A year ago Germany, after a long and heated debate, passed a controversial new circumcision law. It was meant to be a Solomonic solution, but critics say that the new rules do not guarantee children's well-being.
A ruling by a Cologne regional court in the spring of 2012 set off a fierce debate over the Jewish and Muslim ritual of circumcision. The court decided that non-medical circumcision amounted to bodily harm. Both supporters and critics of the practice discussed the issue at length on television and op-ed pages, employing both medical and ethical arguments. The main question remained: how to reconcile freedom of religion and parents' rights to choose how to raise their children on the one hand, with the children's well-being on the other.
A law was passed that was meant to answer that question. Paragraph 1631d of the code of civil law declared that the circumcision of a male child is legal and must be done in accordance with "the rules of the medical profession" - as safely as possible and with appropriate and effective pain relief. Parents need to be informed of the procedure's potential risks, it must not pose a danger to the child's well-being, and the wishes of children old enough to express them also need to be taken into account. Representatives of Germany's Jewish and Muslim communities said they were satisfied with these conditions.
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Justice Minister Sabine Leutheusser-Schnarrenberger, who introduced the bill, said the regulation re-established what was regarded as the status quo before the Cologne court's ruling.
But a year after coming into effect, the law is now a complete failure - at least according to critics, who say circumcision represents a violation of a child's physical integrity. Boys, critics said, often do not undergo the procedure under safe conditions and without appropriate pain relief.
"This law has legalized many questionable means of children's foreskin amputation," said Christian Bahls, head of the Mogis association, which advocates the physical integrity and sexual self-determination of children.
Bahls refers to a case in Berlin in which the Jewish method of Metzitzah B'Peh was carried out - where the circumciser sucks the wound with his mouth, and not with a pipette or a small tube. Because of the danger of infection, the Israel Ambulatory Pediatric Association (IAPA), among other associations, has already rejected the practice.
Mogis pressed charges against the boy's father, a rabbi, as well as the grandfather who held the baby and the circumciser. But prosecutors dropped the case because no criminal responsibility could be proven against the relatives, and the circumciser lived abroad and so was outside of German jurisdiction.
Bahls says this outcome shows that the new law does not protect children's well-being properly. Prosecutors, he claims, dropped the case on the grounds that applying a painkilling bandage after the circumcision was enough to ensure medical safety. "So clearly it is permissible to amputate a child's foreskin without an adequate anesthetic," said Bahls. "That is what the law allows."
Wolfgang Gahr, general secretary of Germany's academy for children and young people's medicine (DAKJ), has also heard reports of circumcisions being carried out under hygienically questionable conditions and without anesthetic. "They are individual cases," he said. "We don't have any figures." The DAKJ is against non-medical circumcisions in general, but if they can't be avoided, "they should at least take place under medical supervision and be painless."
But this last condition is certainly not stipulated by the law, according to which children under six months are allowed to be circumcised by someone nominated by the religious community - in other words, a circumciser, who in most cases is not a doctor. That means he is not qualified to administer an anesthetic, says Gahr.
The Justice Ministry, on the other hand, cites what it claims is evidence that the law protects children's well-being - for instance a ruling made by a Higher Regional Court in September, which forbade a Kenyan woman from circumcising her six-year-old son because parents and doctors had not consulted the child, and because the parents had failed to properly inform themselves.
Germany's Constitutional Court has also had to address the law, after a man brought a lawsuit because he had been circumcised by someone without medical training, in 1991, when he was aged six. The judges dismissed his case because he was not currently directly affected by the new law. In other words, the court avoided addressing the new law itself.
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