The Circumcision Ban

This summer a German court banned the circumcision of boys. Here, we offer two takes on the controversial decision—the first on bioethics in postwar Germany, the second on the consequences of the backlash against multiculturalism.

“Physical Integrity and Individual Dignity,” by Kristen Loveland

“A ‘Liberal’ Ban?” by Yascha Mounk

Physical Integrity and Individual Dignity

It was easy to miss, but “the worst attack on Jewish life since the Holocaust” took place in Germany at the end of June, according to Pinchas Goldschmidt, one of Europe’s leading rabbis. Goldschmidt was referring to the judgment of a regional German court that the circumcision of boys is a criminal act. The practical effect of the ruling is still to be determined, and German lawmakers are currently debating the need for new legislation. It has nonetheless struck many as bizarre that Germany, after decades spent memorializing the Holocaust, would consider banning a critical Jewish rite.

We should hesitate, however, to read the decision through the lens of anti-Semitism. For one, the case concerned the circumcision of a young Muslim boy. If religious prejudice was involved, it was more likely anti-Islamic than anti-Semitic. More profoundly, the ruling actually emerged from Germany’s sincere efforts to learn the lessons of the Holocaust and vow “never again.” Strange as it may seem, the court based its decision on principles of individual freedom and physical integrity that make sense only as products of Germany’s particular reckoning with its past, from the Nuremberg trials to the present.

Just after the Second World War, Germany established a legacy important for future bioethical determinations. The 1947 Nuremberg Code, which was drafted while twenty-three Nazi doctors were being prosecuted for medical atrocities, mandated the full consent of individuals to be “absolutely essential” in medical practices. But this applied only to human research subjects in medical experiments; that bioethical limitations might extend to widely practiced communal or religious rites was not yet considered. Germany also enshrined “human dignity” in its Basic Law of 1949 as an inviolable first principle, reinforced by the right to the free development of one’s personality and physical integrity.

Thus when new biomedical technologies arrived in the 1980s and 1990s, German attitudes and policies toward them differed widely from those in the rest of the west. When the Council of Europe drew up a Convention on Human Rights and Biomedicine in 1997, which promised to protect the dignity and integrity of all individuals, Germany refused to sign on, finding its protections weak. Unlike many other western states at the millennium, Germany prohibited research on embryonic stem cells, making an exception in 2002 for lines imported from abroad. (That Israel was quick to send its embryos raised fewer questions than it might have.)

But the circumcision ruling became possible only because, in the past two decades, the importance of physical integrity to individual development became especially invested in the child and therefore limited what parents could do to their children’s bodies. Until last year, German parents were completely forbidden from diagnosing the genetic makeup of in vitro embryos. The ban wasn’t just about the fear of designer babies; selecting embryos so as to avoid diseases like Huntington’s was considered a violation of the future child’s right to free development. Today genetic diagnosis is permitted for the purpose of avoiding a “severe hereditary disease,” but the imperative to preserve children’s bodies remains. In the circumcision case, the court ruled that boys face similar threats to their free development when their parents want them circumcised.

In the court’s view, the child should decide whether to get circumcised, and whether to affiliate with Islam, after he reaches the age of consent. Germany’s postwar history by no means made such a ruling inevitable but does explain how it came to be. By calling the boy “unable to consent,” the court mechanically identified him with vulnerable populations in Germany’s history, including severely mentally disabled persons whom the Nazis would have euthanized. And it made circumcision irreconcilable with the principles of the Basic Law. According to the court, circumcision irreparably altered the boy’s body for medically unnecessary reasons, thus violating his right to control over his physical integrity. And it permanently marked him as a Muslim, violating his right to self-determination. At the heart of the ruling, then, is an idealized individualism, which imagines that children’s bodies should be preserved from any community intrusion—and implicitly assumes the adult will not feel alienated and hollow as a result.

Americans more readily accept the power of religion and community to shape the individual. But when it comes to economic issues, many of us imagine that the individual stands alone. Just as it is impossible to enter adulthood and choose one’s religion without cultural influence, so it is absurd to have a fully free choice about when one needs, say, modern health care. In the Obamacare ruling, a majority of the justices imagined that individuals could somehow separate their bodies from the health-care market until they freely chose to enter into it, even though emergency-room care is unforeseeable and society foots the bill. Both the German and American legal arguments suspend the individual body above its social world: the former from a long-practiced religious rite, the latter from the structure of medical care in America.

Germany’s circumcision ruling has now moved into politics. And politics is where this debate belongs. The German parliament recently passed a symbolic measure in favor of legalized circumcision and promised a binding resolution in the fall. Biomedical issues like this one, which are only increasing in importance and number, inspire a real clash of values about the relationship between body and society. It should be we as political communities—more than we as subjects of court rulings—who decide which values prevail.

Kristen Loveland is a PhD candidate at Harvard University, studying the ethical debates surrounding new reproductive technologies in Germany.

A “Liberal” Ban?

A German court’s decision to ban the circumcision of minors has quickly become the political equivalent of a viral sensation. After all, it’s hard to imagine that the judge at a provincial court in Cologne who ruled that the circumcision of a four-year-old Muslim boy constituted illegal bodily harm could have foreseen that Pinchas Goldschmidt, the president of the Conference of European Rabbis, would soon be calling his verdict the “worst attack on Jewish life since the Holocaust.”

As is the case with most viral hits, some of the hype is no doubt exaggerated. In reality, leading German politicians rushed to condemn the ruling as soon as it started to make headlines. Chancellor Angela Merkel assured Germany’s Jewish and Muslim communities that they would be able to perform their rites. In part at her urging, the Bundestag has already passed a non-binding resolution affirming its intention to give the bris and the khitan a clear legal grounding. Within a few months, a law officially overturning the ban on circumcisions is expected to come into force.

We can now confidently predict that the supposedly worst attack on Germany’s Jewish life since the Second World War will barely outlive the life span of an average YouTube hit. So should concerned observers forget all about the ban, and move on to the next political sensation? Not quite yet. While the temporary ban on circumcisions is unlikely to affect Jewish and Muslim religious life in Germany for more than a few months, the outpouring of public support for it suggests that the rights of minorities may soon come under attack in different ways.

Just consider that, to this day, most Germans actually favor the ban on circumcisions. In an opinion poll conducted a few days after the ruling, 56 percent of Germans welcomed it; only 35 percent were opposed. Even now, after weeks of passionate discussion, a slim plurality of Germans remains intransigent: while 42 percent want circumcisions to be legal, 45 percent support the ban. What’s more, a cursory look into the comments section of leading newspapers suggests that the opposition to circumcisions is visceral—and has more to do with a continuing uneasiness about the presence of Jewish and Muslim life in Germany than with philosophical views about the rights of children. In fact, I myself quickly became the object of some of this ire when I complained about the ban on Twitter. “Germans don’t force anybody to stay in Germany,” one user immediately tweeted at me. “#AndGoodbye #Circumcision.”

The passion triggered by the circumcision debate is all the more confusing since Germany’s worry about the grievous bodily harm that is supposedly being inflicted on innocent children is so selective. Many commentators, including multiple members of parliament, have portrayed the religious rites of Islam and Judaism as a barbaric violation of human rights. But, bafflingly, hardly anyone has so far expressed concern for the suffering of the average child in America, where circumcision is far more prevalent than in Europe. Do Germans just care that much more about keeping Jewish and Muslim penises intact?

That seems unlikely. The real explanation, I think, is that many Germans are growing impatient with what they consider their country’s shameful shame for its own past. In their view, Germans, overly apologetic for their country’s history, have for too long been kowtowing to Jews and Muslims—and, in particular, been far too accommodating toward the millions of Turkish immigrants who flocked to the country as so-called “guest workers” in the 1960s and 1970s. Now that Germany is growing more self-assertive, Germans think that it is high time to reverse course. As Angela Merkel memorably put it, multiculturalism has “failed, utterly failed.”

Officially, this newfound opposition to multiculturalism only amounts to an insistence on the liberal-universalist norms that are enshrined in the Basic Law, Germany’s equivalent of a constitution. In theory, then, opponents of multiculturalism merely mean to stop minorities from appealing to tradition or religion in order to gain exemptions from neutral laws. In reality, though, Germans are increasingly invoking the supposed excesses of multiculturalism to attack any law that grants inconvenient rights to minorities. So, under the banner of fighting multiculturalism, German politicians rightly oppose the imposition of sharia law—and wrongly resist the right of Muslims to build places of worship under the same conditions as Christians.

This tendency to restrict the liberal rights of religious minorities under the pretense of asking them to obey superficially liberal laws is plainly on display in the ruling on circumcisions. According to the verdict, the authority of parents over their children should be limited in two ways. First, they must in no way interfere with their children’s ability to choose their religion freely once they come of age. Second, parents cannot consent to any procedures that will permanently change their children’s bodies, unless they are medically required.

The first principle is clearly right. Liberal societies don’t force anyone to continue partaking in his or her parents’ religion; that’s what theocracies do. What’s baffling is how the Cologne court could possibly invoke this principle to justify a ban of the bris and the khitan. Did the judge think that parents shouldn’t have the right to induct their children into any religious community until they themselves can make autonomous decisions about which religion they want to take part in? On that logic, he would have to outlaw baptisms as well as ritual circumcisions. Or was he worried that their lacking foreskin would somehow stop Jews from converting to Christianity once they turn eighteen? Unless million upon millions of circumcised Americans are about to be excommunicated by their churches, that’s just comically untrue.

The second principle, meanwhile, may sound plausible. In the form in which the Cologne court applied it, however, it is actually far too broad. Parents can and do consent for their children’s bodies to be changed in all kinds of irreversible ways. This is true for vaccines, and other medically beneficial interventions. It’s also true for a whole host of customs that don’t have a medical justification—like pierced ears, or braces that merely serve a cosmetic function. But few of us would think that parents should be unable to consent to such procedures on behalf of their children.

So, while the court’s decision is written in impeccably liberal language, its not-so-coincidental effect is to disadvantage Germany’s minorities. If its reasoning were to be consistently applied, it would wreak havoc on the rights and customs of all Germans: Christian, Muslim, and Jewish alike. But it won’t be. After all, no German judge would ever think of restricting the right to Christian worship for the same flimsy reasons that apparently suffice to restrict the right to Muslim or Jewish worship.

Germany is hardly alone in undermining liberal rights by selectively misapplying superficially liberal principles. The same is happening all across Europe. “Liberal Islamophobia,” a brand of politics pioneered by ever-more powerful populists like Geert Wilders, is slowly entering the political mainstream. Its ideas have been instrumental in securing the passage of a wide variety of illiberal laws, from the Netherlands’s restrictions on ritual slaughter to France’s ban on religious symbols in public schools. And though these laws are primarily meant to restrict the rights of Muslims, they usually end up affecting Jews just as badly.

Germany’s ban on circumcisions may, inshallah, be forgotten a few months from now. But the tendency of many Europeans to use supposedly liberal principles as a fig leaf for their intolerance will still be with us.

Yascha Mounk is editor of the Utopian and a PhD Candidate at Harvard University.

Photo by Topdog1, 2007, via Flicr creative commons



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