Ethics

Last updated:

Non-therapeutic male circumcision and the law

 

What does the law say about non-therapeutic male circumcision (NTMC)?

NTMC is generally assumed to be lawful if:

The lawfulness is not, however, grounded in statute and despite this common law assumption, the legality is not uncontroversial. With the intention of ending all doubt, in 1995 the Law Commission concluded that although in its view ritual circumcision is lawful, law reform to ‘put the lawfulness of ritual male circumcision beyond any doubt’ would be useful. Law reform has not, however, been forthcoming. 

Should there be any substantive changes to the law in the future, these will be reflected in updates to this toolkit. If doctors are in any doubt about the legality of their actions, they should seek legal advice.

 

Has there been any recent case law?

In 2015, Sir James Munby (as President of the Family Division of the High Court of England and Wales) handed down a judgment in care proceedings relating to two children, a brother and sister, which considered both NTMC and FGM (female genital mutilation).  

After some consideration in his judgment, Munby concluded that ‘“reasonable” parenting is treated as permitting male circumcision’. He went on to state that ‘although both [FGM and NTMC] involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish “threshold” in accordance with section 31 of the Children Act 1989; male circumcision without more will not.’

Re B and G (Children) (No 2) [2015] EWFC 3

On threshold, section 31 of the Children Act 1989 notes that for a court to act it must be satisfied:

‘(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.’

 

Are there any additional legal implications for NTMC?

As with other areas of clinical care, poorly performed circumcisions have legal implications for the doctor responsible. An action could be brought on the child’s behalf against the doctor responsible, if the circumcision was carried out negligently. Alternatively, the child could issue such proceedings in his own name on or after reaching the age of 18, and the normal time-limit for starting legal proceedings would run from that birthday.  

Unless the lawfulness of circumcision, in and of itself, is successfully challenged, however, action cannot currently be taken against a doctor simply because the child is subsequently unhappy, later in life, about having been circumcised.  

Doctors undertaking NTMC are strongly advised to make clear and comprehensive notes on the decision-making process for undertaking NTMC, the information given and the discussions that informed those decisions – for example on best interests assessments (see our guidance on record-keeping). Failure to appropriately undertake and document the decision-making process may leave a doctor at greater risk of legal challenge.

 

How are a child’s human rights engaged?

As with all medical decisions, doctors must consider whether their decisions impact on a person’s human rights under the European Convention on Human Rights, as provided for by the Human Rights Act 1998, and, if so, whether the interference can be justified. 

The rights in the Act are referred to by both those who support and those who oppose NTMC. 

Rights that might be engaged in individual cases include: 

  • Article 3: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’; 
  • Article 5(1): ‘Everyone has the right to liberty and security of the person’; 
  • Article 8: ‘Everyone has the right to respect for his private and family life’ except for the ‘protection of health or morals, or for the protection of the rights and freedom of others’; 
  • Article 9(1): ‘Everyone has the right to freedom of thought, conscience and religion’; 
  • Article 9(2): ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ 

 

How do I balance these rights?

One reason why it is not clear where the balance of rights lies, is that there are conflicting views on whether circumcision is a relatively neutral procedure, that, competently performed, carries little risk but can confer important psychosocial benefits; or whether circumcision has, or can have, profound and long-lasting adverse effects on the person who has been circumcised. 

It has been suggested that if NTMC was shown to be prejudicial to a child’s health and wellbeing, it is likely that a legal challenge on human rights grounds would be successful; and that it may follow that there would be obligations on the state to proscribe it. The UN Convention on the Rights of the Child, which has been ratified by the UK, requires ratifying states to ‘take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children’. 

Of note, one country that has also ratified the UN Convention on the Rights of the Child, and has recently considered the issue of NTMC – Germany – has approved legislation to establish ‘legal certainty’ that NTMC is legal under certain circumstances (section 1631(d) in the German Civil Code).

Next page - Health risks and benefits of circumcision

 

Downloads

Download the full guidance

 

Case law

  • Re L and B (Children) (Specific Issues: Temporary Leave To Remove From The Jurisdiction; Circumcision) [2016] EWHC 849 (Fam) (see our guidance on disputes for summary of the case).
  • A (A Child), Re [2015] EWFC B131 (see our guidance on disputes for summary of the case).
  • Re S (Children) (Specific issue: circumcision) [2005] 1 FLR 236. A case in which, following divorce, a Muslim mother applied for permission for her 8-year-old son to be circumcised. The son’s father opposed the application and the opposition was upheld by the court on the basis that the mother’s application stemmed from the mother’s need to portray herself as a practising Muslim rather than the son’s best interests.
  • Re J (Child's Religious Upbringing and Circumcision) [2000] 1 FCR 307 (see our guidance on determining best interests for summary of the case).
  • Re B and G (Children) (No 2) [2015] EWFC 3 (see summary of the case above)

Judgments can be found at BAILII (British and Irish Legal Information Institute)

Other reference material 

  • Convention for the Protection of Human Rights and Fundamental Freedoms (4. ix. 1950; TS 71; Cmnd 8969).  Human Rights Act 1998.
  • United Nations Convention on the Rights of the Child (20. xi. 1989; TS 44; Cm 1976) Article 24(3).
  • Law Commission. Consent in the Criminal Law. Law Commission Consultation Paper No 139. London: HMSO, 1995: 119, 128.