Female Genital Cutting: Harm, Human Rights and the Possibility of a Sex-Neutral Approach
In this age of sexual equality and non-discrimination, it increasingly looks hypocritical and inconsistent to support both the legitimacy and legality of male circumcision and, at the same time, the unacceptability and illegality of FGC.
Two very different views on female genital cutting (FGC) have been aired in recent weeks. Writing in the Journal of Medical Ethics, a pair of American obstetricians, Kavita Arora and Allan Jacobs, recently suggested that Western societies should tolerate – and doctors should perform – what they regard as “mild” forms of ritual genital cutting on female infants and girls if their parents ask for it. Unsurprisingly, backlash in the media has been swift, with hastily-written expressions of astonishment and even outrage being published on a daily basis.
In contrast, Ms. Meiwita Budiharsana, a lecturer in public health in Indonesia – where such forms of FGC are actually common and are increasingly being carried out in hospitals or clinics – argues in The Conversation that the authorities should discourage these kinds of practices and that medical personnel should not perform them.
The situation is rich in paradox. Two doctors from a society that has traditionally abhorred (and in fact criminalised) any form of non-therapeutic FGC believe that certain “mild” forms should be permitted. At the same time, a health expert from a society where comparable forms of FGC are the norm believes that this is wrong and that such practices should be opposed.
What could be going on here?
To unravel this mystery, I’ll walk you through both perspectives. The first one, by Arora and Jacobs, has already invited sharply critical pushback in the form of professional commentaries in the Journal of Medical Ethics, and I will add my own thoughts as we go along. But let me start with the opinion piece from Ms. Budiharsana. Although her essay was written before the Arora-and-Jacobs storm erupted, her perspective sheds an important, non-Western light on the contradictions inherent in their view.
Circumcision in Indonesia
A little background to set the scene. It’s important to understand that certain forms of FGC, along with circumcision of boys, were brought to the Indonesian archipelago by the spread of Islam between the 13th and 16th centuries. They are now widespread as a result of Islamic dominance and the displacement of the original Hindu, Buddhist and animistic cultures (still partly surviving in Bali).
In her report, Ms. Budiharsana reveals that while the female practice, known as female khitan or sunat perempuan, had originally been performed by traditional community circumcisers, such operations are now increasingly done by medical practitioners, “thus institutionalising the ritual into medical practice.”
Even more worryingly, “many maternity clinics now offer the procedure as part of a birth delivery package, done [to the newborn girl] without additional charge.”
This trend should give us pause. For it was a similar institutionalization of male circumcision as a routine phase of childbirth, performed on newborn boys by the mother’s obstetrician, that led to the near universality of circumcision in the United States in the 1930s and 40s, and the persistence of the practice into contemporary times. Put another way, there is evidence that medicalizing non-therapeutic genital cutting—at least in certain contexts—does not necessarily succeed as a harm reduction measure, so much as it serves as a mechanism for normalizing, and thus perpetuating, the cutting. I’ll say more about this issue in just a moment.
Now, the argument usually offered in favour of medicalization is that the operation is safer and less risky if performed by trained medical personnel. But as Ms. Budiharsana points out, even this more limited contention is not necessarily accurate: “medicalization may actually be even more dangerous. Midwives tend to use scissors instead of penknives. Hence, they actually conduct real cutting of the skin. Traditional circumcisers, meanwhile, use penknives for more symbolic acts of scraping or rubbing.”
The situation is likely to be different from place to place. Nevertheless, a parallel phenomenon has been documented in the Philippines, where the traditional village custom of slitting a boy’s foreskin – usually performed around the age of 12 by more senior adolescents – has been replaced by the complete excision of the foreskin by medical personnel, on the model of what is done in the United States. Rather than being carried out among friends and family in a local context, the operation is now performed in clinics or temporary barracks during mass drives, sometimes involving the army – a different and much more frightening ordeal. Just search for “Tuli” on Youtube, and you will get the idea.
At the end of the day, whatever else medicalization does, it can clearly serve to entrench these harmful practices, by giving medical personnel a vested emotional, professional and financial interest in perpetuating them. This makes them more difficult to eradicate, or even regulate effectively. And if a boy or girl grows up not knowing that their genitals have been surgically altered (or thinks that everyone’s have), and observes that their peers are similar, they are likely to regard their condition as “normal” and to be unresponsive to calls for reform.
Medicalization: Confusing religion and medical treatment
The trend towards medicalization of FGC in Indonesia calls to mind what was proposed in the United States several years ago with the so-called “Seattle Compromise.” This was a policy idea very similar to the one that has been outlined by Arora and Jacobs in their Journal of Medical Ethics article; it was first put forward by the bioethicist Dena Davis before being adopted briefly by the American Academy of Pediatrics (AAP) in 2010.
It is open to the same objections. The most important of these, as I have argued in a critique of Davis’s position, is not that the proposed vulvar scratch (or similar intervention) poses an unacceptable risk of pain and harm to the girl, but rather that it mixes up the spheres of medicine and religion, and confuses the functions of doctors and priests.
The proper function of doctors and other health personnel is to attend to the health of their patients; the function of priests and other religious officials is, among other things, to perform the rituals prescribed by their religion. To confound these functions is to take a backward step that threatens the physical integrity of children and does nothing for their spiritual welfare.
To take one example of standard Western medical principles, the mission of the AAP is “to attain optimal physical, mental, and social health and well-being for all infants, children, adolescents, and young adults.” There is nothing here about performing religious or cultural functions, such as initiation rites, and it is no more necessary or appropriate for pediatricians or other medical personnel to perform ritual genital cutting than it is for baptism to be performed by hydrologists, tooth evulsion by dentists, or skin scarification by dermatologists.
Doctors will, of course, show respect for the religious and other cultural beliefs of the parents of children brought into their care, but this does not mean that they are obliged to perform any and every procedure prescribed by those beliefs, and certainly not those of a quasi-surgical nature that intrude on the bodies or minds of children.
As the Royal Dutch Medical Association has argued, the only valid argument in favour of physicians taking charge of these sorts of procedures is that they may otherwise be performed by unskilled “kitchen table” operators, with a consequent higher toll of injury and death. This is a dilemma that must be faced, but insofar as the underlying reasoning holds, it is an argument in favor of not making genital cutting illegal (thus creating a dangerous black market); it is not an argument for condoning or encouraging such practices, nor for subsidizing them through health insurance systems.
That said, we do have to acknowledge that the mode of FGC typically performed on girls in Indonesia is less injurious than the forms of genital cutting that Westerners typically think of when they hear the term “mutilation.” According to a survey Ms. Budiharsana cites, 24% of the procedures involved no more than rubbing or scraping; 49% an incision without loss of tissue; and 22% some tissue excised.
Yet despite the relative mildness of the operation in most cases, the surgery still involved pain to the child, and was “unacceptable,” she writes, because it was done in the absence of medical need and without the consent of the girl—making it a violation of her human rights.
Female genital cutting and male circumcision
This leads us into interesting territory. Unlike Arora and Jacobs, who devote a good deal of their new paper to sorting out where FGC differs from male circumcision, Ms. Budiharsana does not mention the latter surgery at all. But as several commentators on her report pointed out, circumcision of boys is also widespread in Indonesia for the same reason as is FGC of girls (Islamic tradition), and it raises a similar set of tricky ethical issues.
The apparent blindspot here is all the more striking, given that the mode of FGC that Ms. Budiharsana criticizes is significantly less injurious than the mode of circumcision performed on boys in the same culture and elsewhere: while girls typically receive no more than a superficial nick or scratch (and at worst lose a minimal quantity of tissue), boys typically experience the excision of their entire foreskin – a retractable sleeve of erogenous tissue that makes up roughly a third of the functional skin system of the penis – and find themselves with a sexual organ that looks (and feels) sharply different to what they possessed originally.
Since the cutting is more extensive, it is also more subject to infections and other complications; as a victim of Islamic extremism and forced genital cutting during the 2001 “holy war” in Aceh stated: “I know the men suffered more than us women. The circumcision hurt them more that it did to us because their scars could not heal fast. Several of the men I knew got serious infections after suffering from severe bleeding” (Sydney Morning Herald, 27 January, 2001.)
In many people’s view, it is the greater harm of FGC compared with MGC that makes the former abhorrent and the latter acceptable. For their part, Arora and Jacobs rely heavily on the conditional argument that if circumcision of boys is both (a) harmless and (b) consistent with their human rights, then a less damaging procedure on girls must also be acceptable.
But as ethicist Brian D. Earp has argued, this argument is dubious for several reasons and, in any event, it cuts both ways. In other words, as a senior British judge has recently stated, since even mild forms of FGC do amount to significant harm in the eyes of the law, then the same must be true of male circumcision.
To understand Ms. Budiharsana’s silence on this issue, we must look at a key quotation from her essay:
Any form of female genital mutilation is unacceptable. [That] it is done without the consent of the baby or little girl and without clear health benefits or religious mandate is enough to classify this act as a violation of human and health rights of the girl child.
The telling phrases are “clear health benefits” and “religious mandate.” Obviously, scratching a girl’s vulva can be of no medical utility, and merely risks infection; the reason “health benefits” are mentioned here at all is to provide an implicit contrast with male circumcision, which is still regarded by many people (including Arora and Jacobs and some Western health authorities) as being a legitimate means of reducing a male’s risk of certain (admittedly rare) diseases for which there are alternative modes of prevention (the medical literature in this area is hotly contested).
Likewise “religious mandate.” If there were a religious requirement or sanction for performing it, FGC of girls might be seen as acceptable and might even require protection under the rubric of religious freedom. The assumption is that there is no religious mandate for FGC, but that there is such a mandate for circumcision of boys. Yet as Earp, again, shows in another extended critique, the common distinction between (sacred) religion and (merely customary) culture is extremely tenuous at best. Both male and female genital cutting practices could fairly be described as religious rites, on some interpretations, or as “merely cultural” ones, on others. The seemingly bright-line distinction between them is an illusion.
Policy recommendations
This brings us to Ms. Budiharsana’s policy recommendation: “Indonesia should stop the medicalization of FGM,” she writes. Instead, “the government should carry out a campaign that informs the public that female circumcision is not obligatory under Islamic law. The government should also update the pre-service midwifery training curricula.”
In the Indonesian context, at least, there is much right and little wrong with these proposals, as far as they go. They represent practical steps to control a practice with widespread community support and which would not be stopped by heavy-handed attempts to prohibit or criminalise.
As Matthew Johnson has argued recently, jailing or otherwise harshly punishing parents for circumcising their daughters does nothing for the child and is likely to inflict further harm on her. If laws with stiff penalties have not prevented FGM from taking place even in developed Western countries, they are hardly likely to arrest it in its countries of origin.
So a moderate approach such as the one proposed by Ms. Budiharsana seems perfectly sensible as a way of tackling a practice that is deeply entrenched in local custom and tradition.
Brian D Earp
Its weakness lies in its inconsistency: as campaigners in other regions have found, it is very difficult to eradicate FGC while remaining silent about MGC. For example, as Sami Aldeeb has argued: “Female circumcision will never stop as long as male circumcision is going on … [for how] do you expect to convince an African father to leave his daughter uncircumcised as long as you let him do it to his son?”
It is even more difficult when bodies such as the WHO and the United Nations condemn FGM while ignoring or even promoting male circumcision. The justification for this double standard is the supposed greater harm of FGC and the value of male circumcision as a means of reducing the risk of HIV infection in certain epidemic regions of sub-Saharan Africa; outside of these areas, no health authority recommends circumcision of male infants or boys for this reason (whereas adult males can choose circumcision if they wish).
The upshot is that the “benefits of circumcision” are the subject of considerable debate, with no consensus in sight. Even so, the balance of world opinion is tilting towards the view that there is insufficient net benefit to the child to justify the operation in most environments, and that he should be left to make the decision for himself when he is competent.
As for the religious/cultural argument, Islamic law and tradition treats both male and female circumcision in much the same way: each is meritorious as a sign of commitment and piety, but neither is required. There is no obligation placed on parents to circumcise their children.
Ethical consistency requires strategic flexibility
So what can we learn from this surprising coincidence of contrary opinion? It might seem inconsistent for me to approve of Ms. Budiharsana’s moderate approach to FGC, with its lack of interest in legal penalties, and at the same time disapprove of Arora and Jacobs’s proposal that Western societies should “relax” the law on FGM.
But actually, my attitude is consistent for the following reason. At base, it is directed towards maximising children’s welfare, minimising the risk of harm, and defending their human rights – including the right to physical integrity. It is just that different contexts require different strategies. In a society where FGC is endemic and socially approved of, a “soft” approach involving community education may be the only effective way of discouraging the practice. If that much is right, then Ms. Budiharsana’s proposals should be seen as progressive and should be supported by those who believe in children’s rights.
In the United States and other developed nations, the situation is very different. In these places, FGC is rare, confined to a small number cases in immigrant communities, and there is no convincing evidence that the practice is seriously on the rise.
When FGM was criminalised in Western countries in response to the passage of the UN Convention on the Rights of the Child, it was not because the practice was rampant and had to be stopped. Instead, it was to make a statement that these sorts of surgeries are harmful and unethical. In these countries, legalizing even “mild” forms of FGC (assuming that some kind of agreement could be reached on what is meant by the word “mild,” and that operators always adhered to those limits) would undermine the force of that statement and send a message that FGC was acceptable.
If the operation occurred in a clinical setting (as Arora and Jacobs envisage), it would send a further, very misleading, message that the procedure was in some way medically beneficial. In this situation it seems probable the incidence of the practice would actually increase.
While it is doubtful that there could be a valid case for changing the law, there is a case for relaxing the penalties, which are at present extremely severe in most jurisdictions. In fact, they are so severe that juries are likely to be reluctant to convict offenders, as was seen even in the blatant case of Australia’s Dr. Graham Reeves.
Instead of arguing for FGC to be legalized, Arora and Jacobs might have done better to suggest moderating the penalties: perhaps education, counselling and community service for the perpetrators, and payments into a trust account as compensation for the victims?
The question of equal protection
Arora and Jacobs claim that they are only seeking greater consistency and fairness in the law by treating FGC more like male circumcision; but this claim is questionable because they want no change in law or attitudes with respect to the latter. They are essentially reiterating the argument that was advanced by Dena Davis over a decade ago: that if circumcision of boys was tolerated, it was discriminatory not to permit a less damaging genital surgery on girls.
And this argument does make sense. If the religious rites and customs of groups that practice the circumcision of boys are respected, it is consistent with multicultural principles to respect the religious rites and customs of groups that circumcise girls (holding everything else equal).
Of course, the argument could just as well work the other way. If genital cutting on girls (no matter how minor or safely performed) was rejected as an abhorrent denial of human rights, then unqualified tolerance for comparable, or even more extensive, surgeries on the genitals of boys should at the very least be called into question.
In response to this way of thinking, some people will argue for a further distinction. The circumcision of girls, they will say, is “all about controlling their sexuality” (whether it actually has this effect is a different question), whereas the circumcision of boys is thought to be reflective of less objectionable symbolic meanings. But this argument just doesn’t reflect reality. Both male and female circumcision have historical roots in sexual control over children and sexuality, and the “symbolic meanings” of both have evolved over time, and differ from context to context. In many cases, the symbolic meanings are actually quite similar.
While Arora and Jacobs argue that they are trying to even things up, it is obvious that the situation would still be very unequal. Under their proposal, girls would still be protected from all but the most minimal and harmless of scratches; boys, however, would still have their entire foreskins cut off – no change, and not much equality there. Nobody advocating mild FGC as an alternative to its more severe forms has proposed a similarly mild compromise for boys: a ritual scratch on his foreskin, say, instead of its full excision.
As far as Arora and Jacobs are concerned, the current unregulated practice of circumcision is the baseline; all that has to be done to make mild forms of FGC permissible is to remind people that worse operations on boys are accepted without question. But if a typical circumcision performed by a U.S. obstetrician with a Gomco clamp or Plastibell device is taken as the standard of harmlessness, it is obvious that anybody cutting a girl’s genitals will have considerable scope for surgical creativity.
Legal arguments
The problem with this approach, however, is that routine circumcision of boys is no longer unquestioned, but the focus of intense controversy. As early as 1999, a paper in the John Marshall Law Review argued that to criminalize FGC without criminalizing MGC was a violation of the “Equal protection” clause of the U.S. Constitution; the authors came out in favor of similar legislation covering boys.
This line of thinking came to a head between 2011 and 2012, with a proposal in San Francisco for a ballot on whether circumcision of male minors should be made illegal, and the decision of an appeals court in Cologne that non-therapeutic circumcision of minors was unlawful under German law because it constituted bodily harm and was a violation of the child’s right to religious freedom.
Arora and Jacobs are perfectly aware of, and evidently alarmed by, these developments. In fact, it was in direct response to the California ballot initiative and the Cologne court decision that Jacobs published his first defense of male circumcision in the Israeli Medical Association Journal. There he defended not merely Jewish ritual circumcision, but the right of all parents to circumcise male children for any reason at all:
“If there are no unusual risks, parents can ethically authorize, and physicians ethically perform, elective infant circumcision for prophylaxis of disease, ritual purposes, or aesthetic reasons. Furthermore, the state should permit this.”
He followed this up with an article, co-authored with Arora, offering similar arguments in the prestigious American Journal of Bioethics, this time accompanied by peer commentaries – two in favor and six against.
The commentaries in support stressed medical benefits and parental prerogative; those against ran through a range of arguments, including the harm of circumcision, human rights, bioethical principles, the lack of consensus on medical benefit, the fallacy of privileging parental preference over children’s welfare, and the intractable problem of double standards.
Jacobs and Arora themselves wrote that “if a state bans circumcision due to a concern for pain or danger, then the same state should protect all children from all unnecessary procedures and practices that are equally uncomfortable and unsafe.” This prompted one commentator to point out that this precisely proved the point: “Since FGC is in fact banned, and since the least damaging forms of FGC (such as ritual ‘nicking’ of the clitoral hood) are simultaneously illegal and less damaging than ritual male circumcision, it follows that boys must also be protected.”
Concluding reflections
In this age of sexual equality and non-discrimination, it increasingly looks hypocritical and inconsistent to support both the legitimacy and legality of male circumcision and, at the same time, the unacceptability and illegality of FGC. There are two obvious ways to even up the score: to increase the level of protection accorded to boys; or to decrease the level of protection accorded to girls.
Given their previous history, it is no surprise that Arora and Jacobs have chosen the second path and now seek to shore up the vulnerable points of their position with a proposal to decriminalize FGC. Judging from the largely hostile reaction to their latest paper, this gambit is unlikely to succeed.
This is a revised and expanded version of a guest post originally published at the Journal of Medical Ethics Blog, 25 February 2016.
