Equivocal evidence, and the right to choose
VOLOKH at law.ucla.edu
Fri Jul 6 15:38:54 PDT 2012
I appreciated Marty's arguments in favor of considering how most circumcised adults view their parents' decision to circumcise them as babies, and perhaps there is something to them. I have two reservations, though, about this (albeit ones that I might be persuaded out of).
First, while adult circumcision is much more painful than child circumcision (or at least the pain is more likely to be remembered), my sense is that it's still much easier to circumcise than to undo a circumcision (if undoing a circumcision, in the sense of replacing the tissue with comparably sensitive tissue, is possible). If that's so, then the sizes of the groups - those who wish they hadn't been circumcised, those who are happy they were circumcised, those who wish they had been circumcised, and those who are happy they weren't circumcised - would need to be adjusted accordingly (though I don't know exactly how).
Second, and more fundamentally, I think there is a general moral principle that people usually have a right not to have their bodies altered without their permission, at least in a way that involves some substantial risk of substantial loss of function (thus setting aside the ear piercing example). I think that principle can be trumped by parents' reasonable medical judgments, on the theory that someone has to make these medical choices, and the parents are the best people to make them. But I don't think that principle can be trumped by parents' personal religious preferences, which might not match the religious preferences of the adult into whom the child grows. (On that, I think Marty and I may agree.) And, tentatively, I don't think that principle can be trumped by a desire to make life easier for other adults into whom other children will grow. If John Doe asks, "Why did the law let my parents cut off part of my body?," I don't think the answer that "We thought most people whose parents ordered this would be happier with it removed, for religious reasons" suffices, because that's not a sufficient reason to justify such surgery in the absence of the patient's own mature consent. Does that make sense?
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, July 06, 2012 3:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Equivocal evidence, and the right to choose
Eugene: Without regard to what "adult subjects" generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in?
On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter.
The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery.
Eric Rassbach writes:
> I am not sure that you can even rely on a claim that the sexual function was
> necessarily reduced; I know that some proponents of circumcision claim that
> circumcision actually enhances sexual function. Would you agree that if the
> evidence on that point is ambiguous or equivocal, then circumcision falls
> within the realm of things that parents can decide? That is reinforced by the
> fact that there are health reasons offered for circumcision; if those rationales
> are true (or perhaps just plausible?) then it is less like having an ear cut off
> and more like having an unsightly mole excised or an extra toe removed,
> both of which are easier at a younger age.
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