an argumentative essay about female circumcision should be abolished

Why the law against female genital mutilation should be scrapped

Lecturer in Law, City, University of London

Professor of Women's Health, King's College London

Disclosure statement

Lynne Townley is affiliated with Save Your Rights, a charity campaigning against forced marriage and a committee member of Association of Women Barristers (a voluntary organization campaigning for access to the Bar for women and other under-represented groups). She has lectured and published articles on FGM and was the Legal Advisor on NHS Health Education England E-learning for Health FGM Learning Programme.

Susan Bewley was involved in setting up the UKs second FGM clinic as Director of Obstetrics at Guy’s & St Thomas’ Hospitals in 1996. She has a research interest in violence against women, and has published and lectured on FGM. She was a expert for the defence in R vs Dharmasena.

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Causing grievous bodily harm, including mutilation, has been outlawed in the UK since time immemorial and has been a statutory offence for over 160 years. Despite this, a law banning female genital mutilation ( FGM ) was introduced in the UK in 1985. Since then, only one FGM prosecution has been brought to trial, and both defendants were acquitted . There has yet to be a conviction under the FGM Act.

It is curious enough that the statute has hardly ever been used, but there are other reasons why the exception made for FGM to have its own law now needs to be reconsidered. The problem of FGM was initially considered to be so extreme and so prevalent that it was thought that extra protection under the law was needed in a belt-and-braces approach, but we believe this is no longer necessary .

FGM is practised for a variety of cultural reasons and involves the ritual cutting or removal of some or all of the external female genitalia. It has no health benefits, but does have well-documented harms .

One in 10 cases of FGM are the most severe form, known as type 3. This involves the greatest removal of tissue and sewing up of the vaginal entrance. An opening can be made in the scar tissue for childbirth (called “reversal”), but tissue cannot be restored. Doctors can attempt to reconstruct the clitoris, if it has been removed, but the procedure is not always possible, or successful .

In children, FGM has parallels with the ritual circumcision of baby boys. Critics think it is inconsistent, if not hypocritical, that one practice is banned while the other is allowed.

In adults, FGM has parallels with cosmetic surgery. Under the FGM Act, it is illegal for a women in the UK to request having her vagina closed again (re-infibulation), following childbirth. It occurs in the few countries that practice type 3 FGM. In the UK, re-infibulation is always considered criminal, maybe protecting women from coercive cultural pressures, but potentially also denying their free choice. On the other hand, the Act specifically exempts those adults who choose to have female cosmetic genital surgery – operations largely performed in the private sector.

For instance, a plastic surgeon who removed a healthy 33-year-old woman’s clitoris, at her request, wasn’t prosecuted under the FGM Act and neither was the psychiatrist who cleared her for the surgery. Given these contradictory positions, opponents of the FGM Act are increasingly wondering whether this is an example of moral relativism and bad law .

Generally, criminal law is intended to prevent or punish an outlawed behaviour. The existence of a law acts symbolically to prevent the outlawed acts. Prosecution is the means to punish them when they occur. The desired end, of having less (or no) FGM, especially of children, is achieved by the absence of FGM, not by the presence of prosecutions.

No longer needed

The demand for prosecutions is a “tough” approach taken by the authorities, but it is not a primary desired end in itself. It may appear counter-intuitive that we think that the lack of successful prosecutions may be supportive evidence that the law is functioning successfully (if not completely) by encouraging positive changes in attitude . We do not advocate scrapping the specific FGM law because it is too difficult to enforce, but because it is no longer needed.

Up to now, the law may have worked by drawing attention to the issue and by setting an expectation of acceptable behaviour for new migrants. But there are difficulties and unintended effects , including concerns that the current law is discriminatory about race .

It has proven difficult to prosecute FGM due to its familial and hidden nature, the shortage of experienced and competent experts , low numbers of reports, and a first failed prosecution of a doctor. In any event, established law already includes FGM in its remit ( Offences Against the Person Act 1861 ) and also safeguards children ( Children Act ).

So, rather than concentrating on government pressure to achieve a successful prosecution with unnecessary law, we could instead divert scarce resources to continuing prevention – such as education, provision of specialist health clinics and community support services. Also, there is evidence that the communities who practice FGM are giving it up with falling prevalence worldwide , though sadly numbers may still rise due to population growth.

Lastly, the involvement of doctors legitimises surgery. Globally, “medical reasons” are used to justify and perform male infant circumcision. Likewise, medicalisation is used to justify FGM in some countries (Egypt and Malaysia) where doctors perform “female circumcision” more safely under anaesthetic, but still without any therapeutic benefit. The law should bring consistency into medical practice: either by banning male infant circumcision or by recognising the harms of this traditional practice .

Doctors in the UK are faced with two discriminatory conundrums : a consenting adult female with normal genitalia can have major genital modification, yet a new mother who had FGM as a child cannot be re-infibulated; girls cannot undergo genital modification as unconsenting children , but boys can.

Increasingly, bodies representing the professional interests of medical doctors, such as in the Netherlands , are cited as saying the health risks of infant male circumcision outweigh the benefits.

Eroding trust

Finally, in the efforts to prosecute FGM, mandatory reporting and recording of all old and new FGM by doctors has been introduced – which raises concerns about confidentiality and erosion of trust in the medical profession. Doctors do not have to ring the police about other criminal events reported by victims that occurred long ago and elsewhere. This extra reporting may cause a loss in trust, not only of individual patients, but of whole communities.

The UK could introduce consistency with a Child Genital Modification Act which would make any non-medical genital modifications of male and female infants illegal because the medical benefits are negligible, at best, and the risks great. Alternatively, given that we already have criminal law that would cover FGM and inappropriate surgical cuttings by doctors in the Offences Against the Person Act 1861 , why do we need the FGM Act at all? It is not fit for purpose and should go.

• Circumcision
• Female genital mutilation
• United Kingdom (UK)

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• Published: 01 November 2019

Debating medicalization of Female Genital Mutilation/Cutting (FGM/C): learning from (policy) experiences across countries

• Els Leye   ORCID: orcid.org/0000-0002-1740-7814 1 ,
• Nina Van Eekert 2 ,
• Simukai Shamu 3 ,
• Tammary Esho 4 ,
• Hazel Barrett 5 &

Reproductive Health volume  16 , Article number:  158 ( 2019 ) Cite this article

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Although Female Genital Mutilation/Cutting (FGM/C) is internationally considered a harmful practice, it is increasingly being medicalized allegedly to reduce its negative health effects, and is thus suggested as a harm reduction strategy in response to these perceived health risks. In many countries where FGM/C is traditionally practiced, the prevalence rates of medicalization are increasing, and in countries of migration, such as the United Kingdom, the United States of America or Sweden, court cases or the repeated issuing of statements in favor of presumed minimal forms of FGM/C to replace more invasive forms, has raised the debate between the medical harm reduction arguments and the human rights approach.

The purpose of this paper is to discuss the arguments associated with the medicalization of FGM/C, a trend that could undermine the achievement of Sustainable Development Goal 5.3. The paper uses four country case studies, Egypt, Indonesia, Kenya and UK, to discuss the reasons for engaging in medicalized forms of FGM/C, or not, and explores the ongoing public discourse in those countries concerning harm reduction versus human rights, and the contradiction between medical ethics, national criminal justice systems and international conventions. The discussion is structured around four key hotly contested ethical dilemmas. Firstly, that the WHO definition of medicalized FGM/C is too narrow allowing medicalized FGM to be justified by many healthcare professionals as a form of harm reduction which contradicts the medical oath of do no harm. Secondly, that medicalized FGM/C is a human rights abuse with lifelong consequences, no matter who performs it. Thirdly, that health care professionals who perform medicalized FGM/C are sustaining cultural norms that they themselves support and are also gaining financially. Fourthly, the contradiction between protecting traditional cultural rights in legal constitutions versus human rights legislation, which criminalizes FGM/C.

More research needs to be done in order to understand the complexities that are facilitating the medicalization of FGM/C as well as how policy strategies can be strengthened to have a greater de-medicalization impact. Tackling medicalization of FGM/C will accelerate the achievement of the Sustainable Development Goal of ending FGM by 2030.

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Plain English summary

Although Female Genital Mutilation/Cutting (FGM/C) is internationally considered a harmful practice, it is increasingly being medicalized allegedly to reduce its negative health effects, and is thus suggested as a harm reduction strategy in response to these perceived health risks.

The purpose of this paper is to discuss the arguments associated with the medicalization of FGM/C, a trend that could undermine the Sustainable Development Goal (5.3) to end FGM/C by 2030. The paper discusses the reasons for engaging in medicalized forms of FGM/C, or not, by exploring ongoing public discourses in four country case studies: Egypt, Indonesia, Kenya and UK. The discussion is structured around four key hotly contested ethical dilemmas. Firstly, that the WHO definition of medicalized FGM/C is too narrow allowing medicalized FGM to be justified by many healthcare professionals as a form of harm reduction which contradicts the medical oath of do no harm. Secondly, that medicalized FGM/C is a human rights abuse with lifelong consequences, no matter who performs it. Thirdly, that health care professionals who perform medicalized FGM/C are sustaining cultural norms that they themselves support and are also gaining financially. Fourthly, the contradiction between protecting traditional cultural rights in legal constitutions versus human rights legislation, which criminalizes FGM/C.

The paper concludes that more research needs to be done in order to understand the complexities that are facilitating the medicalization of FGM/C as well as how policy strategies can be strengthened to accelerate the achievement of the Sustainable Development Goal of ending FGM by 2030.

The trend towards medicalization of FGM/C

The World Health Organization defines the “medicalization” of FGM/C as situations in which FGM/C is practiced by any category of health professionals, whether in a public or a private clinic, at home or elsewhere, at any point in a female’s life (including reinfibulation Footnote 1 ) [ 2 ]. Health professionals involved in medicalization include physicians, assistant physicians, clinical officers, nurses, midwives, trained traditional birth attendants (TBAs), gynecologists/ obstetricians, plastic surgeons, and other personnel providing health care to the population, in both private and public sectors. They may be undergoing medical training, working in the medical sector or be retired [ 2 ].

Medicalization of FGM/C continues to rise in many countries despite increasing numbers of countries legislating against the practice. Based on self-reported Demographic and Health Survey (DHS) data in 25 countries, Shell-Duncan and colleagues estimated that 26% of the women in the age cohort 15–49, which equals to nearly 16 million women, report having been cut by a medical professional [ 3 ]. Medicalization rates, as the percent of FGM/C performed by a medical professional, are highest in the following five countries: Sudan (67%), Egypt (38%), Guinea (15%), Kenya (15%) and Nigeria (13%), and rates are rising in all of these countries, except Nigeria [ 3 ]. The performance of the procedure by skilled medical professionals in any setting is systematically documented through the inclusion of a question on who performs the cutting in the DHS module on FGM/C.

The increasing use of medical staff and equipment has also been noted in Somaliland [ 4 ]. Reinfibulation is estimated to affect 20 million women globally and between 10 and 16 million women are likely to experience medicalized reinfibulation. Reinfibulation, medicalized or not, is documented in many countries where infibulation is (highly) prevalent, e.g. in Sudan, Somalia, Djibouti and Eritrea [ 5 ] as well as in Europe and North America [ 6 , 7 ]. This paper will use evidence from four countries (Egypt, Indonesia, Kenya and UK) to explore current debates concerning the medicalization of FGM/C.

Policies on medicalization of FGM/C

Initially, campaigns against FGM/C stressed the adverse health consequences of the practice, assuming that this would help to raise awareness of the health risks and in turn motivate people to abandon the practice [ 8 ]. However, it is speculated that the health approach taken in these campaigns has unintentionally motivated the medicalization of FGM/C, at both demand and supply side [ 2 ]. In 2009 the World Health Organisation (WHO), the United Nations Children’s Fund (UNICEF) and the United Nations Populations Fund (UNFPA) condemned the medicalization of FGM/C in any setting [ 9 ], however, WHO had already raised this issue 30 years earlier (1979) at an international conference, stating “it is unacceptable to suggest that performing less invasive forms of FGM/C within medical facilities will reduce health complications” [ 1 ]. The most recent guidance by WHO on the management of health complications from FGM/C states: “stopping medicalization of FGM/C is an essential component of a holistic, human-rights based approach towards the elimination of the practice” [ 1 ].

In December 2012, the United Nations General Assembly adopted the first ever Resolution to ban FGM/C worldwide.[ 10 ] Resolution A/RES/67/146 was co-sponsored by two thirds of all UN members and was adopted by consensus of all UN members. Its adoption reflected the universal agreement that FGM/C constitutes a violation of human rights, which all countries of the world should address through ‘all necessary measures, including enacting and enforcing legislations to prohibit FGM/C and to protect women and girls.’ More recently, in September 2015, the global community agreed a new set of development goals, the United Nations Sustainable Development Goals (SDGs), which includes Sustainable Development Goal 5: achieve gender equality and empower all women and girls [ 11 , 12 ]. This Goal includes a target to eliminate all harmful traditional practices, including FGM/C (SDG 5.3), by 2030, a signal of international political will to end the practice of FGM/C globally.

FGM/C whether traditionally performed or medicalized, is now recognized internationally as a violation of girls’ and women’s rights and as an expression of gendered violence, with a demonstrated impact on women’s sexual and reproductive health. Governments worldwide are thus obliged to take measures to prevent and eliminate FGM/C, including medicalized forms of the practice, and can be held accountable for failing to take steps to prohibit the practice of FGM/C through legislative and other measures. Some countries have increased the prison sentences when health professionals have been convicted of performing FGM/C, and some also provide for the revocation of licenses of health professionals if they perform FGM/C [ 13 ]. However, even if the legal framework is put in place, a number of challenges remain. This paper contributes to four current hotly contested debates on the medicalization of FGM/C, namely:

That the WHO definition of medicalized FGM/C is too narrow allowing medicalized FGM to be justified by many healthcare professionals as a form of harm reduction which contradicts the medical oath of do no harm.

That medicalized FGM/C is a human rights abuse with life long consequences, no matter who performs it.

That health care professionals who perform medicalized FGM/C are sustaining cultural norms that they themselves support and are also gaining financially.

The contradiction between protecting traditional cultural rights in legal constitutions versus human rights legislation, which criminalizes FGM/C.

Current debates on medicalization of FGM/C

When does fgm/c become defined as ‘medicalized fgm/c’ and is medicalized fgm/c an acceptable form of ‘harm reduction’.

Although not specifically addressed in the WHO definition, we argue that medicalization of FGM/C might also include performing less invasive forms of FGM/C, often promoted as ‘a harm reduction strategy’. This form of medicalization has been documented in African countries where FGM/C is prevalent, as well as in European countries and the USA. Indeed, in 2010 the American Academy of Pediatrics issued a position statement in which they suggested that ‘it might be more effective if federal and state laws enabled pediatricians to reach out to families by offering a ritual nick as a possible compromise to avoid greater harm”. Such a nick, or prick, would consist of pricking the prepuce of the clitoris, without removal of tissue. A study in Somaliland, for example, showed that there is a trend towards milder forms of FGM/C, with “pharaonic circumcision” (Type III or infibulation) being replaced by “sunna” cutting [ 14 ]. Moreover, the study showed that girls are more likely to undergo the procedure in a medical facility where staff has received at least some medical training. A recent study from Nigeria demonstrated that the campaign and legislation against FGM/C and the training of nurses concerning the health implications of FGM/C made them more cautious and because they knew the complications, they were more likely to only nick the clitoris enough to cause bleeding and thus satisfy parents that the procedure had been done, without removing much tissue [ 15 ].

Another complication with defining medicalized FGM/C is whether the use of medical instruments (such as sterile razor blades or surgical blades, forceps), antibiotics and/or anesthetics to carry out FGM/C, especially when used by traditional practitioners, should be considered as a form of medicalized FGM/C. Data on this are notably lacking, and only anecdotal evidence is available. In Guinea, the use of razor blades instead of traditional instruments is attributed to the increasing medicalization of the procedure and sensitization campaigns [ 16 ] A qualitative study conducted in four communities in the Nigerian States of Delta, Ekiti, Imo and Kaduna, showed that health workers used a range of essential supplies when carrying out FGM/C: antiseptic, artery forceps, surgical scissors or blades, cotton wool, and antibiotics. They described the steps of the procedure as: “using an antiseptic to clean the area, clamping the tissue with forceps, cutting the tissue with scissors or a surgical blade, applying pressure with cotton wool to control bleeding, cleaning the area again with an antiseptic, and applying an oil or Vaseline”. Some ‘health workers’ mentioned also administering pain relief and prescribing antibiotics [ 15 ].

Finally, we want to highlight the issue of medicalized reinfibulation, and how a recent court case in the UK demonstrates the difficulties in defining what constitutes medicalized FGM/C, especially in the context of re-stitching following the birth of a child (reinfibulation). The UK case study (see Table  1 ) is a demonstration of an unsuccessful legal case brought against a doctor who allegedly performed a reinfibulation and illustrates the difficulty of proving to a court that FGM/C has taken place. However, the huge publicity that occurred during and following the court case made it very clear that medicalized, as well as traditional FGM/C, was against the law and prosecutions would be brought. Since this case in 2015, two further unsuccessful cases have been brought in the UK against two different fathers of girls who have allegedly been subjected to FGM/C. Again, these showed a weakness in the law concerning the testimony of the victims and expert evidence from health professionals who could not agree whether FGM/C had taken place on the girls. However, in February 2019 the first successful case was prosecuted in the UK of a mother who performed FGM/C using traditional techniques, FGM/C on her three-year-old daughter.

Medicalized FGM/C: harm reduction or human rights abuse?

One of the most important reasons given by health care professionals who perform FGM/C is their belief that when it is done by skilled professionals, it reduces the immediate health risks and pain, especially when antiseptic techniques, anesthetic and analgesic medication are used [ 9 ]. Health professionals doing FGM/C might indeed be able to control the immediate physical consequences of cutting the genitals, such as the severe pain, bleeding and infections. However, many health professionals who perform FGM/C have limited knowledge of long-term health consequences of the procedure, in particular the mental health implications. Even if women do not report physical after-effects of FGM/C, research suggests that the majority of women subjected to FGM/C have reported mental health problems and emotional disorders with living with the effects of FGM/C [ 22 ]. A study by Knipscheer indicated a high level of reporting of severe depression, anxiety and Post Traumatic Stress Disorder (PTSD) by FGM/C survivors [ 23 ]. Eisold found that FGM/C can affect the emotional well-being of women throughout their lives [ 24 ].

Whilst medicalized FGM/C might minimize – but not avoid - some of the long-term physical consequences of FGM/C, the fact remains that there are no perceived health benefits of the practice itself. It is therefore considered to be against good medical practice and a violation of the medical code of ethics, as even “do less harm” is contradictory to the Oath of Hippocrates ‘do no harm’.

Still, the harm reduction approach dominates the discourse, as is demonstrated by the high numbers and increasing rates of health professionals that engage in performing FGM/C. Health professionals performing FGM/C in order to provide a safer setting for the procedure are ignoring the human rights issues associated with FGM/C, including the right to freedom from violence and discrimination, amongst others. The trend to medicalize FGM/C is worrying, given that its impact on the global campaign and efforts to end FGM/C is still not clear. How the promotion of medicalized ‘safe’ or ‘light’ versions of cutting girls’ and women’s genitals influences these efforts is difficult to assess, but it is commonly believed that promoting medicalized forms of FGM/C communicates the message to practicing communities that FGM/C is acceptable when done by health professionals, and thus is a legitimation of the practice [ 1 ]. This harm-reduction approach contrasts with the human rights approach, which states that health professionals performing FGM/C in order to provide a safer setting for the procedure, are ignoring the human rights aspects associated with FGM/C.

Furthermore, the assumption that medicalization reduces harm is not empirically proven. Moreover, in the Indonesian case described in Table  2 there is anecdotal evidence to the contrary, namely that midwives perform more severe forms of FGM/C than traditional practitioners. The case of Indonesia also shows that the government has been oscillating between the human rights approach and the harm reduction strategy. Government policy has played a crucial key role in medicalizing FGM/C in Indonesia, together with strong religious/social norms that underpinned this medicalization.

Medicalized FGM/C: reflecting the social norm or used to justify financial gain?

One aspect that plays a key role in health care professionals deciding to do FGM/C is that they commonly share the same social norms regarding cutting the genitals of girls and women, hence resisting the pressure or the demand to do FGM/C from the community is challenging. A study from Nigeria for example, demonstrated that most health workers that engage in FGM/C do so because they share the same FGM/C beliefs as the community they serve, and this was evidenced by the fact that four out of five health workers with daughters had also cut their own daughters [ 15 ]. Another study, from Sudan, concluded that medicalization is primarily driven by the demand motivated by social norms [ 31 ].

The patriarchal nature of FGM/C underpins many of the arguments to continue FGM/C, whether it is medicalized or not, and parallels between FGM/C, patriarchy and female genital surgeries have been discussed elsewhere by various scholars (see for example Pedwell C [ 32 ], Ogbe E et al. [ 33 ]).

However, the financial gains to perform FGM/C for both health professionals and parents should not be underestimated, as FGM/C can bring in additional income to health professionals and for parents it can mean a higher bride price/dowry can be expected when their daughter is married. Health professionals’ motivation to perform FGM/C is reinforced by the fact that many health systems in countries where FGM/C is prevalent are weak, and so extra financial income is attractive. Serour suggests that medicalization of FGM/C is a major source of income for those who perform it. Fees are high, especially in countries where FGM/C is illegal [ 9 , 34 ].

This is demonstrated by the case study that looks at Egypt, where medical doctors have taken the lead in the medicalization of FGM/C, often arguing that as FGM/C is a strong social norm and will happen whatever, that it is better that it is performed by a medical doctor than a traditional practitioner (Table  3 ). It has also been argued that many of these doctors support the practice for cultural and religious reasons and in addition make a good livelihood from performing the procedure. Despite cases where girls have died following medicalized FGM/C, few successful prosecutions have taken place against a medical professional in Egypt [ 42 ]; a country where medicalized FGM/C is highly prevalent and numbers rising. The Egyptian case study shows us the importance of the context in which FGM/C arises.

FGM/C: cultural rights versus human rights?

Both the Egyptian case discussed above and the Kenyan case discussed hereafter (Table  4 ) demonstrate how the law has limited influence in contradiction with culture and tradition. It shows how FGM/C is embedded in cultural and traditional norms and rights that are considered by proponents to prevail over the law of the country.

As alluded to in the Kenyan case of a medical doctor supporting the medicalization of FGM/C, there may be gaps in the law that proponents of FGM/C might use to push their agenda. This case indicates that some medical practitioners themselves do not only medicalize, or support it, but do so by exploiting gaps in the judicial system hence derailing progress made towards abandonment of FGM/C.

Tackling the medicalization of FGM/C needs to consider the contested issues surrounding the debate of medicalized FGM/C. In the current paper we discussed four important issues and dilemmas that should be taken into account: the trouble with defining FGM/C, the need to contextualize FGM/C, the debate of harm-reduction versus social norm and the difficulty of applying a law when it contradicts cultural values and social norms. In conclusion to this paper we want to translate the discussions above to some suggestions for the way forward.

Policy emphasizing the human rights approach

As demonstrated there is a tension between a pragmatic harm reduction approach maintained by some health professionals and the human rights approach that seeks to safeguard girls and women’s bodily integrity. Social and religious norms supporting the practice of FGM/C pose serious challenges to the implementation of legislation that aims to protect the human rights of women and girls.

In both Egypt and Indonesia the governments have at various times supported the medicalization of FGM/C as a harm reduction strategy, often under great pressure from religious leaders, resulting in a confused response to FGM/C and its medicalization which undermined efforts to end the practice in line with international agreements. In Kenya, Egypt and Indonesia, FGM/C practicing communities and the health profession have been very vocal and at times militant in advocating against national legislation banning FGM/C. Very often these groups have used constitutional arguments such as the preservation of cultural and traditional rights, to support their case. These three case studies reveal that at various times over the last 20 years the harm reduction approach to FGM/C has taken policy precedence over the human rights approach to FGM/C.

FGM/C is a strong social norm that makes it difficult for individuals to challenge, as the practice often occurs in societies where norms of collectivity are predominant. The impact of these different settings on social norm change and human rights is not in the scope of this paper and has been discussed elsewhere by various authors (see for example Diabate et al. [ 45 ], UNICEF [ 46 ], Leye et al. [ 47 ]).

There is now a growing momentum in many high FGM/C prevalence countries and others, to tackle FGM/C from a human rights perspective, 25 years after the World Conference on Human Rights held in Vienna, Austria in 1993 accepted that FGM/C was a violation of human rights. In 2008 the United Nations Special Report on Torture stated that violence against women, including FGM/C can be considered a violation of the Convention Against Torture.[ 51 ] Regionally several treaties and consensus documents call for the protection of the rights of women and girls through the abandonment of FGM/C. These include the African Charter on Human and People’s Rights (The Banjul Charter) and the Protocol on the Rights of Women in Africa (Maputo Protocol), the African Charter on the Rights and Welfare of the Child, and the European Convention for the Protection of Human Rights and Fundamental Freedoms [ 30 ]. More recently, in September 2017 at a meeting in Egypt jointly organized by UNFPA and the League of Arab States, public statements were made by National Doctors’ Syndicates and Medical Councils as well as the National Midwives Associations in the Arab Region to end the medicalization of FGM/C.

Educating health professionals on FGM/C and its consequences

Awareness raising on the sexual and reproductive health consequences of FGM/C and the human rights violations, as well as building capacities through inclusion of FGM/C in curricula or postgraduate training of professionals likely to deal with FGM/C are some of the most commonly used strategies to involve health professionals in countering medicalization. From the case studies discussed above the importance of having a clear definition of medicalized FGM/C, such that it’s clear to health professionals when they are performing FGM/C, and thus breaking the law, is highlighted. Moreover, they should be aware of the negative psychological and physical consequences of performing FGM/C.

Training of health care professionals on FGM/C can vary across and between countries and can take different forms, such as the provision of specific training workshops on medicalization or general training on FGM/C, the inclusion of FGM/C in medical curricula, or the development of e-learning modules or other tools on FGM/C. It should be noted however, that very few of these training and capacity building efforts, especially regarding medicalization, are evaluated, hence it remains unclear what the most effective methods of awareness raising amongst health professionals might be. Moreover, a recent analysis of the evidence on knowledge, experiences and attitudes of health professionals towards FGM/C showed that there are six areas for improvement for health care providers. These areas are: knowledge of FGM/C and its consequences, adherence to FGM/C protocols and guidelines, socially constructed acceptance of FGM/C, knowledge of legislation and legal status of FGM/C, condoning, sanctioning or supporting FGM/C and information and training to work with women and girls living with FGM/C [ 48 ]. This list indicates that much work still needs to be done.

It is commonly assumed that the reproductive and sexual health consequences, the legal repercussions as well as the human rights dimension should be part of any FGM/C module in the curricula of health professionals. The WHO Guidelines (2016) on the management of health complications from FGM/C, are useful for designing pre- and in-service professional training curricula for health care providers, and include the above-mentioned aspects. However, too often, FGM/C is not included in curricula on a systematic basis, and/or medicalization and the preventive role of health professional is not addressed at all. Moreover, capacity-building on how to resist pressures from the community, as well as communication techniques for social norm change are rare. A study from Nigeria showed that health workers should be educated and empowered to advocate for the abandonment among patients but also among fellow health workers [ 15 ]. Studies from The Gambia showed that training programmes should be modeled to fit the specific characteristics of the trainees in terms of sex and ethnicity [ 49 ].

Detangling professional norms from social norms

The above demonstrates that any effort to deal with medicalized FGM/C should take into account the context in which it occurs. Health care providers’ understanding about FGM/C and how their opinions are shaped by social norms should be unpacked. Many health professionals are not aware of the long-term health implications of FGM/C and the fact that it is a violation of human rights and a breach of medical ethics, despite many regional and global protocols cited above condemning it. Moreover, health professionals often share the social norms of FGM/C being an important cultural tradition. Additionally, the financial reward for performing FGM/C is attractive to health professionals, especially in a weak health system.

We are therefore advocating that health professionals receive training to raise their knowledge of the issues surrounding FGM/C and the awareness that performing FGM/C is in contradiction with the Oath of Hippocrates ‘you should do not harm’. In particular, medicalization of FGM/C and how to tackle it should be part of any curriculum of health professionals (pre and postgraduate training). The legal interpretations of what constitutes a crime with regards to medicalization of FGM/C need to be made clear among health professionals.

Codes of conduct or position statements by professional organizations have been issued both in Western countries as well as in countries where FGM/C is most prevalent. Some of these position statements have caused controversy, such as the 2010 Statement by the American Association of Pediatrics that promoted the performance of a ‘ritual nick’. This statement was revised after outrage and fierce opposition by WHO and others. The European Academy of Pediatricians on the other hand, clearly states: “It also calls upon all physicians to help to stop this practice. The practice of offering a “clitoral nick”, a minimal pinprick, must also be condemned as an unnecessary and extremely painful procedure [ 50 ]”.

Motivate health care providers as agents of change for ending FGM/C

Even though health professionals are at the core of the medicalization issue, they can and are targeted as part of the solution to reverse the medicalization of FGM/C. Given that they are important role models in societies, they are often key in becoming agents of change regarding FGM/C. However, a scoping survey would need to be conducted in each country where medicalized FGM/C is performed to assess the knowledge, attitudes and practices of health professionals in the practicing of medicalized FGM/C.

From our discussion above, it is clear that more attention should go to how health care professionals can be used as agents of change for ending FGM/C. This can be done through: 

Including, more systematically, the human rights framework and the ethics of medicalization of FGM/C in curricula of health professionals’ education and training.

Building bridges between sectors: linkages between health professionals and legal stakeholders should be explored and reinforced in order to make the implementation of laws banning FGM/C more effective.

Establishing collaborations between health professionals and religious leaders to agree that FGM/C is not a religious requirement and to communicate this to FGM/C practicing communities.

Developing strategies on how health professionals can deal with social pressures from the community wanting to continue with FGM/C and to challenge the social norms perpetuating the practice.

Urging Professional Medical Associations to reinforce the unethical nature of the medicalization of FGM/C and produce public statements and protocols advocating for the ending of FGM/C whether performed in traditional or medicalized settings, including reinfibulation.

This paper has discussed the complex ethical debates that accompany the medicalization of FGM/C, and the contradictions between the social and cultural norms supporting the continuation of FGM/C and the human rights of women and girls. It is clear that more attention should go to how health care professionals can be used as agents of change for ending FGM/C. It is also clear that more research needs to be done in order to decipher the code that will facilitate the detangling of these social norms from health professional norms and human rights. It is essential that we have a deeper understanding of the issue and the process of medicalization of FGM/C if the United Nations SDG 5.3 of ending FGM by 2030 is to be achieved.

Availability of data and materials

Not applicable

Reinfibulation is the procedure to narrow the vaginal opening in a woman after she has been deinfibulated (i.e. after childbirth); also known as re-suturing [ 1 ]

Abbreviations

Academic Network for Sexual and Reproductive Health and Rights Policy

Demographic and health survey

Egyptian Demographic and Health Survey

Female genital mutilation

Female genital mutilation/cutting

Kenyan Demographic and Health Surve

National Health Service

Post traumatic stress disorder

Sustainable development goal

Traditional birth attendant

United Kingdom

United Nations Populations Fund

United Nations Children’s Fund

World Health Organization

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Department of Community and Public Health, Africa Coordinating Centre for the Abandonment of Female Genital Mutilation/Cutting, University of Nairobi, Kenya, Technical University of Kenya, Nairobi, Kenya

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Leye, E., Van Eekert, N., Shamu, S. et al. Debating medicalization of Female Genital Mutilation/Cutting (FGM/C): learning from (policy) experiences across countries. Reprod Health 16 , 158 (2019). https://doi.org/10.1186/s12978-019-0817-3

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The New York Times

Tierneylab | a new debate on female circumcision, a new debate on female circumcision.

Should African women be allowed to engage in the practice sometimes called female circumcision? Are critics of this practice, who call it female genital mutilation, justified in trying to outlaw it, or are they guilty of ignorance and cultural imperialism?

Those questions will be debated Saturday morning in Washington at the American Anthropological Association’s annual meeting . Representatives of international groups opposed to this procedure will be debating anthropologists with somewhat different views, including African anthropologists who have undergone the procedure themselves. As the organizers of the AAA panel note:

The panel includes for the first time, the critical “third wave” or multicultural feminist perspectives of circumcised African women scholars Wairimu Njambi, a Kenyan, and Fuambai Ahmadu, a Sierra Leonean. Both women hail from cultures where female and male initiation rituals are the norm and have written about their largely positive and contextualized experiences, creating an emergent discursive space for a hitherto “muted group” in global debates about FGC [female genital cutting].

Dr. Ahmadu, a post-doctoral fellow at the University of Chicago, was raised in America and then went back to Sierra Leone as an adult to undergo the procedure along with fellow members of the Kono ethnic group. She has argued that the critics of the procedure exaggerate the medical dangers, misunderstand the effect on sexual pleasure, and mistakenly view the removal of parts of the clitoris as a practice that oppresses women. She has lamented that her Westernized “feminist sisters insist on denying us this critical aspect of becoming a woman in accordance with our unique and powerful cultural heritage.” In another essay, she writes:

It is difficult for me — considering the number of ceremonies I have observed, including my own — to accept that what appears to be expressions of joy and ecstatic celebrations of womanhood in actuality disguise hidden experiences of coercion and subjugation. Indeed, I offer that the bulk of Kono women who uphold these rituals do so because they want to — they relish the supernatural powers of their ritual leaders over against men in society, and they embrace the legitimacy of female authority and particularly the authority of their mothers and grandmothers.

You can read more about this in Dr. Ahmadu’s essays or in this critique of the global campaign against female genital mutilation, written by another participant in Saturday’s discussion, Richard Shweder of the University of Chicago.

Dr. Shweder says that many Westerners trying to impose a “zero tolerance” policy don’t realize that these initiation rites are generally controlled not by men but by women who believe it is a cosmetic procedure with aesthetic benefits. He criticizes Americans and Europeans for outlawing it at the same they endorse their own forms of genital modification, like the circumcision of boys or the cosmetic surgery for women called “vaginal rejuvenation.” After surveying studies of female circumcision and comparing the data with the rhetoric about its harmfulness, Dr. Shweder concludes that “‘First World’ feminist issues and political correctness and activism have triumphed over the critical assessment of evidence.”

If I were asked to make a decision about my own daughter, I wouldn’t choose circumcision for her. But what about the question raised by these anthropologists: Should outsiders be telling African women what initiation practices are acceptable?

Comments are no longer being accepted.

When such initiation practices result in the death, mutilation and suffering of thousands of women, then I think yes – we should be telling African women (or anyone else) what is acceptable. Just because it’s part of another culture doesn’t mean we should tolerate mutilation and dubious rituals.

Do you know how female circumcision is actually done? It is not the benign, joyful procedure alluded to by these researchers.

Should African men with AIDS be permitted to have sex with a virgin? Many in Africa believe this cures AIDS, but that hardly makes it right. Cultural imperialism seems an odd phrase to use when discussing female circumcision, a practice that most of the world views as barbaric. I refuse to accept practices such as this, or others such as “honor killings” that are acceptable in certain regions, but should never be accepted in the civilized world.

Anything that puts women at high risk of massive infection, sterility or fistula is ill advised.

The removal of the clitoris cannot be justified by any reasonable ethos.

Adult females should be able to decide for themselves if they want to have their genitals mutilated. People in the West do things like genital piercing and other body modifications that aren’t much different.

What I object to is that young girls might be subjected to it against their will, just as I object to circumcising male babies. A person, male or female, should be able to make that decision for themselves once they are old enough to understand what is going to happen to them.

Before things fell apart in Somalia, the Somali women were engaged in this debate. A pan-African conference was convened by them in Mogadishu which included important Islamic (male) leaders who clarified for them that female circumcision and infibulation was not, rpt not, Koranic. Rather, the cultural origins seem to be Pharaonic, perhaps sharing a timeline with male circumcision as practiced with minor objection even today. The sense of the conference was that, with more medical and cultural information, the practice will find its own end days…without outside pressure.

I am in many ways a believer in cultural relativism, but the reality is that this particular initiation ritual is at best painful but meaningful, and at worst traumatic, crippling and even fatal. Any cultural practice that causes long-term physical or emotional harm to children should be criticized by “outsiders.” For Dr. Schweder to compare female genital mutilation to vaginal rejuvination is absurd- wealthy adult women choosing cosmetic surgery is completely different from young girls being held down against their will to have an important part of their body severed by dirty razorblades and dull knives. There is an important element of choice involved when adults decide to undergo any procedure. For the record, I wouldn’t support American or European women forcing their daughters to have vaginal rejuvination either.

In general, if the practice is one that is done with full consent of all concerned, then it is hard to argue against the doing of such a procedure. The comparison with circumcision is a powerful, and fitting, one.

As to outsiders telling African women (or men) what is acceptable, much of the ‘civilized’ world seems to think it is their right and duty to educate the poor ignorant masses. Evidently, they all need to be dragged to our level of compassionate warfare, backstabbing politics, and ‘laissez-faire morality’. So, no. Outsiders should probably shut their mouths, or at least come to some level of true understanding of the procedure. And then write a book or something.

As to barbaric practices, please. As mentioned, there is circumcision and vaginal rejuvenation along with various breast (and body) augmentations, other vaginal procedures often done for purely cosmetic reasons (e.g., labia augmentation), and a number of other invasive procedures, many having little to do with the individual’s health (the (weak) argument of one’s mental health notwithstanding). And let’s not forget the ‘practice’ of killing innocents in the name of peace and humanitarian aid. Humans are quick to condemn, and far quicker to be hypocrites.

And the last sentence of the blog says much: “If i were asked tomake a decision about my own daughter…”. No one should be making a decision such as this about one’s child, be it FGC or circumcision. Or should they? The debate would be quite interesting.

Mutilation of the female body bathed in cultural relativism is still mutilation, even wtih the anaethesia of brainwashing the victims,

I am glad to read about this subject. I am a white American guy, who has traveled around the world a bit and been to Africa several times (my favorite continent). One of the things I have learned is culture is hard to learn from those who are outside it. Over time, I have come to respect culture even if I don’t “get it.”

I have read and thought about the concept of female circumcision (and like John I have a daughter and would not recommend the procedure to her — but she’s an American girl). The obvious answer to someone of my background is that female circumcision is wrong and perhaps anti-female. Nonetheless (and I am aware that it is generally conducted under female auspices), we American types probably do not fully understand the cultural aspects of this act. So I cannot condemn a procedure where I do not fully (or even partially) understand the background. (I am nominally Jewish and we practice circumcision of our sons when they are eight days old. This is a procedure that many — including myself although my son was ritually circumcised– consider bizarre. Indeed my Jewish wife was against it, and I do not have any compelling reason as to why I wanted it done other than, perhaps, culture.)

The American culture is at best five hundred years old. Yet our culture, admittedly the dominant one today, often attempts to impose its views on all cultures even those thousands of years old. Why does that make sense? Why are we unable to have some minor humility regarding what we know or do not know about different cultures.

One of the wonderful things about life is that there are other cultures. I bemoan the Americanization of the world. The two hour French lunch is gone; fast food places in Paris greatly outnumber the cafes that used to be in the formers’ place. This is not progress, but, of course, we cannot really do anything about it. We can — and I think this is Tierney’s point — simply attempt to be aware of different cultures and also be aware that what seems barbaric at first glance might not be.

With male circumcision as prevalent as it is in our society, and medical reasons no longer a non-religious justification for same, it’s hypocritical for us to call into question another culture’s rituals.

She does have a point regarding our tolerance of male circumcision. Perhaps we should take a look at that.

If degrading female genitals is the only way to express the power of women in Africa, we need to ask why. And probably do something about it. What we should do is beyond me.

Should outsiders be telling African women what initiation practices are acceptable? Not in Africa, they should not, but here in the United States it is, I believe, against the law.

Personally, I feel educated women who defend this practice are irrational. Highly irrational.

You, paleface, would never be asked to circumsize your daughter.

Can the word ‘barbarism’ still have any use in a world ‘contextuarlized’ by anthropology? For me, questions of aesthetics and who is performing the ritual or the claims about hygiene are not what is most important. (If there were real health advantages to such a procedure I suspect it would be more widely practiced) Male circumcision is performed in infancy and the trauma and pain exist in a pre-memory state before the self has been formed. Many still consider it barbaric but it seems to me that consciousness is required for such an ordeal to be described as torture. Hirsi Ali’s description of her own ‘procedure’ undergone when she was a fully cognizant child is almost too harrowing to read. She was pinned down by her (female) relatives and operated on without any anesthesia. I don’t know if it diminishes or enhances sexual pleasure but this seems to be a question for scientists not stewards of tribal ritual.

This article doesn’t mention whether there exists an anti-circumcision movement among female members of the ethnic groups that adhere to this practice. Is there such a movement? If so, what do those women have to say?

It is saying God created us imperfect. We are making an improvement on His creation. This applies both male and female circumcision. Those who believe in circumcision are true unbelievers.

Let’s not be pusillanimous about it or start pussyfooting, female circumcision is inexcusable.

If, as in some instances which have been made public, young females are subjected to the swipe of a crude blade, cutting or tearing labia as well as the clitoris, then these are criminal acts of mutilation, and cannot, morally, be defended by any cultural claim. If, on the other hand, as is implied in the story above, the procedure involves ‘the removal of parts of the clitoris,’ which would have to be a very precise procedure, and no harm is done to urethra or the labia, then it would not be mutilation. But if it has the consequence of reducing, if not eliminating, the sexual pleasure of women, the representatives of the Kona people would have to explain how that could be justified.

If a woman wants to submit to an alteration of her genitals I would think it is her right to do so. Same for a man. Their genitals = their decision. It is when genital alteration is done on some one who does not consent or is unable to consent that I believe we have waded into unethical waters. No one should alter the genitals of some one else because of their own personal preferences. That is highly abusive.

This is not a “new” debate. African women have been discussing these points for more than twenty years. My question is: Why did it take a group of anthropologists so long to discuss female circumciion in a less culturally-biased manner?

I can’t believe such ignorance. Please lets get the facts right. Female mutilation is *not* circumcision. The name says it all, circum-cision means “cut around”, i.e. cut around the extra skin on a man’s penis, which has many health benefits — penis cancer is unknown among circumcised men, plus the penis is allowed to grow more freely without a constricting fold of skin.

This has nothing to do with excising the clitoris, which should be rightfully named Mutilation. This abhorrent practice is often done with a razor blade or even a glass shard, with no anesthetics , a screaming girl held by relatives while the practitioner (an older woman) cuts a large part of her female organ. Bleeding often causes serious infections, sterilty and even death. Try to imagine doing this to your daughter,niece or another little girl you love.

There is no health benefit whatsoever and much less an “aesthetic” benefit as has been claimed. This is sheer oppression of women and cruel abuse of children in the name of “tradition” – the same spurious argument that supported slavery and many other abominable practices that decent people have abolished.

Many FGM practitioners have laid down their instruments and refused to carry on this abomination on the new generation of girls although the practitioners have status in their communities.

Also, many Muslim communities adopt this practice but it is never mentioned in the Koran. (The Koran also never said women must be covered from head to toe, this is just an interpretation of the commandment to be “modest”.)

*** The sole real purpose of female genital mutilation is to prevent women from feeling sexual pleasure. ***

While I believe that everyone should respect the traditions of other cultures, I think there also need to be limitations based on common sense. Two rules come to my mind: Is the practice damaging to the health of the participant in the ritual? Secondly, does the tradition involve cruelty and coercion? In other words, is the participant given a choice, or more or less forced to undergo the ritual? If either of these two situations is the case, then I think outsiders as well as members of the community practicing that tradition have every right to be critical and to come up with “alternatives.” A physician in Florence Italy has come up with an alternative genital ritual for young females of families who insist that their daughters undergo this procedure. The physician’s “ritual” does not permanently damage the young patient’s health but satisfies the needs of the parents and their community. Perhaps this “Third Way” is the approach which should be used.

I don’t think there should be ANY debate! It’s wrong.

Footbinding was also endorsed and performed by mothers on their daughters. That doesn’t mean the practice originated with them. As a nurse, I have personally witnessed and can attest to the medical impact of so called female circumcision: infection, fistula, pain. You can only take cultural relativism so far. I would hope that others who can see more clearly would make critical comments about the foibles of our culture. -Anna

De gustibus non est disputandum.

What's Next

International Perspectives on Sexual and Reproductive Health

A journal of peer-reviewed research, female circumcision: rite of passage or violation of rights.

First published online: September 2, 1997

Female circumcision, the partial or total cutting away of the external female genitalia, has been practiced for centuries in parts of Africa, generally as one element of a rite of passage preparing young girls for womanhood and marriage. Often performed without anesthetic under septic conditions by lay practitioners with little or no knowledge of human anatomy or medicine, female circumcision can cause death or permanent health problems as well as severe pain. Despite these grave risks, its practitioners look on it as an integral part of their cultural and ethnic identity, and some perceive it as a religious obligation.

Opponents of female genital cutting, however, emphasize that the practice is detrimental to women's health and well-being. Some consider female circumcision a ritualized form of child abuse and violence against women, a violation of human rights.

The debate over female circumcision is relatively recent. The practice was rarely spoken of in Africa and little known in the West until the second half of this century. In the 1950s and 1960s, however, African activists and medical practitioners brought the health consequences of female circumcision to the attention of international organizations such as the United Nations and the World Health Organization (WHO). Still, it was not until 1979 that any formal policy statement was made: A seminar organized by WHO in Khartoum to address traditional practices affecting the health of women and children issued recommendations that governments work to eliminate the p ractice. 1

During the following decade, the widespread silence surrounding female circumcision was broken. After African women's organizations met in Dakar, Senegal, in 1984 to discuss female circumcision and other detrimental cultural practices, the Inter African Committee Against Harmful Traditional Practices (IAC) was formed. With national committees in more than 20 countries, the IAC has been important in bringing the harmful effects of female circumcision to the attention of African governments. In addition, other African women's networks and organizations that had focused primarily on such issues as reproductive health, women's rights and legal justice became involved in working against the practice. Such groups as Mandalaeo Ya Wanawake in Kenya, NOW in Nigeria and New Woman in Egypt now include the elimination of female circumcision among their goals.

In part because these groups brought fresh perspectives to the issue, the emphasis in discussions of female circumcision shifted to encompass women's human and reproductive rights as well as their health. International consensus statements and treaties such as the Convention to Eliminate All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child began to include language applicable to female circumcision. These documents, however, did not directly mention the practice, focusing instead on broad categories such as detrimental practices, violence and rights v iolations. 2

With shifts in emphasis came new language: Although activists and clinicians continued to refer to female circumcision when working directly with women in the community, policy statements and other documents began to use the term "female genital mutilation." That term was used in the first international document to specifically address the practice, the Programme of Action adopted by the International Conference on Population and Development in Cairo in 1 994. 3 The Program refers to female genital mutilation as a "basic rights violation" and urges governments to "prohibit and urgently stop the practice...wherever it exists."

In the Platform of the Fourth World Conference on Women, held in Beijing in 1995, female genital mutilation was cited as both a threat to women's reproductive health and a violation of their human r ights. 4 In addition to making general recommendations, the Platform specifically called on governments to "enact and enforce legislation against the perpetrators of practices and acts of violence against women, such as female genital mutilation...." Notably, the drive to include language specifically condemning female genital mutilation in the Platform was led by Africans.

Against this background of activity and changing emphasis, the plight of Fauziya Kassindja, a 17-year-old woman from Togo, focused public attention in the United States on female circumcision. More important, her case was instrumental in redefining the practice as gender-based violence that could be grounds for the granting of political a sylum. 5 Kassindja, who fled her homeland in October 1994 to avoid an arranged marriage and the genital cutting that would be part of the marriage rites, was placed in a detention center after arriving in the United States under a false passport and asking for asylum. She was released a year and a half later and granted asylum after intensive media coverage of her situation.

Female circumcision is currently practiced in at least 28 countries stretching across the center of Africa north of the equator; it is not found in southern Africa or in the Arabic-speaking nations of North Africa, with the exception of E gypt. 6 Female circumcision occurs among Muslims, Christians, animists and one Jewish sect, although no religion r equires it. *

The availability of reliable figures on the prevalence of female circumcision has increased greatly in recent years: National data have now been collected in the Demographic and Health Survey (DHS) program for six countries--the Central African Republic, Côte d'Ivoire, Egypt, Eritrea, Mali and Sudan. In these countries, from 43% to 97% of reproductive-age women have been c ircumcised. 7 Within countries, prevalence may vary across ethnic groups; in Mali, for example, where the overall proportion of women who have undergone circumcision is 94%, only 17% of women of Tamachek ethnicity have been circumcised.

Estimates for other countries are generally based on local surveys or anecdotal information. The estimated proportion of women who have undergone circumcision in these countries ranges from 5% in Uganda and the Congo (formerly Zaire) to 98% in Djibouti and S omalia. 8 Both because of wide variations in prevalence across social and demographic subgroups and because of data limitations, these figures should be interpreted with caution.

Types of Circumcision

Although circumcision may be performed during infancy, during adolescence or even during a woman's first pregnancy, the procedure is usually carried out on girls between ages four and 12. In the countries for which DHS data are available, the median age at excision ranges from less than two months in Eritrea to about six years in Mali and almost 10 years in Egypt. The operation is generally performed by a traditional birth attendant or an exciseuse , an elder village woman.

There are three basic types of genital excision, although practices vary widely. In the first type, clitoridectomy, part or all of the clitoris is amputated, while in the second (often referred to as excision), both the clitoris and the labia minora are removed. Infibulation, the third type, is the most severe: After excision of the clitoris and the labia minora, the labia majora are cut or scraped away to create raw surfaces, which are held in contact until they heal, either by stitching the edges of the wound or by tying the legs together. As the wounds heal, scar tissue joins the labia and covers the urethra and most of the vaginal orifice, leaving an opening that may be as small as a matchstick for the passage of urine and menstrual b lood. 9

The overall proportion of women who have undergone each type of circumcision is not known, although clitoridectomy appears to be by far the most common procedure. It is estimated that about 15% of all circumcised women have been infibulated, although an estimated 80-90% of all circumcisions in Djibouti, Somalia and the Sudan are of this t ype. 10

Consequences of Excision

In the conditions under which female circumcision is generally performed in Africa, even the less extensive types of genital cutting can lead to potentially fatal complications, such as hemorrhage, infection and shock. The inability to pass urine because of pain, swelling and inflammation following the operation may lead to urinary tract infection. A woman may suffer from abscesses and pain from damaged nerve endings long after the initial wound has healed.

Infibulation is particularly likely to cause long-term health problems. Because the urethral opening is covered, repeated urinary tract infections are common, and stones may form in the urethra and bladder because of obstruction and infection. If the opening is very small, menstrual flow may be blocked, leading to reproductive tract infections and lowered fertility or sterility. One early study estimated that 20-25% of cases of sterility in northern Sudan can be linked to i nfibulation. 11

Without deinfibulation before childbirth, obstructed labor may occur, causing life-threatening complications for both mother and infant. Because birthrates are high in many countries where infibulation is practiced, a woman's infibulation scar may be cut and resewn many times during her reproductive years.

In addition, the amputation of the clitoris and other sensitive tissue reduces a woman's ability to experience sexual pleasure. For infibulated women, the consummation of marriage is likely to be painful because of the small vaginal opening and the lack of elasticity in the scar tissue that forms it. Tearing and bleeding may occur, or the infibulation scar may have to be cut open to allow penetration.

Infibulation may make intercourse unsatisfying for men as well as women: In a study of 300 polygynous Sudanese men, each of whom had one wife who had been infibulated and one or more who had not, 266 expressed a definite sexual preference for the uninfibulated wife; in addition, 60 said they had married a second, uninfibulated wife because of the penetration difficulties they experienced with their first wife, whose scarred vaginal opening became progressively more inelastic after each b irth. 12 Under such conditions, marital dissolution may occur, especially if a woman's fertility is affected. In Sudan, for example, one study found that infibulated women are almost twice as likely as other women to have lower fertility and more than twice as likely to be d ivorced. 13 Thus, a practice that is justified as making girls marriageable and safeguarding their fertility may actually increase the risk of marital dissolution and subfertility.

Given the medical complications and related consequences of female circumcision, why does the practice continue? First, it is unclear how frequently such problems occur, for few data exist and those that are available come from small studies or are based on self-reports. Second, in societies in which few women remain uncircumcised, problems arising from female circumcision are likely to be seen as a normal part of a woman's life and may not even be associated with circumcision. The most important reasons, however, probably lie in the social and economic conditions of women's lives.

Social Context

Female circumcision is an integral part of the societies that practice it, where patriarchal authority and control of female sexuality and fertility are givens. In communities where a person's place in society is determined by lineage traced through fathers, female circumcision reduces the uncertainty surrounding paternity by discouraging or preventing women's sexual activity outside of marriage. Although the societies that practice circumcision vary in many ways, most girls receive little education and are valued primarily for their future role as sources of labor and producers of children. In some communities, the prospective husband's family pays a brideprice to the family of the bride, giving his family the right to her labor and her children; she herself has no right to or control over either.

A girl's virginity may be considered essential to her family's ability to arrange her marriage and receive a brideprice, as well as to family honor. In Somalia, for example, a prospective husband's family may have the right to inspect the bride's body prior to marriage, and mothers regularly check their infibulated daughters to ensure that they are still " c losed." 14 In this context, parents see both infibulation and early marriage as means of ensuring that their daughter remains "pure" and thus worthy of the brideprice.

In many cultures, considerable social pressure is brought to bear on families who resist conforming to the tradition of female circumcision. In Man, a town in the interior of Côte d'Ivoire, a Yacouba girl who has not been circumcised is not considered m arriageable. 15 Among the Samburu of Kenya, who consider uncircumcised girls unclean, promiscuous and immature, girls are generally circumcised at age 14 or 15, usually just before they are married. A girl with a younger brother may undergo circumcision if she remains unmarried by her late teens, since custom dictates that a boy with an uncircumcised older sister may not be initiated into the warrior c lass. 16

Girls' desires to conform to peer norms may make them eager to undergo circumcision, since those who remain uncut may be teased and looked down on by their age mates. In addition, the ritual cutting is often embedded in ceremonies in which the girls are feted and showered with presents and their families are honored. A girl's wishes, in any case, are often irrelevant; it is her family--often the father or elder female relatives--who decide whether she will undergo circumcision. According to one Yacouba father, "[My daughter] has no choice. I decide. Her viewpoint is not i mportant." 17

Indeed, girls have very little choice. Given their age and their lack of education and resources, they are dependent on their parents, and later on their husband, for the basic necessities of life. Those who resist may be cut by force. If they remain uncircumcised and their families are therefore unable to arrange a marriage, they may be cast out without any means of subsistence.

Because of their lack of choice and the powerful influence of tradition, many girls accept circumcision as a necessary, and even natural, part of life, and adopt the rationales given for its existence. Of the five countries for which DHS data are available on women's opinions toward excision, the Central African Republic is the only one in which the majority favor d iscontinuation. 18 A variety of justifications are given by DHS respondents who favor continuation of the practice, including preservation of virginity before marriage, fidelity after marriage, enhancement of the husband's sexual pleasure, enhancement of fertility, prevention of infant and child mortality, cleanliness and religious requirements, but tradition is by far the most commonly mentioned reason.

As these data show, women themselves are involved in perpetuating the practice of female genital cutting. Data on the attitudes of men have been collected only in Eritrea and Sudan. DHS data for Eritrea show that men are slightly more likely than women to favor discontinuation, and that men who believe the practice should be stopped are about twice as likely as their female counterparts to cite medical complications and lack of sexual satisfaction as r easons. 19 In Sudan, a 1981 study found that men are somewhat more likely than women to believe female genital cutting should continue, but are less than half as likely as women to prefer i nfibulation. 20

Working for Change

Efforts to eliminate female circumcision have often been unsuccessful because opponents of the practice ignored its social and economic context. In some cases, external intervention has strengthened the resolve of communities to continue their genital cutting rituals as a way of resisting what they perceive as cultural imperialism.

During the era of colonial rule in Africa, some governments attempted to ban female circumcision and met with resistance. In Sudan, when a law banning infibulation was about to be proclaimed in 1946, many parents rushed to midwives to have their daughters infibulated in case it should become impossible later on. When some midwives were arrested for performing circumcision, anticolonial protests broke out. The British colonial government, fearing a massive nationalist revolt such as those that had occurred in Egypt and Kenya, eventually let the law go u u nenforced. 21

More recently, calls to action by Western feminists and human rights activists have provoked similar negative reactions. African women have perceived many of these efforts as condescending and derogatory toward their culture. In the words of one infibulated Somali woman, "If Somali women change, it will be a change done by us, among us. When they order us to stop, tell us what we must do, it is offensive to the black person or the Muslim person who believes in circumcision. To advise is good, but not to o rder." 22

In many Western publications dealing with female circumcision, one anthropologist observes, "African women are...depicted as aberrant, while intact Western women have their sexuality affirmed as the n orm." 23 Yet, as Nahid Toubia points out, Western women also subject themselves to medically unnecessary, hazardous procedures, such as cosmetic surgery and the insertion of breast implants, to increase their sexual d esirability. 24

The strong reactions against depictions of cultures practicing female circumcision as savage, violent and abusive of women and children have led to new ways of approaching the issue. Some international organizations working against the practice are supporting local activist groups with funding, training and technical expertise rather than choosing direct involvement. Numerous projects have been mounted to eliminate female circumcision, although none have included rigorous evaluations to determine their success. The following approaches are typical:

* Community education . A nationwide study conducted in 1985-1986 by the National Association of Nigerian Nurses and Midwives found that female circumcision was practiced in all states and that in five of the then 11 states at least 90% of the women had been cut. In response to this information, the organization designed an eradication campaign with support from Population Action International and the Program for Appropriate Technology in Health. The project trained health workers to teach individuals about the harmful effects of female circumcision and to work through religious organizations, women's organizations and social clubs to mobilize communities against the p ractice. 25

* Alternative rituals . The organization Maendeleo Ya Wanawake carried out a pilot project in the Meru district of Kenya in 1996 to develop an alternative initiation ritual. Some 25 mother-daughter pairs participated in a six-day training session that included information on the consequences of female circumcision and how to defend the decision not to be cut. The session culminated in a coming-of-age celebration planned by the community, excluding circumcision but including gifts and special T-shirts for the initiates, skits, and "books of wisdom" prepared by the parents of each g irl. 26

* Drama . In Burkina Faso, the director of a local theater group developed a play, based on the experience of his niece, on the consequences of female circumcision; the play is aimed particularly at men. A grant from the Research Action and Information Network for Bodily Integrity of Women (RAINBO) enabled him to videotape the play and show it throughout the r egion. 27

Prospects for the Future

The available data provide little evidence that the practice of female circumcision will decline substantially in the near future. The Central African Republic, where prevalence is moderate, is the only country in which steady decline seems to be occurring. Young women in Côte d'Ivoire, Egypt, Eritrea and Mali appear to be no less likely than older women to have undergone circumcision. In Sudan, the sole country for which longitudinal comparisons can be made, prevalence appears to have declined slightly, from 96% to 89%, between the 1978-1979 Sudan Fertility Survey and the 1989-1990 Sudan D HS. 28 Nevertheless, the DHS data do not indicate any differences between younger and older women.

Despite the overall lack of change in the percentages of girls who undergo circumcision, changes in attitudes and practices seem to be occurring in some countries. In Eritrea, for example, women and men younger than 25 are much more likely than those in their 40s to believe that the tradition should be discontinued. In Sudan, where the great majority of women have traditionally been infibulated, there appears to be a small shift toward c litoridectomy. 29

Given the lack of enforcement of most laws against female circumcision, it is unclear whether a purely legal approach is effective in itself. While legislation may be enforceable in countries where only a small minority adhere to the practice, that is unlikely to be the case when the majority follow the tradition. As Toubia points out, "Clear policy declarations by government and professional bodies are essential to send a strong message of disapproval, but if the majority of the society is still convinced that female genital mutilation serves the common good, legal sanctions that incriminate practitioners and families may be c ounterproductive." 30 In such countries, she suggests, public information campaigns and counseling of families about the effects of the practice on children may be more useful.

Substantial change is likely to occur only with improvements in the status of women in society. According to Rogaia Abusharaf, "To get married and have children, which on the surface fulfills gender expectations and the reproductive potential of females, is, in reality, a survival strategy in a society plagued with poverty, disease, and illiteracy....The socioeconomic dependency of women on men affects their response to female c ircumcision." 31

This view is born out by the DHS data: In most countries, women with higher levels of education and those who have income of their own are less likely than other women to have been circumcised and are also less likely to have had their daughters circumcised. As Toubia comments, "this one violation of women's rights cannot [be abolished] without placing it firmly within the context of efforts to address the social and economic injustice women face the world over. If women are to be considered as equal and responsible members of society, no aspect of their physical, psychological or sexual integrity can be c ompromised." 32

* A lthough female circumcision is often thought to be associated with Islam, it predated Islam in Africa. Neither the Koran, the primary source for Islamic law, nor the "hadith," collections of the sayings of the Prophet Mohammed, include a direct call for the practice (see: reference 6). According to these oral histories, when Mohammed was asked his opinion on female circumcision, he told his followers "to circumcise, but not to destroy (the clitoris), for not destroying would be better for the man and would make the woman's face glow." Islamic clerics are divided, however, with some actively supporting the practice and others opposing it.

1. W orld Health Organization (WHO), Khartoum Seminar on Traditional Practices Affecting the Health of Women and Children, Khartoum, Sudan, 1979.

2. O rganization of African Unity, African Charter on the Rights and Welfare of the Child, 1990, Article 24(3).

3. U nited Nations (UN), Report of the International Conference on Population and Development , New York, 1994.

4. U N, Report of the Fourth World Conference on Women , New York, 1995.

5. C .W. Dugger, "A Refugee's Body Is Intact but Her Family Is Torn," New York Times, Sept. 11, 1996, pp. A1, B6-B7.

6. N . Toubia, Female Genital Mutilation: A Call for Global Action, RAINBO, New York, 1995.

7. R . Ndamobissi, G. Mboup and E.O. Nguélébé, Enquête Demographique et de Santé, République Centrafricaine, 1994-95, Direction des Statistiques Démographiques et Sociales, Bangui, Central African Republic, and Macro International, Calverton, Md., USA, 1995; N'Cho Sombo et al., Enquéte Demographique et de Santé, Côte d'Ivoire, 1994, Institut National de la Statistique, Abidjan, Côte d'Ivoire and Macro International, Calverton, Md., USA, 1995; F. El-Zanaty et al., Egypt Demographic and Health Survey 1995, National Population Council, Cairo, and Macro International, Calverton, Md., USA, 1996; Eritrea Demographic and Health Survey, National Statistics Office, Asmara, Eritrea, and Macro International, Calverton, Md., USA, 1997; S. Coulibaly et al., Enquête Demographique et de Santé, Mali, 1995-1996, Direction Nationale de la Statistique et de l'Informatique, Bamako, Mali, and Macro International, Calverton, Md., USA, 1996; and Sudan Demographic and Health Survey, 1989/1990, Ministry of Economic and National Planning, Khartoum, Sudan, and Macro International, Calverton, Md., USA, 1991.

8. N . Toubia, 1995, op. cit. (see reference 6).

9. W HO, Female Genital Mutilation: Report of a WHO Technical Working Group, Geneva, 1996.

11. A .Z. Mustafa, "Female Circumcision and Infibulation in the Sudan," Journal of Obstetrics and Gynaecology of the British Commonwealth, 73: 302-306, 1966.

12. A .A. Shandall, "Circumcision and Infibulation of Females," Sudan Medical Journal, 5: 178-212, 1967.

13. D . Balk, "Marriage and Fertility in Northeast Africa: What Role Does Female 'Circumcision' Play?" unpublished manuscript, 1997.

14. A . Warsame, "Social and Cultural Implications of Infibulation in Somalia," in Female Circumcision: Strategies to Bring About Change, Proceedings of the International Seminar on Female Circumcision, Italian Association for Women in Development, Rome, 1989; and V.L. Barnes and J. Boddy, Aman: The Story of a Somali Girl, Knopf, Toronto, 1994.

15. C .W. Dugger, "African Ritual Pain: Genital Cutting," New York Times, Oct. 5, 1996, pp. A1 & A6.

16. J .C. McKinley, Jr., "At a Ceremony in Kenya, a Brother and Sister Painfully Enter Adulthood," New York Times, Oct. 5, 1996, p. A6.

17. C .W. Dugger, 1996, op. cit. (see reference 15).

18. R . Ndamobissi, G. Mboup and E.O. Nguélébé, 1995, op. cit. (see reference 7).

19. E ritrea Demographic and Health Survey, 1997, op. cit. (see reference 7).

20. E .-H. Kheir, S. Kumar and A.R. Cross, "Female Circumcision: Attitudes and Practices in Sudan," in Proceedings of the Demographic and Health Surveys World Conference, Washington, D.C., 1991, Vol. 3, Columbia, Md., USA, 1991, pp. 1697-1717; and A. El Dareer, Woman, Why Do You Weep? Zed Books, London, 1982.

21. J . Boddy, personal communication, May 26, 1997.

22. V .L. Barnes and J. Boddy, 1994, op. cit. (see reference 14).

23. J . Boddy, "Violence Embodied? Female Circumcision, Gender Politics, and Cultural Aesthetics," in R. Dobash and R. Dobash, eds., Rethinking Violence Against Women, Sage, Thousand Oaks, Calif. (in press).

24. Na . Toubia, 1995, op. cit. (see reference 6).

25. S . Babalola and C. Adebajo, "Evaluation Report of Female Circumcision Eradication Project in Nigeria," paper presented at the annual meeting of the American Public Health Association, New York, Nov. 18, 1996.

26. S . Rich and S. Joyce, "Eradicating Female Genital Mutilation: Lessons for Donors," occasional paper, Wallace Global Fund, Washington, D.C., 1997.

28. E .-H. Kheir, S. Kumar and A.R. Cross, 1991, op. cit. (see reference 20).

30. N . Toubia, 1995, op. cit. (see reference 6), p. 45.

31. R .M. Abusharaf, "Rethinking Feminist Discourses on Female Genital Mutilation: The Case of Sudan," Canadian Woman Studies, 15: 52-54, 1995.

32. N . Toubia, 1995, op. cit. (see reference 6).

Acknowledgments

Frances A. Althaus is senior editor of International Family Planning Perspectives. The author is grateful to Nahid Toubia and Rogaia Abusharaf for their generous help in preparation of the report and to Dara Carr, Jacqueline E. Darroch, Jeannie Rosoff, Renee Samara and Susheela Singh for helpful comments on an earlier version.

Krishnan, Ashwina --- "Reframing The Discussion On Female Genital Cutting: An Analysis Of The Arguments For And Against The Abolishment Of Femital Genital Cutting" [2021] UNSWLawJlStuS 17; (2021) UNSWLJ Student Series No 21-17

REFRAMING THE DISCUSSION ON FEMALE GENITAL CUTTING: AN ANALYSIS OF THE ARGUMENTS FOR AND AGAINST THE ABOLISHMENT OF FEMITAL GENITAL CUTTING

ASHWINA KRISHNAN

I INTRODUCTION

Female genital cutting (FGC), often times referred to as female genital mutilation (FGM), is a practice that is highly contentious. While some believe it to be an abhorrent practice that violates women and children’s rights and by virtue of this should be abolished, others consider the practice to be an integral part of their culture. The reasons for the continuation of this practice are varied and often dependent on the contexts within which FGC is practiced. For instance, some believe that FGC is prescribed by their religious scriptures whilst others consider it to be a coming of age ritual. Whether or not this practice is a cultural or religious phenomenon continues to be a point of contention. Nevertheless, many in the international community have called for this practice to be abolished deeming it a human rights violation due to the purported negative impact it has for young women and children. The debates that have ensued in relation to whether FGC is a human rights violation or an acceptable cultural practice have often occurred within the context of the controversies between universalism and cultural relativism, [1] with many arguing against the concept of cultural relativism on the basis that FGC is so barbaric that it should not be permitted, in spite of the justifications that may arise from viewing this issue from a culturally relativist standpoint. This paper examines the arguments made for and against the abolishment of FGC and seeks to answer the question: is the move to abolish FGC a form of cultural imperialism or a statement of a universal human rights norm? It does so by reviewing the impact of both the practice of FGC and its abolishment on women and children and by juxtaposing the attitudes expressed in relation to other similar practices that are accepted in Western societies. The essay ultimately argues that the debate should in fact be reframed and analysed from a children and women’s rights focused perspective.

II TERMINOLOGY

This paper will firstly address the various terms that signifies the practice of female genital cutting. Initially, the practice was referred to universally as female circumcision, including in medical literature. [2] However, in 1979, the term “female genital mutilation” or FGM was coined which imbued the practice with negative connotations and distinguished the practice from male circumcision. [3] The coining of the term FGM was intended to ‘aptly capture the gruesome and harmful nature of the procedure’ and also to effectively designate the practice as a human rights violation, [4] thus making the distinction between circumcision as it is practised on males and on females. [5] The terms FGM itself is a point of great contention [6] as many who have undergone the procedure themselves may consider it to be demeaning. [7] However, the alternative of utilising the term female circumcision can be considered to many as a means to trivialise or normalise the practice. [8] The term female genital surgery was also used interchangeably; however, this term remained unpopular due to its implication that the practice is ‘medical in nature.’ [9] This paper will refer to the practice in its most literal sense, that is, female genital cutting or FGC.

III CONTEXT

According to UNICEF, ‘at least 200 million girls and women have undergone FGM’/C globally. [10] While the prevalence of the practice itself varies geographically, [11] According to the World Health Organisation (WHO), a majority of those who have undergone female genital cutting go through it prior to turning fifteen years old. [12] The common view held in most Western societies is that FGC not only embodies a severe human rights violation, but is also a means to ‘suppress women’ and to make women more subservient to their ‘future husbands.’ [13] This view is widely accepted by the international community as seen by the various calls to end female genital cutting. [14] [15] The UN has further regarded the elimination of female genital mutilation as a means to achieve gender equality and empower all women and girls, as per its sustainable development goal five. [16] This view is expounded on the premise that FGC ‘violates the right to physical integrity of the person’ [17] and constitutes a form of violence against women and children. [18] Many have come out to criticise this view stating that it is in fact primarily underpinned by ‘cultural bias’ rather than objective facts. [19] Accordingly, accusations of Western ethnocentrism clouding the judgement of those calling for the abolishment of FGC have been meted. [20] This line of argument is further justified by the fact that the ‘”zero-tolerance” stance on FGM...[has not been] applied consistently to analogous practices that happen to be more popular in Western countries,’ such as elective cosmetic genital surgeries, intersex genital “normalisation” surgeries, male circumcision [21] and genital piercings. It is posited that these practices are presumed to be ‘permissible’ on the basis that it is ‘more familiar to a Western mindset’ and is therefore not held to the same standard as that of FGC. [22] While this view may be criticised for minimising the impact of FGC, a careful analysis into these practices deemed “acceptable” and the potential harmful impact they may have to those who undergo them shows that they share many comparable features with FGC, [23] thus labelling the calls for abolishment of FGC a form of cultural imperialism. The challenge this argument poses to the universality of the norms proscribing FGC cannot be overlooked and will be examined further in this paper.

IV WHO’S DEFINITION OF FGC

The most widely accepted definition of FGC is put forth by WHO, as follows:

‘all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.’ [24]

WHO has also categorised the practice into the following types:

• ‘Type 1: this is the partial or total removal of the clitoral glans (the external and visible part of the clitoris, which is a sensitive part of the female genitals), and/or the prepuce/ clitoral hood (the fold of skin surrounding the clitoral glans).

• Type 2: this is the partial or total removal of the clitoral glans and the labia minora (the inner folds of the vulva), with or without removal of the labia majora (the outer folds of skin of the vulva).

• Type 3: Also known as infibulation, this is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoral prepuce/clitoral hood and glans (Type I FGM).

• Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.’ [25]

This definition and categorisation of FGC practices has drawn various criticisms. The main criticism of WHO’s classifications is that the lumping together of the various and disparate practices makes generalisations of the practice of FGC and conflates the issue insofar that it does not acknowledge that the impact for each categories of FGC would differ. [26] The “catch-all” definition of Type 4 is also criticised for being too broad and for its specific application only to cultural practices in non-Western countries, in spite of its definition encapsulating other analogous Western practices. In categorising FGC in this manner, WHO allows for all types of FGC to be regarded as ‘ipso facto condemnable. ’ [27] The common factor of these practices, no matter how wide-ranging and disparate thus becomes that it is performed on women and girls, which leads to the false presumption that girls are ‘always harmed by genital surgery.’ [28] WHO’s classification is therefore, at best ‘inaccurate’ and at worst ‘intolerant’ and ‘intellectually lazy and misleading.’ [29]

Another area of contention is the origins and reasons for continuing the practice of FGC. While the notion that the practice is undertaken to curb women’s promiscuity and to ensure fidelity is widely accepted and often advanced by WHO, [30] in some cases, the motivation for cutting has little to do with curbing sexuality. [31] This is again seen as an over-simplification, on the part of WHO, of a complex and multifaceted practice. There are a wide variety of reasons cited as to why FGC is undertaken including religious beliefs, ritual purity/chastity, hygiene and even cosmetic purposes. [32] While it is conceded that in some cases FGC may be practiced as a means of protection of virginity and purported control of lust, it is important to note that FGC is not solely undertaken for this purpose. This a particularly important point to consider given that the calls for abolishment are generally prefaced on the basis that FGC is a practice utilised as a means to control women’s sexuality and to establish women as subjugate to men.

Attributing every practice of FGC to gender inequality is a gross over-simplification of its social and cultural functions within the societies that it is performed in. [33] It is further integral to understand the various reasons for why FGC is undertaken within different cultures as these disparate reasons result in the variety of ways that the procedure itself is carried out, particularly, variations in the ages ‘of girls or women that undergo the procedure, the accompanying rituals, the surroundings in terms of hygiene, the skills, qualifications and gender of the circumciser.’ [34] While WHO estimates that majority of the procedure are carried out on children under the age of fifteen, FGC may in fact be carried out ‘at infancy, before puberty, at puberty, with or without initiation rites, upon contracting marriage, in the seventh month of the first pregnancy, [or] after the birth of the first child.’ [35] To conflate these varying reasons and origins of the practice thus negates the myriad health consequences [36] as well as psychological impact each FGC procedure has on women and children. For instance, some cultures consider the ‘external clitoris’ to be a sign of ‘androgyny’ rather than a symbol of ‘female sexuality’ as it is perceived in the West. As such, removal of the clitoris is viewed within some cultural contexts as both ‘feminizing and an affirmation of “matriarchal power”’ [37] thus holding a different psychological impact altogether.

While the validity of claims that FGC is rooted in religious belief is still debated, it is important to note that if FGC is sanctioned by religion and/or is part of one’s religious practices, then it can be presumed that ‘there is a prima facie case of right to religion.’ [38] This of course does not negate that religious beliefs cannot be utilised as a shield against practices that are intrinsically harmful, however, whether all “types” of FGC are in fact intrinsically harmful remains a point of contention.

VI RELEVANT INTERNATIONAL INSTRUMENTS ON FGC

Many international instruments, even if they do not explicitly forbid FGC, have articles that can be interpreted to do so. For instance, Article 2 of the Convention on the Elimination of Discrimination Against Women (CEDAW) stipulates that State Parties should eliminate discrimination against women by taking all ‘appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practice which constitute discrimination against women.’ [39] Article 5 similarly states that all state parties should take any necessary steps to eliminate ‘practices that are based on the idea of the inferiority or the superiority of either sexes.’ [40] Some argue that FGC should fall under these practices that should be abolished on the basis that it is ‘exclusively performed on women,’ and is thus ‘prima facie discriminatory.’ [41] However, if the view that FGC and male circumcision is both similar in nature, the argument that FGC is discriminatory would not stand. Relevant regional instruments on the other hand are more explicit in their prohibition of FGC. For instance, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) prohibits all forms of FGC under Article 5, including medicalisation. [42] Article 38 of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) on the other hand, explicitly criminalises a range of practices including ‘excising, infibulating or performing any other mutilation to the whole or any part of a woman’s labia majora, labia minora or clitoris,’ rather than utilising the umbrella term of FGM/C. [43] The positions put forth in these instruments are unambiguous.

Bearing in mind that a majority of the procedure is undergone by children, the Convention on the Rights of the Child (CRC) is also a very important instrument. Article 24(3) of the CRC requires state parties to ‘take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.’ [44] Article 19(1) also imposes a positive obligation on State Parties to protect children ‘from all forms of physical or mental violence, injury or abuse.’ [45] These articles again do not explicitly outlaw FGC but it is widely accepted that these articles implicitly prohibit the practice of FGC on the basis that it is a violation of children’s rights. [46] Similarly, the African Charter on the Rights and Welfare of the Child (ACRWC) does not explicitly prohibit FGC but does prohibit ‘any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter’ which includes that all actions concerning children be undertaken with primary consideration being given to the ‘best interests of the child.’ [47] While some may argue that this in turn implies that as FGC is ‘harmful to children,’ the practice runs afoul of the “best interest of the child” principle, [48] however, what constitutes the “best interests of the child” remains subjective.

VII IMPACT OF FGC ON WOMEN AND CHILDREN

The criticisms of FGC often come under three broad categories, that the ritual violates women and children’s rights to ‘bodily integrity,’ that it ‘perpetuates gender inequality’ and that FGC has serious ramifications on women and children’s health and mental wellbeing. [49] Being that the health impact FGC has on women and children can be objectively observed, it poses the ‘strongest “case” against’ the continuation of the practice. [50] As per WHO’s fact sheet, the health consequences of FGC can range from menstrual problems to death.’ [51] Some of the causes named by WHO can also be attributed to the way in which the procedure is performed in certain contexts. According to Muteshi et al, a ‘vast majority of girls’ undergo the procedure with no ‘anaesthesia or analgesia using non-sterile instruments such as scissors, razor blades or broken glass’ with the minority of these procedures having been medicalised to minimise any health risks. [52] Muteshi et al further states that the consequences are both similar for the various types of FGC, as defined by WHO, but differ in severity. [53] There is thus some consensus that particular types of FGC results in more harmful health consequences and accordingly, other types of FGC lead to lesser health consequences. In light of this, the call to abolish FGC is often criticised on the basis that this view does not differentiate between the various types of FGC and instead calls for the eradication of all types, which does not take into account the lesser health consequences of more moderate forms of FGC. For instances, the procedure for FGC in many Muslim communities, particularly in parts of Indonesia and Malaysia, involves ‘nicking the clitoris [or clitoral hood] with a sharp instrument to cause bleeding but no permanent alteration of the external genitalia’ and as a result when a hospital based study was conducted in Malaysia, the findings where that there were ‘no clinical evidence of injury to the clitoris or the labia and no physical sign of excised tissue.’ [54] This thus undermines the call for eradication, at least, while it encapsulates all types of FGC.

In spite of the above, all forms of FGC continue to be viewed as impermissible by the international community. [55] This view can perhaps be justified by the pain and trauma associated with the procedure, or the psychological impact of FGC. This justification is not fool proof as more superficial types of FGC (such as pricking), particularly if undertaken under anaesthesia, can negate the pain and traumatic side-effects of the procedure. [56] On the other hand, in the context of when FGC is consented to by an adult woman who is choosing to undergo it upon her own free will, pain can be an important and necessary part of the cultural ritual. For instance, Earp notes in his paper that the ‘Rendille [women] of Kenya...reject the idea of using anaesthesia when being excised’ as a means of demonstrating their ability to withstand pain. FGC in this context is viewed as a demonstration of ‘maturity’ as being able to tolerate undergoing FGC without anaesthesia would in turn be viewed as a woman’s ability to undergo the pain of childbirth. [57] This is not unlike many women in the West who choose to undergo the pain of childbirth sans epidural. In the context of FGC carried out on adult women, there is thus a juxtaposition of who can consent to pain and who cannot, on the basis of cultural lines.

The medical arguments against FGC are also weakened by the comparison of less invasive types of FGC to the practice of male circumcision (MC). Many justify MC and oppose FGC on the basis that the former may have health benefits while the latter has none. However, this view neglects that the foreskin can play an important role in the health of young boys and men, including that it serves a ‘protective function’ for the penis ‘to irritants from the environment, such as urine and feces in the diapers of the youngest of boys, and to rubbing against clothing thereafter.’ [58] There are also a range of ‘complications that could arise from male circumcision’ that are not dissimilar to that of FGC which is again ignored, [59] thus begging the question why should FGC be abolished MC continues to take place?

Another common reason cited for eradicating FGC is on the basis that FGC ‘violates women's rights to sexual fulfillment’ due to its interference with the clitoris. [60] This can again be compared to MC which ‘(eliminates) all sexual functions and related erotic activities that involve manipulation of the foreskin itself.’ [61] Furthermore, there are many studies that counter the argument that FGC impedes on a woman’s ability to achieve orgasm or hinders their libido. [62] On the flip side, some studies have found that FGC instead leads to increased promiscuity [63] and that some types of FGC, particularly those involving the removal of the clitoral hood actually lead to ‘maximum exposure of the clitoris’ thus allowing women the experience of ‘multiple, quicker, and more intense orgasms.’ [64] It is thus important to note that less invasive forms of FGC do not in fact eliminate a woman’s ‘capacity for orgasm.’ [65] Even with FGC procedures involving the removal of the clitoris, there is no consensus that such procedures can impede on a woman’s ability to achieve orgasm in every case as the psychosexual aspects of sexual enjoyment plays an important function in climax, even more so than the clitoris. [66] [67]

It follows from the above that where FGC is undertaken with the informed consent of an adult wishing to undergo the procedure, that the psychological impact can also be mitigated. This is not to say that for women and children who have undergone forced FGC, the experience would not have had a traumatic impact. In fact, many report experiencing ‘psychological and psychosomatic disorders such as disordered eating and sleeping habits’ as well as posttraumatic stress disorder, anxiety, depression, and memory loss associated with FGM/C. [68] However, on the other hand, the calls for abolishing FGC can have similarly ‘adverse psychological effects’ on women who have already underwent FGC. [69] There should thus be a clear line established distinguishing consensual and forced FGC.

VIII IMPACT OF THE INTERNATIONAL STANCE ON FGM

In analysing the merits of arguments for and against the eradication of FGC, it is also essential to understand the many potential consequences of the anti-FGC stance. While, not undergoing FGC in itself could have particular consequences for girls and women in certain contexts, such as social ostracism, [70] [71] the consequences of the stance adopted by the international community that has led to a variety of prohibitions, both legislative and political, are far more insidious. For instance, due to the hard line, no tolerance for any type of FGC view adopted, there is also a prohibition on medicalisation of the practice on the basis that medicalisation would legitimise it. [72] [73] This poses a serious issue to women and children who do undergo FGC as medicalisation would inevitably mitigate some of the harmful effects of FGC and/or may alleviate the pain of the experience itself. [74] Particularly, in a context where women and children may be subjected to FGC without their consent, medicalisation could at least lessen the ramifications of the procedure. Furthermore, engaging a medical practitioner may also lead to more informed consent from the person undergoing FGC as they would be advised of the risks of the procedure. This would also allow for a safer regime for FGC procedures given that medicalised procedures are generally regulated and accountability for “botched” procedures can be established. Non-medicalisation of FGC, in contrast, ‘drives [FGC] underground’ rather than eliminates the practice. [75] However, WHO and the international community remain firm on the stance of medicalisation considering it to just be another form of violation of ‘girls’ and women’s right to life, right to physical integrity, and right to health.’ [76] This has led some to criticise that the attitudes on medication of the practice is ‘not formulated on health concerns’ but on a reasoning based on ‘political and other extraneous factors,’ as the arguments against FGC on the basis of unqualified practitioners [77] and unhygienic and dangerous conditions of the procedure could easily be overcome through medicalisation. [78] While some have argued that even with medicalisation, there are cases of ‘girls bleeding to death after physicians performed the procedure,’ [79] this neglects the fact that in most cases, with health professionals performing FGC some of the more ‘immediate physical consequences’ such as ‘severe pain, bleeding and infections,’ can be controlled through the use of ‘antiseptic techniques, anaesthetic and analgesic medication.’ [80] In spite of this, the Western medical world continues to reject the practice of medicalisation, with many claiming, with no real justification, that the risks associated with FGC is only ‘slightly mitigated’ when performed by a medical professional. [81]

The hard line stance against medicalisation was adopted in an incident that took place at the Harbourview Medical Centre, Seattle, Washington in 1996, where a number of Somali immigrants demanded that infibulations be performed on their daughters. When the hospital refused to perform infibulations, the immigrants expressed that they would ‘transport their girls back to Somalia where infibulations would be done.’ In order to prevent the girls from being subjected to infibulation, the hospital proposed performing a procedure that would involve a ritual nicking of the prepuce (clitoral hood) with no excision of the tissue, under local anaesthetic for children who were mature enough to comprehend the procedure and give their consent. This came to be known as the “Seattle Compromise.” The Seattle Compromise, however, provoked a strong outcry of objection which eventually led to the Attorney General of the United States declaring the compromise illegal under ‘American anti-FGM laws.’ The arguments underpinning the objections are similar to those expressed by others against medicalisation in general as discussed above, as well as, that performing the procedure would have ‘sanctioned medically-unnecessary physical injury to children.’ [82] The ethics of FGC, whether performed on adult or children, are often questioned on the basis that it would be ‘unethical to injure a healthy body; although carried out in sterile conditions,’ [83] however, these ethics seem to be applied unequally, as other analogous practices, such as clitoral piercings, are seen as permissible. Though unpopular, the view that some form of medicalisation and compromise may be effective in negating the harmful impact of FGC is advanced by some qualified bodies, as reflected in the American Academy of Paediatrics’ statement issued in 2010 which suggested that legislative changes allowing paediatricians to offer a ritual nick as a compromise to mitigate FGC related harm may be more effective than laws banning the practice outright. [84]

Criminalisation is another adverse consequence of the no tolerance stance on FGC as it drives the practice underground exposing young women and girls to further health risks. [85] For instance, under the “Edo law” in Nigeria, punitive measures are not only specified for those who practice it, but also for ‘any person who offers herself’ for circumcision. As such, women consenting to undergo the procedure may be found guilty of an offence and can be liable to pay a fine of ‘one thousand naira or imprisonment for not less than six months or both.’ [86] Ghana’s national anti-FGC legislation also stipulates punitive measures for those who undergo FGC; however, it do not distinguish between those who undergo FGC consensually and non-consensually, making either person liable to face ‘imprisonment of not less than three years.’ [87] This conflates consensual FGC with forced FGC and may lead to victims facing the same sanctions as their perpetrators. [88] Criminalisation further discourages people from seeking medical intervention where an FGC procedure is botched, thus further exposing young women and girls to serious health risks.

IX ANALOGOUS PRACTICES

In spite of the vehement opposition to FGC, various practices that are analogous, if not, similar to FGC are carried out upon the request of women in the West. These practices include vaginoplasty, labioplasty, and even hymenoplasty (reconstruction of the hymen). These surgical procedures often have similar risks that are associated with FGC but are entirely permissible and medicalised for the safety of those undergoing the procedure. [89] Rather than being perceived as “mutilation,” practices such as clitoral piercings are viewed as cosmetic “enhancements” [90] There are many anatomical similarities between these procedures and categories of FGC. For instance, Type 1 of FGM involves ‘cutting or removal of the clitoral hood,’ which is ‘is anatomically identical to the Western “cosmetic” practice of clitoral unhooding.’ Cutting of the labia minora, which falls under Type 2 of FGM is similarly ‘anatomically identical to the Western “cosmetic” practice of labial trimming. [91] Even infibulation, one of the more extreme forms of FGC, has parallel features to ‘vaginal tightening procedure(s)’ that exist in the West. [92] These practices are non-therapeutic but WHO has neglected to take a position on these procedures while simultaneously prohibiting all forms of FGC. [93] [94] While some have tried to justify this distinction between “genital cosmetic surgery” and FGC by citing ‘psychological advantages’ of those practices to women, the same can be argued for FGC ‘in societies where [FGC is] acceptable.’ [95] This has led to criticisms that this difference is solely based on the fact that “genital cosmetic surgeries” are ‘simply more familiar’ to a Western viewpoint and therefore are not seen as foreign or ‘barbaric,’ and is permissible in spite of its moral and ethical ambiguities. [96] This further begs the question as to why non-Western women are not permitted to have a say in what they can and cannot do to their bodies while Western women are. [97]

Male circumcision (MC) is another practice that is analogous to FGC but permitted for reasons that are unclear. While some argue that MC has lesser health consequences and some medical benefit, this is not true for all cases as the suggestion that boys are never harmed by MC is a ‘vast oversimplification.’ [98] Just like FGC, MC can vary in its practice and the way in which it is conducted. [99] The idea that MC is largely safer and less ‘medically risky’ is simply untrue as it would depend entirely on the qualifications of the circumciser, whether anaesthesia is used, whether the procedure is undertaken in sanitary conditions and other such factors. [100] These factors would inevitably change according to the context within which the procedure is carried out. In fact there have been recorded cases of MC-related deaths. [101] MC and FGC are also medically comparable. Anatomically, Type 1 FGC, particularly, the removal of the clitoral hood is ‘comparable to [MC] as the clitoral hood and foreskin ‘serve similar functions.’ [102] The reasons cited for justifying non-therapeutic MC also share traits with the justifications used for FGC, with most attributing MC to cultural traditions or religious beliefs. [103] Many have thus questioned as to why there is a double standard to these largely similar practices, with some suggesting that either girls ‘should have the same access to cultural identity-promoting genital rituals as boys’ or MC should also be considered a violation of young boys’ rights to bodily integrity. [104] There are also types of MC that, while may not be anatomically comparable to infibulation, can be subjectively viewed to be as extreme as infibulation, such as subincision, a practice that involves the cutting open of the underside of the penis. However, as is the case of infibulation, this practice is also rare, accounting for ‘approximately 10% of [all MC] cases.’ The psychological impact that MC has on some young boys also cannot be undermined, with some men reporting feeling life they had something ‘taken from them’ and even using the term ‘mutilation to describe their circumcised state,’ [105] with many opting to undergo ‘foreskin restoration.’ [106] The practice of MC also poses a challenge to the claim that FGC is a form of discrimination against women, as there are no known societies that subject their women to FGC whilst not practicing MC as well. [107] The refusal to appropriately address the different treatments of MC and FGC by opponents of FGC further poses a challenge to eradicating FGC as proponents of FGC are ‘quick to identify the double standard’ and gives rise to the accusation of cultural imperialism [108] as it can be perceived that MC is simply tolerated due to its normalisation in Western societies. [109]

X UNIVERSALISM OR CULTURAL IMPERIALISM?

The various issues with WHO’s definition and categorisation of FGC as well as the “double standard” between FGC and comparable “Western” practices detailed above pose a serious risk of undermining the prohibition on FGC. Under the theory of cultural relativism, FGC should be considered a ‘cultural practice’ and it should not be viewed as wrong ipso facto just because it is foreign to Westerners. [110] However, some validly argue that culture alone ‘cannot be a valid justification for human wrongs’ [111] There are of course many problematic features of FGC, including that it is on most occasions, conducted on minors who cannot give informed consent on the procedure. However, there is evidence that a growing number of children in the West, ‘aged 14 or even younger,’ undergo non-therapeutic cosmetic genital surgeries, some of which carry the same risks as FGC, with permission from their parents. [112] That is to say that both practices cannot simply be distinguished as a result of the ages of those that undergo it. [113] Arguments for prohibiting FGC on the basis that it performed on children is also a moot point given that the abolishment of FGC applies to all, including adult women. The reasoning seems to be that no person would ‘freely and consciously consent to the practice,’ but rather are compelled to undergo FGC as a result of societal pressure, patriarchal notions and perhaps even internalised misogyny. [114] [115] This view, however, seems to be based on presumptions that are paternalistic with Westerners playing the role of the “enlightened saviour” for women from non-Western societies and is premised on the assumption of superiority of one’s own culture. [116] It is also reminiscent to the colonial mindset that justified erasure of cultural identities as a form of “civilising” the “savage locals,” thus giving rise to the accusation of cultural imperialism. This ‘racist othering’ of the practice and depicting all who undergo FGC as ‘passive, voiceless or clueless victims,’ is criticised and rightfully so. [117] This continued misrepresentation of FGC as a ‘harmful cultural practice’ also alienates the very community members needed to ‘make headway in abolishing’ FGC. This is reflected in societies where FGC is criminalised but the practice continues to be widespread as [118] the move to eliminate FGC is seen as ‘an unjustified attempt by the West to impose Western cultural values on others.’ [119]

XI REFRAMING THE DEBATE

It is clear from the above that while the move to eradicate FGC may be well-intentioned and came about as a means to protect young girls and their agency in relation to their own bodies, the zero-tolerance approach to FGC merely increases the harms that are experienced by young girls. It should foremost be noted that compelling children who are unable to give informed consent to undergo a non-therapeutic procedure carrying major health risks should be regarded a ‘form of torture’ and be rejected entirely as a practice. [120] However, there is no cogent reasoning that justifies applying the same approach to adult women who are of age to make informed decisions about their bodies as this would in turn take away their agency. It is futile to attempt to protect young girls’ rights to bodily autonomy whilst also violating the same of adult women, particularly, when adult women living in Western societies have said bodily autonomy to undergo analogous practices. Additionally, the stance on non-medicalisation is just a further deprivation of non-Western women’s rights to health and should be abandoned as there is clear evidence that if a milder form of FGC is performed by a medical professional, the procedure would be safer and less risky for women.

This paper thus argues that rather than eliminating the practice entirely, a more pragmatic approach may not only minimise any potential harmful impact on women and children but could also lead to a lesser degree of contention and higher degree of conformity. While some may argue that within particular contexts of entrenched gender inequality, true autonomy for women may not be achievable. This is conceded as the influences of societal pressures on the individual in particular contexts should not be overstated. [121] However, the fact that this practice holds significance for women in certain cultures cannot simply be overlooked and chastised as internalised misogyny or lack of awareness. [122] For instance, Ahmadu ‘presents her own experience of [FGC] as empowerment’ and a means to balance her American identity with her Sierra Leonean roots. [123] She puts forth that ‘the will of the women concerned should be the crucial point of any normative perspective.’ This paper is inclined to accept this view as ultimately any change to such practices be it eradication or continuation solely depends on the communities within which the practice takes place. Suggestions have been made that the procedure should be made exclusively available to consenting adults, [124] as this would represent true bodily autonomy for women and constitute liberty which is a fundamental aspect of human rights. [125] As such, particular forms of FGC when conducted on informed and consenting adults who choose to undergo this practice ‘autonomously and uncoerced’ [126] can in fact be compatible with our standard of acceptable norms and women’s rights to ‘health, physical integrity, and individual autonomy.’ [127]

[1] Janne Mende, ‘Normative and Contextual Feminism. Lessons from the Debate Around Female Genital Mutilation’ [2018] (67) Gender forum 47, 1.

[2] Nnamuchi, Obiajulu, ‘"Circumcision" or "mutilation"? Voluntary or Forced Excision? Extricating the Ethical and Legal Issues in Female Genital Ritual’ (2012) 25(1) Journal of Law and Health 85 , 90-91.

[3] Lunde, Ingvild Bergom et al, ‘‘Why Did I Circumcise Him?’ Unexpected Comparisons to Male Circumcision in a Qualitative Study on Female Genital Cutting Among Kurdish–Norwegians’ (2020) 20(5) Ethnicities 1003, 1005-1006.

[4] Nnamuchi (n 2) 90-91.

[5] Mende (n 1) 2.

[6] Earp, Brian D, ‘Between Moral Relativism and Moral Hypocrisy: Reframing the Debate on “FGM”’ (2016) 26(2) Kennedy Institute of Ethics journal 105, 105–6.

[7] Oba, Abdulmumini A, ‘Female Circumcision as Female Genital Mutilation: Human Rights or Cultural Imperialism?’ (2008) 8(3) Global Jurist 8 , 21.

[8] Mende (n 1) 2.

[9] Oba (n 7) 20.

[10] Female genital mutilation (FGM), UNICEF , (Webpage, February 2020) https://data.unicef.org/topic/child-protection/female-genital-mutilation/

[11] UNFPA, Demographic Perspectives on Female Genital Mutilation (Report, 2015).

[12] Prevalence of female genital mutilation, WHO, (Webpage) https://www.who.int/teams/sexual-and-reproductive-health-and-research/areas-of-work/female-genital-mutilation/prevalence-of-female-genital-mutilation

[13] Gordon, John‐Stewart, ‘Reconciling Female Genital Circumcision with Universal Human Rights’ (2018) 18(3) Developing world bioethics 222, 222.

[14] World Health Organization, Department of Reproductive Health and Research, Eliminating female genital mutilation , 2008.

[15] Elimination of female genital mutilation, HRC Res 44/L.20, UN Doc A/HRC/44/L.20, (14 July 2020, adopted 16 July 2020).

[16] UN,’Goal 5: Achieve gender equality and empower all women and girls,’ Sustainable Development Goals , (Webpage) https://www.un.org/sustainabledevelopment/gender-equality/.

[17] Eliminating female genital mutilation (n 14).

[18] Elimination of female genital mutilation (n 15).

[19] Earp (n 6) 106.

[20] Ibid 107.

[24] World Health Organisation, ‘Female genital mutilation,’ (Webpage, 3 February 2020), https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[26] Earp (n 6) 198.

[27] Oba (n 7) 4.

[28] Earp (n 6) 198.

[29] Oba (n 7) 21.

[30] Female genital mutilation (n 24)

[31] Earp (n 6) 111.

[32] Mende (n 1) 7-8.

[33] Earp (n 6) 112.

[34] Mende (n 1) 7.

[35] Earp (n 6) 112.

[36] Mende (n 1) 7.

[37] Earp (n 6) 120.

[38] Oba (n 7) 5-6.

[39] Convention on the Elimination of Discrimination Against Women (‘CEDAW’) , opened for signature: 1 March 1980, 11 UNTS 1249 , (entered into force 3 September 1981), art 2.

[40] Ibid art 5.

[41] Nnamuchi (n 2) 112.

[42] Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (‘Maputo Protocol’) , opened for signature: 11 July 2003, OAU/AU Treaties, Conventions, Protocols & Charters, (entered into force 25 November 2005), art 5.

[43] Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’) , opened for signature: 11 May 2011, 11 CETS 210, (entered into force 1 August 2014), art 38.

[44] Convention on the Rights of the Child (‘CRC’) , opened for signature: 20 November 1989, 1577 UNTS 3 , (entered into force 2 September 1990), art 24(3).

[45] Ibid art 19(1).

[46] Khosla, Rajat et al, ‘Gender Equality and Human Rights Approaches to Female Genital Mutilation: a Review of International Human Rights Norms and Standards’ (2017) 14(1) Reproductive health 59, 3.

[47] The African Charter on the Rights and Welfare of the Child (‘Children's Charter’) , opened for signature: 1990, OAU/AU Treaties, Conventions, Protocols & Charters, (entered into force 1999), art 1(3).

[48] Nnamuchi (n 2) 113.

[49] Ibid 87–8.

[50] Oba (n 7) 12.

[51] Female genital mutilation (n 24)

[52] Muteshi (n 55) 2.

[54] Earp (n 6) 122.

[55] Ibid 128–9.

[56] Ibid 127.

[57] Ibid 127–8.

[58] Ibid 128–9.

[59] Oba (n 7) 12–13.

[60] Ibid 9.

[61] Earp (n 6) 128–9.

[62] Oba (n 7) 9–10.

[63] Ibid 11.

[64] Nnamuchi (n 2) 94.

[65] Earp (n 6) 117.

[66] Oba (n 7) 10.

[67] Earp (n 6) 117.

[68] Muteshi (n 55) 2.

[69] Oba (n 7) 11.

[70] Mende (n 1) 8.

[71] Clarke, Elinor and Richens, Yana, ‘Female Genital Mutilation: An ‘old’ Problem with No Place in a Modern World’ (2016) 95(10) Acta obstetricia et gynecologica Scandinavica 1193, 1193.

[72] Earp (n 6) 123.

[73] Leye, Els et al, ‘Debating Medicalization of Female Genital Mutilation/Cutting (FGM/C): Learning from (policy) Experiences Across Countries’ (2019) 16(1) Reproductive health 158, 4-5.

[74] Mende (n 1) 9.

[75] Oba (n 7) 19.

[76] Earp (n 6) 123.

[77] Oba (n 7) 19.

[78] Ibid 19-20.

[79] Moschovis, Peter P, ‘When Cultures Are Wrong’ (2002) 288(9) JAMA : the journal of the American Medical Association 1131,

[80] Leye (n 76) 4.

[81] Oba (n 7) 19–20.

[82] Ibid 26–7.

[83] Utz-Billing, I and Kentenich, H, ‘Female Genital Mutilation: An Injury, Physical and Mental Harm’ (2008) 29(4) Journal of psychosomatic obstetrics and gynaecology 225, 228.

[84] Leye (n 76) 3.

[85] Oba (n 7) 25.

[87] Nnamuchi (n 2) 116.

[89] Oba (n 7) 28-29.

[90] Earp (n 6) 121-122.

[91] Earp (n 6) 121.

[93] Oba (n 7) 30.

[94] Earp (n 6) 129.

[95] Oba (n 7) 29-30.

[96] Earp (n 6) 124.

[97] Oba (n 7) 33.

[98] Earp (n 6) 198.

[99] Lunde (n 3) 1004.

[100] Robert Darby and J. Steven Svoboda, ‘A Rose by Any Other Name? Rethinking the Similarities and Differences between Male and Female Genital Cutting’ (2007) 21(3) Medical anthropology quarterly 301, 306.

[101] Earp (n 6) 114.

[102] Nnamuchi (n 2) 95.

[103] Lunde (n 3) 1006.

[104] Ibid 1005.

[105] Earp (n 6) 141.

[106] Ibid 142.

[107] Ibid 112.

[108] Darby (n 101) 313.

[109] Ibid 315.

[110] Nnamuchi (n 2) 96.

[111] Oba (n 7) 2.

[112] Earp (n 6) 118.

[113] Ibid 119.

[114] Mende (n 1) 5.

[115] Earp (n 6) 201.

[116] Oba (n 7) 34.

[117] Mende (n 1) 3.

[118] Nnamuchi (n 2) 95.

[119] Ibid 95–6.

[120] Gordon (n 13) 229.

[121] Nnamuchi (n 2) 106–7.

[122] Earp (n 6) 111.

[123] Mende (n 1) 4.

[124] Nnamuchi (n 2) 103.

[125] Ibid 106–7.

[126] Gordon (n 13) 228.

[127] Ibid 223.

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The Complexity of Female Circumcision: Your Thoughts

Many readers were jarred by an Atlantic interview with an anthropologist who tackled a controversial question: What if some women choose to get cut — and even celebrate it?

One of the most provocative pieces on The Atlantic recently came from Olga Khazan, who interviewed anthropologist Bettina Shell-Duncan on the persistent problem of female circumcision in many parts of Africa and the Middle East, despite decades of campaigns led by the United Nations and others. Thousands of you commented via Disqus, Facebook, Twitter, email, and yelling through your screen—"FGM apologist!"—but I tried to compile the most productive points, seen below.

Parsing a reader debate on the best way to end female circumcision—no one is arguing for the practice—is difficult because people are often talking past each other. That difficultly is due to the vast diversity of the 125 million individuals who have gone under the knife; each case is different. Is she an adult, a teenager, or clearly a child? Does she live in a country where the ritual is widespread or a Western nation where it defies all norms? Does she undergo "nicking," excision, infibulation—in which the labia are stitched together—or something in between? Is she forcibly held down, or does she join willingly, even joyfully in some cases?

One such case was described in Olga's interview with Shell-Duncan, who witnessed the ritual cutting of a Rendille woman at her wedding in northern Kenya: "The bride came out [afterwards] and joined the dancing." Olga, though horrified by the practice, emerged from the interview with a more nuanced understanding of how it's performed in various places:

In fact, elderly women [as opposed to men] often do the most to perpetuate the custom. I thought African girls were held down and butchered against their will, but some of them voluntarily and joyfully partake in the ritual. I thought communities would surely abandon the practice once they learned of its negative health consequences. And yet, in Shell-Duncan's experience, most people who practice FGC recognize its costs—they just think the benefits outweigh them.

Here's Shell-Duncan in her own words, prodding people to consider a woman's choice when it comes to circumcision:

The sort of feminist argument about this is that it’s about the control of women but also of their sexuality and sexual pleasure. But when you talk to people on the ground, you also hear people talking about the idea that it’s women’s business. As in, it’s for women to decide this. If we look at the data across Africa, the support for the practice is stronger among women than among men. So, the patriarchy argument is just not a simple one.

Many upset commenters, including Rosemary Fryth , found the interview rife with "cultural relativism":

We are told that in a multicultural country all cultures have equal value—and thus, all cultural practices as well. Well, it is clear that not all cultures are equal, and pretending that they are allows this sort of inhumane cultural practice to thrive.

Guishe Garra agrees:

The article almost acknowledges female genital mutilation as an OK practice given "their culture." This is a great example of a "liberal" publication flirting with extremely illiberal values in the name of misunderstood "diversity and minority's cultures." If we can't emphatically argue that humanistic values and liberal values are clearly better, we are doomed.

Though to be clear, Shell-Duncan is working with the Population Council to reduce female circumcision "by at least 30 percent across 10 countries over five years"—hardly the goal of someone who "almost acknowledges [FGM] as an OK practice." Arwen McCaffrey puts it well:

The researcher is clearly not in support of the practice. The point of the article isn't to lessen the horror of FGM but rather to contextualize it. Societal pressure to belong is incredibly powerful. This is true in Western cultures as well. Shell-Duncan is remarking how she learned about the many sociocultural factors influencing the practice and that there is no one easy way to end it.

So the core debate should be: What's the most pragmatic, effective way to end the practice? That's difficult to say, since legal prohibitions and health messaging have yielded mixed results so far. One controversial idea from Shell-Duncan is to call it "cutting" rather than "mutilation"—the term officially used by the World Health Organization. But "mutilation," she says, "sounds derogatory and can complicate conversations with those who practice FGC [female genital cutting]." Hilary Burrage isn't buying it:

The wish of leading African women themselves is clearly to refer to the practice as MUTILATION—formally, at least, per the 2005 Bamako Declaration . The United Nations has also recently agreed to refer to this harmful traditional practice only as FG*M*. Please let's hear NO MORE about "FGC." Children's lives and future health are more important than comforting —whether to practitioners or observers —euphemisms. Female genital "cutting" also plays very well to Westerners if they want to evade the cruel truth of how defenceless (undefended) children are being tortured because of "respect" for "tradition."

Maria Alisa , on the other hand, sees the logic of calling it "cutting":

The point of the name change is that if you go in as an outsider and tell people how horrible they are and they have to change a cultural practice, do you think that will work? No. They'll cling to it twice as hard. In our discussions with those cultures over the practice, we must do what works, not what makes us feel smug and self satisfied.

Ilona Geary elaborates on that view:

I n the West, we have the luxury of making decisions based on our own beliefs without our children or ourselves being ostracized or disenfranchised or having their future threatened. We enjoy a certain amount of autonomy that doesn't seem to be present in the people groups discussed here. But when you live in a collective, the traditions that signify a belonging and duty to the group become paramount. I appreciated the article's explanation of the social pressure, especially in a nomadic/small village setting, that drives these mothers and young women to make this decision. In their estimation, it is an important way to secure solidarity and a prosperous future for their child within the circumstances in which they live. I think the practice is definitely dangerous and doesn't have the actual benefits that the people group believe they do, but the only way to change hearts and minds is to continue a respectful dialogue and create OTHER opportunities within these communities. One can't march in with disgust, disdain, and legislation and think this will instantly vanish. Constant communication that provides a connection to a larger world view and more options will eventually turn the tide. Sooner rather than later I hope.

Perhaps "mutilation" and "cutting" are equally useful terms; it just depends on the audience. For anti-FGM activists who want to increase awareness and fundraising in the West, "mutilation" rhetoric is more effective. For anti-FGC anthropologists and health officials who confront the cultural divide on the ground, "cutting" is more effective. Here's how this reader frames the tension at play:

The feminist discourse runs up against the post-colonial one. At which point is it okay to dictate terms to native cultures?

Thop looks to history:

Wikipedia It is without doubt that in the cultures practicing human sacrifice, a significant number of young sacrificial victims (or should I be PC and say "celebrants") participated willingly, even joyfully. In colonial India, the Brits effectively ended—though not totally eradicated—the ancient practice of Sati, the burning alive of the widow on the dead husband's funeral pyre. They started with education and mild restrictions, but with little result. That was dropped for a more heavy-handed ban. But the Brits were all about respecting national customs : General Sir Charles James Napier, the Commander-in-Chief in India from 1859 to 1861 is often noted for a story involving Hindu priests complaining to him about the prohibition of sati by British authorities. "Be it so. This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs."

Another dividing line in the reader debate is the age of the females getting cut. How Liz Deutermann sees it:

I think if a woman wants to be circumcised it should be her choice. What's horrible is when a girl is forced into it.

And girls are clearly the ones suffering the most :

Most often, FGC happens before a girl reaches puberty. Sometimes, however, it is done just before marriage or during a woman’s first pregnancy. In Egypt, about 90 percent of girls are cut between 5 and 14 years old. However, in Yemen, more than 75 percent of girls are cut before they are 2 weeks old. The average age at which a girl undergoes FGC is decreasing in some countries (Burkina Faso, Côte d’Ivoire, Egypt, Kenya, and Mali). Researchers think it’s possible that the average age of FGC is getting lower so that it can be more easily hidden from authorities in countries where there may be laws against it.

Which would be a dark irony indeed. But what about adults who undergo FGC? Should it be "their body, their choice"? Sarah White thinks that's a fallacy:

It is not a choice if it is a cultural expectation and one faces ostracism (which means much more in tribal cultures) if one dares to deviate. This is not consent; it is acquiescence. Read Alice Walker's Possessing the Secret of Joy .

Walker also wrote a nonfiction book on FGM, Warrior Marks . Here's a gripping scene from her documentary of the same name:

Even when the participant is an adult, this reader suggests it's still brainwashing:

A lot of people are pointing out that this 16-year-old Rendille girl [witnessed by Shell-Duncan] apparently "chose" to get the procedure done, as if such a thing would have ever occurred to her without getting it drilled into her head since birth that this makes her worthy in the eyes of her community.

Shell-Duncan noted that the Rendille teen "was young by their standards. Mostly they’re 18, 19, 20, around that"—which raises the difficult question of when exactly a minor becomes an adult. When I emailed Hilary Burrage, the aforementioned activist, she had a nuanced take on the consent question:

Regarding the "adults can choose" issue, yes, it is more complex. Some might say there’s a grey area between FGM and female genital "cosmetic" surgery (FGCS), but in reality (regardless of my views on FGCS), I don’t think there is a grey area.  FGCS does not remove physiological functions—everything from normal secretions and dampness to obstruction in childbirth—nor does it remove sexual feelings and sensations. FGM often does interfere with function to one degree or another. We have to be careful that those who claim they want FGM as adults don’t also get it done on minors. One example is this interview with an woman who grew up in the US but returned to Sierra Leone to undergo FGM—but submitted her eight-year-old sister to one as well.

Burrage was upset over Olga's piece:

It is a matter of serious regret (and hurt to survivors) that Melinda Gates commended the Shell-Duncan interview on Twitter: I disagree with the practice, but this article has great insight on understanding different cultures: http://t.co/NodZhzRDpF via @olgakhazan — Melinda Gates (@melindagates) April 15, 2015

The Gates Foundation has undertaken excellent work (e.g. maternal malaria), so the praise for Shell-Duncan's analysis contrasts very poorly with this positive contribution to women’s health. Ms Gates should be strongly encouraged to reconsider her position in the light of the evidence cited in my email and elsewhere. You will I’m sure be aware that the UK Royal Colleges (which also produced our national guidelines on issues around FGM) have produced a strong statement explaining why they found the article unacceptable; and I imagine you may have seen my own post written shortly before then.

I am sure The Atlantic (and, perhaps separately, Ms Gates) will wish as a matter of urgency to make it crystal clear that any position on FGM—a totally illegal practice unanimously condemned by the UN—which falls short of outright denunciation is, in one word, unacceptable.

Olga's response:

The problem here is that the communities where FGC/M occurs are all very different. There are many in which girls are coerced and even tortured. There are some, as Shell-Duncan describes, where the practice is seemingly celebrated. I've always been interested in why so many female elders support this practice. How do you go about ending FGM in those societies? Shell-Duncan's description of the girl who was proud to have the procedure done on her was certainly fascinating, but it was by no means descriptive of all women who undergo FGM. However, it does reflect a need for a different type of approach to ending FGM in these areas, and that's what Shell-Duncan provided. Also, I reject the notion that there are "acceptable" and "unacceptable" ideas, as Burrage describes, when it comes to attempting to end a problem as entrenched as FGM. Shell-Duncan was offering one potential solution for a certain type of community; surely there are other solutions that are more applicable to other situations. We all have the same goal in the end.

Our final reader is Soraya Miré, a Somali woman who penned a memoir about her own experience with FGM, The Girl With Three Legs. Here's Soraya 's response from the comments section:

The article failed to understand why our mothers and grandmothers put our bodies through the mutilating ritual and watch us become nothing more than the pleasurable commodity of men. What happened to these women? What about their deep wound, private pain? Didn’t they become wives and mothers, knowing the unthinkable pain? Why then continue the circle of pain? I didn't own a clean razor but felt the prick of the sharp needle as rough hands plucked at my lips like a giraffe feasting on thorny branches. The doctor who was performing my mutilation turned to my mother and said,"Would you like to look at it?" She did and said, "Perfect. Just perfect!" That high praise was meant for my future husband who would find me desirable. I said this many times, that ending the abuse of girls and women is seen as a threat to manhood and a man’s psyche. The article failed to understand the one holding the social and cultural identity mirror. What is the purpose of holding this mirror? And when a young girl looks into that mirror finds a message that reads, “You were born into a female body which automatically labeled you a defected human being in need of reconstruction.” I would love to speak to Bettina Shell-Duncan and offer her education about the cultural mindset of society that views women like chicken without heads. Those of us who survived the horror of Female Genital Mutilation are left with an option to either go along with the cultural torture and abuse or detach ourselves from our roots, our culture and even our family. Reading this article brought back the nightmares about needles biting into my skin and envisioning myself landing on the field of thorns, cut glass, and bloody scissors.

Another Somali-born woman who suffered from FGM, Ayaan Hirsi Ali, touched on the issue in yesterday's Atlantic piece on honor killings in the U.S.:

In the United States, more than half a million women are estimated either to have undergone female genital mutilation (FGM) or to be at risk of it. This number marks a sharp rise in the prevalence of FGM in the U.S. compared to just over just a decade ago. The reason for the increase, according to the Population Reference Bureau, is the rise in the number of immigrants from countries where FGM is common. Those trends show no [sign] of abating.

That trend was the subject of an Atlantic Monthly cover story back in October 1995, "Female Circumcision Comes to America," just at Congress was finally passing a law against FGM. Linda Burstyn's essay opens with an Ethiopian immigrant mother, Genat, frightened that her own mother will circumcise Genat's newborn girl:

"Mother says she will do it anyway, herself—when I'm out of the house—if I don't agree to get it done soon," Genat confides to the woman she hopes will help her. "She says she will take a razor blade and do it." [FGM activist Mimi] Ramsey nods. She has heard this story many times before, and responds by reciting a long list of reasons why the older woman must be stopped, trying to give Genat the courage to buck tradition and disobey her mother. "You cannot let her do this to your child. Please. It is wrong. You know how painful it is. How damaging. Your daughter may hate you for life for what you allow to happen to her." Genat shakes her head. She doesn't want her baby girl, just born in this country, to be circumcised, as is customary in her native land, but her mother is adamant. "She believes in it so strongly," Genat says. "She said if I don't do these things, the girl will grow up horny. She'll be like American girls."

Readers at the time reacted to Burstyn's piece here .  Thanks to all the readers this month who commented on the Shell-Duncan interview. We're thinking of posting a similar follow-up on the male circumcision vs FGM debate that also raged in the comments section . If you'd like to offer your take on the subject, email [email protected] and you'll have a much better chance of seeing it posted.

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Female Genital Mutilation: Cultural Relativism and Moral Absolutism

No. 43: Saturday, May 18th, 1996

The recent discussion on the  GAlist  initiated by  Yue-hong Zhang  concerning  Fauziya Kasinga , a young Togolese woman who came to the US illegally to avoid  FGM  ( female genital mutilation  or “female circumcision”) suggests that  GA  can be of use to professionals of  anthropos  as well as those of  humanitas .

This case holds a double-edged lesson for those who think about the human, that is, for all of us. By revealing the limits of  victimary thinking , it lends plausibility to a  generative  model of the relationship of morality to cultural otherness.

There have been two reactions to the practice of  FGM . Sensitized by feminism to the unequal treatment of women, we condemn it as barbarous and inhuman. But there lurks in the Western mind, particularly in that of the ethnologist who has devoted years to tribal cultures, a guilty feeling that even with the best intentions and the clearest justification, the imposition of Western standards on these cultures is imperialistic and destructive.

What then is the relevance of the second reaction–articulated on our list by  Kieran Shanahan –that warns us to beware of condemning even the apparently barbarous customs of other societies lest we destroy these societies altogether? This is indeed a valuable attitude–but one that should be applied to societies we identify with as well as those we see as our victims, to the winners as well as the losers in the contests of history. No society fully incarnates the originary model of moral reciprocity, and no society ever will. The greatest civilizations engaged in practices we find repugnant:  slavery ,  human sacrifice , not to speak of those specifically directed at women such as  foot-binding  in China,  suttee  in India… But cultural relativism, rightly understood, obliges us to view all these practices in their socio-historical context. In order to progress to a time when slavery would be abolished and women would be given the vote and an equal chance in the job market, world civilization had to pass through certain stages.

Economics explains these stages in terms of the extraction and preservation of a surplus. Originary ethics explains them more profoundly in terms of mimetic relations. Practices like female circumcision that inscribe social restrictions on a woman’s body have a biological basis in woman’s reproductive capacity, but only insofar as it enters into the context of social interaction. Bodily mutilation, as Ms. Shanahan points out, occurs in both sexes for different cultural reasons; men are symbolically liberated from the material limits of their bodies, women confined within these limits. But however much women’s bodies may be treated as objects, their minds remain gifted with the universal human capacity to participate in their own cultural dialogue. That it is women who generally initiate the practice of female circumcision for their younger relatives demonstrates their espousal of the norms of their society. If we feel obliged to respect their right to this espousal, we should be willing to show the same respect for the members of earlier phases of our own society.

Cultural relativism  is a  structuralist  move, a form of  bracketing  that allows us to understand cultures as totalities by mentally cutting them off from moral dialogue with ourselves. It should not become a pretext for the abdication of moral responsibility in cases where dialogue is necessary, nor a means of defending historical losers against winners regardless of their relative merits.

An extreme example of cultural relativism misapplied is the contrast between our good will toward the  Aztecs  and our condemnatory attitude toward the Spanish conquistadors.   Montezuma  is a tragic hero,  Cortez  a bloodthirsty scoundrel. From an authentically cultural-relativistic viewpoint, it is no doubt useful to understand why the Aztecs carried out human sacrifice on so vast a scale.   Martin Harris  explains that in the absence of large edible animals in Central America, the value of humans as concentrated sources of protein became an important social fact:  noblesse oblige  required the socially important to offer tasty morsels to their clientele.

We need not approve human sacrifice to understand its structural utility. But we must take another step. Once we have understood why the Aztecs “needed” to sacrifice  10,000 human beings per year , we should bite the bullet and agree that, whatever the defects of Cortez’s brand of Christianity, it represented a  higher level of morality  than the society he defeated–something he could only have done with the collaboration of the Aztecs’ neighbors, who had good reason to forgo ethnic solidarity with their butchers.

The moral and the ethical attitudes can never be altogether reconciled, but they may be usefully  articulated . Insofar as we wish to understand societies in themselves as functioning entities, we must consider their sacrificial practices as factors of stability. At the same time, that both we and the members of these societies share the same fundamental moral model is demonstrated by the fact that over time, these practices are increasingly abandoned as morally repugnant–which is why we consider the  Nazis  worse than the  Aztecs , and  slavery  worse in 19th-century  America  than in ancient  Athens . Over the long haul, there is indeed morality in history; in the short term, the moral must make its peace with the ethical order. For we recall that the originary source of our moral intuition, the scene of the reciprocal exchange of language that defines us as human, was in the first place a means to prevent us–and by “us” I mean especially males–from  killing each other . The sublimity of our moral ideals and the worst horrors of our ethical organizations are bound together by this common origin.

To the extent that we are not merely students of society but participants in it, we cannot deny the validity of our moral intuition. Once Kasinga’s case places us in dialogue with societies that practice FGM, we cannot shy away from judging those societies by the moral standards we apply to our own–not without noting the irony of a young woman fleeing genital mutilation to a country where young people of both sexes pay good money to have holes pierced and pieces of metal inserted into these same organs. (See  Chronicle VII .)

My proposal is to replace victimary thinking not by Western triumphalism, but by an understanding of the common originary source of all our moral intuitions. The case of Fauziya Kasinga, a harbinger of more to come, suggests that this faith will increasingly be a prerequisite for constructive engagement in the intercultural and interpersonal dialogues of our era.

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1. introduction, 2. precedent, 3. culture/religion, 4. health/medicine, 5. better reasons, 6. conclusions.

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Why Family Law Treats Female Genital Mutilation and Circumcision Differently: An Explanation

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Nick Brown, Why Family Law Treats Female Genital Mutilation and Circumcision Differently: An Explanation, Oxford Journal of Law and Religion , Volume 12, Issue 1, February 2023, Pages 96–120, https://doi.org/10.1093/ojlr/rwad012

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Family law in England and Wales draws a fundamental and categoric distinction between female genital mutilation (FGM) and male circumcision (circumcision). The former is a criminal abuse of human rights which, for the purposes of section 31 of the Children Act 1989, can never fall within the ambit of reasonable parenting. The latter is, in principle, reasonable and is therefore not in itself a basis upon which the state can seek to intervene in family life. 1 It will be argued that the reasons given for this distinction in the authorities to date (reasons based on precedent, culture/religion and health/medical issues) are problematic and are not ultimately capable of explaining the distinction satisfactorily. Nevertheless, it will be further argued that a distinction can be properly justified but only when we consider some core underlying features of family law in our contemporary democratic society and that it is only with those features in mind that the different treatment can be explained and viewed as acceptable.

On 14 January 2015, Sir James Munby P handed down judgment in the leading case of Re B (Children) (Care Proceedings) . 2 The case focused on an allegation, pursued by a local authority within care proceedings, 3 that two Muslim parents had subjected their daughter to a form of female genital mutilation (FGM). Having heard expert evidence (of extremely varying quality), the court concluded that it could not make the key finding sought. Nevertheless, ‘given its obvious importance’, 4 Sir James Munby P went on to consider the groundbreaking point—on which he had heard the argument—as to whether FGM amounts to ‘significant harm’ for the purposes of section 31 of the Children Act 1989—the threshold/core statutory provision permitting the removal of children from their parents’ care. The answer to that enquiry was that ‘any form of FGM’ constitutes such harm 5 and that, again for the purposes of section 31 of the Children Act 1989, ‘it can never be reasonable parenting to inflict any form of FGM on a child.’ 6

I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with s31 of the Children Act 1989; male circumcision without more will not. 8

It will be argued, that whilst the fundamental conclusion that there is a distinction to be drawn between FGM and circumcision is sustainable, the reasons given for that distinction within Re B and the authorities upon which it relies are problematic. In broad terms, those reasons are as follows: first, precedent-based arguments support the contention that there is a distinction to be drawn; secondly, issues pertaining to culture/religion allow for different treatment; and thirdly, health/medical-based arguments allow for different treatment. Sections 2–4 will address each of these areas in turn with an investigation as to whether such reasons can satisfactorily ground the distinction that family law maintains between FGM and circumcision—with the conclusion being, in each case, that they cannot. Section 5 will then endeavour to set out better reasons for understanding the different treatment and will point to the conclusion that, ultimately, it can be explained only by understanding some core underlying features of family law itself with a particular focus on what it can/cannot achieve—a point which, it will be contended, is linked to societal priorities which are at large beyond the sphere of family law but which nonetheless provide family law with its particular approach to FGM and circumcision.

In terms of contribution to the field, whilst the literature includes examples of challenges to the different treatment of the practices, 9 it is suggested that there is a lack of sustained and detailed consideration of the reasons given for that difference in the specific context of family law and religion— with there being a particular absence of focus on the nature of family law and what that may tell us about the appropriateness or otherwise of the distinction drawn between the practices.

For the contention that there is ‘no equivalence’ between FGM and circumcision, Re B places reliance upon two asylum cases— K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department and SS (Malaysia) v Secretary of State for the Home Department 10 —and this reliance ought to be regarded as problematic.

It cannot be compared to other cultural or religious practices, such as female genital mutilation, which involve a far more serious violation of physical integrity of the body and an expression of subservience. 11

The authority for the above proposition is cited as Fornah and so SS (Malaysia) becomes vulnerable for the same reasons that will be explored in respect of that case itself. Further, Re B in fact clashes with SS (Malaysia) because it specifically negatives the analysis that FGM per se represents a greater invasion of bodily integrity than does circumcision with Re B going so far as to determine that some forms of FGM are ‘on any view much less invasive than male circumcision’ 12 —and with both FGM and circumcision constituting significant harm. 13 SS (Malaysia) and Re B are also at odds because the former describes FGM as a religious practice, whereas the latter asserts it is a practice that ‘has no basis in any religion.’ 14 So as Re B actually departs from SS (Malaysia) on these critical points it is hard to see how SS (Malaysia) can help ground the precedent-based argument that Re B deploys to justify the distinction drawn between FGM and circumcision.

(…) within the familiar definition of ‘refugee’ in article IA(2) of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (…) The only issue in each case is whether the appellant’s well-founded fear is of being persecuted ‘for reasons of … membership of a particular social group.’ 16

Because neither of the linked cases were about circumcision, Fornah references no detailed evidence, argument or analysis concerning the practice. Its direct/specific commentary on circumcision is contained within only three of the judgment’s 122 paragraphs 17 —two of those paragraphs restricting their observations on the topic to a single sentence. 18 What is said about circumcision does not go directly to the ‘only issue in each case’ (ie ‘membership of a particular social group’) and ought, therefore, to be regarded as dicta . 19 Whilst ‘there are obiter dicta and obiter dicta’ Fornah’ s dicta ought to be regarded as falling on the non-binding or non-persuasive ‘passing remark’ side of the equation as opposed to the potentially binding or persuasive ‘considered judgment on a point fully argued’ side—in particular, because the judgment discloses no ‘purifying ordeal of skilled argument’ on the question as to whether circumcision and FGM are comparable practices. 20

Further, Fornah contends for there being no comparison between FGM and circumcision 21 but without any consideration of what drawing a comparison entails. That is a gap given the abundance of authority for the proposition that, when drawing comparisons between X and Y, the attributes of them both which are said to ‘come into the frame’ are a matter of opinion, out-look and value judgment. 22 This consideration is absent within Fornah and so it goes on to exclude from the analysis points of obviously arguable comparison. So, there is a fundamental point of comparison between FGM and circumcision in that both involve the non-consensual removal of children’s genital parts for non-therapeutic reasons and, therefore, a fundamental interference with the right to bodily integrity. 23 Linked to that are the other essential points: both practices involve pain 24 and are irreversible. 25 Both practices are regarded (at least by some communities) as religious obligations 26 and are, in any event, customs intended to mark a life-stage transition and/or an initiation. 27 Both practices can be driven by mutually held expectations as between the sexes that go to marriageability, 28 beliefs in cleanliness, and perceived aesthetics. 29

Like male circumcision, the cutting of girls is an expression of certain deeply held beliefs about the body, human sexuality and individual and social identity (…) the themes the Western world abhors - removing part of the genitals to reduce sexual pleasure, carving children’s bodies to conform to certain social ideals, visiting pain on helpless children - are all fully present in the history of male circumcision. 30

Finally here, as Re B itself states both practices involve significant harm 31 —a highly notable point of comparison from a basic child welfare perspective and also simultaneously from a legal/procedural perspective as the proof of significant harm (or its likelihood) is one of the requirements to be met to establish jurisdiction for state intervention in family life under section 31 of the Children Act 1989.

Moving on, gaining an understanding of both FGM and circumcision is a task that requires the consideration of expert opinion—an essential point recognized in Fornah given the involvement of the expert in the case to assist on the background of FGM in Sierra Leone. However, the judgment does not disclose any detailed consideration of any expert opinion on circumcision. 32 Further, an expert in family proeedings must set out where there is a ‘range of opinion’ 33 and so in this context, a key difficulty with Fornah arises because the case-critical opinion that FGM evidences an inferiority of women in Sierra Leone is simply not an opinion universally held amongst experts within the field and yet there is nothing in Fornah that would let us know that. 34

Fornah’s ‘procedures’ analysis, with its focus on the circumstances in which FGM can be carried out, conflates procedures with their setting. 35 After all, FGM can be carried out hygienically with anaesthetic and circumcision can be carried out unhygienically without anaesthetic. 36 Further, as Re B observes FGM Type Ia, whilst ‘apparently very rare, is physiologically somewhat analogous to male circumcision.’ 37 That acceptance must also bring with it an acceptance that the procedures are comparable given that the purpose and function of the procedures is to change physiology.

That FGM can have severely harmful consequences is beyond argument 38 but circumcision too may have harmful, even fatal, consequences. 39 More fundamentally, it is not clear why the severity of harmful consequences is necessarily helpful when considering the question of reasonableness/acceptability. Repeatedly stabbing somebody in the face with a knife is a far more serious assault than punching somebody once in the face but it does not follow that the punch to the face is reasonable/acceptable conduct, less still that it is in the best interests of the victim. After all, even a de minimis assault is an assault. 40

It follows from the above that any contention that circumcision can or ought to be regarded as an acceptable practice simply because it is less harmful than FGM is a non sequitur and, consequently, unsustainable—as Steinfield says, ‘this isn’t a harm competition.’ 41 In any event, Re B negatives any suggestion that circumcision is a matter demanding little/no concern by concluding it amounts not only to harm but ‘significant harm’ 42 ie harm that is not ‘trivial or unimportant’ 43 but ‘considerable, noteworthy or important.’ 44 Indeed, on the issue of severity (and as already noted), Re B goes so far as to determine that some forms of FGM ‘are on any view much less invasive than male circumcision.’ 45

Finally, on the ‘procedures’ analysis, if circumcision results in a diminution in sexual pleasure due to the removal of sensitive tissue and/or significant negative psychological sequelae (as evidence in the field suggests 46 ) then it can equally be said of circumcision that, as with FGM, its ‘effects last a life time.’ 47 Further, Re B itself accepts that the ‘long-term consequences, whether physical, emotional or psychological’ of certain forms of FGM may be the same or less great than those associated with circumcision. 48

Nor can the context be compared with male circumcision. As the UNICEF Innocenti Digest, Changing a Harmful Social Convention: Female Genital Mutilation/Cutting (2005) observes: In the case of girls and women, the phenomenon is a manifestation of deep-rooted gender inequality that assigns them an inferior position in society and has profound physical and social consequences. This is not the case for male circumcision, which may help to prevent the transmission of HIV/AIDS. 49

The three contentions that (i) FGM is a ‘manifestation of deep-rooted gender inequality’, (ii) circumcision is not such a manifestation, and (iii) circumcision has been linked to HIV/AIDS prevention are not contentions that, without more, can be said to justify the argument that there is no comparison to be made. For all we have here are the identification of three purported facts that point to a difference but where there is difference there can still be substantial comparison/similarity. More specifically on this UNICEF citation (and as already touched upon) the assertion that FGM is a manifestation of inequality and inferiority finds extensive challenge in the literature as an oversimplification, including in relation to Sierra Leone—the very country under consideration in Fornah . 50 Further, as Möller argues ‘Patriarchal oppression may make an otherwise rights-violating act even worse, but it cannot ground its wrongness.’ 51 In other words, irrespective of the extent to which FGM is an outworking of patriarchal oppression it is a wholly unacceptable practice with any associated intention to subjugate on the grounds of sex/gender being an ‘aggravating factor’ 52 rather than the wrong itself.

Moving on within the UNICEF citation, as with FGM, so too does circumcision have ‘profound physical and social consequences.’ 53 Further, in jurisdictions such as our own where FGM is unlawful and circumcision lawful, circumcision itself becomes a manifestation of ‘deep-rooted gender inequality’ and itself becomes a form of—to borrow Fornah’ s own phrase—‘gender-specific violence.’ 54

On HIV/AIDS, it is of note that, rightly, the UNICEF material cited is in fact equivocal—circumcision ‘may’ help transmission prevention. 55 This is, therefore, not itself a wholly safe basis upon which family law can draw any firm conclusions about the reasonableness or otherwise of circumcision (as will be argued fully in Section 4).

Further again on the specifics of the UNICEF material, it contains a non-sequitur . The purported logic/reasoning of the second sentence (‘This is not the case for male circumcision (…)’) is that the HIV/AIDS point distinguishes circumcision from FGM which has been noted in the first sentence to have a number of characteristics; but the HIV/AIDS point cannot negative the contention that circumcision also shares (or can share) those aforementioned characteristics.

Finally here, it should be noted that the UNICEF material makes merely passing reference to the practice of circumcision touching upon the issue in just three of its introductory sentences in a document running to a total of 54 pages. It cannot be said to be a document that provides any substantive analysis as to the possible comparison of FGM and circumcision. It also falls foul of the analysis that only FGM can be regarded as a grave act which, as already touched upon, is an analysis specifically negatived by Re B. 56

Building on the themes of the UNICEF material, Fornah then introduces the link between FGM and the control of female sexuality 57 but here it must be recognized that circumcision has itself not been a practice untainted by endeavours to contain, constrain, oppress, and attach shame to the experience of sexual pleasure. 58

The contrast with male circumcision is obvious: where performed for ritualistic rather than health reasons, male circumcision may be seen as symbolising the dominance of the male. FGM may ensure a young woman’s acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority. 59

The analysis that circumcision concerns the dominance of the male over other males is problematic for two key reasons. First, it is another oversimplification of matters relating to sex, gender and power as evidenced, in particular, by the active support from/involvement of certain women within numerous circumcision traditions/contexts—Antonelli noting, by way of stark example, that ‘Jewish women have died rather than repudiate the practice.’ 60 Secondly, even if there were no oversimplification here, how could this intra-sex domination contribute to the argument that circumcision should be regarded as categorically acceptable/reasonable? Surely any suggestion that the ‘dominance’ of A over B is acceptable/reasonable simply, or even in part, because A and B are both male is a suggestion that is inherently weak and ignores the point that patriarchy can harm boys/men and not just girls/women. 61 It also ignores the fact that Fornah itself rejects any suggestion, certainly in the context of persecution, that a harmful practice is somehow more tolerable if inflicted on an intra-sex basis. 62

Finally on the issue of patriarchy/gender inequality: when transposed into the family law analysis, the issue results in a loss of focus on the paramountcy principle/rights-based arguments. Let us, for a moment, take the patriarchy/gender inequality argument at its very highest. FGM is, in all circumstances, ‘an extreme and very cruel expression of male dominance.’ 63 Let us say that is not, in any way, an oversimplification but how does that actually help the family court determine whether it is reasonable/in accordance with the welfare paramountcy principle to allow for a boy to be circumcised? The argument is leading to another non-sequitur: conduct X is very cruel, in particular conduct X is, for the purposes of asylum law, a very cruel form of persecution; conduct Y is not; therefore conduct Y is reasonable—this notwithstanding the fact that conduct Y could, for the purposes of family law, be any number of unreasonable acts—anything from stubbing out a cigarette on a child’s arm, to making him eat dog food, or to breaking his back in a fit of anger: the examples are limitless. In short, whilst abhorrence of FGM is wholly justified, that abhorrence tells us nothing meaningful about why circumcision is regarded as reasonable.

In Re B another ‘important’ distinction between FGM and circumcision is as follows, ‘FGM has no basis in any religion; male circumcision is often performed for religious reasons.’ 64 This essential proposition is supplemented and contextualized by the observation that ‘large numbers of circumcisions are performed for reasons which (…) are as much to do with social, societal, cultural, customary or conventional reasons as with anything else (…)’ 65 and also by the observation that ‘The fact that it may be a “cultural” practice does not make FGM reasonable.’ 66 Within Re B , therefore, there appears to be a distinction drawn between religion and culture which is then accompanied by the following sub-distinctions: FGM is not religious but cultural (and in any event unreasonable) and circumcision is religious and cultural (and in any event reasonable). These interrelated contentions are problematic for five key reasons.

First, there are issues of definition. If it is to be said that there is a material distinction between culture and religion with purportedly different practices falling into one of these separate categories (or across categories) then consideration would have to be given to issues of definition—to where culture ends and religion starts (and vice versa). Yet Re B is silent on this and takes no account of the complexity of the following interrelated questions: what is ‘culture’, what is ‘religion’, and what is the relationship between ‘culture’ and ‘religion’, in particular in the context of FGM and circumcision? 67

Re B is further open to challenge here because, in overlooking definitional issues, it takes no account of the ‘trend of authority’ towards a more expansive understanding of what ‘religion’ is 68 —an approach that necessarily enhances the prospect of any particular practice being regarded by the law as religious. Moreover, even where we find workable definitions of ‘culture’, it is clear that it can be hard to extract the religious from the cultural 69 with the often-overlapping nature of culture and religion having also been identified in the specific context of FGM. 70

All this points to ‘culture’ as a very broad concept/phenomenon covering an extremely wide range of human activity/conduct some of which may be religious ie ‘religio-cultural activity/conduct’ and some of which may not be ie ‘cultural-only activity/conduct.’ To some extent, Re B’s analysis accounts for the subtleties of these dynamics because it recognizes that circumcision can be both religious and cultural but its analysis is silent on the possibility of similar subtleties being at large in respect of FGM—that being classified, in essence, as a ‘cultural-only’ practice with no consideration being given as to whether that classification may be incomplete/erroneous.

The second, and closely related key reason as to why the contention that FGM ‘has no basis in any religion’ is problematic, is that the assertion reads as a statement of concluded fact and one which is made in a context in which the court had apparently heard or been presented with no expert evidence and/or argument on the point. 71

Third, it is right that there is nothing in the Quran which specifically mandates the practice of FGM but that can equally be said of the Quran and circumcision—but with both practices being referred to in the hadith (reported sayings of the Prophet Muhammed). 72 Quranic silence alone, therefore, does not allow for any credible assertion that a particular practice is unIslamic; nor, because of the hadith , can it necessarily be said that there is no authoritative textual basis for FGM within Islam. For as Esposito and Delong-Bas note, there are hadith which have been understood by some (albeit controversially) to refer to and support FGM in consequence of which: ‘[Islamic] Law schools are divided on whether FGM/FGC is permitted, obligatory, forbidden, or to be left to parental discretion.’ 73

Accordingly, it is not necessary for a belief to be shared by others in order for it to be a religious belief, nor need a specific belief be a mandatory requirement of an established religion for it to qualify as a religious belief. A person could, for example, be part of the mainstream Christian religion but hold additional beliefs which are not widely shared by other Christians, or indeed shared at all by anyone. 74

Another aspect of the scriptural/textual issue is this: if the assertion that FGM ‘has no basis in any religion’ is underpinned by a purported lack of scriptural/textual mandate for FGM then the implication of that is that were there to be such a mandate then there would be a commonality with circumcision (mandated as it is in the Hebrew Bible 75 ) and further, because of that scriptural/textual mandate, there would be a capacity for FGM to be regarded as a reasonable/acceptable practice. However, a key difficulty here, for both practices , is that the law does not recognize any necessary connection between conduct being mandated (or arguably mandated) by scripture and its acceptability. For rightly the law recognizes that just because X is (or is arguably) mandated by scripture it cannot necessarily follow that X is reasonable. 76 Building on that point, it also has to be recognized that the law does not recognize any necessary connection between religion, reasonableness and a child’s best interests—which is to say that just because X is a religious practice cannot necessarily make it a practice that the law can recognize as acceptable. 77

The above analysis cuts to the core of the purported culture/religion distinction between FGM and circumcision for the following fundamental reason: if, ultimately, a religious practice can be properly deemed as unreasonable then it must follow that the religious quality of circumcision cannot, alone, be determinative of the categoric acceptability of the practice.

Fourth, the assertion that FGM ‘has no basis in any religion’ takes no account of the wealth of evidence that, for many people, FGM does have such a basis. That is clear even from material that was before the court in Re B itself—in the form of UNICEF’s Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change. 78 According to its foreword, the statistical overview ‘examines the largest ever number of nationally representative surveys from all 29 countries where FGM/C is concentrated, including 17 new surveys undertaken in the last three years.’ 79 It reports that in 4 out of 14 countries (namely Mali, Eritrea, Mauritania, and Guinea) more than 50 per cent of girls/women questioned regarded FGM as a religious requirement. In 2 of the same 14 countries (namely Mauritania and Egypt) more than 50 per cent of boys/men questioned regarded FGM similarly (with 49 per cent of girls/women questioned in Egypt regarding it as a religious requirement). 80 Whilst in other countries the percentages were not as high, they were plainly of statistical relevance pointing to the notable existence of a belief in those countries that FGM is a religious requirement.

there is an important distinction between arguing that a particular Islamic community is incompatible with international human rights or the fundamental ideology of the United Kingdom State, and arguing that it is unIslamic. 82

Now had the Court in Re B engaged with the fact of the widespread belief evidenced by UNICEF what would the outcome have been? The court would either have had to reach a different conclusion ie determine that, in fact, FGM does have a basis in religion thereby allowing for one of its ‘important distinctions’ 83 between FGM and circumcision to fall away; or, it would have held fast in its determination. However, in light of the fact of the widespread belief could the court have actually maintained its determination that FGM ‘has no basis in any religion’? To do so would be to conclude, essentially, that those who regard FGM as a religious requirement are wrong . That, it is argued, would be a determination which the court simply could not have made. For in doing so, it would have been impermissibly adjudicating upon the content and validity of a belief and compromising the principle of state neutrality. 84

Fifth, the assertion that FGM ‘has no basis in any religion’ is one that, without any explanation, simply assumes that FGM can be ‘de-linked’ from religion. Whilst it is arguable that there can be such a de-linking, 85 we have here only the statement of a conclusion with no preceding analysis—thereby leaving the conclusion vulnerable. Further, in respect of the attempt to distinguish FGM from circumcision, no detailed reference is made to the arguments that circumcision can be also de-linked from religion. 86 The key point here then is this: if both practices can be so de-linked then plainly another important purported distinction between them breaks down.

Re B notes that ‘comparatively few male circumcisions are performed for therapeutic reasons’ 87 but that ‘the justifications’ sometimes advanced for male circumcision are that it is ‘hygienic or has prophylactic benefits, for example, the belief that it reduces the incidence of penile cancer in the male, the incidence of cervical cancer in female partners and the incidence of HIV transmission.’ 88 Latterly, these observations ground one of the ‘at least two important distinctions’ between FGM and circumcision namely, ‘FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.’ 89

Re B is correct in its necessarily pithy summation of the health/medical evidence in relation to FGM and circumcision, but does that make it right to posit the health/medical argument, for the specific purposes of family law, as one of the ‘important distinctions’ between FGM and circumcision?

First, whilst Re B correctly observes that ‘opinions are divided’ 90 on circumcision, there is a clear preponderance of high-level professional opinion that points away from the conclusion that circumcision is generally beneficial. The British Medical Association, the Danish Medical Association, the Royal Dutch Medical Association, the Canadian Paediatric Society, and the Royal Australasian College of Physicians have all concluded that the purported benefits of circumcision do not outweigh its associated risks/justify the intervention in the vast majority of cases 91 —a point, in respect of the BMA, which underpins the essential fact of there being no policy of routine neonatal circumcision in the UK. The obvious outlier, taking the contrary view, has been the American Academy of Pediatrics but even here there has been internal inconsistency in the analysis—‘the health benefits of newborn male circumcision outweigh the risks and justify access to this procedure for families who choose it’ and yet, as the BMA notes, 92 there is no recommendation made by the AAP for routine circumcision on health grounds. Indeed, according to the AAP, ‘Parents should weigh the health benefits and risks in light of their own religious, cultural and personal preferences, as the medical benefits alone may not outweigh these other considerations for individual families.’ 93 So even for the AAP it is clear that, ultimately, the decisive factor in favour of circumcision may well be religious/cultural rather than health/medical-related. It is also of note that the AAP’s risk/benefit analysis has been ‘heavily criticised.’ 94

Following on from the above, Re B’s observations as to the purported health benefits of circumcision are weakened by the fact that no detailed consideration is given to the potential disadvantages/risks associated with the procedure—which can be numerous, grave and even fatal. 95 Further, should it be said that that the rarity of significant complications is such that circumcision can remain categorically reasonable, it must be remembered that family law’s general approach to risk and medical certainty/uncertainty shows us (in a manifestation of ‘the precautionary principle’) that even where there is apparent medical certainty (let alone uncertainty) and even where the risk of serious harm is low, courts are ever mindful of the possibility of error and pitfall. 96

As to those conditions where circumcision may be an appropriate intervention, the medical literature points to those conditions being uncommon if not positively rare, especially in young children. It also points to circumcision being an intervention appropriate for consideration only when other, less invasive treatments, have been unsuccessful. 97

In respect of purported prophylactic benefits, Re B cites three specific examples: the reduction in the incidence of penile cancer, cervical cancer, and HIV transmission 98 but what is plain here is this: even according to the AAP, the obvious peer national medical organization with the most sympathetic view of circumcision, a boy is unlikely to get penile cancer 99 and his circumcision is unlikely to have an appreciable impact on the incidence of cervical cancer. 100 As to HIV prevention, it is right that there is evidence pointing to circumcision having reduced transmission in certain areas of Africa. 101 It is hard to see, however, why that fact might make the procedure a necessary response to the welfare needs of a boy born in a country where, once of a sexually active age, he will have other less invasive options for practising safe sex readily available to him and according to his own informed choice—the British Association of Urological Surgeons noting that even the World Health Organization (which has taken a lead on reporting the case for circumcision to combat HIV transmission) ‘does not recommend routine circumcision in developed nations (…).’ 102

So, at this point in the analysis, it would seem very difficult to conceive of circumstances in which the family court could actually allow for the circumcision of a boy for any of the above prophylactic reasons from which it must follow that reference to penile cancer, cervical cancer, and HIV transmission cannot feed into a sound justification for family law’s categorically different treatment of FGM and circumcision.

Reliance upon prophylactic possibilities as a reason to justify circumcision also brings with it the issue of third-party interests—ie the interests of those who might, in future, come into contact with the boy whose circumcision might be contemplated; but an analysis of how third-party interests are addressed in family law shows that they could not be regarded as determinative. First, there is the paramountcy principle within section 1 of the Children Act 1989 which makes it plain that it is ‘the child’s welfare’ which shall be the court’s ‘paramount consideration’—ie the child who is the subject of the given application before court and not others who here might be the future sexual partners of the subject child. 103 Further, it seems reasonable to assume that much, if not all, of the sexual activity in question would, in due course, be taking place between adults but under section 1 the court is concerned primarily with determining questions pertaining to ‘the upbringing of a child’ not questions pertaining to that child’s future adult life. 104

This analysis is supported by the law concerning incapacitous adults and whether they can be subject to medical intervention for the benefit of others—it having been stated in Re A (Male Sterilisation) that ‘Social reasons for carrying out of non-therapeutic invasive surgery is not part of the present state of the law.’ 105 It is also supported by the law on vaccination—there being an obvious third-party benefit from such an intervention. In Re H (A Child) (Parental Responsibility: Vaccination) it was noted both at first instance and on appeal that vaccinating children is for ‘the public good’ 106 and ‘society more generally.’ 107 However, in both these passages and the first instance and appeal judgments taken as a whole, it is clear that the wider third-party interest of vaccination is a supplementary or a tangential ‘bolt-on’ point to the primary issue, namely whether standard childhood vaccinations are for the benefit of the subject child in question and there is no suggestion that it is the third-party benefit that makes it in the welfare interests of such a child to receive those vaccinations. 108

It also has to be noted that any proposition that circumcision might be reasonable in order to protect a boy’s future sexual partner ultimately brings into the frame the question as to whether and, if so, in what circumstances it could be right for A to ask/permit B to harm C for the benefit of D—where, in these circumstances, A is the parent/judge, B the circumciser, C the boy being circumcised and D the person who might be at risk of cancer/HIV. That question, in turn, brings to the fore the related concepts of self-defence and necessity, in particular in so far as they may be at large when health/medical intervention is being considered.

The leading authority here remains Re A (Children) (Conjoined Twins: Surgical Intervention) 109 where the Court of Appeal considered whether the conjoined twins of devout Roman Catholics (Jodie and Mary who were held to be separate persons) could be lawfully separated in circumstances where, in any event, Mary would die and Jodie could only live were that separation to take place. The appeal ‘ranged quite widely over many aspects of the interaction between the relevant principles of medical law, family law, criminal law and fundamental human rights’ 110 and, exceptionally, saw the provision of written submissions from the Archbishop of Westminster. In dismissing the appeal and allowing for the separation, the court concluded that those involved in the procedure would be able to avail themselves of the principles of self-defence and/or necessity thereby allowing for the lawfulness of Mary’s death which would inevitably flow from the separation.

The circumcision of a boy to benefit a future sexual partner would fail the tests both of quasi-self-defence and necessity as identified in Re A 111 and for comparable reasons. It would fail the former because the action of circumcision exceeds what is reasonably required for practising safe sex, with the BMA noting the obvious point that ‘some of the anticipated health benefits of male circumcision can be realised by other means—for example, condom use.’ 112 Further, and specifically in relation to reducing the incidence of cervical cancer, the circumcision of a boy to meet that aim plainly assumes that that boy will go on to have only, or mainly, female sexual partners. Were that not the assumption there would be no rationale behind the aim and the assumption is, of course, unjustifiable. Similarly, circumcision would fail the necessity test at its very first hurdle because it cannot be said that the circumcision of a boy is, in the language of Re A , ‘needed to avoid inevitable’ 113 incidence of cervical cancer in female partners or the incidence of HIV transmission—the medical literature being clear that such incidences are far from an inevitable consequence of a boy not being circumcised.

The other point of real note arising from the various related legal principles considered in Re A is the reminder/clarification as to just how significant the right to bodily integrity really is—it is part of the doctrine of the sanctity of life and the right to life. Further, in respect of Jodie, who could survive, that right to bodily integrity was held in the balance in favour of the operation. That much is perhaps unsurprising but more to the point—as evidence of the centrality of the right to bodily integrity—is the fact that that right was in respect of Mary also held in the balance in favour of the operation—ie one of the reasons why the operation was permitted was because it would allow Mary her right to bodily integrity even though that would bring about her swifter death. 114

The overall point here is not that what Re B says about the health/medical science is wrong. The point is, the science cannot, for the purposes of family law, help ground a generalized proposition that circumcision is categorically reasonable; it can merely ground the proposition that in some specific but rare circumstances it may be necessary; but in those circumstances, circumcision is no different to any other form of required medical intervention—it is simply something that is needed and in respect of which there is unlikely to be realistic argument. 115 It is further of note here that, pursuant to section 1(2) of the Female Genital Mutilation Act 2003, interventions which would otherwise amount to an offence do not trigger liability when ‘necessary’ for a girl’s ‘physical or mental health’ or if carried out in connection with labour. So, to this extent, circumcision and FGM (or certainly interventions that would otherwise amount to an offence) are the same—they can both, in limited circumstances, be regarded as necessary.

Linked to this, is the point that (of course) there is no generalized policy of removing the body parts of children that might, in the future, succumb to or spread disease. Noting that penile cancer is, essentially, a form of skin cancer, 116 Gollaher puts it like this, ‘A high percentage of skin cancers eventually develop on the nose (…); but this has not led physicians to recommend prophylactic rhinoplasties.’ 117

A. Wider context

The life of the law has not been one of logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even in the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. 119

The pragmatic approach to law was announced in the famous opening sentence of The Common Law (1881) (‘The life of the law has not been logic; it has been experience’) (…) Holmes rejected the then orthodox notion that judges could decide difficult cases by a process of or very similar to logical deduction from premises given by authoritative legal texts, or by unquestioned universal principles that inspire and subsume those texts (‘natural law’). He argued that judges in difficult cases made law with reference to the likely social and economic consequences of their decisions, and that their intuitions about those consequences, rather than the abstract moral principles and formal legal analysis deployed in conventional judicial opinions, drove legal change and had made the law what it had become. 120

With this theoretical background in mind, we turn to section 1 of the Children Act 1989 and the principle that a child’s welfare is the court’s ‘paramount consideration.’ Welfare is assessed not simply by reference to the statutory criteria of section 1(3) of the 1989 Act (the ‘welfare checklist’) but also with reference to a more fundamental understanding of what ‘welfare’ is and it is of particular note here that in the very same paragraph in Re B where Sir James Munby P cites Holmes, he also signposts us to a passage within one of his own earlier judgments addressing the interaction of family law and religion— Re G (Education: Religious Upbringing) 121 —a passage which sits within a wider discussion as to the meaning of ‘welfare.’ 122

In Re G , we see the court touching upon what are five interrelated limbs which are collectively vital for an understanding of what family law is and vital, therefore, for our identifying better reasons for family law’s different treatment of FGM and circumcision. These are as follows: (i) welfare is concerned with ‘general community standards’; (ii) family law must, within certain ‘limits’, tolerate parental autonomy; (iii) save for in exceptional circumstances, there is ‘no bright-line test’ when assessing welfare; (iv) family law is concerned with social change; and (v) by way of overall conclusion, in family law ‘context is everything.’

B. General community standards

According to Re G , ‘A child’s best interests have to be assessed by reference to general community standards (…).’ 123 With the introduction of this notion, comes the argument that what is deemed reasonable and in the best interests of a child is intimately connected to (albeit not coterminous with) what is and/or has been common, customary or conventional practice. 124 With this in mind, we can see an obvious distinction between FGM and circumcision—at least within this jurisdiction—which is this: unlike FGM, circumcision has been a practice widely familiar to this jurisdiction for centuries.

In considering this disjunct of old and new, it is instructive to consider the context in which it became possible to legislate against FGM, in particular, by looking at the passage of the Prohibition of Female Circumcision Act 1985—the predecessor to the Female Genital Mutilation Act 2003.

Writing in 1988, Sochart notes ‘It has only been in the last few years that the subject of female circumcision has begun to be discussed openly in Britain’ 125 and that ‘the first step (…) which would eventually set the issue of female circumcision firmly on the British political agenda’ was Lord Kennet’s tabling of Parliamentary Questions for Written Answer in—and this is the critical point—1982. 126 This date goes to the crux of the matter—when Parliament (rightly) criminalized FGM (‘female circumcision’ as it was then known) it was tackling what it perceived to be a largely new issue in the UK— a new phenomenon.

While people have been coming from overseas to settle in England since time immemorial, the level of immigration from former British colonies and the New Commonwealth since 1945 has created many distinct ethnic minority communities (…) many of their customs (…) are the product of traditions and value systems in countries and communities whose economic and social structures are vastly different from those of modern Britain. The role of women and their legal status furnish just one very clear example of what may be broadly portrayed as a ‘clash of cultures’ when people from traditional rural societies in Africa or Asia settle and work in English towns and cities. 127

The mutilation and impairment of young girls and women have no part in our way of life . 128

When the British public realised that young girls, adolescents and women were being mutilated and impaired because of the practice of female circumcision being undertaken in Britain there was an upsurge of revulsion and horror among many people. It must be clearly spelt out that there is no place in our society for this custom and that it is no part of our way of life (…) I hope the message will be put over to all the groups concerned that in Britain women cannot be mutilated in this way; it is just not done (…) this is not part of our British culture. 129

What is plain from the above, is that the arguments that allowed for the criminalization of FGM in 1985 were not arguments predicated simply upon health or rights-based issues—they were arguments predicated on FGM being seen as new, unknown, foreign, and ‘un-British.’ What we have with circumcision is very different—circumcision has, for a number of reasons, been a known and accepted community standard in this jurisdiction for a long time . Going back to Poulter, by 1985 there were in excess of 300,000 members of the Jewish community in Britain and over a million Muslims—communities for whom the circumcision of boys was and is entirely mainstream and expected. 130 Whilst Britain’s Muslim population has only become of particular numerical/cultural significance since 1945, 131 Jewish communities settled in England following the Norman Conquest—being expelled from the country under Edward I in 1290 132 and returning under Oliver Cromwell in 1655. 133 In 1667, the first reported case to make reference to circumcision acknowledged the centrality/value of the practice to the Jewish faith 134 and by the late 19th century there were Jewish MPs and, in the form of Benjamin Disraeli, a Prime Minister who according to Goodman maintained an ‘open pride in his Jewish background.’ 135

It must also be recognized here that there is no disconnect between Christianity and circumcision—on the contrary, its relationship with Judaism means that the circumcision tradition, whilst not regarded as a literal obligation, is one that is nevertheless acknowledged and respected as forming part of its own religio-cultural heritage. A particularly acute example of that point is the fact that the Book of Common Prayer (readily available on the Church of England’s website) includes—as it has done for centuries—text making direct reference to the circumcision and naming of Jesus—all to be read on 1st January ie on the eighth day after his birth with the established Church thereby referencing, respecting, and underpinning the Jewish tradition that circumcision and naming take place on that given/particular day. 136 Nor is there any religio-cultural disconnect between Christianity and Islamic circumcision—Islam, like Judaism and Christianity, ultimately being an Abrahamic tradition with circumcision, therefore, being a commonly respected thread within all three faiths. 137

Looking then to the relationship between religion and law—and very much including how that relationship affects children—it must be acknowledged that our legal decision-making has long since and inevitably been influenced by the UK-dominant, ie a white Judaeo-Christian, world view. So it is that Hale and others frankly note that ‘(…) for many of us the “norm” is actually our understanding of the ethnic European White model of families.’ 138

the relatively liberal approach taken by the Court and Commission to the definition of religion or belief is subtly undermined at the manifestation stage (…) Whilst minorities and individualistic believers are recognized as deserving of protection under the Convention, that protection has only extended to manifestations that are highly analogous to Christian beliefs (…) Both tests disproportionately affect minorities whose practices may be less familiar to the Court and who are likely to be subject to great social pressure from private actors such as employers to forgo their religious practices in order to better assimilate into the dominant culture. 140

Aside from issues of religion and looking now to purported health/medical reasoning, the circumcision of boys both in the USA and the UK had, by the first half of the 20th century, become a very common—effectively routine—procedure with Carpenter noting that ‘By 1940, about 40 percent of British boys and 60 per cent of US boys were circumcised as a preventative health measure.’ 141 Whilst, certainly in the UK, these figures have dropped significantly over the decades, 142 the high water mark of that 1940 figure shows that circumcision was a very well established practice in the UK such that by 1985 there was a good prospect that any man in his mid-forties or thereabouts would have undergone the procedure.

So, the overall point then on ‘general community standards’ is this: by the time we get to 1985 there was, unlike with FGM, nothing new, unknown, foreign, or somehow ‘un-British’ about circumcision. That FGM could be characterized in that manner aided its criminalization which has then since fed into family law’s ability to treat circumcision and FGM differently—it being of note that the very first point that Sir James Munby P rightly makes in Re B , having just posited the question as to whether FGM amounts to significant harm, is that FGM is ‘a criminal offence.’ 143

C. Toleration and parental autonomy

We have moreover to have regard to the realities of the human condition, described by Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 , [50]: … society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done. 144

Re G , with this citation of Re L , 145 tells us that parents, in reality, have a considerable degree of scope to care for their children as they see fit— even where that care may be said to cause disadvantage and harm. 146 This principle of tolerance and the parental autonomy to act in a way that may seem to be, or actually is , harmful to children, is a significant factor in understanding why family law treats FGM and circumcision differently. Re G and Re L show us that, as a matter both of principle and practicality, family law recognizes that it can only go ‘so far’ in its interventions. It is a system that has to accept its limits and with that a system that has to accept that there will be harm (even significant harm) caused to children that some may find objectionable. Looping back to the Holmes/Posner point, what would be the consequences of Sir James Munby P having decided otherwise in Re B— which is to say, what would have been the consequences of him having decided that circumcision, like, FGM could never fall within the ambit of reasonable parenting and that the practices must be treated exactly the same ?

Leaving aside any question of appeal, that would have resulted in a situation whereby (with the tap of a keyboard) circumcision, likely practiced in this jurisdiction on and off since time immemorial, would have been categorized by way of unelected judicial determination as being not only unreasonable but—like FGM and forced marriage—‘evil’, ‘repulsive’, ‘utterly unacceptable’, a ‘gross abuse of human rights’, and ‘an abomination’ 147 —for that is what it would actually mean to say that FGM and circumcision are the same. That would have been a sudden and radical departure from the ‘general community standards’ according to which circumcision has long since been regarded as acceptable and that so without any kind of consultative or legislative process which we might reasonably argue would be necessary given that, to date, Parliament has seen fit to legislate against FGM but not circumcision.

On a practical level, any such determination of equality would have to trigger state intervention. 148 Under section 47 the Children Act 1989, local authorities have a duty to investigate where there is ‘reasonable cause to suspect’ a child in their area is likely to suffer significant harm with a view, in particular, to ‘establishing’ whether an application for public law orders should be made—the relevant statutory guidance making specific reference to concerns around FGM triggering this duty. 149 Were circumcision to be treated by family law in the same terms as FGM then there would have to be public law applications from local authorities across the jurisdiction for the immediate removal of every Jewish and Muslim boy who might be likely to be circumcised. In respect of the Jewish community—given the tradition of circumcision on the eighth day 150 —that would entail applications for the removal of new-born babies with the leading authorities having long since recognized the particularly draconian nature of such removal. 151

The above developments would be horrifying for any member of the Jewish and Muslim community. It is also hard to imagine that the majority outside those practising communities would accept such an outcome. As postulated in Re G , ‘the reasonable man or woman (…) is (…) broad-minded, tolerant, easy-going and slow to condemn.’ 152 With that characterization in mind, it is hard to see how wider public opinion would support judge-made law going in the direction of equal treatment—for that ‘easy-going’ temperament would surely not tolerate the sight of likely thousands of Jewish and Muslim boys being removed from their parents’ care pending court determinations as to their long-term futures.

D. Exceptionality and bright-line tests

40. Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition. 41. Some things are nevertheless beyond the pale: forced marriages (always to be distinguished of course from arranged marriages to which the parties consent), female genital mutilation and so-called, if grotesquely misnamed, ‘honour-based’ domestic violence. 153

The above appears to contain a tension: on the one hand, there is ‘no “bright-line” test’ but on the other ‘Some things are nevertheless beyond the pale.’ According to Lord Hughes in R (Tigere) v Secretary of State for Business, Innovation and Skills , a bright-line rule is a rule which is ‘simply stated, readily understood and easily applied.’ 154 They are ‘rules based on readily ascertainable facts’ as opposed to ‘rules based in part on an evaluative exercise.’ 155 With that in mind, it would seem that the point Munby LJ makes above is that, ordinarily, family law does not involve bright-line tests but that, equally, there are exceptions to that in the form of certain types of conduct, including FGM, which are necessarily and always to be condemned as unreasonable. Re B ’s contention then that ‘it can never be reasonable parenting to inflict any form of FGM on a child’ 156 becomes a rare but wholly justified ‘bright-line’ rule in family law. This is in the sense that once the basic facts are established—ie FGM has taken place or is likely to—then, automatically and with no further evaluation being required, unreasonable parenting is established.

Now the extent to which family law does or does not contain clear rules has been remarked upon widely. For example, Ferguson and Brake ask rhetorically ‘What defines family law? Is it an area of law with clean boundaries and unified distinguished characteristics, or an untidy grouping of disparate rules and doctrines?’ 157 Answers to those questions have, over the years, included Douglas’ view that family law ‘has emerged as a body of law concerned with regulating a non-legal concept (…) it has grown piecemeal in response to perceived social changes, often presented as “problems” to be tackled’ 158 and Dewar’s idea of ‘normal chaos’ which he extrapolates in this way: ‘I want to suggest that many contemporary developments in family law can be characterised as chaotic, contradictory or incoherent (…) Family law, I shall suggest, is contradictory, disordered, incoherent and, in part at least, antinomic.’ 159

With this understanding of what family law is—and more importantly is not—the picture as to why FGM and circumcision are treated differently becomes clearer. That is to say, the question ‘why does family law treat female genital mutilation and circumcision differently?’ implies (albeit not unreasonably) an expectation of obviously equal treatment. However, there is in fact no reason to expect family law to have or generate clear ‘bright-line’ rules and, where it does exceptionally confront an issue by that means, there is limited reason to expect that rule to have an obvious counterpart on a separate but arguably similar or even very similar issue. To expect such a counterpart or a broader application/formulation of a ‘bright-line’ rule would be to expect a coherence or consistency within family law which it is widely acknowledged as not having. Whether that absence of coherence or consistency is a good, bad, or indifferent thing is not—for present purposes—the issue. Rather what is central here, is that that absence is a feature of family law which goes to explain its different treatment of FGM and circumcision—that different treatment being, in part, a natural outworking of what family law is.

Taking the analysis a step further, it is suggested that a core reason underlying the lack of coherence in the law regarding FGM and circumcision lies in the constraints associated with the consistent application of any bright-line rule according to which both practices were to be regarded as, in all circumstances, unreasonable. As already touched upon, any such approach/rule would have significant legal and practical consequences which—absent the endorsement of Parliament—would be unlikely to enjoy public support. So whatever fundamental similarities there may be between FGM and circumcision there could be no judge-made extension of the bright-line rule to cover both practices—as Dewar notes (with reference to the French sociologist Pierre Bourdieu and with an echo of Holmes), ‘the logic of following a rule ceases at the point at which logic ceases to be practical.’ 160

E. Social change and ‘Felt Necessities’

It is a fundamental fact in this argument that in 1985 the movement against FGM had garnered enough traction for the passage of legislation criminalizing the practice and family law has, over time, responded to the essential social change that is criminalization. Whilst in recent decades there has been growing opposition to the circumcision of boys, the move against the practice has not attained a momentum that is remotely comparable. 161 So, in allowing for the different treatment of FGM and circumcision family law is simply responding to social change or its lack thereof—which is family law acting entirely in accordance with its own essential nature. To say that, somehow, family law is ‘wrong’ to allow for such different treatment would be to overlook what family law is and what it is capable of doing.

As we focus in further on the ‘social change’ point— why does family law promote (or to use Re B ’s language) ‘tolerate’ there having long-since been change for girls and not for boys—in particular, given that equal treatment lies at the heart of human rights discourse? 162 This is a question which takes us back to the Holmes quotation and, in this context, it is suggested that the legitimate ‘felt necessities’ of our time are, and have been for some time, two-fold. First, there is the drive for the protection of women and girls from all forms of violence. That FGM is rightly regarded as a form of violence against women and girls was a point articulated during the course of the passage of the Prohibition of Female Circumcision Bill 163 as was the related point that the fight against the practice was being advanced within the wider context of the United Nations Decade for Women. 164 Far more recently, this theme continues to be seen in the Government’s 2021 strategy document, Tackling Violence Against Women & Girls . FGM is referred to over 50 times in this 85-page document including twice within the lead forward. Further, reflecting the strategic significance of the linking of FGM to policies designed to combat violence against women and girls more generally it is of importance that, according to the strategy’s ‘note on terminology’, FGM is— by definition— to be understood as falling under the core umbrella term of ‘violence against women and girls.’ 165

It is hard to think of a more appalling decision. Did the court know that circumcision is the most ancient ritual in the history of Judaism, dating back almost four thousand years to the days of Abraham? Did it know that Spinoza, not religious but with John Locke the father of European liberalism, wrote that brit milah in and of itself had the power to sustain Jewish identity through the centuries? Did it know that banning milah was the route chosen by two of the worst enemies the Jewish people ever had, the Seleucid ruler Antiochus IV and the Roman emperor Hadrian, both of whom set out to extinguish not only Jews but also Judaism? Either the court knew these things or it did not. If it did not, then how was it competent to assess the claim of religious liberty? If it did, then are judges in Germany quite willing to say to religious Jews, in effect, ‘If you don’t like it, leave.’ Do judges in Cologne today really not know what happened the last time Germany went down that road? 166

F. Context and conclusion

The final and concluding ‘wrap around’ point arising from Re G is that, in family law ‘context is everything.’ 167 When we place FGM and circumcision in their broadest contexts we can see material differences between the practices: FGM was barely known to this jurisdiction when it was first criminalized in 1985; the same could not be said of circumcision. By the time of Re B in 2015, FGM had then long since been recognized as a crime and a breach of human rights; the same could not be said of circumcision. Had Sir James Munby P determined in Re B that FGM and circumcision could never fall within the ambit of reasonable parenting then judge-made law would have—overnight—triggered the need for public law applications in respect of thousands of otherwise unimpeachable parents who, up until that point, had simply been adopting or intending to adopt a practice which had long since been regarded by the state as reasonable. The fight against FGM represents a particular concern within a wider and long-standing global movement aimed at advancing the rights and protections of girls and women; in contrast, and for want of comparable necessity, there has been no such global movement in relation to boys and men within which the circumcision question might be pressed. 168 In the minds of some within the Jewish community, there is a direct and understandable link between any challenge to the circumcision tradition and manifestations of antisemitism in Europe, in particular the Holocaust. In respect of FGM, there is no such linkage or association. The wider context within which FGM and circumcision are set is, therefore, very different thereby allowing a distinction to be drawn.

It is suggested that what we see in the leading authorities on FGM and circumcision is a repeated judicial effort to establish a distinction between the practices so as not to fall foul of that maxim that like cases should be treated alike. 169 However, this endeavour to rationalize the different treatment by reliance upon (i) precedent-based arguments, (ii) cultural/religious arguments, and (iii) health/medical arguments is an endeavour that falls short or is incomplete. This is because when each of these arguments is scrutinized in detail, it becomes apparent that the practices are not materially different in the way contended. It also has to be remembered here that, prima facie , the authorities countenance no appreciable similarities at all— a position which makes the law, as it currently stands, particularly vulnerable in the sense that we need to only identify one ‘black swan’ of similarity to undermine the universal ‘white swan’ claim that there is no comparison. 170

This falling short does not mean, however, that good reasons cannot be found or developed to justify a distinction being drawn but those reasons are to be found elsewhere—beyond the particularities upon which the leading authorities specifically rely and within the wider fundamentals of family law itself. In particular, the core of a properly drawn distinction between FGM and circumcision lies in the interaction between the five interrelated limbs as referenced in and extrapolated from Re G .

These collectively point to the nature of family law as a pragmatic system which develops in an ad hoc manner by way of responding to particular social problems, challenges, or pressures with FGM having been democratically perceived as demanding a categoric and zero-tolerance response in a way that circumcision simply has not. To demand equal treatment of boys and girls in respect of the practices is, on one analysis, entirely reasonable but it is a demand that does not take account of what family law is and, in particular, what the primary question is for judges dealing with children. That question is not ‘How do I enforce obviously equal treatment?’ but rather ‘What is in this child’s best interests?’—the question which brings into the frame the five interrelated limbs/principles of Re G.

In challenging judgments as I have done, I must also conclude, to some extent, in defence of the judiciary. The writing of a judgment is not an ‘examination’ 171 and as Posner says judges are not (at least when sitting) ‘law professors.’ 172 Their task is not to take the broadest discursive approach to a topic—it is to decide a specific dispute and under pressure of time. 173 It also has to be noted that Lady Hale does point to the centrality of context as a justification for the different treatment, 174 and Sir James Munby P notes the pragmatism of Holmes as relevant to understanding that different treatment. 175 In a sense, therefore, the better reasons for the different treatment are touched upon within the leading authorities but, as has been argued, their primary focus is on far more specific purported differences which, upon detailed scrutiny, fall away.

Also, whilst judgements are not ‘examinations’ and whilst judges are not ‘law professors’ the subject matter here is multidisciplinary and highly complex with a literature base that is ever burgeoning. 176 Rightly then, expert evidence has been adduced in the leading cases and, rightly, Re B notes ‘These are deep waters (…)’ 177 but the family justice system ought not to be able to have it both ways—by which I mean it ought not to be able to contend that family judges are simply busy decision-makers lacking the capacity to navigate the ‘deep waters’ whilst simultaneously permitting them to set out across those waters by drawing/adopting comparisons in circumstances where those comparisons become extremely vulnerable to challenge.

Either the judiciary is well placed to make and examine the comparisons between FGM and circumcision or it is not and the position as we currently have it sits unsatisfactorily between the two ends of that spectrum.

Re B (Children) (Care Proceedings) [2015] EWFC 3, [2015] 1 FLR 905 [55], [64], [72]–[73].

[2015] EWFC 3, [2015] 1 FLR 905 as followed, in particular, by Re L (Children) (Specific Issues: Temporary Leave to Remove from the Jurisdiction: Circumcision) [2016] EWHC 849 (Fam), [2017] 1 FLR 1316 and Re P (Circumcision: Child in Care) [2021] EWHC 1616 (Fam), [2022] 4 WLR 53.

Proceedings by which the state secures the temporary or permanent removal of children from their parents’ care.

Re B (n 1) [54].

Re B (n 1) [68].

Re B (n 1) [71].

Re B (n 1) [68]–[72].

Re B (n 1) [73].

Marie Fox and Michael Thomson, ‘Foreskin is a Feminist Issue’ (2009) 24 Australian Feminist Studies 195; Brian D Earp, ‘Female Genital Mutilation and Male Circumcision: Toward an Autonomy-Based Ethical Framework’ (2015) 5 Medicolegal and Bioethics 89; J Steven Svoboda, Peter W Adler and Robert S Van Howe, ‘Circumcision is Unethical and Unlawful’ (2016) 44 The Journal of Law, Medicine & Ethics 263; Brian D Earp, Jennifer Hendry and Michael Thomson, ‘Reason and Paradox in Medical and Family Law: Shaping Children’s Bodies’ (2017) 25 Medical Law Review 604; E Katariina Paakkanen, ‘Entitled, Empowered or Victims – an Analysis of Discourses on Male and Female Circumcision, Genital Mutilation/Cutting and Genital Cosmetic Surgery’ (2019) 23 The International Journal of Human Rights 1494; Kai Möller, ‘Male and Female Genital Cutting: Between the Best Interest of the Child and Genital Mutilation’ (2020) 40 Oxford Journal of Legal Studies 508.

Re B (n 1) [64], [72]; [2006] UKHL 46, [2007] 1 AC 412; [2013] EWCA Civ 888, [2014] Imm AR 170.

SS Malaysia (n 10) [14].

Re B (n 1) [60].

Re B (n 1) [69].

Re B (n 1) [72].

Fornah (n 10) [2], [4].

Fornah (n 10) [1]. See also [70].

Fornah (n 10) [31], [91], [93]. It is unclear whether [53], [95] make indirect reference to circumcision.

Fornah (n 10) [31], [91].

Halsbury’s Laws of England (5th edn, LexisNexis 2020) vol 11, para 26: ‘Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand are generally termed “dicta”; they have no binding authority on another court, but they may have some persuasive efficacy.’

Re X (A Child) (No2) [2021] EWHC 65 (Fam), [2021] 4 WLR 11 [59]–[60]; Brunner v Greenslade [1971] Ch 993, 1002; Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, 16.

Fornah (n 10) [91]–[92].

Ghaidan v Mendoza [2004] UKHL 30, [2004] 2 AC 557 [9]; HLA Hart, The Concept of Law (first published 1961, 3rd edn, Oxford University Press 2012) 161; Sandra Fredman, Discrimination Law (2nd edn, Oxford University Press 2011) 168.

Claire Fenton-Glynn, ‘Male Circumcision vs Female Genital Mutilation: Two Sides of the Same Coin?’ [2018] Family Law 652, 653.

Svoboda, Adler and Van Howe (n 9) 265.

Fornah (n 10) [92]; Re J (A Minor) (Prohibited Steps Order: Circumcision) [2000] 1 FLR 571 (CA) [32].

See Section 3.

A point evident from Fornah itself (n10) [53] if that passage is taken to include indirect reference to the circumcision of boys. In any event, see Michelle C Johnson, ‘Becoming a Muslim, Becoming a Person: Female “Circumcision,” Religious Identity, and Personhood in Guinea-Bissau’ in Bettina Shell-Duncan and Ylva Hernlund (eds), Female “Circumcision” in Africa: Culture, Controversy and Change (Lynne Rienner 2000) 215, 217–18; Brian D Earp, ‘Female Genital Mutilation (FGM) and Male Circumcision: Should There Be a Separate Ethical Discourse?’ ( Practical Ethics , 18 February 2014) < www.blog.practicalethics.ox.ac.uk/2014/02/female-genital-mutilation-and-male-circumcision-time-to-confront-the-double-standard > accessed 29 April 2023; Elizabeth Schroeder, Renata Tallarico and Maria Bakroudis, ‘The Impact of Adolescent Initiation Rites in East and Southern Africa: Implications for Polices and Practices’ (2022) 27 International Journal of Adolescence and Youth 181, 183, 185.

David L Gollaher, Circumcision: A History of the World’s Most Controversial Surgery (Basic Books 2000) 46, 90; World Health Organization, Male Circumcision: Global Trends and Determinants of Prevalence, Safety and Acceptability (World Health Organization 2007) 21; Ibrahim Lethome Asmani and Maryam Sheikh Abdi, Delinking Female Genital Mutilation/Cutting from Islam (Frontiers Program 2008) 4; UNICEF, Female Genital Mutilation/Cutting: A Statistical Overview and Exploration of the Dynamics of Change (UNICEF 2013) 67; Brian D Earp, ‘Male or Female Genital Cutting: Why “health benefits” are Morally Irrelevant’ (2021) 47 Journal of Medical Ethics e92.

Gollaher (n 28) 106, 133; World Health Organization (n 28) 25; Fox and Thomson (n 9) 195, 202, 203; UNICEF (n 28) 66–67; Danda G, Mavundla T and Mudokwenyu-Rawdon C, ‘The Role of Women in Promoting Voluntary Medical Male Circumcision Uptake: Literature Review’ (2022) 27 Health SA Gesondheid a1794.

Gollaher (n 28) 204–5. See also Richard A Shweder, ‘The Prosecution of Dawoodi Bohra Women: Some Reasonable Doubts’ (2022) 12 Global Discourse 9 for the point that ‘Wherever there is female circumcision there is male circumcision – the custom is gender-inclusive.’

Fornah (n 10) [53]. In contrast, and for the detailed consideration of expert evidence on circumcision in other cases see for example: Re J ( Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678 (F) (consultant paediatrician and experts in Islamic law); Re S (Children) (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam), [2005] 1 FLR 236 (experts on Hindu Jainism and Islam); AT v FS T v S (Wardship) [2011] EWHC 1608 (Fam), [2012] 1 FLR 230 (paediatric surgeon); Re L (n 2) (expert on Islam, consultant paediatrician and consultant urologist).

Family Procedure Rules 2010, SI 2010/2955 25B PD 9.1 (g).

Ellen Gruenbaum, The Female Circumcision Controversy: An Anthropological Perspective (Penn 2001) 36–47; Lisa Wade, ‘Learning from “Female Genital Mutilation”: Lessons from 30 Years of Academic Discourse’ (2012) 12 Ethnicities 26, 28; Earp, Hendry and Thomson (n 9) 609, 610; Ellen Gruenbaum, Brian D Earp and Richard Shweder, ‘Reconsidering the Role of Patriarchy in Upholding Female Genital Modifications: Analysis of Contemporary and Pre-Industrial Societies’ [2022] International Journal of Impotence Research 1.

Fornah (n 10) [92]: ‘They are usually performed by traditional practitioners using crude instruments and without anaesthetic.’

Earp (n 27); Samuel Kimani, Hazel Barrett and Jacinta Muteshi-Strachan, ‘Medicalisation of Female Genital Mutilation is a Dangerous Development’ (2023) BMJ 380: p302.

Re B (n 1) [60]. See also Möller (n 9) 508, 516.

Fornah (n 10) [92].

Svoboda, Adler and Van Howe (n 9) 265–67; Re L (n 2) [69].

AP Simester and GR Sullivan, Criminal Law: Theory and Doctrine (7th edn, Hart Publishing 2019) 449; United Nations Committee on the Rights of the Child, General Comment No.13 (United Nations 2011) para 17. See also (in tension with the UN’s view on ‘legalized violence’) R v Brown [1994] 1 AC 212 (HL) 231 for circumcision as lawful violence/injury.

Rebecca Steinfeld, ‘Like FGM, Cut Foreskins should be a Feminist Issue’ ( The Conversation , 18 November 2013) < https://theconversation.com/like-fgm-cut-foreskins-should-be-a-feminist-issue-20328 > accessed 29 April 2023.

Re B [2013] UKSC 33, [2013] 1 WLR 1911 [185].

Re B (n 43) [193].

Earp (n 9) 93–94; Ronald Goldman, Questioning Circumcision: A Jewish Perspective (Vanguard 1998) 41–42.

Re B (n 1) [63].

Fornah (n 10) [91]–[93]; UNICEF, Innocenti Digest, Changing a Harmful Social Convention: Female Genital Mutilation/Cutting (UNICEF 2005) 1.

See (n 34).

Möller (n 9) 526.

The physical consequences have already been alluded to and will be considered further in Section 4. The social consequences will be addressed fully in Sections 3 and 5.

Fornah (n 10) [74], [87]. See again R v Brown (n 40) for the point that circumcision is violence.

Re B (n 1) [72] is also equivocal on this and other health-related points. See also Earp, Hendry and Thomson (n 9) 619–20.

UNICEF (n 49) 1–2.

Fornah (n 10) [93].

Gollaher (n 28) 101–6; Shaye JD Cohen, Why Aren’t Jewish Women Circumcised? Gender and Covenant in Judaism (California University Press 2005) 143–73; Leonard Glick, Marked in Your Flesh: Circumcision from Ancient Judea to Modern America (Oxford University Press 2005) 64–65, 151, 165; Shmuley Boteach, The Modern Guide to Judaism (Overlook 2012) 72–74; Anita Diamant, The New Jewish Baby Book (2nd edn, Jewish Lights Publishing 2014) 92; Earp, Hendry and Thomson (n 9) 618.

Fornah (n 10) [31].

Judith S Antonelli, In the Image of God: A Feminist Commentary on the Torah (Rowman & Littlefield 2004) 275. For examples of circumcision being the wish of the mother not the father see Re S (A Child) (Change of Names: Cultural Factors) [2001] 2 FLR 1005 (F); Re S (n 32); Re A (A Child) [2021] EWHC 3467 (Fam). For further examples of women actively engaging in/supporting the practice see also Erick Silverman, ‘Anthropology and Circumcision’ (2004) 33 Annual Review of Anthropology 419, 421, 424; Jacob Olupona, African Religions: A Very Short Introduction (Oxford University Press 2014) 58; Josephine DeVito, ‘Understanding the Orthodox Jewish Family During Childbirth’ (2019) 54 Nursing Forum 220, 224; Alyson Krueger, ‘Jewish Women Move Into a Male Domain: Ritual Circumcision’ The New York Times (New York, 1 March 2020) < www.nytimes.com/2020/02/28/nyregion/circumcision-bris-mohels-women.html > accessed 29 April 2023; Glick (n 58) 58–59; Diamant (n 58) 84–99; Francesca Cerchario and Laura Odasso, ‘“Why do we have to circumcise our son?” Meanings Behind Male Circumcision in the Life Stories of Mixed Couples with a Muslim Partner’ [2021] Journal of Ethnic and Migration Studies 1, 10; Danda, Mavundla and Mudokwenyu-Rawdon (n 29).

Fox and Thomson (n 9) 200 ‘the concept of patriarchy often functions to allow men’s experiences to remain unquestioned.’

Fornah (n 10) [31], [110].

Re B (n 1) [72]. See also [55], [71].

Re B (n 1) [61].

Re B (n 1) [71]. See also [57].

On the complexity of definitions see Sarah Song, ‘The Subject of Multiculturalism: Culture, Religion, Language, Ethnicity, Nationality, and Race?’ in Boudewijn de Bruin and Christopher F Zurn (eds), New Waves in Political Philosophy (Palgrave Macmillan 2009) 177; Avigail Eisenberg, Reasons of Identity: A Normative Guide to the Political and Legal Assessment of Identity Claims (Oxford University Press 2009) 7; Farida Shaheed, Report of the Independent Expert in the Field of Cultural Rights (United Nations Human Rights Council 2010) 4; Heiner Bielefeldt, Nazila Ghanea and Michael Wiener M, Freedom of Religion or Belief: An International Law Commentary (Oxford University Press 2017) 387. See also Émile Durkheim, The Elementary Forms of Religious Life (First Published 1912, Carol Cosman tr and Mark S Cladis ed, Oxford University Press 2008) 6; Walter Capps, Religious Studies: The Making of a Discipline (Fortress Press 1995) 1–52; David Wulff, Psychology of Religion (2nd edn, John Wiley & Sons 1997) 1–20; Carolyn Evans, Freedom of Religion Under the European Convention on Human Rights (Oxford University Press 2003) 51–66; Russell Sandberg, Law and Religion (Cambridge University Press 2014) 39–58; R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77, [2014] AC 610 [34].

R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246 [54].

Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford University Press 1996) 76; Shaheed (n 67) 4; Patti Tamara Lenard, ‘Culture’, The Stanford Encyclopedia of Philosophy (Winter edn, 2020) < https://plato.stanford.edu/archives/win2020/entries/culture/ > accessed 29 April 2023. For an example of the overlapping nature of culture and religion being recognized within family proceedings, see Salford City Council v W [2021] EWHC (Fam), [2021] 4 WLR 21 [17]–[18], [29], [30], [33].

Rigmor C Berg and Eva Denison, ‘A Tradition in Transition: Factors Perpetuating and Hindering the Continuance of Female Genital Mutilation/Cutting (FGM/C) Summarized in a Systemic Review’ (2013) 34 Health Care for Women International 837, 854. See also Gruenbaum (n 34) 49 for the point that ‘each region or culturally identified group is likely to have more than one explanation for any practice’ - which is reiterated within UNICEF (n 28) 65–67.

Such evidence would have been necessary in accordance with the principle that the subject matter falls outside the expertise of the court and is not an issue upon which a court could simply take judicial notice.

Re L (n 2) [59]; Naila Minai, Women in Islam: Tradition and Transition in the Middle East (John Murray 1981) 97; Sami A Adleeb Abu-Sahlieh, ‘Islamic Law and the Issue of Male and Female Circumcision’ (1995) 13 Third World Legal Studies 73, 77; Muhammad Lutfi al-Sabbagh, The Right Path to Health: Health Education through Religion: Islamic Ruling on Male and Female Circumcision (World Health Organization 1996); Gollaher (n 28) 45, 92; Asmani and Abdi (n 28) 8; UNICEF (n 28) 69; John Esposito and Natana Delong-Bas, Shariah: What Everyone Needs to Know (Oxford University Press 2018) 214.

Esposito and Delong-Bas (n 72) 214. See also Asmani and Abdi (n 28) 14.

[2008] UKEAT/0123/08/LA, [2009] ICR 303 [29].

Genesis 17:10; Leviticus 12:3.

Williamson (n 68) [56]. See also Lady Hale [75] on the point that the court is not ‘required to consider whether a particular belief is soundly based in religious texts.’

Newcastle City Council v Z [2005] EWHC 1490 (Fam), [2007] 1 FLR 861 [56].

Re B (n 1) [9]; UNICEF (n 28).

UNICEF (n 28) iii.

UNICEF (n 28) 71.

Williamson (n 68) [32]–[33] (emphasis added).

Peter W Edge, ‘Hard Law and Soft Power: Counter-Terrorism, the Power of Sacred Places, and the Establishment of an Anglican Islam’ (2010) 12 Rutgers Journal of Law & Religion 358, 380.

Williamson (n 68) [22]. See also [75]–[77], Re G [2012] EWCA Civ 1233, [2013] 1 FLR 677 [35]–[51] for the essential point that ‘Religion – whatever the particular believer’s faith – is not the business of government or the secular courts (…)’ and Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46 [58] for the core principle that ‘The State’s duty of neutrality and impartiality (…) is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.’

Asmani and Abdi (n 28).

Goldman (n 46); Odasso (n 60).

British Medical Association, Non-therapeutic Male Circumcision (NTMC) of Children – Practical Guidance for Doctors (British Medical Association 2019) 4. See also the Royal Dutch Medical Association, Non-therapeutic Circumcision of Male Minors (Royal Dutch Medical Association 2010); the Canadian Paediatric Society, ‘Position Statement: Newborn Male Circumcision’ (2015) 20 Paediatr Child Health 311; the Royal Australasian College of Physcians, Circumcision of Infant Males (Royal Australasian College of Physicians 2022).

British Medical Association (n 91) 4.

American Academy of Pediatrics, ‘Male Circumcision: Task Force on Circumcision’ (2012) 130 Pediatrics e756, e778. See also American Academy of Pediatrics, ‘Circumcision Policy Statement’ (2012) 130 Pediatrics 585. For APP statements on circumcision having been ‘models of ambiguity (…)’ see Gollaher (n 28) 200.

British Medical Association (n 91) 4. See also Morten Frisch and others, ‘Cultural Bias in the AAP’s 2012 Technical Report and Policy Statement on Male Circumcision’ (2013) 131 Pediatrics 796; Robert S Van Howe, ‘Response to Vogelstein: How the 2012 AAP Task Force on Circumcision Went Wrong’ (2018) 32 Bioethics 77.

British Association of Urological Surgeons, British Association of Paediatric Surgeons, British Association of Paediatric Urologists, Commissioning Guide: Foreskin Conditions (British Association of Urological Surgeons 2016) 8. See also British Association of Paediatric Urologists (on behalf of the British Association of Paediatric Surgeons and the Association of Paediatric Anaesthetists), Statement: Management of Foreskin Conditions (British Association of Urological Surgeons 2006) 14 and Re L (n 2) [67], [69].

Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, [2000] 2 FCR 614 (CA) [28]; Re LU (A Child), LB (A Child) [2004] EWCA Civ 567, [2005] Fam 134 [23]; Re R (Care proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384 [19]; Re BR (Proof of Facts) [2015] EWFC 41 [7]. See also Mike Feintuck, ‘Precautionary Maybe, but What’s the Principle? The Precautionary Principle, the Regulation of Risk, and the Public Domain’ (2005) 32 Journal of Law and Society 371.

British Association of Paediatric Surgeons, the Royal College of Nursing, the Royal College of Paediatrics and Child Health, the Royal College of Surgeons of England, and the Royal College of Anaesthetists, Male Circumcision: Guidance for Healthcare Practitioners (Royal College of Surgeons of England 2000) 2. See also British Association of Urological Surgeons and others (n 95) 7; British Medical Association (n 91) 7.

American Academy of Pediatrics (n 93) e767–e768.

American Academy of Pediatrics (n 93) e768.

World Health Organization, Neonatal and Child Male Circumcision: A Global Review (World Health Organization 2010) 7; American Academy of Pediatrics (n 93) e764; British Medical Association (n 91) 11.

British Association of Urological Surgeons and others (n 95) 8.

Re Y (Children) [2014] EWCA Civ 1287, [2015] 1 FLR 1350 [38]–[39].

Re A (Leave to Remove: Cultural and Religious Considerations) [2006] EWHC 421 (Fam), [2006] 2 FLR 572 [40].

[2000] 1 FLR 549 (CA) 556. Thorpe LJ states, ‘In relation to whether the interests of others may legitimately be regarded in the application of a best interest test, the point was not fully argued in the present appeal and I would prefer to leave it open’ 558.

Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, [2021] Fam 133 [34].

Re H (n 106) [9].

Re H (n 106) [5], [33], [104].

[2001] Fam 147 (CA).

Re A (n 109) 176.

Re A (n 109) 204, 240.

British Medical Association (n 91) 11.

Re A (n 109) 240.

Re A (n 109) 240, 258–59.

British Medical Association (n 91) 7.

‘Symptoms: Penile Cancer’, < www.nhs.uk/conditions/penile-cancer/symptoms > accessed 29 April 2023.

Gollaher (n 28) 146. See also Earp (n 28) e92.

Re B (n 1) [64]; Oliver Wendell Holmes Jr, The Common Law (first published 1881, Dover Publications 1991) 1.

Richard A Posner, How Judges Think (Harvard University Press 2010) 232.

Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677—a case concerning the education of children from an ultra-orthodox Jewish family.

Re G (n 121) [32]–[34].

Re G (n 121) [39].

See again Re B (n 1) [61].

Elise A Sochart, ‘Agenda Setting, the Role of Groups and the Legislative Process: The Prohibition of Female Circumcision in Britain’ (1988) 4 Parliamentary Affairs 508, 509.

Sebastian M Poulter, ‘Ethnic Minority Customs, English Law and Human Rights’ (1987) 36 International & Comparative Law Quarterly 589, 589.

HC Deb 19 April 1985, vol 77, col 586 (emphasis added).

HL Deb 15 May 1985, vol 463, cols 1223–1224 (emphasis added).

Poulter (n 127) 589.

Sophie Gilliat-Ray, Muslims in Britain: An Introduction (CUP 2010) 1, 44–45; Houssain Kettani ‘Muslim Population in Europe: 1950-2020’ (2010) 1 International Journal of Environmental Science and Development 154, 157.

Martin Goodman, A History of Judaism (Penguin Books 2019) 238.

Goodman (n 132) 363.

Harrison v Doctor Burwell (1667) Vaugh 206, 124 ER 1039, 1051.

Goodman (n 132) 444–45.

‘The Circumcision of Christ’, < www.churchofengland.org/prayer-and-worship/worship-texts-and-resources/book-common-prayer/collects-epistles-and-gospels-8 > accessed 29 April 2023.

Gollaher (n 28) 44, 206.

Brenda Hale and others, The Family, Law & Society: Cases & Materials (6th edn, Oxford University Press 2009) 2.

Re A (n 109) 212. For a classic example of the point see (in a case concerning whether to grant a man the right to succeed to the tenancy of his female partner when they had been living together for 25 years but were not married) Gammans v Ekins [1950] 2 KB 328 (CA) 334, ‘It may not be a bad thing that by this decision it is shown that, in the Christian society in which we live, one, at any rate, of the privileges which may be derived from marriage is not equally enjoyed by those who are living together as man and wife but who are not married.’

Evans (n 67) 132.

Laura M Carpenter, ‘On Remedicalisation: Male Circumcision in the United States and Great Britain’ (2010) 32 Sociology of Health & Illness 613, 614.

Re B (n 1) [55].

Re G (n 121) [39]; Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 (F) [50].

For the development and re-iteration of the Re L (n 145) analysis see also Re A (A Child) [2015] EWFC 11, [2016] 1 FLR 1 [15]–[17]; Stephen Gilmore, ‘The Limits of Parental Responsibility’ in Rebecca Probert, Stephen Gilmore and Jonathan Herring (eds), Responsible Parents and Parental Responsibility (Hart Publishing 2009) 79–80: ‘parents have considerable discretion as to how parental responsibility is exercised. Beyond any specific parental duty, and in the absence of any court order, the law does not require parents to act in particular ways which positively advance a child’s welfare or best interests, nor is the scope of parental discretion drawn in such a way as to avoid all harm to the child’ (footnote omitted).

Re B (n 1) [56]–[57].

Peter W Edge, ‘Male Circumcision after the Human Rights Act 1998’ (2000) 5 Journal of Civil Liberties 320, 355.

HM Government, Working Together to Safeguard Children (HM Government 2018) 21.

Genesis 17: 12; Leviticus 12:3. See also Board of Deputies of British Jews, Jewish Family Life and Customs: A Practical Guide (Board of Deputies of British Jews 2017) 7.

Re C (A Child: Interim Separation) [2019] EWCA Civ 1998, [2020] 1 FLR 853 [2].

Re G (n 121) [34].

Re G (n 121) [40]–[41].

[2015] UKSC 57, [2015] 1 WLR 3820 [60].

Tigere (n 154) [60].

Lucinda Ferguson and Elizabeth Brake, ‘Introduction: The Importance of Theory to Children’s and Family Law’ in Lucinda Ferguson and Elizabeth Brake (eds), Philosophical Foundations of Children’s and Family Law (Oxford University Press 2018) 1.

Gillian Douglas, An Introduction to Family Law (2nd edn, Oxford University Press 2004) 4.

John Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 The Modern Law Review 467, 468.

For an overview of the anti-circumcision movement see Gollaher (n 28) 161–85; Silverman (n 60) 434–36; Roger Collier, ‘Ugly, Messy and Nasty Debate Surrounds Circumcision’ (2012) 184 Canadian Medical Association Journal E25, E25; Amanda Kennedy and Lauren Sardi, ‘The Male Anti-Circumcision Movement: Ideology, Privilege, and Equity in Social Media’ (2016) 11 Societies Without Borders 1.

Re B (n 1) [64]; Fredman (n 22) 1: ‘Equality as an ideal shines brightly in the galaxy of liberal aspirations. Nor is it just an ideal. Attempts to capture it in legal form are numerous and often grand: all human rights documents, both international and domestic, include an equality guarantee, and this is bolstered in many jurisdictions with statutory provisions.’

HL Deb 15 May 1985, vol 463, col 1239.

HL Deb 15 May 1985, vol 463, col 1233; HL Deb 2 July 1985, vol 465, col 1142; HL Deb 2 July 1985, vol 465, col 1139. For context see also Judith Zinsser, ‘The United Nations Decade for Women: A Quiet Revolution’ (1990) 24 The History Teacher 19, 21: ‘The United Nations Decade for Women spanned the years 1975-1985 and consisted of three international forums and conferences: in Mexico City in 1975 to inaugurate the Decade; in Copenhagen in 1980 to give a mid-Decade report; in Nairobi in 1985 to formulate strategies and goals for the future. In addition to these international meetings the Decade occasioned numerous regional meetings of United Nations agencies and organizations (i.e., the United Nations Economic and Social Council [UNESCO], the World Health Organization [WHO], ECLA, the Euro- pean Economic Council [EEC]) and regional meetings of non-governmental organizations (i.e., YWCA, World Council of Churches, National Association of Women), all to consider the status of women and to make recommendations for women. The Decade also occasioned a multitude of documents from governments and from public and private agencies and organizations, both national and international.’

HM Government, Tackling Violence Against Women & Girls (HM Government 2021) 8.

Jonathan Sacks, ‘The Europeans’ Skewed View Of Circumcision’ The Jerusalem Post (Jerusalem, 6 July 2012) www.rabbisacks.org/archive/the-europeans-skewed-view-of-circumcision-jerusalem-post > accessed 29 April 2023. For the persistence of antisemitism in the UK see also Jonathan Sacks, Future Tense: A Vision for Jews and Judaism in the Global Culture (Hodder & Stoughton 2010) 89–111 and for the arguable link between efforts to ban circumcision and antisemitism see Ben Cohen, ‘The Jews are our Misfortune!’ Contemporary Antisemitism as a Hydra-Headed Phenomenon’ (2023) 29 Israel Affairs 5.

Re G (n 121) [45] with Munby LJ citing another one of his earlier judgments on the interaction between family law and religion— Newcastle City Council (n 77) [56]—a case concerning a Muslim mother’s religiously based objections to the adoption of her child.

For the importance of 'a mass social movement' for the advancement of human rights see Jack Snyder, Human Rights for Pragmatists: Social Power in Modern Times (Princeton University Press 2022) 127.

HLA Hart (n 22) 159. See also Ghaidan (n 22) [9].

Fornah (n 10) [91], [93]; SS Malaysia (n 10) [14]; Re B (n 1) [64].

Re F (Children) [2016] EWCA Civ 546, [2016] 3 FCR 255 [22].

Posner (n 120) 204.

Posner (n 120) 206–7.

Re B (n 1) [64].

Gollaher (n 28) 71.

Re B (n 1) [65].

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• Published: 02 December 2021

Defending an inclusive right to genital and bodily integrity for children

• Kate Goldie Townsend   ORCID: orcid.org/0000-0002-7114-6619 1  

International Journal of Impotence Research volume  35 ,  pages 27–30 ( 2023 ) Cite this article

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• Health care

A Correction to this article was published on 04 March 2022

This article has been updated

At the time of writing in mid-2021, policy on child genital cutting and modification is inconsistent in the UK, US, and most European states, and there is growing consensus that this inconsistency should end [ 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 ]. The question addressed here, is whether Western liberal democracies ought to discourage, if not legally prohibit, all forms of medically unnecessary child genital cutting and modification, or permit some relatively minor forms. Given the core political values of Western liberal democracies, including a commitment to human rights, this piece takes a liberal normative approach and argues that individual rights to bodily – and especially genital – integrity should take priority over group rights if they come into conflict.

Current inconsistencies in law and policy

The idea of the child’s right to bodily integrity has increasingly been defended in bioethical, philosophical, and legal scholarship [ 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 ]. Some authors argue in favour of the child’s right to genital integrity grounded in the value of genital and sexual autonomy for all individuals [ 6 , 7 , 8 ]. The aim is to protect all children, whatever their sex-trait characteristics or associated sex category assignment, and whatever the sociocultural preferences of their parents, from medically unnecessary Footnote 1 genital cutting and modification practices until they reach an age of legal majority [ 6 , 7 , 8 , 9 , 10 , 11 ]. Once a person has become an adult and is deemed competent to make considered decisions about practices that involve surgical risk and typically permanently alter their sexual anatomy, the state should not seek to prevent them from pursuing such operations. The position I advocate is fairly simple: children should be protected from medically unnecessary genital cutting and/or modification until they are adults; once they become adults, they should be permitted to have their genitalia modified should they so choose.

Though simple, this position is at odds with most current policy in Western liberal societies [ 4 , 7 , 8 , 10 , 11 , 12 , 13 , 14 ]. Children with female-typical sex characteristics in Western (and many other) societies are legally protected from medically unnecessary genital cutting and modification, however ‘minor’ the cutting may be, and even if sought by parents for religious reasons. Children with male-typical sex traits on the other hand, are not legally protected from genital cutting practices, even when the practice is considerably more physically invasive than some of the prohibited types affecting children with female-typical sex traits, for instance, symbolic nicking [ 7 , 8 , 9 , 10 , 11 ]. Children with intersex traits or differences of sex development also lack legal protection from medically unnecessary genital cutting and modification, even when the modification is as if not more physically invasive than prohibited procedures affecting children with female-typical sex characteristics [ 8 , 15 ], with a few notable exceptions [ 8 , 16 ].

Different treatment of child genital cutting practices depending on the sex of the child is morally problematic and could potentially be ruled unconstitutional in Western states [ 17 ]. It is indicative of cultural bias that bestows preferential treatment on the practices of Western majority and established minority groups, even when those practices are materially similar to the strictly prohibited practices of marginalised minority groups [ 4 , 7 , 8 , 11 , 12 , 13 , 14 ]. This bias is evident in the genital cutting policies of international liberal institutions including the World Health Organisation (WHO) [ 18 , 19 ], and it is transparent in current UK legislation on Female Genital Cutting (FGC). The Female Genital Mutilation Act 2003 [ 20 ] criminalises the cutting of adult female genitals for ‘cultural’ reasons even if the woman has made it clear that she wants to be cut or sewn [ 12 , 20 ]. Genital modification practices are permitted if the modification is ‘necessary for her… mental health’ but ‘it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual’ ([ 20 ], section 1). This means that in practice, the policy mainly affects women from marginalised cultural and ethnic groups whose cutting practices are understood to be ‘matter[s] of custom or ritual’, while (primarily white) majority group women can have their genitals modified if it is deemed important for their mental health [ 8 , 12 , 20 ].

Policy inconsistency of this kind, that infantilises women from marginalised groups (the UK law explicitly describes them as ‘girls’), is a hangover from a long trend of cultural supremacism in Western policy-making and political theorising [ 3 , 5 , 8 , 12 , 13 , 14 ]. Policymakers who target groups practising medically unnecessary female child genital cutting (FGC) but remain silent over or even endorse medically unnecessary male and intersex child genital cutting (MGC, IGC) fail to consider how all child genital cutting practices are maintained and driven by ‘cultural’ norms [ 7 , 8 , 12 , 13 , 14 , 18 , 19 ]. Shweder’s [ 5 ] contribution to the debate about genital cutting is very important here; he challenged Western critics of FGC to ‘take a hard second look’ at the practice and to be slow to judge the people and groups for whom it remains important. It is an invitation to evaluate the cultural practices and inherent biases of one’s own sociocultural context and heritage that many scholars pursuing policy parity on child genital cutting and modification have taken seriously [ 4 , 5 ]. Most scholars working on the ethico-legal status of child genital cutting in Western societies have come to agree on one thing: policy inconsistency such as strict prohibition of so-called ‘cultural’ FGC alongside legal permission of multiple forms of medically unnecessary MGC and IGC cannot be reconciled with a principle of policy parity for diverse groups, nor defended if equal children’s rights to bodily integrity are taken seriously. What remains to be agreed upon, however, is what Western states ought to do about their inconsistent policies.

Pursuing policy parity

One way to ensure policy parity regarding child genital cutting would be to permit some forms of FGC that are currently illegal. Advocates of tolerance for what they regard as ‘minimal’ forms of child genital cutting (such as, nicking, pricking, or partial removal of the clitoral prepuce or hood, and/or cutting or excision of portions of the labia) argue as follows: parents are permitted to authorise medically unnecessary intersex child genital modification and male child prepuce removal (partial or total) in Western societies whatever their justification – and on the condition that all of the child’s parents agree in some societies, for instance in the UK [ 9 ]. As such, justice requires that parents also be permitted to authorise medically unnecessary FGC for their daughters, as practised, for example, within various Muslim communities [ 21 ], so long as the cutting is no more harmful than whatever is permitted for male children.

Defenders of this position characterise it as a ‘harm reduction’ approach, the idea being that permitting these relatively minor forms would dissuade community members from continuing more intrusive forms of FGC that carry a greater risk of resulting in lasting complications ([ 2 ]: p. 290). This position takes seriously the fact that some forms of FGC are more materially harmful than others, and that grouping all non-Western types under the provocative and demonising title ‘Female Genital Mutilation’, as is standard in Western law and policy, obscures these material differences [ 7 , 8 , 18 , 19 , 20 ]. In recent work, Duivenbode and Padela consider the question from a Muslim religious perspective, arguing that rather than ‘decoupling’ FGC from Islam, as is common for opponents of the practice, it would be beneficial to take guidance from Islamic ethical teachings that favour harm reduction [ 2 ]. The authors argue that, despite protestations to the contrary, there is a meaningful historico-religious association between Islam and FGC in many communities that should be acknowledged, rather than avoided, by people engaged in the debate ([ 2 ]: p. 290).

Presenting child FGC in this way may well be successful for its advocates. The argument that child MGC should be permitted has been most effective in real-world contexts when framed as a matter of religious freedom [ 8 , 22 , 23 , 24 ]. For instance, in Germany, the decision to permit infant MGC for religious purposes was made on the basis that prohibiting it would be a violation of parents’ religious freedom [ 24 ]. Similarly, Iceland recently shied away from enforcing a ban on MGC after criticisms that it would violate the religious freedom of some practising groups [ 23 ]. The question of religious freedom is among the most difficult areas to tread politically speaking, and so ‘recoupling’ FGC with Islam is a potentially powerful way to argue that some forms should be permitted. However, the argument is unconvincing for several reasons.

First, the idea that male child prepuce removal is ‘harmless’ is highly controversial [ 1 , 4 , 7 , 8 , 9 , 25 , 26 ]. The suggestion that the practice should be used as a default standard for what is acceptable when considering harm-reduction approaches to FGC does not go unchallenged. Many authors have raised concern about the moral and legal status of male genital cutting practices, emphasising the material and psychological harms that they entail [ 1 , 4 , 7 , 8 , 9 , 25 , 26 ]. The view that penile prepuce removal is harmless assumes that the prepuce itself has no value, meaning that the only real harm at stake in its removal is the risk of surgical complications. But it is not standard to take this approach to other functional body tissues which are attributed their own value. The value given other body tissue means, for instance, that even when surgery is medically necessary, there is a moral and legal imperative to make every effort to preserve healthy tissue [ 27 ]. Many men whose genitals were cut as children, teens, or infants express extreme discontent at having their sexual anatomy altered before they were able to make the decision for themselves [ 25 , 26 , 27 , 28 ]. This does not mean, of course, that every person whose genitals were cut or modified in childhood experiences the same negative consequences, but it does cast serous doubt on the assertion that the harms of prepuce removal are minimal.

Second, from a practical point of view the argument has limited applicability to real-world cases because a great many justifications given for continuing child genital cutting practices simply are not religious. Routine secular child MGC in the US, for instance, is practised for various reasons, from parental aesthetic preferences to the medically controversial belief that prepuce removal promotes genital health or hygiene [ 1 , 7 , 8 , 22 , 24 ]. Intersex child genital modification is defended on the assumption that children have a psychosocial need for their genitals to fit a physical sex binary [ 8 , 15 , 16 , 22 ]. Duivenbode argues that the blanket prohibition of medically unnecessary child genital cutting would further disadvantage marginalised minority religious groups [ 29 ], but importantly, religion is seldom the only justification cited to defend child genital cutting practices and is often not cited at all [ 30 ]. If child genital cutting and modification practices were prohibited out of respect for all children’s right to genital integrity whatever their sex characteristics, then not only religious groups would be affected. Parents and medics within dominant and marginalised groups in Western states would have their value preferences limited by prohibiting all child genital cutting and modification.

Finally, the underlying claim that collective rights to engage in other-affecting religious practices should take priority over the individual’s right to bodily integrity is hard to reconcile with the liberal commitments of Western states. While liberal thought and policy are increasingly open to group differentiated rights within culturally diverse societies, the individual remains normatively prior to the collective when the group’s freedom would upset the rights most prized by liberals; and bodily integrity is key for liberals of all stripes [ 1 , 7 , 8 , 9 , 10 ]. Duivenbode argues that female and male child prepuce removal should be permitted in liberal democracies within an account of value pluralism whereby groups should be free to practise traditions that cohere with their internal value structures. Duivenbode is right to stress the importance of respect for all groups within democratic political societies, but for value pluralism to remain morally compatible with core liberal principles, there must be limits to what is permitted when it comes to other-affecting actions. Many children in democratic (and non-democratic) societies who are raised within religious value systems grow up to reject certain aspects of those systems and may seek to leave the group [ 31 ]. According to Möller, religious freedom properly understood, ought to include the possibility for those raised within a religious household to ‘distance’ themselves from that religion ([ 32 ]: p. 470). This ‘freedom restraint’ on what parents may legitimately do to their children:

‘prohibits irreversible religiously or culturally motivated changes to the child’s body: precisely by virtue of being irreversible, such changes make it impossible for the child to ever to [dissociate] from them and to live … life free from a religiously or culturally imposed physical mark’. ([ 32 ]: p. 470)

Möller’s argument here is that the physical mark means that the child will be permanently included in the group even if they come to reject its values and practices. It goes without saying that the child could still reject many of their parents’ religious teachings upon becoming an adult, and maybe endorse different religious teachings or become an atheist [ 32 ]. But, Möller points out, the physical mark would remain, and they may feel that their genital and bodily integrity had been unjustifiably violated before they could autonomously endorse or reject the associated values and practices [ 32 ].

Priority rules are necessary within value plural political societies to avoid slipping into a political space that permits people to do anything to anybody on the grounds that the action is important for their collective conception of the good life. When it comes to liberal societies, the individual’s right to bodily integrity must be prior to the group’s collective identity. Children’s rights to bodily and genital integrity function as liberty-limiting principles if they come into conflict with parental preferences that would violate those rights. The role of liberty-limiting principles in value plural liberal societies is to emphasise the limits of moral relativism, and to stress priority rules that constrain the practices of all groups – majority, minority, dominant, and marginalised.

The right to bodily, including genital, integrity

The idea that people have a right to bodily integrity is commonplace and ‘now universally accepted’ ([ 33 ]: p. 569). It is enshrined in human rights law representing political and institutional commitments to respecting people’s bodies as sites of their ‘personal freedom’ [ 7 , 8 , 9 ]. The right consolidates, politically, a moral commitment to respecting the body as the point at which the moral person encounters the empirical world. The moral and political significance of the individual right to bodily and genital integrity concerns the profoundly personal value that bodies and genitals have for individuals’ flourishing and experience throughout life. Our Footnote 2 bodies are crucial to the most important events of our lives, ‘being born, growing up, making love, having children, falling ill and dying’ ([ 34 ]: p. 1). We use our bodies to express our thoughts and feelings, to engage with the objective world, to hide from the social world. In interfering with my body, you interfere with my subjectivity in the most immediate, direct, and intimate way. Violations of bodily integrity, then, are violations of a most serious kind within a liberal normative framework.

A distinction: bodily integrity is complicated with, but distinct from and irreducible to bodily autonomy [ 8 , 30 , 33 , 34 ]. A commitment to the principle of bodily integrity requires others to respect individuals’ bodies, to leave them uncoerced, unpenetrated, and uncut whether or not the individual is autonomous . The normative thrust of a commitment to bodily integrity resides in the value and significance of the body itself as commanding respectful treatment by others – this value and significance is present whether or not the person is autonomous and capable of consenting to interventions into their body. This matters conceptually and with regards to the argument against medically unnecessary child genital cutting, because it means that the right to bodily integrity is not merely about ensuring that the person is able to exercise rational control over their body, and it acknowledges the fact that individuals are seldom in complete control of their bodies. Understanding bodily integrity as distinct from bodily autonomy appeals to and accounts for the normative significance of the body itself as the point at which a person’s integrated subjectivity – in all its rational and irrational components – encounters the empirical world. Bodily integrity as the ‘integrated body’ helps ‘to explain the legal structure of the right, the normative weight of the right, and the ambiguous boundaries of the right’ ([ 33 ]: p. 567).

A body-oriented approach to understanding the right to bodily integrity attributes to the body a value of its own as a site of ‘moral experience’ ([ 30 ]: p. 188), its moral value is distinct from the person or people who exercise(s) control over it and it ‘cannot (entirely) be owned or controlled’ ([ 30 ]: p. 183). When it comes to the child, the right to bodily integrity has the character of protecting their interest in having an intact body, so long as there is not a medical need to interfere with the body, and carries with it a duty in others to respect their bodies as the physical boundary of their integrated subjectivity, and importantly, it emphasises the idea that the individual’s body cannot and should not be owned or controlled by others.

Dekkers et al. [ 30 ] identify a paradox in the moral outlook of religious groups that are committed to the concept of bodily integrity, but practise child genital cutting for religious purposes. The authors found that there are different views of bodily integrity, some of which contain the idea that child genital cutting is permissible because it is thought of as contributing to male children’s bodily integrity: without it, their bodies are viewed as imperfect. In their analysis of different perspectives on MGC and FGC of minors amongst people from Muslim and Jewish communities, they observe that while many of the people they interviewed did not consider bodily integrity to be violated by MGC, they invariably considered FGC to be a violation of bodily integrity ([ 30 ]: p. 188). The interviewees also reported a feeling of unease and discomfort when witnessing MGC, despite the fact that in their view ‘it definitely needs to be done’ (p. 188). Dekkers et al. claim that:

‘[t]his fact underscores that, although they rationally do not speak in terms of bodily integrity or of a violation of the human body, they intuitively express feelings of ambivalence and hesitation that can be explained in terms of respect for the integrity of the body’. ([ 30 ]: p. 188)

This sense of unease is attributable to the moral value of the body itself.

Dekkers et al. [ 30 ] acknowledge the difficulty in capturing the moral significance of bodily integrity, and gesture towards the fact that the concept is deployed and interpreted in different ways in many real-world contexts. Nonetheless, the following is profoundly important for how the right is conceptualised and deployed: the right to bodily integrity is not reducible to bodily autonomy, that is, a violation of the right to bodily integrity is not only a violation of a person’s autonomy. This means that a person who is not autonomous can have their bodily integrity violated. All of this matters here, because it means that the child’s rights to bodily and genital integrity are grounded in their interest in having their bodily integrity respected irrespective of whether they would or would not retrospectively endorse any cutting or modification of their genitalia as adults. It may well be the case that some adults who had their genitals cut or modified in childhood would affirm it as something they are content with because it coheres with the wider sociocultural values of their group (majority or minority, dominant or marginalised); but the practice would still be a violation of their bodily and genital integrity and simply cannot be justified by appealing to group rights to religious freedom within a liberal political framework.

Change history

04 march 2022.

A Correction to this paper has been published: https://doi.org/10.1038/s41443-022-00545-9

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Acknowledgements

I would like to thank two anonymous reviewers for their comments and the associate editor for numerous helpful suggestions. I am greatly indebted to Professor Clare Chambers, Professor Catriona McKinnon, Professor Robert Lamb, Dr Andrew Schaap, and Dr Sarah Drews Lucas for their feedback on and engagement with my work on this subject.

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The original online version of this article was revised to convert parts of the text into footnotes: (The Brussels Collaboration on Bodily Integrity [10] defines ‘medically necessary’ in the following way: ‘(1) the bodily state poses a serious, time-sensitive threat to the person’s well-being, typically due to a functional impairment in an associated somatic process, and (2) the intervention, as performed without delay, is the least harmful feasible means of changing the bodily state to one that alleviates the threat’.)

(By ‘our’, ‘we’, and ‘us’, I mean all embodied people.)

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Townsend, K.G. Defending an inclusive right to genital and bodily integrity for children. Int J Impot Res 35 , 27–30 (2023). https://doi.org/10.1038/s41443-021-00503-x

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Reconciling female genital circumcision with universal human rights

• PMID: 28922561
• DOI: 10.1111/dewb.12173

One of the most challenging issues in cross-cultural bioethics concerns the long-standing socio-cultural practice of female genital circumcision (FGC), which is prevalent in many African countries and the Middle East as well as in some Asian and Western countries. It is commonly assumed that FGC, in all its versions, constitutes a gross violation of the universal human rights of health, physical integrity, and individual autonomy and hence should be abolished. This article, however, suggests a mediating approach according to which one form of FGC, the removal of the clitoris foreskin, can be made compatible with the high demands of universal human rights. The argument presupposes the idea that human rights are not absolutist by nature but can be framed in a meaningful, culturally sensitive way. It proposes important limiting conditions that must be met for the practice of FGC to be considered in accordance with the human rights agenda.

Keywords: cross-cultural bioethics; cultural sensitivity; female genital circumcision; human rights; moral relativism.

© 2017 John Wiley & Sons Ltd.

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• Case Studies

Why FGM should be abolished

14 JANUARY 2020

Activists and survivors from Sierra Leone speak out against female genital mutilation.

Why FGM should be abolished:

FGM is gender-based violence

• FGM steals girls’ futures

FGM extends poverty

Fgm can force girls out of school, fgm leads to child marriage and teen pregnancy, fgm can be traumatising.

• Young people know about their rights and bodies and want the tradition to end

FGM is a violation of girls’ and women’s rights

Despite her mother once being a practitioner of female genital mutilation (FGM), 17 year old Zainab refused to be cut and is now an outspoken advocate against the practice.

Zainab became an activist at the age of 13 when she joined an anti-FGM club in her school, a club she now runs.

FGM is prevalent in Sierra Leone due to Bondo society, an all-female secret society governing a girl’s rites of passage into womanhood, including this harmful ritual.

“For many of us, our parents did not attend school, so they did not know about the dangers of FGM.

“My mother, for example, became a Sowei (the decision-makers within Bondo society) when she was very young so she did not have the chance to get an education and she did not know that FGM was a bad thing to do.”

In the country’s northern province, where Zainab lives, 96.3% of girls are forced to undergo FGM.

“In the old days if you were not part of the Bondo society and had not undergone FGM, you would be discriminated against and they would stigmatise you badly. Parents still pass on that view to their children, so they often also try to force their children to join the society. That is what we are trying to put a stop to,” says Zainab.

FGM steals girls’ futures

“When a girl is forced to undergo FGM, she loses her future,” Zainab says.

“As well as the danger of death and bleeding, FGM also causes girls to drop out of school, which in turn leads to early marriage and to teenage pregnancy, because their parents will save up all their money to pay for their initiation.”

“They will use the money to buy food for the Soweis and for the crowd who come for the ceremony, so after they have done all that, when you come out from your initiation, your parents will not have any money to send you to school, so FGM extends poverty.”

Happily, her activism has had an impact on her mother who is no longer a Sowei thanks to Zainab’s influence. She is now also a proud advocate against the practice.

Not all parents are as understanding as Zainab’s. Sixteen year old Isha* was forced to undergo FGM at the age of 12. Soon after, she was told that she had to get married, when she refused her parents threw her out of the family home. 

“Almost as soon as I was cut they told me that I had to get married. As young as I was, I asked ‘Do I have to marry, or can I go to school?’ It was not easy for me, but that is the conversation that I had with my parents. It was a battle between us.”

“All they wanted was for me to get married. When I said that I didn’t want to do it they told me that they would disown me, that they would just cut me out of the family. It was really hard to go through something like that.”

Isha now lives at a school that supports young people who have experienced difficulties at home. She is part of Plan International’s Girl Power Group, where she mentors other young people, telling them about their bodies and their rights, how to protect themselves from FGM and child marriage. She dreams of one day becoming a nurse.

Fifteen year old Isatu* (pictured above) was cut at age 10 and married by age 13. Soon after she became a mother. 

People should listen to what people my age are saying because we do know what is good for us.

When her parents died in the Ebola outbreak of 2015, her aunt made her become a Sowei in order to make money. She was forced to carry out the procedure on other girls.

“I became a Sowei when I was 11, but I didn’t want to do it. My family forced me to. I knew that there were a lot of issues with cutting people. A lot of problems. And especially that death was a risk. So that’s why I never wanted to do it. But I was forced.”

However, she has not let these circumstances define her and is now an activist determined to stamp out the practice.

“Talking about FGM is not easy though. I’ve faced a lot of backlash from people who want FGM to continue. Some of them say very abusive things to me because they don’t want to stop the practice. But I don’t let it bother me because I know what I’m doing is right and I believe that all people should listen to what people my age are saying because we do know what is good for us.”

Twenty year old Sewanatu was forced to be cut when she was just 6.

“My grandma told me to follow her and when I asked where we were going she just said, ‘You need to become a full member of our family. After four days they came to check on me and my grandma said there had been a problem and they hadn’t removed it all. So they took me again and I went through the whole process a second time.”

“After I had been cut, I was terrified of my grandma. Any time I saw her, I wanted to run. Although my mum and dad knew that she was going to initiate me, it wasn’t really their decision. My grandma was the kind of person who would tell you that shame kills faster than disease. In Sierra Leone we have respect for our parents, so my dad was very nervous and he didn’t want to disobey his mum. So that’s why they allowed it to happen.”

Young people are learning about their rights and want an end to FGM

“When I went back to school, I mobilised my friends and others within the school and we started talking about what should be done about FGM, child marriage, teenage pregnancy and all the things that affect us. And I have been campaigning ever since.” says Sewanatu. 

Now she has finished school, she intends to become a doctor so that she can help to ensure that victims and survivors of sexual violence get justice. She is currently the Regional Coordinator for the Children and Youth Advisory Board of West and Central Africa, where she works with young people from across 14 countries to influence governments and the African Union on key issues that affect children.

Because FGM is usually performed without permission and against will, it violates girls’ right to make important decisions about their sexual and reproductive health.

At least 200 million girls and women alive today in 30 countries worldwide have been subjected to FGM. It’s time to end the outdated attitudes that allow this harmful practice to continue. Thankfully, today’s young activists are determined to see this happen in their lifetimes.

* Names changed to protect identities.

Protection from violence, Sexual and reproductive health and rights, Child marriage, Female genital mutilation, Teenage pregnancy

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This is the future girls want – will world leaders listen, we need to stop tiptoeing and start acting for humanity, what is female genital mutilation (fgm).

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• v.311(7012); 1995 Oct 21

Female genital mutilation. Should be abolished.

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• Black JA, Debelle GD. Female genital mutilation in Britain. BMJ. 1995 Jun 17; 310 (6994):1590–1592. [ PMC free article ] [ PubMed ] [ Google Scholar ]
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Should female circumcision continue to be banned?

• Published: August 1995
• Volume 3 , pages 223–235, ( 1995 )

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This paper has attempted to steer a middle course between two opposing views. Although the examination tilts in favour of the conservationist, by proposing legal regulation of the practice, it also seeks to contain the fear of the abolitionist. The proposed regulation will make it illegal for minors to undergo female circumcision, and only those adults who wish to have it done will be permitted under the strict scrutiny of the law.

Female circumcision has returned to mainstream debate again and one hopes that this time a compromise acceptable to the abolitionists and the conservationists will be forged. The latter group should be given the opportunity of expressing its view without fear of being regarded with contempt. Such a cordial approach will foster a fair debate between the various interest groups that is long overdue.

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Ritual Male Circumcision: Quo Vadis?

An Ethnography of Diversity and Flexibility Around Female Circumcision and Female Genital Mutilation/Cutting: A Case of a Local Community Response to the Abolition Movement in Kenya

The Law and Practices of Ritual Male Circumcision: Time for Review

The debate on the ethics of the practice of female circumcision has been going on for well over a decade. The earliest international debate on the practice was at the Khartoum Seminar in 1979 organised by the World Health Organisation. Fran P. Hosken gives a vivid account of the reception that visited the discussion in “Female Genital Mutilation and Human Rights”, Feminist Issues (Summer, 1981), 3. See also M. Daly, GYN/ECOLOGY: The Metaethics of Radical Feminism (London: The Women's Press Ltd, 1978); The Civil Liberties Organisation, Lagos report “What's Culture Got To Do With It?”, Harvard Law Review 106 (1993), 1944. Other publications have been largely by NGO's involved in changing cultural attitudes, see E. Dorkenoo and S. Elworthy Female Genital Mutilation: Proposal for Change (Minority Rights Group Report, Manchester Free Press, 1992, 3rd ed.). At the Nairobi Women's Conference in July 1985 the debate on female circumcision pitched Western women against Third World African women. See further N. Cagatay, C. Grown and A. Santiago, “The Nairobi Women's Conference”, Feminist Studies (Summer, 1986), 401.

CLO, Lagos Report, supra n.2, at 1952.

It is outside the scope of this paper to include a discussion of African marriages and family patterns. See generally A. Phillip and H.F. Morris, Marriage Laws in Africa (Oxford: Oxford University Press, 1971).

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The immediate complications are: 1. Haemorrhage, 2. Acute infection, 3. Bleeding of adjacent organs, 4. Violent pain resulting in serious shock. Later complications include: 5. Vicious scars, 6. Chronic infection, 7. Haematic complications, 8. Obstetric complications, 9. Psychological complications. For a full discussion of health problems arising from female circumcision, see further O. Koso-Thomas, The Circumcision of Women: A Strategy for Eradication (London: Zed Books Ltd., 1987).

However, Hosken argues that it constitutes an outrageous abuse of modern medical health equipment, teaching, and tools: supra n.2, at 9.

In Corbett v. Corbett [1970] 2 All E.R. 33, a “sex change” operation was declared lawful by the courts even though this procedure involved a serious form of bodily harm. The court recognised the psychological benefit the patient derived from undergoing the transformation.

There have been reported cases of clitoridal hypertrophy and enlargement of the labia in several African races which practice genital excision. What however is unclear is whether the enlarged clitoris is congenital or specially manipulated through masturbation. See further H. Ploss, M. Bartels, and P. Bartels, Woman. An Historical Gynaecological and Anthropological Compendium , ed. E. Dingwall (London: Heinemann (Medical Books) Ltd., 1935).

The scarring that results from the excision is typical of all surgery and is no more permanent than a tattoo. R. Mackay, “Is Female Circumcision Unlawful”, Criminal Law Review (1983), 717, states unconvincingly that while an adult may consent to being tattooed, incisions inflicted by means of a razor blade are hardly analogous. How he arrived at such a conclusion is unclear. Both tattooing and circumcision involve pain to the victim, result in permanent scarring and are done for aesthetic reasons.

A. Scull and D. Favreau, “The Clitoridectomy Craze”, Social Research 53/2 (Summer, 1986), 243, traced the rationale behind clitoridectomy in England. They concluded that in the mid-nineteenth England clitoridectomy was used as a guise to deny women sexual pleasure and satisfaction by attempting to cure them of mental illness.

Many medical practitioners support the abolitionist stance that female circumcision was devised to curb female sexual desire and response. See further Hosken, supra n.2, at 11.

Koso-Thomas, supra n.9, at 13.

The writer acknowledges the diverse nature of Western feminism and restricts references here to Marxist-styled feminism. See recent work of C. Delph and D. Leonard, Familiar Exploitation: a new analysis of marriage in contemporary western societies (Oxford: Polity Press, 1992).

Many of the Feminist writers base their thesis on Engel's The Origin of the Family, Private Property, and the State ed., by Eleanor Leacock (New York: International Publishers, 1972). See generally E. Leacock, Introduction to Engels' Origin of the Family, Private Property, and the State (New York: International Publishers, 1975); S. Firestone, The Dialectic of Sex: The Case for Feminist Revolution (New York: Bantam, 1970).

Two important pieces of legislation are the USA Civil Rights Act 1964 and the UK Sex Discrimination Act 1975.

See generally E. Shorter, A History of Women's Bodies (England: Penguin Books, 1982).

Hosken, supra n.2, at 10.

Ibid. , at 9.

Per Lord Templeman in R. v. Brown [1993] 2 W.L.R. 558: “... activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision , tattooing, ear-piercing and violent sports including boxing are lawful activities” (my emphasis). Arguably his Lordship was referring to male circumcision but what is significant is the fact that he chose to describe it as “ritual”. By using such a description his Lordship recognises that circumcision, even of males, is located in cultural and religious practises rather than in health science.

The reason for the change is presumably linked with the fact that the child is schooling. Pubertal circumcision will obviously disrupt his or her education. See also Koso-Thomas, supra n. 9, at 23.

Various international conventions, including regional declarations, recognise that female circumcision of girl constitutes an abuse of the child. See Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, no. 12, June 1933 ) and The African Charter on Human and Peoples' Rights (1986).

In R. v. Adesanya (unreported), The Times , 16th and 17th July, 1974, the defendant incised the cheeks of her two sons, both under the age of sixteen. She was found guilty under section 47 of the Offences against the Person Act 1861 because the children were incapable of giving valid consent.

France and the Sudan have had a few successful prosecutions. See further Links Vol 1 Issue 2 (June, 1993), publication of the Foundation For Women's Health Research and Development [FORWARD].

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Morayo Atoki

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This paper is a modified version of an earlier one delivered at Exeter College, Oxford, at the forum of The Oxford Civil Liberties Society in November 1994. I would like to thank the reader for Feminist Legal Studies for the comments made and to James Peniston for the editing.

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Atoki, M. Should female circumcision continue to be banned?. Feminist Legal Stud 3 , 223–235 (1995). https://doi.org/10.1007/BF01104114

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Issue Date : August 1995

DOI : https://doi.org/10.1007/BF01104114

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