These Goalposts Don’t Move: Non-Medical Circumcision of Boys in the Tasmanian and Australian Context

Abstract

This paper examines reasons given by proponents for circumcision of minors, which include clinical indications, prophylaxis, religion, and culture. It examines the legal authority by which the professional or lay operator performs surgery on a person with that person’s consent. The paper focuses on the capacity of a parent to give valid consent for surgery performed on children, in the context of Tasmanian and Australian Statute and common law, and the fountains of English common law. It considers the relevance of “Gillick-competence” of the child patient and discusses whether a legal response based on notions of residual parental “rights,” of “family rights,” and of “cultural/religious rights” and the paramountcy principle of the child’s best interests are consistent tests by which to protect the rights of the child. These rights issues are routinely absent from the reductionist arguments of proponents. The paper concludes that the only consistent way to challenge the arguments of child circumcision proponents is to insist on the individual rights of the individual child, including rights to choose a religion, rights to protection from cruel treatment and abuse, rights to be consulted in decisions that have permanent effects on the child’s life experience, and a right emerging from the international response to FGM—the right of genital autonomy.