I think this is a really interesting issue. I have no particular opinion either way, but it's intriguing to think about just how far we let parental consent go, because that's what this is about, and it's kinda tricky.
The issue of consent is really a non-starter. Medical decisions of minors are left in the hands of parents, and it doesn't make a difference if the kid is 12 or 12 hours.
Can we vaccinate children? I mean, 3 year olds can't consent to getting a shot. Should we give a kid a shot if he cries and says no no no?
So these points are, I think, wrong. Firstly, any sort of medical procedure is
prima facie unlawful, unless there is some lawful justification provided (i.e. consent). If you are to say that decisions on medical procedures are entirely in the hands of parents, then not only are you talking about vaccinations, but also about the decision to lop off a limb. Clearly one is acceptable and the other isn't, and circumcision would lie somewhere in between on the spectrum. So this is very much an issue of consent, and whether parental consent is effective to make this medical procedure lawful. What are the limits of what parents can consent to, specifically with regards to medical procedures*?
*I don't purport to hold an opinion on the matter of whether or not there is any medical benefit, but whether there is or isn't, it clearly falls into the category of 'medical procedure'.
Also, there's the matter that there is a different level of competence to consent at 12 months and 12 years, but that's probably not particularly relevant to this discussion.
Obviously the standard would be different in the US, but the High Court has held the following in Australia in
Marion's Case (in which the issue was parent's consenting to a hysterectomy for their mentally disabled 14 year old daughter):
Mason CJ said:
There are exceptions to the requirement for, and the neutralising effect of, consent and therefore qualifications to the very broadly stated principle of bodily inviolability. In some instances consent is insufficient to make application of force to another person lawful and sometimes consent is not needed to make force lawful.
With such examples being that consent does not make euthanasia legal, and lack of consent does not make a lawful arrest illegal.
Medical treatment of adults with full mental capacity does not come within any of the exceptions mentioned. The factor necessary to render such treatment lawful when it would otherwise be an assault is, therefore, consent.
This, again, reflects the principle of personal inviolability echoed in the well-known words of Cardozo J in
Schloendorff v Society of New York Hospital:
"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his [or her] patient's consent commits an assault."
In the case of medical treatment of those who cannot consent because of incapacity due to minority, the automatic reference point is the minor's parent or other guardian. Parental consent, when effective, is itself an exception to the need for personal consent to medical treatment.
The proposition endorsed by the majority in that case [Gillick v West Norfolk WHA] was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child's capacities and maturity grow and that this rate of development depends on the individual child.
And the court went on to endorse this position as the law in Australia. I mentioned this in another thread, if anyone saw that;
Gillick competence.
The second question arises; namely, whether there are kinds of intervention which are, as a general rule, excluded from the scope of parental power to consent to.
Where their child is incapable of giving valid consent to medical treatment, parents, as guardians, may in a wide range of circumstances consent to medical treatment of their child who is a minor.
Where this parental power exists, two principles are involved. First, the subjective consent of a parent in the sense of a parent speaking for the child, is, ordinarily, indispensable. That authority emanates from a caring relationship. Secondly, the overriding criterion to be applied in the exercise of parental authority on behalf of a child is the welfare of the child objectively assessed. That these two principles become, for all practical purposes, one is a recognition that ordinarily a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child. Implicit in parental consent is understood to be the determination of what is best for the welfare of the child.
In arguing that there are kinds of intervention which are excluded from the scope of parental power, the Commonwealth submitted that the power does not extend to, for example, the right to have a child's foot cut off so that he or she could earn money begging, and it is clear that a parent has no right to take the life of a child. But these examples may be met with the proposition that such things are forbidden because it is inconceivable that they are in the best interests of the child. Even if, theoretically, begging could constitute a financially rewarding occupation, there is a presumption that other interests of the child must prevail. Thus, the overriding criterion of the child's best interests is itself a limit on parental power.
The bolded bit is probably the absolute crux of the issue of parental consent to medical treatment as it applies to whether a procedure as a whole, such as circumcision, is acceptable.
There are, in our opinion, features of a sterilisation procedure or, more accurately, factors involved in a decision to authorise sterilisation of another person which indicate that, in order to ensure the best protection of the interests of a child, such a decision should not come within the ordinary scope of parental power to consent to medical treatment. Court authorisation is necessary and is, in essence, a procedural safeguard.
Sterilisation requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within the ordinary scope of a parent to consent to. However, other factors exist which have the combined effect of marking out the decision to authorise sterilisation as a special case. Court authorisation is required, first, because of the significant risk of making the wrong decision, either as to a child's present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.
The second concern is that the decision to sterilise, at least where it is to be carried out for contraceptive purposes, and especially now when technology and expertise make the procedure relatively safe, is not merely a medical issue. This is also reflected in the concern raised in several of the cases reviewed, that the consequences of sterilisation are not merely biological but also social and psychological.
The decision by a parent that an intellectually disabled child be sterilised may involve not only the interests of the child, but also the independent and possibly conflicting (though legitimate) interests of the parents and other family members [means that court involvement should exist so as the ensure the child's interest prevails].
The gravity of the consequences of wrongly authorising a sterilisation flows both from the resulting inability to reproduce and from the fact of being acted upon contrary to one's wishes or best interests. The fact of violation is likely to have social and psychological implications concerning the person's sense of identity, social place and self-esteem.
(Sorry if that was a little tl;dr, but I think it is highly relevant; I'll try not to go on about it for too long, as you can probably draw a lot of your own conclusions from it.)
So that would essentially constitute the law in Australia. AFAIK, no-one has attempted to apply it to circumcision.
Circumcision is generally performed on infants, which is why I don't think the question of a the differing competencies of children of varying ages is particularly relevant; we can assume when we're talking about whether circumcision should be legal or not that we're talking about parents making the decision for children who have absolutely no competence to consent to medical treatment. I think this means that requiring court authorisation would not be the route to go down, as the main point of that with regards to sterilisation is to determine whether the individual in question is competent to consent (or disabled enough to make sterilisation in their best interest).
The issue to consider, therefore, is whether or not circumcision is something that parents should be able to consent to. And there are a number of factors involved, the overarching principle of which is whether the decision is in the child's best interest.
Obviously circumcision is not the same thing as sterilisation, but taking the last concern first, one issue is the extent to which 'social and psychological implications' can result from a medical procedure. If there are negative 'social and psychological implications' to circumcision, then that could be reason for parental consent to not be effective, as it would obviously impact upon how beneficial the procedure would be to the child.
Another issue would be the religious one; if a child is being circumcised because of their parents' religion, is that really their interest that is being thought of, and how can the law recognise this as being in the child's interest is that interest is 'objectively assessed'? It would seem to me that the argument that circumcising a child for their religious wellbeing would be entirely inapplicable, and would indeed constitute something outside of what the law sees as "the child's best interest".
The main way this interest applies for a medical procedure like circumcision would be whether or not the procedure is medically beneficial. What health benefits does it provide? What are the side effects for this benefit? As stated above, I don't purport to have an opinion on this matter, and this is why I don't really have an opinion on whether circumcision should be legal or not.
And I would contend that a medical procedure being marginally beneficial on balance would not really be sufficient to allow for parental consent to take a decision that has permanent effects on an individual who will, one day, be able to consent.
So I guess the main point is that, yes, this is an issue of consent. Can parental consent transform what would otherwise be illegal into being legal? Should parental consent extend to procedures such as circumcision? It is important to again note that, as such a medical procedure is
prima facie unlawful, without a justification of consent, the onus is on those that think circumcision should be legal to prove that parental consent is effective (and as a side note, although I don't have a strong opinion either way on this argument, I would tend towards the anti-circumcision side for this reason; the burden of proof seems to be rejected or remains somewhat unsatisfied a lot of the time). And for that consent to be effective, it must be a decision made in the best interest of the child.
Therefore the main question to answer for those that think circumcision should be allowed (and the onus is on them to provide an answer
(and I'm not actually saying here that that answer hasn't been provided)), is how it is in the best interest of the child?