The recent death of a Nigerian infant following a botched home circumcision raises the question of what place non-therapeutic male circumcision has in a modern society that vaunts personal rights, writes Dr Simon Mills.
There are those who argue that all forms of infant circumcision are a form of child abuse, and certainly female circumcision is already the object of revulsion in many secular societies.
In Ireland, Liz McManus TD introduced the Prohibition of Female Genital Mutilation Bill, 2001, although it never progressed beyond a first reading. While male circumcision is quantitatively and qualitatively different from its female namesake, its defensibility deserves consideration.
In general, no therapeutic intervention should be performed on a patient without the consent of that patient. In the case of a child, consent normally comes from the parents.
But what about non-therapeutic interventions? Male circumcision, whether for reasons of religion or parental preference, brings limited medical benefits at best.
Can it be legitimately justified for a boy who cannot consent to that operation? Do cultural imperatives that motivate the parental decision to seek a ritual circumcision outweigh a desire to protect the right of the child not to be operated upon unnecessarily?
It is a clash of rights that demands consideration. One American judge tersely set out the limits when it comes to parents imposing their beliefs, religious tenets in particular, on children: "Parents may be free to become martyrs themselves, but it does not follow that they are free, in identical circumstances, to make martyrs of their children . . ."
In April 2003 the British Medical Association (BMA) analysed the issues involved in requests for non-therapeutic circumcision. The BMA said: "The medical harms or benefits [of circumcision] have not been unequivocally proven except to the extent that there are clear risks of harm if the procedure is done inexpertly": that much is clear in the light of recent events in Waterford.
Conversely, it would be offhand and insensitive not to recognise the social and cultural "belonging" conferred by parents who choose to adhere to the cultural norms to which their child will be exposed. Doctors also recognise that medical involvement in circumcision might alleviate miserable outcomes of inept "backstreet" circumcisions.
Two statements stand out in the BMA Guidelines. One is that "the British Association of Paediatric Surgeons advises that there is rarely a clinical indication for circumcision", while the other is that the doctor should act in the "patient's best interest".
Were it the case that Irish law simply pondered the question of whether surgical interventions are in a child's "best interests", then the matter might be relatively easily resolved.
Courts or the Oireachtas could consider whether marginal medical benefits and (if present) the manifest cultural elements of non-therapeutic circumcision successfully carry the day over the harm of an unnecessary surgical operation performed without the consent of the child on whom it is executed.
Unfortunately, the Irish situation is more complicated than a "best interests" test: only rarely are the Irish child's rights - including his "best interests" - considered in isolation. Instead, courts tend to measure children's rights against the backdrop of the Irish Constitution's deference to family autonomy.
Typically (although there is a contrary trend), Irish law believes a child's best interests are best served by being part of a family, which confers on the child a "right" to have decisions taken for him by his parents, decisions with which courts will only cautiously interfere.
Accordingly, Irish courts are likely, on past form, to accept the decision of parents to circumcise their child. It has recently been reiterated that only the most extreme cases warrant court intervention to override the parental determination of what constitutes the child's best interest.
Yet could circumcision be considered such an extreme case? Do faith-based or ill-formed medical reasons - in a modern state - provide a justification for the mutilation of male children? Certainly, the general view is that circumcision is lawful and indeed has been a feature of the cultural life of Ireland, for example, among the Jewish community, for centuries. But not everyone agrees.
Even in those countries where there is acceptance of the lawfulness of non-therapeutic circumcision, law reform commissions have repeatedly called for the creation of specific exceptions to the law of assault for circumcision.
It has been reasoned by some that criminalising female genital mutilation discriminates against male children who are not so protected. More simply, many of those who dispute the lawfulness of non-therapeutic male circumcision, including the ethicist Christopher Price writing in the Bulletin of Medical Ethics, argue that non-therapeutic male circumcision is patently an assault that lacks objective justification.
The reality is that non-therapeutic circumcision is unlikely to be outlawed in this jurisdiction as long as deference to familial autonomy rules the legal roost, unless categorical long-term harm is shown to be caused.
Dr Simon Mills is a barrister, a GP and the author of Clinical Practice and the Law (Butterworths)