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	new baby circumcision

Whose Decision Is It?
The long-term legal implications of informed consent
By Gussie Fauntleroy
Issue 132, September/October 2005

Even today, this scenario is all too common:
Shortly before or after giving birth at a hospital, a woman is handed a sheaf of papers to sign. Some are insurance forms. One form asks, "Do you want your baby boy circumcised?" The question appears routine, almost a formality.

If her doctor has explained the surgery" and a national survey indicates that nearly half of all physicians who perform circumcision do not educate both parents in advance of the surgery¹"it is likely the mother has been told that circumcision is "quick, simple, and doesn't hurt the baby," and that her son's penis would stay cleaner and healthier that way. She is given the impression that this is just one more minor procedure done to all baby boys before they leave the hospital. She signs.

Has this mother given her informed consent to have the surgery performed on her infant? What are the medical and legal standards that constitute informed consent for any type of surgery? Can a parent legally or ethically "consent" to surgery that will be performed not on the person who signs the paper but on someone else, in particular on an infant only one or two days old?

That these questions are now even being asked represents a movement toward increased awareness of the issue in a country that continues to have one of the highest rates in the world of routine newborn circumcision. Currently about half of all American newborn males, roughly a million babies a year, are circumcised. Israel maintains a high rate on the grounds that circumcision is required by God for all Jewish males, and in some parts of the world Sunni Muslims also circumcise for religious reasons.

Countries with high circumcision rates stand out in the world community because about 85 percent of all males worldwide are not circumcised. However, it is only in recent years that some in the American medical and legal fields have begun to look seriously at how and why the procedure continues in the US on a routine basis and for nonreligious reasons. One of the issues being examined is that of informed consent.

Currently, no federal law requires that informed consent be obtained before newborn male circumcision can be performed. However, every state has laws and medical standards that give physicians the duty and responsibility to inform patients of the expected benefits and the potential disadvantages and risks inherent in any proposed medical treatment.

The concept of informing patients is a fluid one. Not every conceivable, rarely seen risk must be mentioned, but the patient must be informed of the most common risks and of the general ramifications of the treatment. And the patient clearly must be mentally and physically competent to understand and weigh the information and to provide consent in an uncoerced and voluntary manner.

All of this relates to a competent adult patient giving informed consent for surgery or other treatment to be performed on his or her own body. In the case of a procedure to be performed on an infant or child, medical standards dictate that a parent legally can give only permission or "proxy consent," because the patient is not able, himself, to consent to the procedure. Moreover, permission can legally be given only in circumstances where:

• there is a clear and urgent immediate medical need for the treatment
• the parent(s) are given full disclosure regarding the proposed treatment
• the parent(s) are deemed competent to understand the risks and benefits of the proposed treatment and are able to give permission in an uncoerced and voluntary manner
• the expected medical benefits clearly outweigh the risks or disadvantages to the child

Circumcision's risks and complications, along the spectrum from common to rare, include pain, unsightly appearance of the penis, damage to the penile shaft, damage to the urethra, hemorrhage, postoperative infections, penile amputation, and death. How well are these explained to parents?

In a national survey of doctors who circumcise, Dr. Christopher Fletcher and associates found that of those physicians who say they educate parents, only 73 percent claim to always mention even the surgery's most common and universal effect: pain.³ The other major categories of risks and complications are discussed with even less frequency.^{4, 5} And the survey indicates that the vast majority"83 percent" of respondents who claim to discuss circumcision with parents rarely or never mention the possibility of death. Sixty to seventy percent never mention serious surgical damage.

As Fletcher notes, "Death, amputation, and anatomical damage post-operatively are least commonly or rarely mentioned, despite the fact that hospital surgery consent forms routinely list these for essentially every other surgery performed in hospitals or out-patient surgery centers. Circumcision has somehow conveniently escaped the attention of physicians as a surgical procedure with significant potential complications and risks."⁶ This, despite the fact that circumcision is the most commonly performed surgery in the US, including all surgery performed on patients of both sexes and all ages.

Not even addressed in consent forms are losses and damage that are intrinsic to the procedure regardless of medical proficiency. Among these are irretrievable loss of sexual sensitivity, sexual function, and pleasure; neurological damage to the developing brain;⁷ a lower threshold for pain;⁸ lowered immunological defense as a result of the loss of glands in the foreskin that produce antibacterial and antiviral proteins;⁹ encoding of the brain with violence; and disruption of the maternal-child bond in the newborn period.¹⁰

Although medical standards require the expectation that a proposed treatment will provide more benefit than harm, the survey by Fletcher and associates found that more than half (53 percent) of circumcising physicians said they personally feel neonatal circumcision causes more harm than benefit" yet they continue to perform the procedure. And while parental permission is understood to be ethically legitimate only for medical treatment deemed of urgent necessity to a child, the American Medical Association has issued a position statement identifying neonatal circumcision as a nontherapeutic procedure with no medical indication.¹¹

For these reasons, it is becoming increasingly clear that neonatal circumcision, as routinely performed in the US, does not fulfill the requirements for parental permission or informed consent.¹² Other factors pointing to the same conclusion include:

• In many cases the mother, even when she is given some information prior to being asked to sign a consent form, is not competent to make a decision on circumcision at the time of signing the form, often as a result of medications, language barriers, and/or the effects of labor and birth.
• According to a large and growing body of medical research, the benefits of circumcision cannot be shown to outweigh the surgery's disadvantages and risks.¹³
• There are well-established legal and ethical constraints against removing any healthy tissue, and specifically against amputating a healthy, functional, and highly sensitive part of the body such as the foreskin.¹⁴

"The problem with circumcision is that it has been placed, however irrationally, in its own category of not really being a surgery," Fletcher notes. "[I]t is looked at as a social contract between the baby's parents, his penis, and the surgeon. Something like getting your ears pierced, something promoted as so simple, minimal, quick, and expected in American white society (and therefore good for minorities as well), that it cannot be categorized along with appendectomies, tumor removal, etc."¹⁵

Attorney Ross Povenmire put the issue in more graphic terms in an article in the Journal of Gender, Social Policy, and the Law: "The amputation of the male foreskin in the United States is unique in medical practice for not requiring any medical justification, and for the widely accepted view that the amputation may be authorized at the sole discretion of a parent. This attitude is completely at odds with legal and medical practice regarding other forms of amputation and must be challenged."¹⁶

It is just beginning to be legally challenged. In the US, the first medical malpractice case based on a physician's duty to fulfill the requirements of informed consent was decided in 2004 by the North Dakota Supreme Court. Flatt v. Kantak involved a mother who signed a circumcision consent form for her son. However, the mother claims she was given inadequate information by an unfamiliar physician who spent less than two minutes with her and spoke with an accent the mother could not understand. According to prosecuting attorney Zenas Baer, "Both parents say that if they had known there was any chance of injury or death, or if they had known it was painful to the baby" that the foreskin has nerve endings" they would not have done it."

Following the jury's decision in favor of the physician, the case was appealed to the state supreme court on claims of multiple legal errors. In particular, prosecutors challenged the trial court's decision to exclude as evidence a circumcision videotape or the display of any tools of the trade" evidence Baer believes would have given the jury a critical appreciation of the procedure, about which the parents claim not to have received adequate information. In upholding the district court's decision, the supreme court simply deferred to the lower court on evidentiary issues rather than comment on the merits of the case, Baer says. Baer currently is prosecuting a second informed-consent case, this one in Minnesota. In D.N.N. v. Berestka, the parents of an infant claim the circumcising physician did not speak with them or obtain their consent before performing the procedure on their son.

In a more widely publicized case, a young man named William Stowell received monetary settlements of undisclosed amounts from the physician who circumcised him and from the West Islip, New York, hospital where he was born. Stowell, born in 1981, claimed that his mother was debilitated by postsurgical pain and anesthesia when she signed a consent form for his circumcision. His lawyers were able to bypass the 10-year statute of limitations on medical malpractice by defining the case as one of battery rather than of medical negligence.¹⁷

"I think the medical community needs to toe the line on informed consent," Zenas Baer stresses. "It's not entirely based on the signed papers" the doctor has an obligation to have given the parent adequate information."

NOTES
1. A 1998 survey was sent to 485 physicians around the US. Of the 485 sent, 213 were completed and accepted for analysis. The survey was coordinated by Dr. Christopher Fletcher and other members of the Ambulatory Sentinel Primary Care Network, which at the time of the study was one of the two largest research-based primary-care groups in North America. Of physicians who perform circumcisions, only 52 percent claim to always educate both parents in advance of the surgery about potential complications and risks. Fletcher's presentation of the survey, at the Fifth International Symposium on Sexual Mutilation, Oxford, England, 1998, was published in Male and Female Circumcision, George C. Denniston, Frederick Mansfield Hodges, and Marilyn Milos, eds. (London: Kluwer Academic/Plenum Publishers, 1998).
2. J. Steven Svoboda et al., "Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum," Journal of Contemporary Health Law & Policy 17 (2000): 61.
3. See Note 1.
4. Ibid. For each category of risks or complications, physicians were asked whether they "always," "sometimes," "rarely," or "never" mention these issues to both parents. Fletcher comments, "Although it is quite likely from written comments attached to many of the returned surveys that many physicians, and perhaps the majority, never actually spend time educating and discussing these issues with both parents of the male child, nevertheless, the survey results are presented as if the respondents were actually honest in regard to that question."
5. Ibid. The risk of hemorrhage was claimed to be "always" mentioned by 70 percent of physicians; 60 percent said they "always" tell parents about the risk of infection. Only 39 percent reported that they "always" tell parents about the risk of damage to the penile shaft; 38 percent mentioned the risk of damage to the urethra; 28 percent mentioned the risk of unsightly postoperative appearance of the penis; 12 percent mentioned the possibility of penile amputation; and 8 percent said they "always" mention the risk of death.
6. See Note 1: 265.
7. J. W. Prescott, "Genital Pain vs. Genital Pleasure: Why the One and Not the Other?" The Truth Seeker 1, no. 3 (July"gAugust 1989): 14"g21; www.cirp.org/library/psych/prescottz/
8. Ronald Goldman, Circumcision: The Hidden Trauma (Boston: Vanguard Publications, 1997): 139"g175.
9. A. Ahmed and A. W. Jones, "Apocrine Cystadenoma: A Report of Two Cases Occurring on the Prepuce," British Journal of Dermatology 81 (1969): 899"g901.
10. R. E. Marshall et al., "Circumcision: Effects upon Mother-Infant Interaction," Early Human Development 7, no. 4 (December 1982): 367"g374.
11. Report 10 (I-99) of the American Medical Association's Council on Scientific Affairs (December 1999): www.ama-assn.org
12. Although the term informed consent cannot technically be applied to neonatal circumcision, it is almost universally used in this context, and therefore is being used here.
13. See Circumcision Information and Resource Pages (www.cirp.org); National Organization of Circumcision Information Resource Centers (NOCIRC); National Organization to Halt the Abuse and Routine Mutilation of Males (NOHARMM); Nurses for the Rights of the Child (http://nurses.cirp.org).
14. See Note 2.
15. Personal interview with Dr. Christopher Fletcher; see Note 1.
16. Ross Povenmire, "Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue from their Infant Children? The Practice of Circumcision in the United States," Journal of Gender, Social Policy, and the Law 7, no. 1 (1998"g1999): 87"g123.
17. William Stowell was represented by John L. Juliano of East Northport, New York, and David J. Llewellyn of Conyers, Georgia. Llewellyn regularly represents victims of circumcision in lawsuits around the country.