Reason and Paradox in Medical and Family Law: Shaping Children's Bodies

Abstract

Legal outcomes often depend on the adjudication of what may appear to be straightforward distinctions. In this article, we consider two such distinctions that appear in medical and family law deliberations: the distinction between religion and culture and between therapeutic and non-therapeutic. These distinctions can impact what constitutes 'reasonable parenting' or a child's 'best interests' and thus the limitations that may be placed on parental actions. Such distinctions are often imagined to be asocial facts, there for the judge to discover. We challenge this view, however, by examining the controversial case of B and G [2015]. In this case, Sir James Munby stated that the cutting of both male and female children's genitals for non-therapeutic reasons constituted 'significant harm' for the purposes of the Children Act 1989. He went on to conclude, however, that while it can never be reasonable parenting to inflict any form of non-therapeutic genital cutting on a female child, such cutting on male children was currently tolerated. We argue that the distinctions between religion/culture and therapeutic/non-therapeutic upon which Munby LJ relied in making this judgement cannot in fact ground categorically differential legal treatment of female and male children. We analyse these distinctions from a systems theoretical perspective-specifically with reference to local paradoxes-to call into question the current legal position. Our analysis suggests that conventional distinctions drawn between religion/culture and the therapeutic/non-therapeutic in other legal contexts require much greater scrutiny than they are usually afforded.

‘Why did I circumcise him?’ Unexpected comparisons to male circumcision in a qualitative study on female genital cutting among Kurdish–Norwegians

“…Scholarship has emphasized that it is an interpretation of religious texts that construct a socio-cultural discourse that MC and FGC may or may not be a religious requirement (e.g. Abu-Sahlieh, 1994; Brusa and Barilan, 2009; Davis, 2001; Duivenbode and Padela, 2019; Earp et al, 2017). Perhaps as a way to reconcile the often contradictory medical, religious, cultural and moral arguments, some academics have placed both practices within the framework of children’s experiences and rights to bodily autonomy as a way to compare them (e.g.…”

Non-therapeutic penile circumcision of minors: current controversies in UK law and medical ethics

“…Doctors are instructed to subscribe to good clinical practice when acceding to a parent's request for medically unnecessary genital surgery for their child. Yet a practice cannot reasonably be considered to be “good” (qua clinical practice) when the procedure proposed is, as the BMA acknowledges: Without medical indication; Performed on a non-consenting patient; Irreversible and at a level of invasiveness which has been ruled equivalent to “significant harm” in UK law (see Section 2 on legal matters below); 53 Not medically urgent and hence deferrable to a time when the patient can personally consent (see Box 2); Performed on a sex-discriminatory criterion (see Concern 6 below). …”

“…We intend for our analysis to serve as a constructive critique of this specific policy, but also as a signpost for deeper, unresolved moral and legal tensions surrounding child genital cutting practices in Western countries more generally. 53 In other words, by examining in detail how one influential group of ethicists has sought to reconcile—or in some cases, avoid—these tensions, we can shed light on the kinds of challenges that any such group will face that is charged with issuing coherent legal and moral guidance in this area. Along the way, we provide suggestions for what we see as a more coherent approach going forward.…”

Is Circumcision “Necessary” in Islam? A Philosophical Argument Based on Peer Disagreement

“…In deciding what terminology to employ in this context, one must confront the fact that ritual male genital cutting (MGC), in contrast to ritual FGC, has not been defined as “mutilation” by any Western organization even when considering its most dangerous forms (O’Neill et al, 2020 ). For example, ritual male circumcision as practiced by the Xhosa of South Africa frequently leads to scarring and perceived disfigurement and carries a high rate of penile amputation and death, often due to sepsis or suicide (Earp et al, 2017 ; Douglas & Nyembezi, 2015 ; van der Merwe, 2020 ). 10 Why it is that no form of medically unnecessary MGC, but all forms of medically unnecessary FGC, are considered to be “mutilating” by the WHO, irrespective of the actual extent of cutting in either case or any associated physical-functional implications, remains unclear.…”