid of the minor, death is a near certainty. In contrast, women are capable of protecting themselves from cervical cancer that is connected to HPV. Not only can they practice safe sex, even more critically (and perhaps more realistically), they can receive simple annual Pap tests. Cervical cancer is easily cured if detected early, and for this reason, “[d]octors often say it is a disease that no woman should die of.” If prevention of cervical cancer becomes the medical rationale for circumcision, voiceless infants are subjected to a procedure for the benefit of adult women, who are fully equipped to take control of their own bodies and sexual well-being.
Some readers may think that it is inappropriate to compare circumcision to surgeries that are performed for the benefit of third parties; all we are talking about are foreskins, not kidneys or bone marrow. But our exasperated “it’s only circumcision” merely reflects the social norm, which in turn shapes how we perceive the loss of the foreskin. To truly assess the fairness of removing healthy tissue from infants for the benefit of adult women, we need a thought experiment. Temporarily dispense with scientific disbelief and pretend that a new study concludes that amputating a male infant’s little toe would decrease cervical cancer rates in particular populations. Many physicians and the popular press start touting toe amputation as effective preventive medicine. Would you choose to cut off your newborn son’s little toe? Or, if it is difficult to imagine yourself with an infant son, would you think this recommendation represented appropriate public health policy?
My guess is that the answer to both questions is no, even though the little toe is not more useful than the foreskin, and even if you think that the absence of a little toe might make the boy a more desirable sexual partner. You may be unwilling to subject infants to the pain of amputation; you may think that “normal” means having a little toe; you may believe it bizarre to amputate something that is likely to cause the boy little trouble beyond the occasional stub; you may be convinced that there are better ways to combat cervical cancer; you may just generally feel possessive about your son’s body parts. That we do not have similar reactions when it comes to cutting off the foreskin for the benefit of adult women is a testament to how deeply embedded the norm of circumcision really is.
Of course, the analogy between the foreskin and the little toe is not strictly accurate, because toe amputation (like kidney transplants or bone marrow extractions) holds no possibility of potential health benefits for the child. Circumcision, in contrast, has potential health benefits. But it would be inappropriate to allow these potential benefits to cloud the issue of distributional fairness, because the medical establishment has already told us that the potential benefits are not enough to merit routine neonatal circumcision.
Some would argue that the analogy between the foreskin and little toe is inapt for another reason: that, in fact, the foreskin has a sexual function that makes it far more useful than the little toe. In adult males, the foreskin comprises one third to one half of the penile skin and acts as platform for nerve and nerve endings, making it as sensitive or more sensitive than other parts of the penis. Except when the penis is erect, the foreskin protects the glans by hanging over it. Without the protection of the foreskin, the glans of a circumcised male becomes keratinized and develops layers of protective cells that act like a callous.
But while the physical characteristics of the foreskin are well-understood, whether the loss of the foreskin affects sexual performance or sexual satisfaction is fiercely debated. Unfortunately, but perhaps predictably, the evidence is mixed and mostly anecdotal. The two studies that surveyed men who were circumcised later in life report conflicting results. In one study of 15 men, circumcision resulted in no statistically significant changes in male sexual function. In another study of forty-three men, participants reported a statistically significant reduction in erectile function as well as decreased penile sensitivity. In this same study, however, men were more satisfied with their penis after circumcision, based in large part on its new appearance. This suggests a point made in a large study of American sexual practices: the perception of sexual experience depends not only on the physical characteristics of the individuals involved, but also on the larger cultural and social context. Still, perhaps our thought experiment should be modified to include the possibility that amputation of the little toe negatively affects sexual function. (Remember that you are suspending scientific disbelief.) With this modification the reader is now probably even more reluctant to cut off a newborn’s toe because the sacrifice required of the infant simply seems too great, especially when adult women have a means of safeguarding their own interests.
In sum, more research needs to be done before prevention of cervical cancer can be added to the list of circumcision’s potential health benefits. But because of the issue of distributional fairness, as well as the dubiousness of the parent’s ability to consent to circumcision when its purpose is to benefit adult women, we should view with caution any argument that promotes the prevention of cervical cancer as a justification for routine circumcision.
Sarah E. Waldeck, Using male circumcision to understand social norms as multipliers, University of Cincinnati Law Review, Volume 72 (3), Winter 2003 455-526; pages 485-491 reproduced here, references omitted
Full article with references can be read here
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