Monday, January 28, 2008

Oregon court: child gets a say in circumcision

The Oregon Supreme Court today blocked a father from having his 12-year-old son circumcised. The case has garnered a fair bit of attention, including amicus briefs from religious and medical organizations. However, the court declined to weigh in on the pros and cons of the procedure; instead, it remanded to the trial court to determine how the child felt about being circumcised, and how that should bear on the custody arrangement.

Although the parties and amici have presented extensive material regarding circumcision, we do not need to decide in this case which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M.

However, in this case, mother has averred in her affidavit that M objects to the circumcision. In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or at 400 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here.

The court's narrowly reasoned decision is hardly a clear victory for either proponents or opponents of male circumcision, or for that matter of children's autonomy in medical decisionmaking. It would be easy enough, for example, to distinguish this case from that of two parents disputing whether to surgically "correct" an intersexed infant, given the supreme court's emphasis here on the child's near-pubescent age. Still, given the high profile of this case, other litigation on this and related issues is bound to follow, and to be very interesting indeed.

In vaguely related news (via Reproductive Rights Profs Blog), Rwanda has launched a campaign to promote circumcision for men as an HIV-prevention measure. There is, of course, recent evidence that circumcision has a protective effect. I have the impression that HIV/AIDS activists are ambivalent about this strategy; after all, circumcision alone may have some protective effect, but doesn't compare to condoms. And of course, anti-circumcision advocates are plenty ticked.

1 comment:

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