[Access article in PDF]
Cultural Bias in Responses to Male and Female Genital Surgeries
Dena S. Davis
Cleveland-Marshall College of Law
I agree completely with Michael Benatar and David Benatar (2003) when they argue that minor forms of female genital alteration are comparable to newborn male circumcision. The refusal to weigh comparable practices equally is indeed due to cultural bias, as they insist. In my response I will show how this bias plays out in the American legal and medical arena and conclude with some recommendations.
In the United States, many state laws, as well as a federal law, criminalize any "nonmedical" surgery on the genitals of a female minor. The federal law explicitly states that the "ritual" or "cultural" beliefs of anyone involved in the procedure are not a defense. 1 In 1966 Seattle physicians proposed to offer a very minor form of female genital surgery to immigrant parents from Somalia, who otherwise would likely subject their girls to more severe and dangerous forms of surgery, either from traditional practitioners in the United States or by taking them home to Somalia. The physicians proposed a "nick" that would certainly have been less extensive than male circumcision and arguably comparable to ear piercing. Nonetheless, they were counseled by Congresswoman Pat Schroeder, author of the federal law, that they would be engaging in a criminal act (Coleman 1998). The American Academy of Pediatrics, while encouraging parents to take their cultural and religious beliefs into account when making decisions about male genital surgeries, counsels physicians on ethical and legal grounds against offering even minor forms of female genital surgeries (American Academy of Pediatrics 1998).
Ethically, such bias shows a real lack of respect for the cultural and religious beliefs that ground parental decisions about female genital surgeries. By refusing to engage in any sort of compromise, such attitudes also show a lack of respect for parental motivations, which often include concern about the ability of surgically unaltered girls to marry within the community. This lack of openness to any form of female genital surgery is especially startling when framed by the American laissez-faire attitude toward male circumcision. Traditional (nonphysician) practitioners of newborn male circumcision are not licensed; no statistics are kept about the numbers of circumcisions performed nor the rates of infection or other problems; fewer than half of newborn males are afforded analgesia during surgery (both inside and outside hospitals). This disparity raises Constitutional issues of equal protection, as little girls are the object of concern and protection not provided to little boys. There are also serious First Amendment issues, as the religious and cultural motivations that cause parents to choose male circumcision are given respect not afforded to the religious and cultural motivations that ground decisions for female circumcision (Davis 2001).
I suggest the following recommendations. These recommendations form a compromise that seeks to protect girls and boys alike from traumatic genital alteration, while respecting the important mix of motivations that underlie male and female genital alteration. Further, by narrowing the gap between total condemnation of all forms of female alteration and the complete legal indifference to male alteration, these recommendations show respect for immigrants from cultures that practice female genital surgery and remove the taint of religious intolerance.
- Federal and state laws should be rewritten to allow painless, hygienic surgical "nicks" by healthcare workers who wish to offer that service.
- States should exercise some oversight over male newborn circumcision.
- States should gather data on all newborn male circumcisions, including complications.
- Nonphysician practitioners of newborn male circumcision should be licensed. States currently regulate the hygienic practices of those who cut our hair and our fingernails, so why not a baby's genitals?
- Adequate pain control should be a legal requirement.
Dena S. Davis, J.D., Ph.D.,is Professor of Law at Cleveland- Marshall College of Law. She has been a Visiting Scholar at the Hastings Center and the National Human Genome Research Institute and a SmithKline Beecham Research Fellow at the Center for the Study of Law...