Last week the Danish Medical Association released a policy statement that discourages doctors from performing circumcisions on infant boys. While the group does not currently recommend making the practice illegal, it does signal a growing trend among northern European countries in that direction.
The Danish statement emphasizes the principle of “informed consent” (informeret samtykke) and a person’s “right to self-determination” (ret til selvbestemmelse), especially since the procedure is permanent. The decision should be left to the individual “when he has come of age” (når han er blevet myndig).
There are significant religious liberty concerns at stake for minority communities: in a recent year, less than 2,000 circumcisions were performed in Denmark, mostly among the country’s Muslim and Jewish populations.
The right to self-determination was also the pillar of the 2012 decision of Germany’s regional court in Cologne (Landgericht Köln 151 Ns 169/11), which argued that infant circumcision “runs contrary to the interest of the child to be able later to decide his religious affiliation for himself.”
The circumcision debate is affected by other factors too, such as the principles of social adequacy and communal belonging. But let’s focus on the idea of self-determination, since that has been the primary argument advanced in Germany and Demark. (In a forthcoming scholarly essay, I deal with the fuller picture in German law and rhetoric about circumcision.)
The German judge foreshadowed the Danish statement, when he said in 2012 that “the parental right of upbringing is not unacceptably impaired, if they are required to wait until later, when the son is able to decide for himself in favor of circumcision as a visible sign of belonging.”
“Informed consent” and the “right to self-determination” seem to operate as synonyms in the circumcision debate. But the former is a specific concept of medical ethics, while the latter encompasses one’s entire life. Critics of the “self-determination” argument correctly note just how many ways parents already curtail this right for children.
In the Journal of Medical Ethics, Joseph Mazor offers a different take on the rights of self-determination for Jewish men, noting that in the case of Orthodox Jews, “the chances that the child would himself choose to become circumcised once reaching majority are much, much higher than in the secular case [of circumcision for aesthetic reasons].” Infant circumcision under parental consent thus “enables the child to avoid the significant extra costs that he would most likely have to bear if he were forced to wait to have his circumcision as an adult.” Mazor concludes that the weighing of rights in religiously motivated, community-binding circumcisions leans toward permission, while it is “admittedly quite murky and perhaps even tilted against circumcision in the secular case.”
Most Germans and Danes do not agree. On the whole, both countries are trending toward an extremely libertarian conception of religious freedom and self-determination, perhaps (in the German case) overcompensating for past abuses in the other direction. On a different ethical matter, the German Ethikrat, an appointed Ethics Council that advises the federal government, even recommended the legalization of incest in a formal report. This too was based on the principle of self-determination, despite the near-universal disdain for the practice and the high degree of birth defects in children of incestuous unions. “The majority of the German Ethics Council is of the opinion,” stated their press release, “that criminal law is not the appropriate means to maintain a societal taboo.” Such a principle of “live and let live” seems not to apply to the German taboo about circumcision in minority religious communities.
The German and Danish critics of circumcision further fail to see that they impose, perhaps unwittingly, a framework of religion that is not objective or universal, but rather exists almost exclusively in individualistic, northern European, Protestant traditions. By using individual self-determination and freedom from bodily obligations to a community as the metrics for legality, they attempt to press (much more ancient) religions into a peculiarly modernist mold.
In a 2014 cover story for Commonweal, William A. Galston wondered “whether the human rights community’s insistence on adult consent as a necessary source of authorization represents a secularized version of the Protestant rejection of infant baptism -- and whether it is an accident that the epicenter of antipathy to infant circumcision is located in heavily Protestant northern Europe.” The ideas that religious self-determination is primarily intellectual (informed consent) and that actions spring only later from prior assent to believed propositions are, in the words of Michael Brendan Dougherty, “the inheritance of a certain type of creedal Protestantism” (The American Conservative, August 2012).
These hunches seem to be confirmed by the recent discourse. In the journal Bioethics, Diana Aurenque and Urban Wiesing defended the Cologne decision with a phrase that reveals just how thickly Protestant culture pervades northern Europe: “To call the decision of the District Court an ‘unprecedented attack on the identity of religious families’ is misplaced, for the ethical and legal problem was not a matter of religious upbringing but was actually concerned with lawfulness of irreversible and permanent changes to a child’s body that provide no benefit whatsoever to the child” (italics added). That these professors can call circumcision “not a matter of religious upbringing” reveals a view of religion so anti-ritualistic as to be disembodied.
The Cologne regional court had merely ruled that a child’s rights to self-determination outweighed the parents’ rights to determine his religious upbringing. But the view represented by Aurenque and Wiesing fundamentally assumes that religious identity is passed on not through flesh at all, but through spirit: from one self-determining, rational, Enlightenment soul to another. When rationalized in this way, the attempt to ban circumcision reveals its unstated reliance on a spiritualized, Enlightenment-Protestant conception of what counts as religious, regardless of whether the person making the argument is a confessing Protestant or not.
In sum, the conflict between law and liberty in the northern European debate is playing out differently than many analogous conflicts in the United States. Whereas here we might view this issue as a matter of Jewish or Muslim law and religious liberty of minority communities, opponents of circumcision in northern Europe view it as an affront to European national law and the prominence of a particular kind of individual liberty therein.