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Multiculturalism, Medicine, and the Limits of Autonomy: The Practice of Female Circumcision

Published online by Cambridge University Press:  29 July 2009

Robert L. Schwartz ,
David Johnson  and
Nan Burke
Robert L. Schwartz
Affiliation:
Law at the Institute of Public Law, University of New Mexico School of Law, Albuquerque
David Johnson
Affiliation:
University of New Mexico School of Law, where he is focusing on health law
Nan Burke
Affiliation:
Health administrator before becoming a health law attorney in Albuquerque, New Mexico
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Extract

Television pictures of starvation and depredation are not the only way that famine and political instability in the horn of Africa have affected the United States. Many people from that region of the world are seeking political or economic refuge here, and they are exposing us to a culture that is in some ways — most notably, in the practice of female circumcision – so radically different from the prevailing American cultures that we have been stunned. They are also forcing hospital ethics committees to face issues that cannot be resolved by the facile application of the settled principles that have guided those institutions for the past several years. Autonomy and multiculturalism, long the foundations of most ethics committee decision making, have started to give way to a list of formally articulated rights and wrongs – perhaps to a restatement and adoption of rules said to be based in natural law. Female circumcision, argues one newspaper letter writer, “is just a sickening display of male power disguised as legitimate dogma.

Type
The Caducous in Court
Information
Cambridge Quarterly of Healthcare Ethics , Volume 3 , Issue 3 , Summer 1994 , pp. 431 - 441
Copyright
Copyright © Cambridge University Press 1994

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References

1. Ullom, CH. Letter. The Atlanta Constitution 1993 11 23:A17.Google Scholar

2. Merwine, MH. Letter: how Africa understands female circumcision. New York Times 1993 11 24:A24.Google Scholar One Connecticut minister from Sierra Leone, where the practice is common, pointed out that “it is a right of passage that is culturally very rich and conveys a sense of identity… It cannot be just dismissed as an unnecessary process” Taylor, FG. Secret tackles female enslavement. The Hartford Courant 1992 07 8:B1.Google Scholar

3. In fact, the practice is not religiously restricted to Muslims. It is practiced by both Christians and Muslims, some (but not all) of whom claim that it is required by religious doctrine.

4. In the words of another African activist, “[t]here are certain issues we don't need white American women up front for French, MA. The open wound. Washington Post 1992 11 22:F1.Google Scholar

5. Roe v. Wade. 410 U.S. 113, at 116. The U.S. Supreme Court has not recognized a Constitutional right to make any healthcare decision except the decision to have an abortion, although a majority of the Court hinted that there might be some, as yet unarticulated, right to make decisions regarding the termination of life sustaining treatment in Cruzan v. Director, Missouri Department of Health, 492 U.S.—, 110 S.Ct. 2841 (1990). In Cruzan, those Justices who would find such a right base it in the principle of autonomy, manifested as a liberty interest and protected by the due process clause of the Fourteenth Amendment.

6. Public Health Trust of Dade County v. Wons. 541 So.2d 96, 98 (Fla. 1989).

7. Hansen, J, Scroggins, D. Special report: female circumcision. The Atlanta Constitution 1992 11 15:Al.Google Scholar

8. See note 7. Hansen, , Scroggins, . 1992 Nov. 15:A1. If we were to take this approach literally, of course, it is hard to imagine how any parent who has ever disciplined a child could avoid prosecution. Certainly those who practice male circumcision are as much at risk of prosecution as those who practice female circumcision.Google Scholar

9. See note 4. French, . 1992 Nov. 22:F1.Google Scholar

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22. H.R. 3247, which would enact the Federal Prohibition of Female Genital Mutilation Act of 1993, was introduced in the House of Representatives on 7 October 1993 and referred to the Judiciary Committee and the Committee on Energy and Commerce. The bill would forbid female circumcision on girls under 18 years of age, forbid discrimination against those who had undergone the practice, and provide for education about the practice. Another bill, H.R. 3075, which would enact the Women's Health Equity Act of 1993, serves related functions. It was introduced in the House on 16 September 1993 and given seven committee referrals. See also Brinkley, J. Practice of female circumcision has arrived in the U.S. San Diego Tribune 1993 12 9:A24.Google Scholar

23. Of course, the question is a different one when the family seeks to have the treatment imposed on a child. Traditionally, female circumcision, which is always performed by women, is carried out during a child's teenage years or, increasingly, much before. A decision to perform this unusual medical procedure on a child ought to be measured by the standards usually applied to providing medical care to children. Medical authorities readily allow parents to make most medical decisions on behalf of their children. For example, parent's decisions to have their male babies circumcised is always accorded respect, although, of course, it is a far less significant decision than the one to have a female child circumcised. However, competent adults are generally not permitted to choose a course of treatment that will result in the death of their children, even if they would be permitted to make that choice for themselves. For example, a competent adult Jehovah's Witness is permitted to die rather than to undergo a blood transfusion, but the parent may not make that choice on behalf of his child. If a parent attempts to make such a choice, the state, often through a child protective services agency, will step in to assure that the treatment is provided. There are two theories behind the rule that says that a state will step in to make certain important healthcare decisions for children, despite the wishes of the parents. First, the state has a special obligation to protect children – an obligation it does not possess with regard to adults. Second, if autonomy has any meaning, it ought to be applied in such a way that children can grow into competent and autonomous adults, who can then decide what kind of treatment they desire. The first theory provides a reason to allow for intervention to prohibit a parent's request that a child be circumcised only if circumcision is determined to be abuse – in other words, it begs the question. The second theory provides a reason to allow for intervention to prohibit the parent's request only if circumcision can be analogized to life-sustaining treatment. Although the decision to have a female child circumcised is far more significant that the decision to have a male child circumcised, for example, it does not put the life of the child at risk if it is done by a competent medical practitioner. Some courts have ordered medical treatment over parents' objections even when the conditions sought to be treated are not life threatening, when the issue is “necessary” plastic surgery for example. These courts have found, directly or indirectly, that the parents' decision to deny treatment – a decision sometimes based on religious beliefs or cultural obligations – does constitute abuse. Whether those decisions are correct remains a subject of some debate. The question is different yet again when the child herself makes the request for treatment. Children are not permitted to put their lives at risk by choosing inadequate medical treatment, even with the agreement of their parents. A Jehovah's Witness child will be provided a blood transfusion even if the child and parents agree that one should not be given other kinds of medical decisions. A child may have a constitutional right to choose to have an abortion, even if her parents disagree, when the same child would not be legally permitted to have an appendectomy without parental consent. Clearly, there is more reason to protect a child from decisions regarding female circumcision than to protect an adult; still, the reasoning applied to protect children from decisions of parents that puts their lives at risk cannot be so easily applied to unanimous family decisions to seek female circumcision, especially when the family raises other social and cultural arguments in favor of the circumcision.

24. One survey conducted for the University of Khartoum in 1982 indicated that a quarter of the Sudanese who underwent the surgery suffered severe immediate adverse medical consequences, and a third had long-term complications. See note 7. Hansen, , Scroggins, . 1992 Nov. 15:A1.Google Scholar