Sanity on the Limitation of Parental “Rights”

A few days ago, in the context of the current FLDS story, Timothy Sandefur posted a principled defense of children and their rights against the (religious) claims of their parents. It’s very similar to what I’ve written about circumcision generally, and ritual circumcision specifically. The parents’ religion is not enough to justify the objective harm under civil law, regardless of the sanctity and tradition of the action. Still, Mr. Sandefur’s wonderfully stated words are worth posting here. (Note: I have no idea whether he would apply this to the medically unnecessary circumcision of minors. I suspect he does, but I do not know.)

The starting point of the analysis must be the principle that children have rights valid against parents, including the right not to be raised in an abusive or neglectful environment. The state has the legitimate authority to enforce these rights against parents. The state obviously has the legitimate power to take a child away from parents who beat him, or from a family of homeless alcoholics who neglect him. The fact that parents act abusively or negligently because they believe that God wants them to does not change the analysis. It cannot change the analysis, because it would, of course, create an easy route around laws that validly protect the rights of children: just assert that abuse is part of your religion. Heaven knows that’s been tried many, many times.

We do not allow parents to beat their children, yet that almost always leaves no permanent physical damage, unlike circumcision. Of course the psychological damage of physical abuse is undeniable. But is parental intent really enough, which is what seemingly allows circumcision while prohibiting other abuse? (cf. this post) Since one excuse used in favor of infant circumcision is that the boy won’t remember it, I say no. If a parent punches an infant, the infant will not remember it. But the act itself, separate from other considerations, is antithetical to the child’s individual rights. The motivating intent we assume (or discover) of the parent is irrelevant. As Mr. Sandefur’s statement declares, we shouldn’t excuse abuse just because parents claim God made them do it.

Mr. Sandefur continues:

… —and the state has the legitimate authority to defend that right [not to be imprisoned in an asylum], again, within certain (often vague) boundaries set by a parent’s right to direct the upbringing of a child. The latter right, however, must yield to a child’s objective welfare. In other words, while a parent has broad discretion to direct the education and upbringing of a child, that discretion exists within boundaries which the state may police, and keeping children away from education, medicine, &c., are things which—at least at some level—exceed those boundaries. …

The surgical alteration of a healthy child’s genitals exceeds those boundaries. We already recognize this for female minors. The Female Genital Mutilation Act explicitly denies parents the option to cut their daughters for non-medical reasons. The 14th Amendment, among other Constitutional claims, implicitly requires us to prohibit genital mutilation of male minors.

Perhaps more succinctly, Mr. Sandefur clarifies his point in a follow-up to his original post. Discussing the implications of two court cases, Yoder and Pierce, and the constitutional limits imposed on parents, he writes:

… The fact that some communities claim that God wants them to abuse or neglect children is just not a good reason for allowing them to do so, and the state is and ought to be more concerned with ensuring that children’s rights are protected than with whatever excuses parents give—mystical or otherwise—for violating those rights or for neglecting those children. …

I can make no comment on the validity of his legal analysis; I am not an attorney. But his reasoning is logical and based in individual liberty. The family is not society’s building block, with parents acting as property holders of their (male) children until the children reach the age of majority. What’s in the best interest of the family is collectivist, anti-liberty nonsense. Cutting is objective harm. The absence of medical need demonstrates that there is no corresponding objective benefit to be gained that would permit a discussion of parental proxy after applying the child’s individual rights. So, while I certainly adhere to a libertarian deference to parents and a suspicion of extraneous laws, legislatively prohibiting medically unnecessary genital surgery on minors is well within a libertarian framework of appropriate and necessary state use of power.

It would be nice if we didn’t have to do this. Maybe we can even justify not having a specific law prior to the beginning of child circumcision, if we lived in an alternate world without the historical tradition preceding the United States. (Assault laws would still be applicable, I think.) But approximately 3,000 male minors have their healthy genitals surgically altered every day in America. Rights are being violated. Not only may the state intervene, the state must intervene.

Caveat: I am not claiming that religious circumcision of minors proves the religion is harmful. I am claiming that religious circumcision of minors is a blind spot against individual rights that can’t be overcome through claims of parental “rights”. This must be prohibited in civil law. Civil law applied to the individual must trump any and all concerns of religion, particularly since the to-be-circumcised individual retains his own freedom of – and from – religion. He alone must decide if he wishes to express his faith in this manner.

34 thoughts on “Sanity on the Limitation of Parental “Rights””

  1. Well I’m glad you allow comments. Sandefur always has some real thought-provoking stuff, but his comments policy stiffles the conversation.
    Anyways, a quick counter: Assuming that we did outlaw child circumcision, couldn’t an orthodox Jew claim that his individual rights were violated by not allowing his parents to circumcize him at a young age? Also, what age would we allow a child to consent? Making them wait until the usual age for medical consent would clearly create a whole load of problems.
    Ultimately, parents have to make a slough of decisions that fundamentally affect a child… Circumcision is no more physically damaging than a variety of dietary or environmental decisions, and in most cases far less emotionally damaging than many other decisions that could never be regulated by a rights-respecting state.
    Fortunately, an outspoken wave of circumcised men who regret the involuntary procedure are already making many new parents rethink this tradition. I think a social solution will be much more workable than a regulatory one here.

  2. I gotten very dejected at times at the pushback I get from libertarians when I blog in this direction (i.e., seeing libertarians who insist that there is a near-plenary right to right your child as you see fit).
    I think it tends to be more a question of them not having quite thought it through rather than a fundamental flaw in libertarian theory.
    Sandefur’s and your reasoning is unassailable, espcially if one starts out with a libertarian orientation.

  3. Unassailable? Hardly… I wish it were that easy.
    While a libertarian might find this logic promising from a moral point, I don’t think it is easily converted to a case for state intervention.
    While a parent may not have a “near-plenary right” to raise their children as they see fit, the state certainly doesn’t have an all-encompassing right to do the same. There are certainly some boundaries, but the real libertarian approach would utilize societal pressures, and not state actors, to discourage the grayer areas.

  4. I think a social solution will be much more workable than a regulatory one here.
    But the law should still protect girls from any form of genital cutting, right?

  5. …the real libertarian approach [to involuntary genital cutting] would utilize societal pressures, and not state actors…
    Thanks for reminding me why I’m not a libertarian.

  6. Greyson:
    I’ll be happy to debate this as long as you’re interested.
    I haven’t said we shouldn’t utilize societal pressures. I demonstrate this often enough in my writing. In this entry I wrote “It would be nice if we didn’t have to do this.” And I engage in activism, protesting and speaking to parents and future parents. I’m doing what you think society should do. It is moderately effective, convincing some and not convincing others. And it will take a long time until I can get to all 300 million Americans.
    Until then, I’ll advocate for legal protection because there are human rights involved. Unnecessary surgery is inherently harm without objective benefit. Harm is a violation of the individual’s rights. Minors are also individuals. Parents do not own their male child’s rights to his foreskin.
    As I understand it, libertarianism focuses on the individual. What do you tell the boys who suffer unexpected damage? (All circumcised boys suffer some damage.) What do you tell the boys who die? Oops, your rights are important, but better to let your parents make an unnecessary decision that has a risk of killing you because we’d rather minimize the state as much as possible? I really don’t see how that is anything other than an anarcho-form of libertarianism, something I reject because it permits this kind of transgression by one against another. But even that would require some mechanism for protecting, or at least recourse for “correcting” the situation after the violation. Is that your starting point?
    Scott brings up the point I think is fundamental. There is an FGM Act in America that protects female minors from any and all unnecessary genital cutting, regardless of their parents’ opinion. Should that law be repealed? It involves the state in the decision to the point of complete prohibition. How would you resolve that gendered disparity?

  7. Here’s an additional consideration. Is that view, which relying exclusively on societal pressure permits, libertarian in any way? The individuals in the minority are ignored in favor of avoiding state involvement. That’s the same as advocating mob rule.
    Perhaps there is a defense against this, whether a private method for prohibiting this clear rights violation, or at least a private system for resolving the issue after the circumcision if the male rejects it (not physically, though, because he can’t). I’m interested in hearing how that would work, although I can’t imagine an explanation in which it isn’t preposterous to allow a violation to occur, with only a financial remedy after the fact if the male disagrees with what was done to him. It is undeniable that his rights are violated. Any suggestion otherwise involves an incomplete understanding of circumcision.
    That leaves only prohibition. If we could get a private system that prevented it, I’d be all for that. But core medical ethics doesn’t prevent it, with doctors abdicating their responsibility to their patients. And males are singled out against females. Our society rejects female genital cutting, overwhelmingly, yet we have an FGM law to punish the few cases that do occur. I can’t see how this isn’t a case of “one is a tragedy, one million is a statistic.” That’s not a libertarianism I recognize.
    This gets to your point about libertarianism. It is problematic to argue “real” libertarianism, but any purity test that abhors government more than it seeks to maximize and protect individual rights hardly qualifies as “real”. The state has a legitimate role. We’ve disagreed on the extent of that in the past, but as you can see, there are at least several intelligent libertarians who embrace a view that libertarianism requires protection of infant males.

  8. It is hard to understand why professional ethics doesn’t stop circumcision. The AAP Committee on Bioethics report states, “Pediatric health care providers. . . have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses. . . . The pediatrician’s responsibilities to his or her patient exist independent of parental desires or proxy consent” (p. 315) [1] However the Academy has been hesitant to apply this simple policy to circumcision instead deferring to the parent rather than recognizing that (from their own report on bioethics): The pediatrician’s responsibilities to his or her patient exist independent of parental desires or proxy consent. If the American medical community would simply follow their own ethical standards, this discussion would be over before it started.
    So the profession does have a ethical framework which should preclude routine infant circumcision but for some reason they are hesitant to follow it.
    (1) American Academy of Pediatrics Committee on Bioethics. “Informed Consent, Parental Permission, and Assent in Pediatric Practice.” Pediatrics 95 (1995): 314

  9. Unfortunately, I’ll be tied up today, but I will get a proper response out by the end of the evening.
    I should also apologize for using the term “real libertarian approach.” I’ve often sparred with people over their attempt to nail down and define libertarianism which is ultimately self-defeating. The beauty of liberty is that even if we share the same principles we can come to different conclusions. I can see that a rights-respecting case can be made to involve the state in this decision. I’ll expand on my other views later. Thanks for the invite to discussion.

  10. Libertarianism is a slippery ideology that allows anyone to argue in favor of almost anything as long as the end result is a reduction of governmental authority.
    Ultimately, it doesn’t matter if a few ethically upright libertarians support a ban on infant circumcision.
    If a majority of libertarians oppose such a ban (as I know they do), then mainstream libertarianism will become associated with that position by default.

  11. Scott:
    I’ve defined libertarianism as seeking to maximize the liberty of individuals. I’ve specifically rejected the idea that reduced government authority is the appropriate end result to seek. Where I argue for reduced government, it is in order to achieve greater liberty for individuals. But I will argue for government power when liberty is reduced, when individuals are violated without consent.
    We’ve had the argument on whether or not that’s ideological, so we don’t need to rehash that here. But it is not slippery. That’s the purpose of having rules. I use principles as the guide because it allows for consistent application of maximizing liberty and protection of rights.
    Kip’s comment above clarifies what I think is the case with libertarians and circumcision, most commonly. But where they ignore the rights of children, they ignore libertarianism. The blame does not rest with the political theory.
    In this entry and a few others, I’ve explained a libertarian framework for government involvement. I’m open to reading where the flaw is in what I’ve written from an outsider’s view, but it’s not helpful to simply apply outside concepts to what I’ve written without explaining how I’ve misinterpreted libertarianism. It’s possible that others have the wrong view, not me.

  12. But it is not slippery.
    In my opinion, any ideology that can permit two irreconcilable viewpoints to co-exist within its boundaries (because it’s so “elastic” and/or nebulously defined) is indeed slippery.

  13. Can you clarify the two irreconcilable viewpoints? Maximizing rights and limiting government?

  14. The two irreconcilable viewpoints are:
    (1) Libertarianism forbids infant circumcision because children have rights independent of their parents.
    (2) Libertarianism permits infant circumcision because children don’t have rights independent of their parents.

  15. How do these two viewpoints co-exist? In its purist form wouldn’t libetarianism mean that people are free to do whatever they want to their person or property so long as they grant the same privileged to everyone else? For these two viewpoints to co-exist children would have to be property right? Though I suppose some people view children as property.

  16. It’s not possible for those to co-exist. Libertarianism, properly understood, recognizes only the first. That’s the case I’ve made here. Others argue the second, with minor, inconsequential variations. I’m saying they’re wrong.
    I haven’t made a mistake in either understanding libertarianism or in the proper approach to the rights of children. If you disagree and think my concept of libertarianism has flaws, I’m willing to listen. (I’m assuming you agree on the rights of children.)
    It’s just as likely that libertarians miss the mark on what libertarianism does and does not prevent when it comes to children. The messenger may bungle the message. I think Kip’s assessment is correct, that the messenger is the problem. It’s possible that it’s an indifference to children among these people, but that is not the political theory.

  17. It’s not possible for those to co-exist.
    But they do co-exist within libertarianism because libertarianism’s authors never bothered to spell out what rights children have or don’t have.
    I’m saying they’re wrong.
    And they’re saying you’re wrong.
    In any case, these two irreconcilable viewpoints continue to co-exist within libertarianism with your viewpoint being in the minority.

  18. They co-exist within the libertarian community, not within libertarianism.
    It’s correct to challenge many within the libertarian community. Their positions are flawed and should be challenged. But it’s incorrect to fault libertarianism as a whole. It isn’t one founding author/thinker or statement of principles. A wide range of influences form the foundation, and from there result multiple divergent views. I, and others, are making a specific claim to demonstrate how a libertarian concept of rights not only recognizes the rights of children, but how it must defend those rights against parents. (Not just in the case of circumcision.)

  19. They co-exist within the libertarian community, not within libertarianism.
    I’ll accept your distinction, but it doesn’t really change my basic point.
    There are two camps within the libertarian community who continue to espouse irreconcilable viewpoints and that’s ridiculous.
    The fact that a major internal disagreement like this erupted and has remained unresolved for so long speaks very poorly of both the libertarian community and libertarianism itself.

  20. It reflects poorly on the individuals, although why is probably the core issue. If it’s a belief by some that children don’t have rights, that’s impossible to defend. If it’s because they haven’t thought about it, that’s “unfortunate”, but there’s still a chance to come around.
    Looking beyond libertarianism, I don’t think any of the other strains of political thought do a particularly better job on this front, as a whole. Rep. Pat Schroeder explicitly stated the fallacy that male circumcision was somehow different when debating the FGM Act on the floor of the House. Conservatives are content to rely on tradition and religion, among many faulty excuses. No group, in its entirety, gets this correct.
    Libertarians are currently having the discussion, although in the FLDS context of children’s rights. But the discussion is going on. What are non-libertarians saying about that? (I haven’t followed it closely, so it’s not completely rhetorical.) That the raid is good because polygamy is bad/immoral? Rape is bad? How many are explicitly discussing the rights of children, independent of what their parents want to do? That’s slightly different than saying child rape is bad, which is the only depth I’ve seen. Of course it’s bad, but why? That gets to the rights of children against their parents. Noting that it’s wrong to rape children is useful, but it only says parental freedom doesn’t extend that far. How far does it extend seems to be the question, rather than starting from a consideration of the child, moving further into parental limitations.
    A question: what political (or other) system would you use? Is it consistent across issues? Details? I’m genuinely curious. I know basically why you think libertarianism is wrong, but what’s the solution instead?

  21. I know basically why you think libertarianism is wrong, but what’s the solution instead?
    I don’t need an ideology (secular or religious) to tell me what’s right and what’s wrong.
    My internal moral compass combined with plain old logic and common sense have served me quite well in this regard, and I intend to continue using them as my guide.

  22. Okay, so my internet cuts off for one afternoon and I missed out on a good ol’ fashioned blog food fight.
    I’m not going to bother trying to respond to any particulars, but I’ll suggest that Scott gather a better understanding of the foundations of Classical Liberalism, and I don’t mean this pejoratively. From your final response there it sounds like you’re pretty confident in trusting your own morality and logic before others’ and that is indeed the fundamental aspect of libertarianism that I find so attractive. I’d also suggest that all philosophies, but particularly liberty-oriented ones, have a problem when dealing with children, so you can’t fault us entirely. There really are no simple answers to complex questions.
    Now in response to Tony, I think ultimately we’re talking about a line-drawing question here. I think we can all agree that children are not property, and thus parents are not entitled to do whatever they may please in raising them. However, any liberty-respecting philosophy will put the burden on the state to show that an undue amount of harm is being done, before justifying state intervention. Where then do we draw the line? How much and what sort of harm is acceptable?
    As I hinted before, there are a million different decisions that parents make daily that are capable of impacting a child in much more detrimental ways than circumcision (I’m no expert, so please correct me if I’m wrong, but I imagine the physical risks of circumcisions done today are relatively miniscule when compared to so many other things we expose our children to.) If we’re going to make the case for state intervention on this issue, what are we going to do about immunization? I certainly remember as a young child expressly denying my consent to a number of shots, but my parents won out, and most people would suggest that I’m better off because of it. Of course there was a possibility, at the least comparable to that in circumcision, of contracting a fatal illness, or a wide array of physiological problems, but I’m certain you’re not going to make the case to prohibit immunization, or even to allow children the right to refuse consent at such a young age (incidentally I might argue this last one, but I’m always in the minority anyways.)
    Shouldn’t we also make the case that the state should prohibit divorce, and adoption, both of course have a clearly documented capacity to traumatize. In some instances having certain numbers of, or additional, children is known to cause immense emotional strains or physical deficiencies, should family planning be controlled by the government? The state should certainly mandate a specific educational curriculum, limit television programming and exposure, regulate acceptable environmental conditions, institute a proper exercise regiment and dietary guidelines, and swiftly prosecute any parents that don’t follow through on these, no? Religion is certainly a delicate issue, many kids that grow up in atheist households face challenges in certain environments, and children of diverse religions also face obstacles, maybe we shouldn’t allow parents to include their children in practicing any faith not approved by the state, or is that too far? I could go on, but I imagine I’ve made the point. This slope leads quickly and surely towards Fascism.
    Moving further, imagine the kind of physical pain/problems and emotional stress that a child would face when growing up in a devout Jewish family in a state that prohibited infant circumcision, or worse yet imagine what sort of conditions the procedure would be done under a prohibition and what measures might have to be taken to hide the procedure from authorities. Surely, just like all other prohibited services, circumcision would still be performed, certainly in lesser numbers, but now on a black market.
    Again, if infant circumcision is not an appropriate action then it shouldn’t be too hard to inform people of this, and quickly and severely curtail the practice. Most parents simply aren’t out to hurt their kids. I tend to see it as a matter of choice, and one that I’ve never been in the situation to have to make, so I’m admittedly not as informed as I would be if such a situation were to arise.
    Now, for one last loose end. I do think there is a fundamental difference between male and female circumcision, especially in the American context. First off, in any context the female procedure is generally much more drastic, and has much longer lasting physical effects. Secondly, there is no historical basis for female circumcision in America (which is why it wasn’t specifically outlawed until very recently.) This second point is not one I like to rely on, but ultimately, do we really need to prohibit female circumcision in America? How many cases were there in the 10 years before the ban was in place? I’m certain societal pressures would always keep this from becoming anything more than an uncommon act done by a very fringe population, which again could easily pursue the act covertly anyways.
    Alternatively, I’d probably make the same case against prohibition in African communities (in the brief research I did before writing I found references to death penalties and a case of a 15-year old girl who died after attempting to circumcise herself.) Though here I’d clearly be less ambivalent for the need for social movements to end the practice.
    Well I hope I didn’t get too long-winded, and please forgive the tardiness. Any further questions/comments?

  23. Scott:
    My internal moral compass combined with plain old logic and common sense have served me quite well in this regard, and I intend to continue using them as my guide.
    That’s what led me to libertarianism. It’s an expression of my moral compass combined with plain old logic and common sense.
    My question was geared to inquire about what is the foundation of your moral compass. I don’t seek an answer like “Jesus” or socialism. It doesn’t have to be a set, recognized belief system. But “moral compass” is vague. Logic is vague.
    My moral compass is that all individuals have rights. What is your moral compass? More succinctly, what is your thought process for reaching conclusions? Presented with a new example of human interaction, how do you determine your opinion according to your moral compass?
    If I say it’s morally right to kick my neighbor for playing his stereo too loud, no one would accept that an answer that stopped at a claim of my moral compass. In the context of circumcision, how many people would claim that circumcising infant males is within their moral compass? That claim is illogical. Neither you nor I accept it. We use rules to guide us.

  24. Greyson:
    Thanks for the thoughtful response. Don’t worry about being long-winded; I write that way (too?) often. I’ll apologize in advance. This response is too long. I understand the time burden this much information imposes. Respond with as little or as much as you want, to whichever portions you wish. I’ll debate as long as you’re interested. I might even be able to condense my thoughts in future efforts.
    I think you’re correct that the issue is line-drawing. I do not recognize a state power to dictate parenting to the finest detail. The burden is on state to show undue amount of harm. I agree with this completely. The key point, though, is undue amount of harm. Male circumcision is the infliction of objective harm. There is cutting. There is bleeding. There is a wound that must heal. There will be scarring. That occurs in every case, whatever the intent of the circumcision.
    There is also an objective, though impossible to measure, risk of complications from every circumcision because it is surgery. Mostly these complications are minor but they include partial-to-complete penile amputation and death. I don’t care for anecdotal evidence, but an activist friend of mine knows a family whose son lost his penis during his circumcision. It’s rare, but it happens. And I’ve document several cases of death from medicalized and ritual infant circumcision in North America and Britain. It rare, but it happens. Individuals are involved, not statistics. Most kids will receive only the expected results. But libertarianism isn’t about the outcome for the majority. Parents can’t know which result their child will get.
    That requires an objective benefit to circumcision to balance the discussion. There are none. Yes, there is reduced risk, but the value of those is subjective. The benefit is potential. The only standard we have is medical need. There is none in most children. Medical ethics requires that we do not operate on healthy patients without their consent. My position is that parents do not have legitimate authority to make surgical decisions for healthy children.
    (To be fair, I work from an assumption that individuals want to minimize their exposure to surgical risk. I think this is reasonable and as close to objective as possible. It’s a safer assumption to say that than to assume that individuals want the reduced risks of certain maladies post-circumcision.)
    The immunization issue is interesting, and worthy of inclusion. The difference to me is that immunization seeks to address externalities. Others may impose an unavoidable risk to the health of the child through exposure. Smallpox, polio and measles are distinct from STDs, for example, in that there is no specific, identifiable action necessary by the patient to contract the former. There is a risk to others, and children are the general infection pool for these diseases.
    The only comparable medical concern is UTI. Although circumcision reduces that risk in males in the first year of life, it does not eliminate. Down from 1-in-100 to 1-in-1000. Females have a higher risk than intact males in the first year of life. And antibiotics are overwhelmingly effective in both sexes. (Some will claim penile cancer is an additional medical factor. The risk is very, very low. Lower than male breast cancer. Anyway, unsafe sex with multiple partners, poor hygiene, and smoking are recognized as the risk factors, not the foreskin. Western cultures that do not practice infant male circumcision show similar rates of penile cancer, usually in older men, compared to the U.S.)
    I don’t think the state should mandate vaccination, but we also see the social solutions we don’t see with circumcision. Parents putting their children in private daycare must document their child’s vaccination. This is reasonable and an effective response from society. If parents don’t wish to meet this expectation, they can choose otherwise.
    Intact male genitals do not offer externalities. Yes, there is the risk of transmission of disease, but that is presumably through voluntary sexual contact, not occupying the same classroom or street corner. And it’s not exclusive to intact genitals. And as explained with UTIs, there are lesser treatments available. When choosing medical care for another through proxy consent, the least invasive solution should be required. Again, medical ethics suggests this would preclude doctors from performing prophylactic circumcisions. It doesn’t. Something more is needed.
    Divorce and adoption are interesting, but I think we’re looking at more than just the potential harm to children. We must consider competing rights. The contractual rights of the parents matter, including marriage. Thee child does not have a competing right to two married parents living in the same house. The responsibility is on the parents to negotiate such changes with the least possible harm. But life is messy. Human interaction is messy. Children have no natural right to be free from messy relations. And two individuals may respond in two diametrically-opposed ways to the same event. We must come back to objective harm. In the case of divorce, we’re relying on post-divorce review to determine whether harm occurred. That’s more reasonable, and likely to yield far more accurate results, than an assumption that prohibiting divorce in marriages with children because objective harm will occur.
    The responsibility of parents to make surgical decisions for their children competes with the natural right of a child to be free from harm/maintain bodily integrity. The right must win whenever the child is healthy. The individual’s sovereignty trumps the parental responsibility, even if the latter is seen as a right. When the child is not healthy, parental responsibility enters the discussion. They must choose what is in the best interest of the child. The appropariate standard should assume the child would want the least invasive treatment. This may not be the case, but it brings up the key basis for state involvement.
    Children must retain the possibility of exit as much as possible. If parents allow them to watch bad television, they can overcome this. Poor diet, as long as basic nutritional needs are met, fits the same. For example, I grew up an omnivore. I transitioned to vegetarianism 14 years ago, and to veganism 6 years ago. The same applies to the religious teaching my mother required of me for a few years. I do not identify with a religion now. I was able to exit my parents’ choice. Some issues are tougher to exit than others, but it is possible. The state’s burden is higher.
    With circumcision of minors, the surgical cut also removes the possibility of exit. I can’t unchoose circumcision, even though I never would’ve chosen it. The thousands of nerve endings that were packed in my foreskin are gone forever. Circumcision results in keratinization of the glans and foreskin remnant, which change in texture from moist mucosal tissue to calloused skin. The penis, despite our understandable assumption, is an internal structure, just like female genitals. That’s a purpose of the foreskin, to protect the sensitive skin.
    TMI Alert: I don’t seek to reveal personal details, but I believe an honest evaluation matters, even if it’s personal. I have the scar from my circumcision, which is asymmetrical. The doctor removed more skin on one side than the other. The circumcision also took my frenulum completely, the most sensitive portion of the penis. I wouldn’t give any of that up, if I had the option. I can’t get them back. All of that is objective harm.
    Perhaps I was saved from a UTI I would’ve gotten. That can’t be proven, so it’s subjective. And I would prefer antibiotics. Nor am I gaining anything from the now-assumed HIV risk reduction because I don’t engage in unprotected sex with HIV+ females. It’s value is subjective, with an assigned value of zero from me.
    I do not pretend that every circumcised male should be upset by his circumcision or believe that it’s made his life worse. But where others decide that it’s good, I decide it’s bad. I’ve made my evaluation, although that’s a pyrrhic intellectual victory. My parents could not know what I would decide when they made my decision. They assumed, incorrectly. That is not a credible standard for the state to permit a violation of an individual’s right, absent any medical need. If we view it as credible, parents may cut off other healthy parts of their sons. There is no consistent rule based in objective evaluation that says what is okay and what is off-limits.
    I do not doubt that a black market would appear. It already exists for cutting the genitals of female minors. We must address this issue. That is not a sufficient reason to permit the violation, though. Limiting the state is a worthy goal, but it serves a legitimate function to protect the rights of individuals against infringement. Any violation that occurs must be dealt with, both in punishment and prevention. I don’t have all the answers to this tough, inevitable question. Its challenge alone does not permit us to discard what would lead to it.
    (The preference that parents have for it is why no political solution will appear. The solution will come through the courts. While parents will grumble about this, but I think a general respect for law/fear of punishment will limit the size of the black market. See this for another perspective on how some think routine circumcision in America could end.)
    Hypothetically, if parents circumcise a child on the black market, the state may not discover this. But the child will, or may. If he does, he then has legal recourse to sue and/or press criminal charges against his parents if he is not happy. It happens now, although in isolated cases and with limited legal receptivity. It would be optimal if this had been prevented. But the disincentive of civil and/or criminal punishment is valid.
    As to the problems of stress in a devout family, it depends on how the stress arises. Is it internally generated by the male? I’ve stated here that the age of majority is the delimiter. I think it needs to be the starting point, but I don’t think that has to be the firm prohibition point. When the individual can provide informed consent, I’m comfortable with that pro-individual rights view. If it’s 14, or whenever, fine. But it is not in infancy. I see no problem with a court intervening, as it would in a case of the emancipation of a minor. He asserts his competence to make his own choices. I reject the idea that parents can impose surgery to avoid the possibility that he might feel left out.
    If the stress is externally generated, then we’re talking the possibility of emotional abuse. I think this is unlikely to be a significant factor, post-prohibition. I trust parents more than that. But where it exists, to what extent do parents have the right to berate their children into psychological distress over their normal bodies? If the child would not then want circumcision, wouldn’t it be a rights violation to impose it on him at 14, or whenever?
    Some Jewish parents leave their sons intact. The prevalence of intact Jewish males is very high in places like Sweden. And there are Jewish men who reject Judaism and circumcision, despite the preferences of their parents. Again, this is really about the possibility of exit. Circumcise and he loses that. Leave him intact and he retains the possibility of entry.
    The question is at what age should parents lose the sanctioned option to remove their son’s foreskin? (c.f. this Oregon case) I say they never have that plenary right. Human rights exist independent of intent. I’m not drawing a comparison here, but the Bush administration claims that as long as it tortures prisoners for the right reasons, the torture is excusable. Libertarianism rejects that. It’s possible to see that as just about limiting the state, but it’s also about protecting the individual and his rights. Is it really a different defense if the violator is an individual and not the state? Would the state have the authority to step in and punish that, as well as lay down prohibitions against such non-voluntary abuse?
    I commend you for using the proper qualifiers with respect to female genital cutting. It is usually worse in outcome than male genital cutting. But not always. Nor is FGC always imposed to prevent the female from ever experiencing sexual pleasure. Still we look at all FGC as wrong. Some go so far as to assume that no female could ever give her consent, so it should be outlawed for adults, as well. Yet, the assumption there is that males who can’t be asked will automatically appreciate it. It’s a double standard without logic. I disagree that female and male genital cutting are different, though. Qualitatively, they are identical. Each is the medically unnecessary surgical alteration of a child’s healthy genitals.
    I think a social solution will appear in the very, very long view of our future. Parents are already choosing to leave their son’s choice to him. Not everyone will agree. How many children must be violated until then? How many may be violated in perpetuity? That’s the problem. And it’s clear from the U.S. history of infant circumcision that it developed as a “social solution” to masturbation. Solutions should be allowed to develop. But the state’s power is legitimate when the solution violates a right. There is objective harm in waiting for the private sphere to work it out.
    Here’s a question for thought. What about intersex children? What should parents be allowed to do in choosing a physical sex for the child?

  25. Ideologues always like to claim that their moral compass is superior to the one we’re born with, but it ain’t necessarily so.
    The practice of infant circumcision, you’ll recall, got its start among a group of ideologues (Jewish theologians) who taught that it was not only morally acceptable, but a moral requirement.
    If said ideologues hadn’t put said idea into people’s heads, the chances that anyone would’ve cut off their child’s foreskin elsewise are practically nil because the average person’s built-in moral compass would’ve stopped them from ever contemplating such a thing.

  26. As a side note: I first found out what circumcision was when I was no more than nine years old.
    I knew damn well it was WRONG WRONG WRONG the minute the news hit me.
    Nobody had to teach me this.

  27. I’m at the point where I’m tired of being called an ideologue. It might be true. I don’t think it is, but we’ve debated that ad nauseum already in multiple threads. I’m not going to change your mind on that point, and you’re not going to change mine. Repeating the ideologue mantra when I ask a simple question on how you reach decisions is a deflection. You can decline to answer if you like, but please do not insult me.
    Also, I did not state that my moral compass is superior. The principle of individual rights is a component of how I make decisions. I only asked how you make your decisions.

  28. I’m at the point where I’m tired of being called an ideologue.
    My comments were primarily directed at Greyson, not you Tony (I was responding to the part where he says I need to get a better understanding of classical liberalism, etc).
    I suppose I should’ve made that clear by quoting the other person like I usually do, but I didn’t bother this time because my response partly related to what you were asking me also (or what I thought you were asking me, anyway).
    I only asked how you make your decisions.
    I judge things based on the morality of the outcome or result more than anything else.
    I hope this answers your question.

  29. I can accept that answer. I think there’s more clarification that can be found, but that’s a reasonable approximation.

  30. Alright, I meant to give your comment a little time to digest before getting back, but I didn’t imagine I’d take this long. Apologies for that.
    I should also apologize to Scott, if he actually ends up reading this, because it appears he misunderstood my earlier comments. Simply put I didn’t say you “need,” but I suggest that he gathers a better understanding, because his ealier characterization was way off base, and his comments suggest that he might take well to it. As I have here, I simply wanted to stay as brief as possible before I delve into the meat of the conversation which will undoubtedly run long (though I have tried my best to keep it shorter.)
    You certainly make a strong and convincing case against infant circumcision. It seems like I focused too heavily on emotional/psychological trauma, which appears not to be your main objection, so I’ll have to shift gears slightly. Again, however, there are a host of situations that parents routinely subject their kids to that can easily lead to much more grave physical harm. The two that jump out at me first are riding in cars, and determining social interactions. Obviously we have traffic regulations and child safety regulations to minimize this, but there are still countless children that die every year due to automobile accidents, that surely would have survived if they hadn’t be allowed to ride in the first place. Of course prohibiting driving your kids anywhere is preposterous. Choosing who, when, and where your child interacts with socially is also tremendously impactful on their development both physically, and socially. I won’t bother to delve too much further on this track, because I can already anticipate your response will be similar to your comments on immunization, but simply put parents are in a unique position regarding children; they have an unrivaled responsibility to care for their children in the way they best see fit. Risk is a necessary part of life, and managing these risks is what parenting is primarily about. When mistakes are made they ultimately impact both child and parent. Despite the presence of less-than-ideal parenting, I cannot endorse any logic that supposes that the state knows better.
    Your discussion of the “possibility of exit” is probably the most clear-cut position in terms of convincing a parent to think thoroughly before making this decision, because it simply isn’t a decision that can be reversed (at least not at our current technological level.) Though the situations I mentioned above also leave permanent irreversible damage, but could not seriously be governed by a liberty-respecting government, and many acts which have some limited barriers to exit are still rightly regulated by the state (neglect, abuse, etc.) I should also note that despite the barriers to exit from a physical sense there is an argument to be made that the harm itself can be overcome from a psychological and emotional perspective in much the same way that a disabled child can learn to be a whole person without being physically whole. Here I will also respond, in part, to Scott as well: the key factor, as I see it, in determining when parenting becomes abusive is not at the outcome, but at the intent (albeit a much stickier state to judge.) Parenting becomes abusive when the intent departs from protecting the child’s welfare, and there just isn’t a case to be made that anything more than a tiny minority of infant circumcisions could possibly fit this bill (and that tiny minority would certainly cross into the territory of child abuse anyways.) I should also note here that my calculus changes entirely once the child is in a position to make its will known, and I should apologize for the Oregon case that you mentioned, since that is my current home state and they clearly did not make a rights-respecting decision therein. (I only wish I could claim this was the first case Oregon courts decided incorrectly.)
    In your response you outline the objective benefit of circumcision, but completely ignore the one which I feel most harms the case for state prohibition: religion. Even from a purely atheistic viewpoint this holds weight. Much like allowing children to ride in cars, and associate openly in society, circumcision provides many children a sense of identity and community. Ultimately, however, the end-all to the discussion from my libertarian position comes from a theistic viewpoint: I simply do not have the ego capable of denying that circumcision may bind a child’s soul with their “people” and god. For many people circumcision is not simply a “social solution” to masturbation, but is a religious covenant, and amongst Jews it is certainly one of the most important. This is why I cannot condone any state prohibition of infant circumcision, and it is also why I don’t believe any such prohibition will be forthcoming in America in the forseeable future.
    My perspective on issues tends to deviate from many of my libertarian colleagues in that I don’t focus primarily on an individual, but on the individual. I feel the impact on the human species is greater when we resort to state interaction as a crutch to prop up our failings, or a curtain to hide them. If infant circumcision is clearly wrong, and as I said your arguments are very convincing to that point, then it will be rightly rejected by the public at-large. It will certainly not be wholly rejected even if prohibition were instituted, just as many of the actions of the FLDS that got Sandefur and this discussion rolling are clearly remnants of previously accepted practices, but I think you should have more faith in your arguments and the rationality of society to accept social solutions.
    Lastly, I’ll have to plead ignorance when it comes to dealing with parents of inter-sex children, as I simply don’t have the time necessary right now to familiarize myself with all the intricacies of that decision. Generally speaking, however, I think the above comments are capable of transmission. Whatever decision a parent makes, as long as it comes from an intent to provide the best upbringing possible for their child, is going to be one that they and their family will have to deal with. Thus, I think the state’s role is, again, pretty minimal.
    Thanks again for the discussion, and apologies once more for my delay… I’ll look forward to hearing if you have any response to these new issues.

  31. Greyson:
    No need to apologize for delay or length. I will carry this on for as long as you want, with whatever delays are necessary. You’ll consider my points, and I’ll learn from you. That’s enough to keep me engaged.
    I’m going to think over this new comment a bit before responding. I have an idea of what I want to say, but I want to condense it as much as possible. I’ll respond in the next day or so.
    P.S. To give credit where it’s due, I’ve had the concept formulated for a long time, but the term “possibility of exit” came from a recent Kerry Howley entry on the FLDS story. I thought I was going to blog the idea more fully before now, but other stuff has gotten in the way. I wish I could claim credit for that masterful way of saying it, but it’s not mine.

  32. Greyson:
    Most of the risks you present are risk that must necessarily be taken. Children do have to interact with other children, and other people, they also must be driven around. However, circumcision is an unnecessary risk which, at best, provides negligible benefits which can be realized through safer, more effective, and less invasive ways. So I am not sure how the these can be compared.
    On the surface, I agree the religious argument might be more persuasive but I believe there are at least two problems with this line of thought. First, consider a religion which brands a child on his body at birth, I know this may not exist but scaring rituals are popular in say Africa. Now members of that faith come to the US have a baby who is examined by a pedi and found to be in good condition. On a follow up visit the pedi notices a brand on his leg, chest, or butt. Do you honestly think DYFS wouldn’t not be involved no matter what the situation? Now from an objective point of view I could argue that the child would no more be traumatized by this than a neonatal circumcision and as a practice matter there wouldn’t be that much harm. Perhaps even less harm and risk of complication than from a circumcision; though I haven’t really thought it out too far. Or perhaps instead of a brand they nip off the earlobes. Same deal from a practical perspective I could probably get along just fine without them and if done as a neonate I wouldn’t remember it getting done. Where is the difference? Where do we draw the line? Can religion be used as a justification for any or all of these, or just one? Second, I am not sure how one (I know you are not necessarily opposed I meant people in general) can be logically opposed to non-secular neonatal circumcision and not the secular variety.

  33. Joe: Welcome to the conversation, and thanks for the remarks.
    First off, the risks I mentioned were certainly not risks that HAD to be taken. From the mainstream American point of view, if you wanted to connect with the culture they would be necessary, but there are many other ways of rearing children. Until 100 years ago we got by fine without subjecting our children to rush hour traffic and public schools full of drugs and shootings. The Amish still manage to raise children today without cars, or many dealings outside their community (granted, this doesn’t eliminate the risk level, of course, but it certainly lowers it.) As a result of the choices American parents make they raise the overall level of risk involved in a child’s life. I’m not saying that’s necessarily a bad thing, many great opportunities are opened up by modern technologies and commercial social interactions, but they are still risks, and risks capable of leading to the gravest of harm. The people who have to live with the results of these decisions are the children involved and their immediate family, and they should be the ones to make these decisions, not the state. Until the child is able to exert his opinions, and unless the parents are unable to attend to them, those responsiblities should fall to the family.
    On your 2nd comment, branding, or other initiation rites, in a theoretical sense I would again argue that as long as it is clearly not a malicious act then, theoretically, I think it should be legally permitted. Given historical and cultural circumstances in America, however, I can understand the argument that Americans would certainly make to prosecute and prohibit it, the same historical circumstances act in the opposite way in respect to circumcision.
    On your final question, from a legal standpoint I’d say I’ve argued against prohibition of any form, secular or otherwise. I wouldn’t say from a moral standpoint that I’ve made any definite decision. I haven’t actually had to, as of yet. However, the only argument that would convince me in the slightest to consider circumcising a child would be for cultural/religious significance, but that’s purely an individual’s thought and people who would decide for other reasons, that they perceive to be in the best interest of their child, should certainly be allowed to follow their conscience.

  34. Greyson:
    First, sorry for the delay (and the length of this, I guess). I’m still here and willing to continue.
    I want to give a full response, but it’s important to get to what I think is the core question where I’m still uncertain from our debate. Do we agree that a minimal State is necessary? Obviously we disagree on the specific example of routine infant circumcision. But, in general, do you share the basic idea? (National defense, for example.)

    Risk is a necessary part of life, and managing these risks is what parenting is primarily about. … Despite the presence of less-than-ideal parenting, I cannot endorse any logic that supposes that the state knows better.

    I think we agree on the first half. Risk is inherent and can never be eliminated. So the question becomes to what degree is risk-containment reasonable? I think the equivalent in the two scenarios you mentioned would involve very extreme restrictions on the child. Worse, the only way the equivalent holds up is if the parents dictate for the child what social interactions and life risks he may take for his entire life. Many, if not all, of the risks supposedly reduced through circumcision are risks the child will not face until he is an adult. The only legitimate argument is the reduction in UTIs in the first year of life. (But even that risk is tiny and we don’t treat girls for the same until they’re sick.) I can’t imagine an analysis of routine infant male circumcision as a parental choice for risk management that is reasonable.
    As for state intervention, meddling in parental decisions regarding risk is not what I’m suggesting. I’m suggesting that preventing objectively harmful interventions that do not achieve any objective benefits is a matter where the state should be involved. That doesn’t mean it knows better, necessarily, because I leave open the possibility that the male will want to be circumcised. Hence the state’s meddling extends only to the point that someone is making a decision for another.
    This gets to intent versus outcome. I can’t accept that. A small minority of parents believe that harsh punishment for their children is “good for them”. Do we draw the line at subjective intent or objective outcome? The outcome must matter first to the extent that it can be identified objectively. Intent is subjective, and economics teaches us that all tastes and preferences are subjective. I’m never going to respect the parents who circumcise their son because they believe it will make him more sexual desirable to his future presumably-female partner(s), yet that’s what accepting intent over outcome requires. (I can provide examples, if you wish.) Do parents also get to dictate which sexual positions a child may or may not use? The notion is silly but the same. And what if the future partner prefers normal (rather than common) genitals, a very radical notion to some? Unlike determining whether or not junior can play with Johnny next door during the summer between 2nd and 3rd grade, the parents are allowed the equivalent of saying that junior may never have interaction with Johnny next door, even if they meet again in graduate school.
    Also worth noting is the possibility that parents can have ill intent, only to claim “good” intent when questioned. I think instances where Medicaid only pays for circumcision if it’s a religious requirement (for the parents!). How many non-religious parents will now claim a religious need? This is a slippery slope unbounded by any principle for the individual.
    Another useful question is at what point does the child’s opinion become appropriate to include? Our society doesn’t think it’s birth, but we seem to have a general idea that it’s before the age of majority. So when is it? And how do adult circumcision statistics factor? Males left intact almost never choose or need circumcision, so that’s a fairly significant indicator of what the child who can’t give his opinion would choose if his decision is left to him.
    As for religious identity, I don’t deny that. (You haven’t implied that I do.) But condoning religious circumcision of infants suggests that an adult’s individual right includes the choice to override the child’s right. That simply can’t be true. Prohibiting circumcision as a religious rite violates the First Amendment. Prohibiting the circumcision of minors does not. If (unchosen) membership in a group requires permanent and involuntary surgery, I simply can’t see how civil law should respect that. If including him prohibits his ability to fully exclude himself, that’s too far. If it isn’t, what other religious requirements must we now condone? Stoning of adulterous women? I don’t ask that rhetorically; the underlying principle of individual liberty and self-determination is at stake.
    And what do we say to the male circumcised by his parents for a religious rite who then chooses to leave that religion?
    I don’t think expecting the State to prohibit circumcision implies insufficient faith in the validity and strength of my opposition to infant male circumcision. I’m not trying to force something I don’t think I can achieve. I wouldn’t write about this topic if I thought I could achieve success. I wouldn’t protest. But where the world has lost part of its mind, and wishes to impose that as an action on an unconsenting other, there is a role for the State. This gets back to the original question at the beginning of this comment. The State has a legitimate role in protecting rights. That includes assault, which circumcision clearly is, if only in action rather than intent.
    Personally, I haven’t encountered any private – real or hypothetical – solutions that protects children from unnecessary circumcision. It’s clear that too many parents are irrational and willing to apply any and all forms of subjective excuses to justify the unjustifiable for their own reasons. (Objective harm without objective benefit qualifies as unjustifiable only when imposed on another.) That isn’t a definition of individual liberty I’m willing to embrace. And although I’m skeptical of their success, I’m willing to consider possibilities. But it won’t be perfect.
    As an example, the AAP first recognized the obvious point that routine infant male circumcision is at best a draw in 1971, two years before I was born. That sort of appeal to authority should’ve worked, and it was in time to save me. Except it didn’t, because both my parents and my doctor put their subjective preferences and opinions above the objective lack of medical need. They put me at risk of all sorts of complications, and did give me the irrevocable markers of the harm they imposed I discussed above. If we could get to a private solution, how many boys is it okay to subject to these risks, complications and outcomes until then? I wish there were a perfect solution. There isn’t. In this case, state prohibition is a necessary appeal to good rather than perfect.
    Maybe the core issue is how do we rationally approach the topic of a child’s “best interest”. What minimum standards should we apply to parents in fulfilling their obligation to raise their children and make decisions in that context? (And how are these different for male versus female children, as the U.S. clearly recognizes a difference I don’t accept?)
    P.S. My point on inter-sex children is only that parental judgment on which gender to assign is exactly like the circumcision issue. It’s a pure guess. Some parents guess right, some guess wrong. Those who guess wrong may guess either the wrong gender or that the child wanted any surgical “correction”. If the parents choose incorrectly, the child is harmed. Choosing a gender expression with the genitals is socially desirable but not necessarily in the child’s (chosen) self-interest. Without medical need, that matters more.

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