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Criminalizing medically unnecessary child genital cutting in Western countries: the terms of the debate and some reasons for caution

International Journal of Impotence Research volume 35, pages 21–26 (2023)Cite this article

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Genital cutting of minors is increasingly raising concerns in liberal Western societies. Medically unnecessary female genital cutting (FGC) of minors (and often also of adults when done for non-cosmetic reasons) has been banned across the Western world while its male counterpart, most commonly referred to as male circumcision, continues to be legal for all ages and is performed both within and outside of the medical domain. This discrepancy has raised questions of moral inconsistency resulting in calls to legalize certain forms of FGC as well as proposals to ban male circumcision—when medically unnecessary—before an age of consent. While the conversation regarding the legalization of FGC is largely, although not exclusively, limited to academic circles and bioethics committees [1, 2], the political and legal system is increasingly engaged with efforts to officially ban and criminalize male circumcision of minors without medical justification (see Table 1). These instances have spurred passionate public debate while successful legal bans and convictions, to this day, have been limited. The ethico-legal question as to whether Western societies should ban both forms of genital cutting on minors, or alternatively, whether it is justifiable to permit certain forms of these procedures, can be broken down into two parts: i) is it ever morally justified to perform non-therapeutic genital cutting on minors when so desired by their parents or guardians, and ii) even if the answer to the first question is ‘no’ is there an adequate moral basis to justify legally prohibiting, much less criminalizing these procedures? The reason for separating these two assessments will become clearer over the course of this paper, but for now, let it suffice to say that if one believes an act is immoral it does not necessarily mean that it should be illegal.Footnote 1

Table 1 Some examples of the past two decade’s legal challenges to MGC in Western countries.
Full size table

The nuanced distinction between legal prohibition and criminalization, i.e. the decision to enforce a legal prohibition with criminal punishment, is eloquently explained by Merkel and Putzke [3].

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Notes

  1. The nuanced distinction between legal prohibition and criminalization, i.e. the decision to enforce a legal prohibition with criminal punishment, is eloquently explained by Merkel and Putzke [3].

  2. The practice of (partially) removing the female foreskin or prepuce is also referred to as a ‘ritual nick’ (a small nick in the clitoral hood or vulva, which might not actually remove any tissue) or a clitoridotomy (removal of the clitoral hood—note this is not a clitoridectomy which affects the glans clitoris) and the latter is sometimes considered as the anatomical equivalent of male circumcision as commonly known in the West. The external clitoral glans and body (shaft) are not involved in these procedures and should, if performed by a sufficiently skilled practitioner, remain intact. This is the form of FGC that is most commonly practiced in South and Southeast Asia and is sometimes proposed as an alternative to more extensive procedures practiced elsewhere in the world as part of a harm-reduction strategy. In this context, two gynecologists have argued that particularly the ‘ritual nick’ should “not have a lasting effect on morphology or function” [1]. It is important to note that while a ritual nick can take place at a young age, it is anatomically difficult to perform a clitoridotomy in infancy and this usually takes place later in the child’s life. Male circumcision is generally performed in infancy by US Americans and Jews, while Muslims may perform the procedure anywhere from infancy to puberty. Circumcision could also be performed as a peripubertal rite of passage in Africa.

  3. By using this terminology, I want to recognize that the child’s physical integrity is disrupted through a “cut,” without labeling the procedures as mutilation—which is a loaded term that precludes meaningful dialog and unnecessarily stigmatizes individuals, usually women, and minority communities. I do want to note, however, that the communities who value the practice of partial or total foreskin removal tend to refer to both male and female procedures as circumcision.

  4. See for example Germany (2012), Iceland (2018) and Finland (2020) in Table 1.

  5. See for example the proposal of the Tasmanian Law Reform Institute in Australia (2012) in Table 1.

  6. Berer writes that, upon parental arrest, children are generally taken into the social care system, even when arrests are made based on suspicion or accusation alone, and forced to undergo (multiple) genital exams, see: [16]. For negative, and at time traumatic, effects of targeted genital exams see also: [17]. Further raising concerns is that expert witnesses might present significantly different interpretations of these exams because of limited knowledge and clinical experience with both FGC and the development of female genitalia, casting doubt as to whether parents are justly convicted. See for example: [18].

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Acknowledgements

I would like to thank Prof. Shweder for many valuable conversations on genital cutting over the years, for his encouragement to take up this project, and for his expert advice while writing it. I would also like to acknowledge my colleagues Yaseen Andrewsen and Henry Brefka for their thorough feedback and support. The two anonymous reviewers and issue editors have helped me improve this text and I want to thank them warmly for their time and efforts.

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Duivenbode, R. Criminalizing medically unnecessary child genital cutting in Western countries: the terms of the debate and some reasons for caution. Int J Impot Res 35, 21–26 (2023). https://doi.org/10.1038/s41443-021-00491-y

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