Abstract
The Convention on the Rights of the Child, Article 24, clearly condemns medical practices that are harmful to children. Amongst these, male circumcision constitutes one of the egregious examples, and the Convention clearly indicates that a harmful practice cannot be justified on tradition, religious, or ethnic grounds. What is particularly noxious about the practice is that it usually takes place without the consent of the child. Australian Law has already reached the position where it has been held that parental consent to an irreversible non-therapeutic operation is not sufficient to justify doctors in performing it. This presentation will argue that doctors have been put on notice that they are taking a huge risk in performing this operation. They are vulnerable to legal action by the child.
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References
For a general overview of the legal responsibilities of medical practitioners according to Australian law see Skene, L., Law and Medical Practice: Rights, Duties and Defences. Butterworths: Sydney; 1998.
Only Somalia and the United States of America have failed to ratify the Convention. It is thus the Human Rights document that has obtained the most widespread ratification in the world.
For an overview of the UN Convention, and its implementation in Australia, see Report of Joint Standing Committee on Treaties, UN Convention on the Rights of the Child (1998).
For a critical analysis of Australia’s implementation, see: J. Neville Turner, Panic Over Children’s Rights, (1996) I. Newcastle University Law Review 72.
Re Marion (1992) F.L.C. 92–293: appeal allowed, sub nomine Secretary, Department of Health and Community Services v. J M B and S M B (1992) 175 C.L.R. 218. For comment, see Patrick Parkinson, Children’s Rights and Doctors’ Immunities, (1992) 6 Australian Journal of Family Law 101.
St. Margaret’s Hospital for Women (Sydney) v. McKibbin (1987) Australian Tort Reports 80–130. See also Peterson v. Morley (1999) (unreported, District Court, W.A. Perth, N. 3713) referred to in: Boyle GJ, Svoboda JS, Price CP, Turner JN. Circumcision of healthy boys: criminal assault. Journal of Law and Medicine 2000;7:1–10. In that case, a settlement of $360,000 was approved and noted.
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For details of these cases, see Stephanie Charlesworth, J. Neville Turner and Lynne Foreman, Disrupted Families — The Law (Federation Press, Sydney, 2000), pp 131–132. Nicholson C.J. had dissented in the court below (Full Court of the Family Court of Australia). His dissenting judgment was approved in the successful appeal to the High Court of Australia (see Note 4, supra).
It is, however, disturbing to find that, since 1989, the rate has not been falling, but slightly rising. See Department of Health Statistics.
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Turner, J.N. (2001). Doctors, Be Warned. In: Denniston, G.C., Hodges, F.M., Milos, M.F. (eds) Understanding Circumcision. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-3351-8_16
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DOI: https://doi.org/10.1007/978-1-4757-3351-8_16
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