Is male circumcision medically justified?

Pandora's box is now open

With its recently published judgment on circumcision (Az .: 151 Ns 169/11), the Cologne Regional Court made an astonishing statement: The circumcision of boys for religiously motivated reasons - which was carried out daily in Germany until then - is and was already always punishable as bodily harm.

The accused in the Cologne case was a doctor who, at the request of his Muslim parents, skillfully performed a circumcision on a four-year-old boy.

The Cologne District Court had denied a criminal act with a brief explanation (Az .: 528 Ds 30/11).

The circumcision was justified as a preventive medical measure by the consent of the guardians.

The judgment is not binding on other courts

The Cologne Regional Court, as the court of appeal, also acquitted the doctor. He acted without personal guilt, as he was not aware of the criminal liability of his actions due to the unclear legal situation.

Basically, however, his behavior should be viewed as unlawful bodily harm. The consent of the parents does not change that, since circumcision that is not medically indicated would run counter to the well-being of the child who is incapable of consent.

Neither the constitutionally guaranteed parental right to bring up, nor the freedom of religion of the parents could prevail when weighing against the child's right to physical integrity.

With its decision, the regional court created a lot of uncertainty among doctors and parents. It does not have any binding effect on other courts.

However, it cannot be ruled out that some will nevertheless orientate themselves towards it. In our opinion, this would be extremely worrying.

The scope of the decision of the Cologne Regional Court goes far beyond the problem of religious circumcision.

If you take the court at its word, the effectiveness of parental consent in treatments that are not necessarily curative-medically indicated would always be in question if the consequences are irreversible.

Another case of female circumcision

This would also apply to cosmetically motivated interventions such as ear corrections.

The Ministries of Health and Justice just confirmed their view in May of this year that a ban on cosmetic operations on minors is inadmissible - also because this interferes deeply with the constitutionally guaranteed rights of parents.

There is no doubt that the parental right of upbringing finds its limit in the child's best interests.

Precisely for this reason, parents' consent to female genital mutilation, with its profound side effects and consequences for sexual sensitivity, which are not offset by any corresponding advantages, is never considered.

It is just as clear, however, that the best interests of the child are not a one hundred percent objectifiable term that dictates a clear solution in every situation. Often different aspects - preventive / curative-medical, social, religious, etc. - have to be weighed up.

And our legal system does not entrust this balancing act to the state, but to the parents. They may consent to an ear correction simply to save their child teasing.

Germany is facing a special worldwide path

In our opinion, nothing else can apply to the circumcision of boys. Their presumed preventive medical benefits - lower risk of HIV infection, glans inflammation or penile cancer - have even led the WHO and the UN to expressly advocate male circumcision.

As long as no medical consensus to the contrary has developed, parents will therefore have to be allowed to decide in favor of circumcision, even if this is not medically indicated.

With a total ban on the religiously motivated circumcision of underage boys, Germany would take a special path that is unique in the world.

The risk that such interventions will in future be carried out by medically unqualified persons or that there will be real circumcision tourism is obvious. Likewise, that believing Jews and Muslims are outraged by the verdict.

Since the district court ruling is now final, a clarification by the highest court will be a long time coming.

This would be urgently needed. Because opinion in the criminal law literature is inconsistent.

Other judges ensured that the costs were covered

And the other jurisprudence also offers few points of reference. For example, in 2002 the Lüneburg Higher Administrative Court even granted the parents of a boy who was circumcised for religious reasons a claim to reimbursement of costs against the social welfare institution, since circumcision is comparable to a Christian baptism (Ref .: 4 ME 336/02).

The only result of the - few - civil court decisions on the subject is that circumcision without the consent of the guardian or disregarding minimum medical standards is illegal and can lead to claims for damages against the surgeon.

Until a final clarification by the case law or the legislature, doctors and parents should only be advised to be extremely cautious.

The district court did not classify circumcision as dangerous, but only as simple bodily harm. This means that the offense is regularly only prosecuted upon request.

Those affected should not see this as a free ticket. Because if a "public interest" is affirmed, the public prosecutor's office can still bring charges.

In addition, it is not said that other courts will share the assessment of the Cologne Regional Court.

Appealing to ignorance of the prohibition through no fault of one's own, as the accused doctor had successfully asserted, is at least more difficult after the Cologne judgment.

To person: Dr. Christina Töfflinger is a lawyer and specialist lawyer for medical law. She is a partner at the law firm Busse & Miessen, Bonn. Dr. Markus Englerth is a criminal law scholar and habilitation student at the Max Planck Institute for Research on Collective Goods, Bonn.