* Brian D. Earp is Associate Director of the Yale-Hastings Program in Ethics and Health Policy at Yale University and The Hastings Center. Robert Darby (Ph.D. University of New South Wales) is an independent scholar and author of A Surgical Temptation: The Demonization of the Foreskin and the Rise of Circumcision in Britain (University of Chicago Press, 2005). Thank you to Benjamin D. Johnson, Editor-in-Chief of the University of Pennsylvania Journal of International Law for inviting us to respond to the article by Stephen R. Munzer, and to Sarah E. Kramer and Zachary Sweebe, the Executive Online Editors, for their extraordinary patience in shepherding the process through to completion. Finally, the authors thank Ashley Trueman for editorial assistance, and James Chegwidden, Elizabeth Reis, Richard Shweder, J. Steven Svoboda, and Robert S. Van Howe for helpful feedback on an earlier draft of this article.

Surgically modifying the genitals of children—female, male, and intersex—has drawn increased scrutiny in recent years. In Western societies, it is illegal to modify the healthy genitals of female children in any way or to any extent in the absence of a strict medical indication. By contrast, modifying the healthy genitals of male children and intersex children is currently permitted. In this journal in 2015, Stephen R. Munzer discussed a controversial German court case from 2012 (and its aftermath) that called into question the legal status of nontherapeutic male circumcision (NTC), particularly as it is carried out in infancy or early childhood. Whether NTC is legal before an age of consent depends partly upon abstract principles relating to the best interpretation of the relevant laws, and partly upon empirical and conceptual questions concerning the degree to which, and ways in which, such circumcision can reasonably be understood as a harm. In this article, we explore some of these latter questions in light of Professor Munzer’s analysis, paying special attention to the subjective, personal, and individually and culturally variable dimensions of judgments about benefit versus harm. We also highlight some of the inconsistencies in the current legal treatment of male versus female forms of nontherapeutic childhood genital alteration, and suggest that problematically gendered assumptions about the sexual body may play a role in bringing about and sustaining such inconsistencies.

1. Introduction

In a recent article in this journal, Stephen R. Munzer provided a nuanced and fair-minded discussion of the ongoing moral, legal, and medical controversy surrounding the nontherapeutic circumcision (“NTC”) of male infants and children. His focus was on the Cologne ruling of 7 May 2012, which held that it is a criminal offense under the German Basic Law (Grundgesetz) to circumcise a male minor unless it is medically indicated (a decision that was subsequently nullified by the passage of a special law by the German legislature). In his analysis of the ruling and its political aftermath, Professor Munzer emphasized the sharply contrasting perspectives that have come to characterize this at times “uncivil” debate. In this article, we shall highlight some of the key issues raised by Munzer that in our judgment deserve further attention. We focus in particular on the sexual implications of NTC and on the subjective elements of judgments about harm.

1.1. Risk and Personal Preference

Much of the controversy surrounding NTC concerns the extent to which, and ways in which, it may reasonably be understood as a harm. Although we will touch on some of the ongoing scientific disputes about the positive and negative physical consequences of NTC (chiefly claimed health benefits versus surgical complications), these will not be the focus of our discussion. Instead, we shall argue that “new medical evidence on the risks and benefits of circumcision” is unlikely to provide compelling grounds for “an empirical refutation” of either of the principle stances on NTC: namely, that the procedure is on balance harmful as opposed to beneficial.

Why do we think that new medical evidence is unlikely to settle such disagreement? First, it is apparent that the scientific literature in this area is itself highly politicized, showing signs of polarization as well as personal, ideological, and cultural biases among many of those responsible for producing and interpreting the relevant research and turning it into policy. This can, at times, make it difficult, if not impossible, to determine what “the evidence” really suggests. But suppose that were not the case, and there were instead an agreed-upon set of “objective” facts concerning the likelihood of various physical and non-physical consequences of NTC, under whatever specified conditions. Still, one could not settle the question of how each benefit or risk should be characterized, much less weighted, in terms of subjective factors including the affected male’s preferences and values. To illustrate this idea, take the concept of risk. Philosopher Scott Campbell argues,

one of the components of risk is harm. This is the level of badness or loss associated with the occurrence of x. Harm does not just include physical injury but any sort of circumstance that P would prefer not to be the case. If there is nothing bad about x at all then P is not at risk from x. This entails that our attitudes and preferences partly determine risk, because our attitudes and preferences determine what counts as a harm.

Note that something could be bad for a person even if he does not prefer that the circumstances were different: for example, his preferences could be tied to a gross misunderstanding about the state of the world. But assuming he is reasonably well-informed, and that his preferences fall within some rationally defensible spectrum, his own assessment of whether x poses a risk to him—and, if it does, the nature and degree of the risk—must be factored into the equation. As Campbell states, in many cases, we “cannot determine whether or not x is a risk” without first taking stock of people’s preferences.

But preferences vary between groups and individuals. In the case of NTC, sources of variance include people’s tolerance for certain kinds of risk compared to others (and related attitudes concerning available risk-management strategies), judgments about the real-world importance of alleged benefits or risks, and assessments of their personal relevance given one’s habits and circumstances. Preferences may also vary over time as people are exposed to different perspectives, form new impressions, or process additional information.

In short, there is a fundamentally unstable, personal dimension to assessments of benefit versus risk (which we take to mean “prospect of benefit” versus “risk of harm” for the purposes of this analysis). This subjective element is especially pertinent to childhood NTC since it involves the involuntary surgical alteration of a psychosexually significant part of the body—the penis. Needless to say, individual attitudes concerning the aesthetics of the penis, whether surgically modified or natural, as well as the sensual and symbolic significance of the organ, vary considerably both within and between cultures. Moreover, the state of one’s genitals, circumcised or intact, can inspire strong emotions relating to one’s sexuality, self-image, and self-esteem. It is for these reasons that we shall emphasize the sexual implications of NTC in our discussion.

1.2. Science, Sex, and Subjectivity

In discussing these implications, we adopt a skeptical attitude toward the prospect of assessing them scientifically, much less applying them universally. In this regard, we are sympathetic to the view of Juliet Richters, who notes that “[a]rguments about circumcision reveal something of the limitations of evidence-based medicine. They can tell us how many circumcisions are necessary to prevent one case of penile cancer (about 1000), but they cannot [adequately] engage with the subjective experiences of the sexual body.”

And yet such experiences are crucial for making intelligible judgments of benefit versus harm, while at the same time being highly individualized: they may be quite different from person to person even if the “objective” outcomes of circumcision are held constant for the sake of analysis. As Sara Johnsdotter argues, “[w]hile genitalia usually are central to sexual activity, and can be seen as a prerequisite for sexual intercourse, it is a misapprehension to see the state of them (cut or uncut) as determinative of the individual’s experience of the sexual encounter.”

Below, we will provide evidence that many men, including a substantial number of men from majority-circumcising cultures or sub-cultures, regard themselves as being sexually or otherwise harmed by circumcision. This perception of harm often exists even in the absence of surgical complications or other commonly acknowledged “medical” risks of circumcision: the men feel harmed simply by virtue of having had their foreskins removed, especially without their consent. This response is due to two main factors: first, the positive value the men assign to the notion or embodied state of genital intactness or wholeness, as well as to the foreskin itself (a structure lost to circumcision by design); and second, the negative value they assign to various outcomes of circumcision that are intrinsic to the procedure. These outcomes include the denuded appearance of the penis (or the appearance of its scar tissue), changes in external tactile properties of the head of the penis that are brought about by circumcision, the foreclosure of the ability to experience sex with surgically unmodified genitalia (i.e., to engage in sexual activities that require manipulation of the foreskin), and the loss of personal choice concerning a very “private” part of the body.

By contrast, other men regard themselves as being sexually (or otherwise) enhanced by virtue of having been circumcised, due to a different set of attitudes and values. For example, where circumcision is culturally normative, the foreskin might be presumed to be of limited or no intrinsic or instrumental value, or even of negative value, such that its loss to circumcision would be less likely to be construed as in-and-of-itself a harm.

But whatever the case, individual differences in circumcision-related body-image appraisals can affect one’s sexual experiences in significant ways. Combined with differences in subjective weightings of the various other alleged benefits and risks of NTC, such appraisals pose a challenge for this debate. Specifically, they pose a challenge to any legal analysis that presumes the possibility of an “empirical refutation” of an asserted ratio of benefit to harm.

To frame this challenge, we begin by discussing the role of harm judgments generally in legal reasoning, with an emphasis on their “open textured” nature. This nature goes a long way toward explaining the contradictory conclusions that are often drawn about the harmfulness of NTC. Then, to explore the sexual dimensions of this potential harmfulness, we describe some of the specific ways in which circumcision changes the penis, emphasizing the range of possible surgical, anatomical, and other outcomes. Following that, we share several personal accounts from men who have had differing responses to such penile alterations.

We will also discuss some of the benefits, both medical and non-medical, that have been attributed to circumcision. To this end, we explore how men may reasonably reach different conclusions about the importance or even relevance of those benefits, given alternative means of achieving them. Along the way, we reflect on the problem of uncertainty regarding whether a boy who is circumcised in infancy or early childhood will grow up to view himself as having been enhanced by circumcision, as opposed to diminished by it or even mutilated. In this regard, we emphasize the very intimate nature of the genitalia, as well as the temporal and geographic instability of the cultural, social, and other norms that typically influence such personal evaluations. Given such unstable conditions, we conclude that, in most cases, the balance of considerations weighs in favor of avoiding NTC in infancy or early childhood. In this way, each individual can perform his own risk-benefit analysis at an age of understanding, factoring in his personal preferences and values.

Finally, we draw attention to the current legal disparity in protections afforded to male versus female children when it comes to nontherapeutic genital alterations. Although we do not draw any hard and fast conclusions about how these disparities should be addressed, we do maintain that the status quo is untenable.

2. The Question of Harm

Is circumcision, at least on balance, harmful? In addressing this question, Professor Munzer discusses the work of Dr. Bijan Fateh-Moghadam, who was critical of the Cologne decision. In Dr. Fateh-Moghadam’s view, the “risk-benefit ratio of circumcision is acceptable,” and therefore “parental consent to circumcision lies within the scope of the parents’ discretion.” Of course, judgments about the acceptability of this ratio are likely to differ between reasonable people, and the claimed ratio itself may change with the shifting tides of scientific opinion. Nevertheless, according to Munzer, “[b]e the test acceptability or some other standard, Fateh-Moghadam’s argument could be vulnerable to an empirical refutation.”

The idea that the acceptability of circumcision rests on a refutable empirical contention has significant historical precedent. In a 1890s treatise on the cultural, religious, and medical aspects of circumcision, the German Jewish physician Abraham Glassberg advocated circumcision of infants as a health precaution, but also conceded that if circumcision were shown to be harmful it would be necessary for the state to intervene. Other defenders of cultural/religious circumcision have similarly proposed that, since circumcision was not at all harmful, not harmful on balance, or not harmful enough to warrant interference with parental prerogatives or traditional customs, it should remain unrestricted.

The question of harm, then, has become central to the debate over the ethical and legal permissibility of circumcision. While critics of the practice often argue that it is harmful by its very nature–seeing the non-consensual loss of functional tissue as a sufficient condition for harm–or harmful on balance by virtue of its average consequences, defenders often suggest that the procedure does not cause or constitute harm except in the case of surgical mishaps. Some supporters go even further and claim that it is highly beneficial, at least socially or spiritually if not necessarily physically. Despite this disagreement, however, both sides appear to believe that there is one right answer to the question: either circumcision is harmful or it is not harmful, and—if one sets aside claims about intrinsic harm—“the evidence” will show us which is correct.

But there are difficulties with this way of framing the issue. First, as we have noted, “the evidence” is itself highly politicized and strenuously contested. Second, there are no universally agreed-upon benchmarks for defining harm or setting a harm threshold beyond which state interference would be justified. Third, any weighing of particular harms and benefits—even if their existence were undisputed and their likelihood precisely estimated—would result in different conclusions depending on one’s starting assumptions, preferences, and values. Finally, as we explain in the following section, the very concept of “harm” lends itself to wide-ranging interpretations as to its meaning and proper scope of application.

2.1. Harm as an Open Textured Concept

That contradictory assertions have been made about the harmfulness of circumcision, often seemingly in good faith by proponents and critics alike, should come as no surprise. According to one widely accepted view, harm is an “open textured concept,” a term introduced by the legal philosopher H. L. A. Hart. As Kwame Anthony Appiah has suggested, such concepts may be at play when “two people who both know what [the words they are using] mean can reasonably disagree about whether they apply in particular cases.” Hart argues that legal decisions depend upon the application of rules, which in turn depend on the interpretation of terms whose range of applicability is uncertain and often influenced by the values and interests of the parties to the discussion. He uses the simple example of a law that prohibits vehicles from entering a public park – which immediately raises the question of what counts as a vehicle. Does it include bicycles, skateboards, golf buggies, baby strollers, or children’s pedal cars? The law cannot specify all the possible objects to be covered by the rule, so it is left to the courts to determine whether skateboards or golf buggies, for example, are vehicles and hence whether their operators are breaking the law by entering the park.

Interpretations of open texture terms can almost always be challenged, and lengthy legal appeals have arisen from disputes over the ambit of terms such as vehicle, structure, fair wages, reasonable price, and safe working conditions. Indeed, some expressions that bear more directly on the present issue of contested interventions into children’s bodies—such as the oft-invoked “best interests” standard—are about as open textured as possible, and they have given rise to diverse interpretations, depending on, inter alia, the cultural presuppositions of the parties to the debate.

This influence of culture can be seen most vividly in the related case of ritualized female genital cutting, as discussed by Munzer. This practice, or rather set of practices, is primarily seen by Western observers as being unambiguously harmful, “repugnant,” and “intolerable.” But as Robert S. Van Howe has pointed out, “there are practitioners, especially in cultures where female circumcision is common, who fervently believe that [even the] more invasive forms of female circumcision … do not pose risks of physical or psychological harm.” This difference in perspective could be taken to suggest that culturally variant background assumptions—perhaps bolstered by conscious or unconscious “motivated cognitions” aimed at reducing cognitive dissonance—have the potential to stretch one’s perceptions or interpretations of harm to a significant degree. Moreover, when the purported social and cultural benefits of female circumcision are factored into the equation—including, in some groups, perceived aesthetic enhancement, beliefs about improved cleanliness, and greater acceptance by one’s peers and elders —“practitioners could easily convince themselves that any harm is more than offset by the many perceived benefits.”

Dictionary definitions will not resolve such disagreements. The Shorter Oxford English Dictionary, for example, defines harm as “hurt, injury, damage, mischief.” Most people across a range of cultural settings would agree these things are bad, and often bad enough to warrant legal sanction. But the question of whether these terms are applicable to—or accurate descriptions of—any particular practice, such as nontherapeutic male or female genital cutting, requires deeper reflection, and, ultimately, heavily value-laden judgments.

2.2. A Legal Framework

In a legal context, there are several plausible frameworks for guiding such judgments, one of which comes from the work of Joel Feinberg. In his analysis of the moral limits of criminal law, Feinberg (whose influential “open future” principle is also discussed by Munzer) defines harm as a “setback to interests.” Interests, in turn, are glossed as ordinary desiderata shared by most people: “[t]he interests in one’s own physical health and vigour, the integrity and normal functioning of one’s body, the absence of absorbing pain and suffering or grotesque disfigurement … the absence of groundless anxieties and resentments, the capacity to engage normally in social intercourse and to enjoy and maintain friendships.”

Feinberg explains that despite their everyday nature, these interests are “the very most important interests a person has, and cry out for protection, for without their fulfillment a person is lost. … These minimal goods can be called a person’s welfare interests. When they are blocked or damaged, a person is very seriously harmed.” Because these interests are so important, their violation falls properly within the domain of criminal law. Significantly, he adds that “[i]mpairment of function … is the most common form of a setback to welfare interests, and perhaps the mode characteristic of the most serious harms to persons.”

Functions are impaired “[w]hen they are weakened and lose their effectiveness. A broken arm is an impaired arm, one which has (temporarily) lost its capacity to serve a person’s needs effectively, and in virtue of that impairment its possessor’s welfare interest is harmed.” A person who deliberately breaks another person’s arm will appropriately be prosecuted for causing him harm, even though the injury (the impairment) is temporary and the arm is expected to heal. If, therefore, NTC results in any impairment of function, even if only temporarily, it may be legitimate—according to this line of thought—for the law to regulate, restrict, or even prohibit it in certain circumstances. We will return to this point in Section 3.3.

Here, too, one will find subjective, individually variable judgments about what counts as a functional impairment, as well as about how and by whom such impairments should be assessed. But such judgments cannot be entirely free-floating: to be credible, they must be firmly tethered to an informed understanding of what is actually implied by the practice in question. Since much of the legal literature treats NTC as a vague abstraction, with minimal or no description of surgery itself or the part of the penis it is designed to remove, we shall take some time to elucidate these matters in the following section. Once we have a grasp of what NTC involves and how the penis is altered by it in the typical case, we will be in a better position to understand the sharply differing attitudes that some men have about whether they have been harmed by the procedure.

3. What Does NTC Involve, And How Does It Change The Penis?

For the purposes of this analysis, NTC is defined as the deliberate removal of part or all of the penile prepuce (foreskin) in a healthy individual for whom there is no immediate medical indication for the procedure. As the pathologists Christopher Cold and John Taylor state:

The prepuce is an integral, normal part of the external genitalia, that forms the anatomical covering of the glans penis … The outer epithelium has the protective function of internalising the glans [as well as the] urethral meatus (in the male) and the inner preputial epithelium, thus decreasing external irritation or contamination. The prepuce is a specialized, junctional mucocutaneous tissue which marks the boundary between mucosa and skin; it is similar to the eyelids, labia minora, anus and lips. The male prepuce also [typically] provides adequate mucosa and skin to cover the entire penis during erection. The unique innervation of the prepuce establishes its function as an erogenous tissue.

The foreskin thus has two layers—the inner and outer epithelia—which, when unfolded, comprise about 30-50 square centimeters of highly sensitive tissue in the average adult organ (roughly the surface area of a credit card and about half the moveable skin system of the penis). It is of course much smaller in infancy or early childhood. While removing this genital structure at such an age may appear to be simple or straightforward, it is in fact an intricate procedure that produces a range of physical and cosmetic outcomes. This variability, even for circumcisions that are “properly” performed, is important to keep in mind when attempting to draw any general conclusions about the potential harms of the procedure per se.

3.1. The Problem of Variability

The variability just mentioned arises from two main sources: the body part circumcision is designed to remove—the foreskin—and the method employed to remove it. To take the second point first, “[c]ircumcision methods can be classified into one of three types or combinations thereof: dorsal slit, shield and clamp, and excision.” Whichever method is used, practitioners must contend with the fact that the foreskin is not a discrete entity, like a finger or gall bladder, but rather a sheath of tissue wrapped around and integrated with the larger structure of which it is a part (i.e., the penis). Moreover, in infants and young children, the inside of the foreskin is usually firmly adherent to the head of the penis, since “[t]he fused mucosa of the glans penis and the inner lining of the prepuce separate [only] gradually over years, as a spontaneous biological process.” Consequently, NTC at this age requires “tearing the common prepuce/glans penis mucosa apart … with the concomitant risk of glanular excoriation and injury.” This step is not required in adult circumcision.

Depending on the specific technique or combination of techniques employed, the instrument or instruments used, and the skill of the practitioner, different quantities and types of tissue may be removed by circumcision such that the effects of the procedure—including any complications —are not uniform. With respect to complications, estimates vary widely in the medical literature, ranging from an overall complication rate for neonatal NTC of a fraction of a per cent to a rate as high as 20% for meatal stenosis alone. Such wide variation in professional estimates, in combination with ongoing disputes over the appropriate diagnostic criteria for some adverse events and systematic barriers to complete reporting of even overt complications (including a lack of adequate long-term follow-up), suggests that a definitive conclusion about the “medical” risks of NTC cannot at this time responsibly be drawn.

Disparities arising from surgical factors are only part of the story. Such disparities are compounded by sometimes substantial individual differences in penile, including foreskin, anatomy. These differences range from variations in the size and shape of the penis in toto, to the length, thickness, and surface area of the foreskin itself to the precise organization of the foreskin’s innervation and vasculature, its elasticity and mobility, the number and distribution of nerve endings it contains, and the degree and quality of sensation transmitted by those nerve endings in response to different types of stimulation.

To illustrate just one aspect of this variability, consider an individual whose foreskin plays a significant role in the generation or facilitation of pleasurable sensations during sexual intercourse, foreplay, or masturbation. Compared to someone whose foreskin plays a less significant role, or even a negative role (perhaps due to anatomical or other anomalies), this person has more to lose, so to speak, by being circumcised—even if the “surgical” aspects of the procedure in both cases are identical.

To summarize, a typical circumcision is not “just a snip” as is often asserted, but is rather a delicate surgical procedure consisting of several discrete steps, each of which carries risks. These risks vary in their nature, likelihood, and magnitude as a function of numerous interacting variables—including the skill of the practitioner, the instruments used, the amount of tissue removed, and so on—many of which have not been adequately studied. Moreover, when they do occur, adverse events are likely to have an outsized impact on the affected individual due to the special significance of the organ in question: it is not only the likelihood of a given risk that is important, but also its magnitude or importance were it actually to take place. That said, different men relate to their bodies differently, and the personal impact of specific outcomes associated with circumcision cannot be known in advance. Such uncertainty is especially apparent in the case of the one outcome of NTC that is (almost) guaranteed to occur, since it is the intended effect of the procedure: the loss of the foreskin itself.

3.2. Differing Attitudes Concerning Foreskin Loss

In the academic literature, as well as in popular discussion, the loss of the foreskin is rarely treated as an adverse consequence of circumcision. Yet whether one regards this loss as a harm will depend almost entirely on the value one assigns to the foreskin or to the notion of genital intactness.

The view that the foreskin has little value appears to be more common in cultural settings such as the United States, where, in contrast to most other industrialized nations, neonatal circumcision rates remain relatively high. In such a context, popular knowledge about the surgically unmodified penis is likely to be comparatively lacking, such that the anatomy and functions of the foreskin might not be as robustly understood even by medical professionals. The majority of these medical professionals are either themselves neonatally circumcised males or non-circumcised females; in either case, they are relatively unlikely to have had significant personal experience with surgically unmodified male genitalia.

For comparison, in contexts where ritualized female genital cutting is more normative, the anatomy, functions, and associated sensory implications of the surgically unmodified female genitalia are similarly thought to be inadequately understood. In such settings, “uncircumcised” women are commonly stigmatized as having genitalia that are unsightly or difficult to clean. Even the external clitoris—typically a highly valued body part among those who possess one—may be viewed in these settings as something that is ugly, unfeminine, or simply “extra,” and hence as unnecessary for normal sexual functioning. These observations indicate that there is a strong role for cultural conditioning in shaping one’s assumptions about the importance of a given genital structure for intimate activity and sexual enjoyment.

Such cultural conditioning is subject to change, however, and stigmatizing attitudes may not remain stable. As people are exposed to and learn about different cultural assumptions and practices regarding cut versus uncut genitalia—whether through travel, reading, or surfing the Internet—they may come to regard the majority practice of their own group as being harmful or otherwise problematic, and consequently re-assess the value of their own genital status. For example, Sara Johnsdotter and Birgitta Essén have recently documented evidence of “cultural change after migration” with respect to female genital cutting practices among Somali immigrants to Sweden:

… migration gives rise to cultural reflection: All the motives for [female] circumcision in Somalia are turned [inside] out in exiled life in Sweden. What was once largely seen as ‘normal’ and ‘natural’ about … cut and sewn genitalia was questioned in Sweden, when the women were met with shocked reactions among healthcare providers in maternal care and delivery rooms. A thitherto strong conviction that circumcision of girls was required by religion was questioned when Somalis met Arab Muslims, who do not circumcise their daughters … The fear that their daughters would be rejected at marriage if uncircumcised disappeared in the light of the immense Somali diaspora in the West, where Somali men can be expected to accept and even appreciate uncircumcised wives. In addition, the risk of stigmatization and ostracism disappeared when living in an environment where most girls are not circumcised.

Similar stories are told by some circumcised men, whose realization that not everyone’s penis has been cut like theirs—or that circumcision is in fact a minority practice in most Western countries outside of the United States—may prompt a difficult reevaluation of the normalcy of going through life without a foreskin. As one such man recounted to the psychologist Ronald Goldman:

The shock and surprise of my life came when I was in junior high school, and I was in the showers after gym … I wondered what was wrong with those penises that looked different than mine … I soon realized I had part of me removed. I felt incomplete and very frustrated when I realized that I could never be like I was when I was born—intact. That frustration is with me to this day. Throughout life I have regretted my circumcision. Daily I wish I were whole.

Such feelings are not uncommon, as the anthropologist Eric Silverman noted more than a decade ago:

opposition to FC [female circumcision] is well known … Less obvious to anthropologists is an equally vociferous, diverse movement that opposes the routine medical and ritual circumcision of infant boys in the West. The number … of these activist groups [is] staggering … these groups are serious, and it would be incorrect to dismiss them as the fringe. They are fast moving to the center of legal, medical, and moral discourse. And they are both very angry and very aggressive.

Strikingly, Silverman seems reluctant to consider, much less conclude, that any negative feelings experienced by circumcised men might be a reasonable reaction to having had part of their genitals removed without their consent—or indeed that such feelings might have anything whatsoever to do with the loss of the foreskin:

I propose that for many opponents of the procedure, MC (male circumcision) is a potent symbol of anxieties that are not linked directly to the penis. Rather, the lost foreskin symbolizes a series of modern losses arising from historically specific anxieties. These anxieties concern the lost effectiveness of the political, economic, and judicial process; pluralism; violence; contested notions of masculinity, motherhood, sexuality, and gender; the medicalization of birth; vulnerability before technological advances … and the hypercapitalist commodification of the body.

While anxieties relating to such abstract concerns as “pluralism,” “violence,” or “motherhood” may very well have something to do with the way in which some or even many circumcised men feel about their altered penises (although we struggle to see the precise connection), it seems plausible that a more direct explanation is being overlooked. Specifically, insofar as the foreskin itself, or the surgically unmodified penis more generally, has properties it is reasonable to regard as valuable—sexually, aesthetically, or otherwise—then a man’s experiencing the involuntary removal of that tissue as an intrinsic harm should be viewed as a sensible reaction. Consider the following “Dear Abby” exchange, which shows a similar pattern of judgment to that of Silverman:

Dear Abby: I am a young man who is currently in college. When I was an infant, I was circumcised, and I feel violated that my parents decided to circumcise me without my consent. When the doctor performed the surgery, he took too much off, which causes me pain. When I was in grade school, I was sexually assaulted by an older classmate, but I feel much more violated from the circumcision because it took a part of me that I can never get back. … My parents know how I feel and are sorry, but I still have negative feelings toward them because I can’t get the procedure undone.

— Cut Short in California. Dear C. S.: … The place to start would be your student health center to determine exactly what is causing your pain and if there is help for it. … In addition, I urge you to talk to a licensed mental health professional to help you work through your anger because it may be misdirected and a result of the sexual assault you experienced in grade school.”

In this exchange, Dear Abby (Jeanne Phillips) appears to appreciate that the physical pain associated with a circumcision that removed “too much” tissue is a serious concern that deserves some remedy. But the idea that the non-consensual loss of the foreskin itself might be valid grounds for anger or resentment does not appear to strike her as plausible. Instead, she proposes that the man’s feelings might be “misdirected” from some other problem, for which he should seek the services of a mental health professional.

Recall that the foreskin is a touch-sensitive, motile sleeve of tissue that comprises dozens of square centimeters in the average adult organ. Recent research relying on objective measures indicates that this tissue is the most sensitive part of the penis to light touch, while also being significantly more sensitive than the head of the penis to mild sensations of warmth. Even if this tissue had no erotogenic properties whatsoever, which is generally understood not to be the case, one need only to imagine the involuntary removal of a comparable amount of non-diseased tissue from another part of the body—or perhaps from the genitals of a female child in the form of neonatal labiaplasty—to appreciate why some people might validly experience such removal as distressing. The common failure to appreciate this distress in the Western discourse is itself a curious phenomenon, and it has led some anthropologists and sociologists to take a deeper look at the cultural constructions of male and female sexuality.

3.3. Differing Cultural Constructions of Male vs. Female Sexuality

Reading through the medical literature, one is liable to form the impression that the mere capacity to maintain an erection, ejaculate, impregnate one’s female partner, or experience some degree of pleasurable sensation during sex, exhaust the scientific imagination on male sexuality. In other words, if these or other similar basic capacities are retained, many commentators are prepared to conclude that circumcision has negligible, if any, adverse effects on male “sexual function.” As the anthropologist Kirsten Bell has said of her North American college students:

Over the course of our discussions … one thing became clear: students did not think that carving up male genitalia had any damaging effects on male sexuality as long as the penis remained largely intact. My students reasoned that as long as the man retained the ability to ejaculate, his sexuality was unimpaired. They were so ready to assert that female sexuality has been totally annihilated by genital surgery of any kind and so reluctant to proclaim that anything short of full frontal castration will affect a man’s sexuality in the same way, it seemed clear that something very interesting was being revealed. Importantly, their insistence seemed to have less to do with these practices themselves and more to do with underlying assumptions about the nature of female and male sexuality, assumptions echoed in the dominant discourses on genital cutting.

A common assumption in this discourse, according to Marie Fox and Michael Thomson, is that “male sexual pleasure is not an issue provided the penis is adequate for penetration, thus privileging one popular understanding of male sexual function and pleasure.” And yet “the sensitivity protected by the foreskin, the erogenous nature of the foreskin itself, and sexual practices relying on an intact penis—such as docking —are all erased in these characterisations.”

According to this perspective—and now invoking Feinberg’s conception of harm, discussed supra—it could be argued that circumcision necessarily impairs function because, whatever else it does, it impairs (indeed, eliminates) all sexual acts or functions that require manipulation of the foreskin itself. These acts include a range of masturbatory styles that involve gliding the foreskin back and forth over the head of the penis as well as some forms of oral sex that similarly involve interplay with the foreskin. Of course, whether the inability to have one’s foreskin orally or manually manipulated interferes with one’s sexual enjoyment is not something that can be “objectively” determined: it depends on one’s sexual preferences. For a point of comparison, consider that the female genital labia can also be “tugged, stretched, sucked on, and otherwise fondled during sexual interaction … for those for whom such activities are an important part of their sexual experience, the loss of labia,” like the loss of the foreskin in men with analogous sexual preferences, would indeed represent a setback to their interests.

Another necessary consequence of circumcision is a loss of sensation. At minimum, all sensation that would have been experienced “in” the excised tissue itself is eliminated by the procedure; there may also be an additional loss of sensation in the penile glans in some men due to its rubbing against clothing and other elements without the protective covering of the foreskin over the course of many years. As Harrison states, “[s]ince circumcised men have no feeling in their foreskin (in fact, no foreskin at all), the only form of stimulation comes in the form of pressure on the head and the shaft of the penis, and in the orgasm itself.”

Again, the question of whether this loss of sensation should be counted as a harm is not something with a universal answer: one and the same sensory decrement may be experienced differently by different men, depending on, among other things, their baseline sensitivity. Some men, for example, may believe that they are “too sensitive” and may struggle with what they or their partner(s) regard as premature ejaculation, whereas other men may not feel “sensitive enough” and may struggle instead with a lack of sensation overall and possibly erectile dysfunction, especially as they get older. Other individual differences can easily be imagined.

Given so much room for variation, it should come as no surprise that studies and surveys in this area produce conflicting results. Some have concluded that adult circumcision was associated with reduced sexual functionality and/or enjoyment in some men, while others have concluded that such circumcision made little or no difference, or even enhanced sexual function or experience. None of these studies allows one to draw meaningful conclusions about the effects of neonatal or early childhood circumcision, however, since they rely on self-reports from men who have an active interest in the surgery’s outcome, and all suffer from methodological limitations. In any event, men do not experience sex as embodied statistical averages: the generalized conclusions that are often drawn from these studies reflect group means associated with particular samples of men (along whatever assessed dimension), and not necessarily the experience of any individual man, much less all men.

Nevertheless, many men who were circumcised as infants do insist that they have been sexually harmed as a result of the procedure and strongly resent what was done to them without their consent. As noted earlier, often this absence of consent is as serious a cause of psychosexual distress as any overtly “physical” effects of the procedure. Consider this statement from Leo Milgrom addressed to the Chief Rabbi of Denmark:

What must I do if I want my foreskin back? I never wanted a strange man to touch me [on] my private parts. I would NEVER ON MY LIFE allow anyone to cut off a piece of my penis. … Imagine if our neighbors – for religious reasons – had the habit of cutting [the] earlobes, the outer joint of their little finger, or the nipples of their babies. Just like that, off with them. We would never allow that to happen. Nevertheless we accept something even worse: the cutting into and cutting off [of] parts of children’s private and intimate sexual organs.

Eran Sadeh, an Israeli citizen, offered a similar perspective the same year, in a speech he gave in Berlin in response to the Cologne ruling:

I was born 43 years ago in Tel Aviv, a healthy baby with a perfect body. [Eight] days after I was born one man held my tiny legs down while another man cut a part of my penis off with a knife. I was in pain, I screamed, I bled. It’s over. But the part that was cut off from my penis is forever gone. … circumcision is nothing but a euphemism for forcibly amputating a healthy body part of a helpless child, causing irreversible bodily damage and pain and putting the child at risk. All this in the name of religion and tradition. … This will not do in a country that protects children’s human rights, especially the right to bodily integrity and the right to equal protection by the law.

Lindsay Watson, in his introduction to fifty personal accounts from circumcised men, many of whom consider themselves to have been harmed by a “successful” circumcision (one without serious medical complications or other unintended outcomes), reports that feelings of violation, grief, anger, resentment, shame, and humiliation are prominent. Similar findings were reported by Hammond in 1999, and again in 2017. None of these sources is based on a random sampling, and the feelings expressed may not be representative of the general population. Nevertheless, enough complaints have been raised to think that the proportion of men who do regard themselves as being harmed by circumcision is sufficient to warrant further attention.

Precise numbers are hard to come by, but a 2015 YouGov poll concluded that 10% of circumcised American men wish that they had not been circumcised. In addition, a more recent, demographically diverse survey of 999 American men found that 13.6% wished that they had not been circumcised, with nearly a quarter of that sub-group reporting that they would “seriously consider” changing their circumcision status if it were possible—i.e., through a process of “foreskin restoration.” Consistent with this finding, there are many thousands of devices currently being sold to men throughout the English-speaking world to assist with such “restoration.” This is an arduous process that results, if successful, in a pseudo-prepuce consisting of modified penile shaft skin that lacks the original nerve tissue. From this fact, it is reasonable to conclude that such men are highly unsatisfied with their circumcised state.

Given that such efforts could be seen as a relatively extreme expression of dissatisfaction, there are likely to be “manifold more men who are seriously resentful about having been circumcised, but who do not go to such lengths to try to rectify their situation (or who may simply feel uncomfortable talking about such personal matters in public).” Indeed, it is improbable that there would be a vigorous, community-based anti-circumcision movement such as the one discussed by Silverman, supra, unless a significant number of men—and women—were convinced that circumcision was harmful.

4. What About Benefits? The Other Side Of The Coin

We have so far been discussing some of the reasons why different men might reasonably reach different conclusions about whether they have been harmed by circumcision. A similar analysis applies to the question of benefits. Briefly, in addition to the social benefits that are often claimed for circumcision—such as a decreased risk of being teased by one’s peers or ostracized by one’s religious community (risks that could also be reduced by changing the relevant social norms, as is commonly suggested in the case of female circumcision)—evidence has accumulated that NTC may confer certain health-based benefits as well. The most significant of these is a reduction in the risk of contracting urinary tract infections (UTIs) in early childhood as well as some sexually-transmitted infections (STIs) after sexual debut.

Some experts dispute these benefits, pointing to confounding factors in the original studies, but we shall simply take them for granted in our analysis. For context, it should be noted that none of the pediatric or other medical bodies that have issued formal policies on routine neonatal circumcision consider these health benefits to exceed the risks, regardless of the metric used. The sole exception to this is the American Academy of Pediatrics (AAP), whose 2012 policy—due to expire this year—states that the medical benefits of circumcision “outweigh” the risk of surgical complications. However, this claim was later softened after considerable international criticism in an editorial by AAP Circumcision Task Force member Dr. Andrew Freedman. Freedman stated that, in addition to having “insufficient information about the actual incidence and burden of nonacute complications,” the AAP’s 2012 assessment of benefit versus risk also suffered due to the “lack of a universally accepted metric to accurately measure or balance the risks and benefits.” Even more significantly, he went on to concede that

although parents may use the conflicting medical literature to buttress their own beliefs and desires, for the most part parents choose what they want for a wide variety of non-medical reasons. There can be no doubt that religion, culture, aesthetic preference, familial identity, and personal experience all factor into their decision.”

4.1. Weighing Benefits Against Risks: What Values Should One Assign (and Who Should Assign Them)?

It is uncontroversial that non-medical factors may reasonably factor into a person’s decision about circumcision. What does inspire controversy, as Professor Munzer notes in his article, is the assumption implicit in Dr. Freedman’s analysis that this person should be someone other than the individual who would be personally affected by the surgery were it to take place. This assumption is also at play in the following discussion of a “trade-off” analysis of circumcision performed by Dimitri Christakis and colleagues:

Parents’ subjective weighing of the benefits of prevention and the harm of complications is fundamental to this decision-making process. Accordingly, we did not assign relative weights to the outcomes. Further, we believe that attempts to designate utilities for these outcomes—whether they be based on expert panels or community surveys—would be misguided. The weighing process in this decision should remain individualized and subjective, taking fully into account the parents’ general degree of aversion to risk, and in particular whether the risk arises from either omitted or committed actions. Parents might well have greater feelings of guilt associated with adverse events arising from circumcision [i.e., a committed action], such as needing a penile wound repaired, than from a different adverse and somewhat preventable event [stemming from an omitted action], such as a [treatable] UTI occurring in uncircumcised boys. This aversion to committed action risk and its associated feelings may counter-balance or outweigh any potential benefits.

In this passage, Christakis et al. are evaluating neonatal circumcision, specifically, so their invocation of the parents’ subjective weightings is appropriate. But it is also important to consider the subjective weightings of the person who, to use their example, might need to have a penile wound repaired as a result of a surgical complication. This is a person for whom the stakes of the decision are arguably much higher, and for whom they are certainly much more personal. Needless to say, this person might reasonably conclude that such a risk—no matter how slight—is intolerable to him, given the nature of the organ in question. As Julian Savulescu has recently argued:

The tendency today is to roll over and ‘scientify’ everything. Evidence will tell us what to do, people believe. But what [is required is an] ethical judgment about weighing risk and benefit. In Australia the speed limit is 100 km/h; in Germany, it is unlimited. Which is right? It depends on how you weigh convenience, pleasure, economic growth versus health. The safest speed to drive at is (almost) zero.

Savulescu is right to emphasize the importance of weighing benefits against risks, in light of trade-offs and alternative options, and the intrinsically value-laden nature of this enterprise. To see how this insight applies to the specific health benefits that have been attributed to circumcision, let us first take the example of UTIs. According to the AAP, it would take about 100 circumcisions to prevent 1 UTI. Given that boys have an approximately 1% absolute risk of getting a urinary tract infection in the first year of life, regardless of circumcision status, and given that these infections can be treated effectively with oral antibiotics, as they are for girls, it seems fair to ask how much weight one should assign to this particular benefit.

A similar question applies to the claimed risk-reductions for STIs. Before one can make a determination about the importance of this benefit, one must consider a number of factors: (1) children are not at risk of contracting sexually transmitted infections before they become sexually active; (2) the absolute risk of the most serious of these infections is low in developed countries; (3) there are other, more effective modes of prevention that do not involve surgery and its attendant risks; (4) bacterial STIs, if they do occur, can typically be cured with antibiotics; and (5) viral STIs can now be prevented in some cases by vaccination, or otherwise managed with medications.

Given these (and other) considerations, what is the relative weight or value that one should assign to a claimed risk-reduction for STIs? Is it worth the risk already mentioned—that of a “botched” circumcision? Is it worth the loss of the foreskin itself? Is it worth the risk of removing too much skin—as we saw in the “Dear Abby” exchange—which may lead to painful erections later in life? Is it worth the risk, no matter how slight, of death?

The answers to these questions cannot be objectively determined. Instead, they will depend upon the value an individual places on having intact rather than modified genitalia, how willing he is to engage in safer sex practices (which is advised regardless of one’s circumcision status, and in addition to which the marginal benefit of circumcision is negligible), and how much risk he is comfortable taking on when submitting to a surgical intervention on a part of the body that is both physically and symbolically sensitive. None of this, however, can be known with certainty while the individual is still an infant; he can only report on his values when he is older and fully informed.

That an individual’s values can only be known when he is mentally mature, however, does not automatically lead to the conclusion that circumcision should be delayed. In fact, so long as the alternative is not strictly prohibited, a parental decision to refrain from circumcision in infancy is—as Munzer notes—still a decision, and one with which the child may later disagree. Again, this line of reasoning assumes that his parents were legally entitled to make such a choice in the first place; if they were not, the grown child could not rationally fault them for having left his genitals intact when he was an infant. Of course, this points to one possible solution to the collective action problems regarding teasing or other potential social harms, as well as to the more general problem of uncertainty regarding the child’s best interests (i.e., a legal prohibition that would apply across the board, thereby eliminating the grounds for teasing or uncertainty); but we shall not pursue that argument further.

In the meantime, whatever choice they make, parents will foreclose at least one future option for their child. Specifically:

parents who decide in favor of early surgery close off the child’s future ability to make his own decision regarding surgery (and run the risk of the child experiencing surgical complications, resentment, and so on), while parents who refrain from early surgery close off the option for the affected male to undergo the surgery during infancy or early childhood.

That much cannot be disputed. But are these cases symmetrical? As Adrienne Carmack et al. note, “it is possible that the affected male whose parents opt against early surgery to allow him to make his own decision in the future may later decide in favor of surgery,” and so he may. However, nontherapeutic circumcisions are rarely sought by adults with intact genitals, even in cultures in which circumcision is common and normative. Therefore, this point may be mostly academic. Nevertheless, if a non-circumcised adult is considering NTC, for whatever reason, he can perform his own risk-benefit analysis of the surgery, taking into account the fullness of his circumstances. If he then chooses NTC, he will be secure in the knowledge that he has done so voluntarily, undertaking a certain amount of risk to achieve a desired outcome.

In such a case, as supporters of NTC often point out, there is an indeterminate likelihood that he would wish the surgery had already taken place, perhaps in infancy, so that he does not now have to face the inconvenience. In this respect, he is not unlike the adult female in a similar social context who decides to undergo elective labial surgery for what she considers to be cosmetic reasons. Perhaps it would have been better—from her current perspective—to have undergone the procedure shortly after birth, so that she likewise would not have to face it now. But no one takes this possibility as an argument in favor of neonatal labiaplasty. Indeed, such statements as “she won’t even remember it,” “she’ll heal faster,” “her future sexual partners will find her genitals to be more appealing,” and “it’s less risky at this age”—all of which are regularly invoked in defense of NTC—would be considered offensive. Rather, the expectation is that girls should be able to make such personal decisions for themselves when they are older and can understand what is at stake.

In any event, the adult with unmodified genitals—who now prefers that they be altered—has an option available with which to satisfy the preference. By contrast, the man whose early circumcision was not desired, and is now a cause of significant distress, has no comparable remedy. He may attempt artificial foreskin “restoration,” as described earlier—if he has enough remaining penile skin to do so—but this may take years to accomplish, and the result will be a mere approximation of a prepuce: he can never recover the tissue or the nerve endings that were lost. Thus, it appears that the two cases are not symmetrical. In the deferred surgery case, there is far greater leeway for the individual to rectify an undesired situation.

4.2. The Question of Timing

Let us pursue this issue of timing further. As Akim McMath observes: “People disagree over what constitutes a harm and what constitutes a benefit” when it comes to circumcision. This disagreement is especially likely for non-medical harms and benefits, which allow even more room for subjective judgments than the ones we have so far considered. For example, “[s]ome people believe circumcision benefits the child by bringing him closer to God, while others disagree. In light of such disagreement, some commentators conclude that the parents should decide.” But this does conclusion does not follow: “the child will have an interest in living according to his own values, which may not reflect those of his parents … Only the child himself, when he is older, can be certain of his values.” Thus, McMath concludes, “if disagreement over values constitutes a reason to let the parents decide, it constitutes an even stronger reason to postpone the decision until the child himself can decide.” Against this view, as Munzer notes, it is sometimes argued that circumcision—among practicing Jews at least—must be performed on the 8th day after birth to meet religious requirements (i.e., to fulfill a perceived divine covenant), and therefore cannot be postponed. This argument does carry considerable force, especially in light of the strong moral and legal protections that are typically afforded to religious practices in Western countries. However, it must be acknowledged that such protection does not currently extend to any form of nontherapeutic female genital cutting, no matter how slight, and no matter how sincere her parents’ conviction that such cutting is religiously required. Moreover, as Eldar Sarajlic notes, the argument rests on certain metaphysical assumptions that one might regard as highly questionable. For example,

it presumes the existence of a divine entity that commands the performance of circumcision. While the question about the existence of such an entity is a matter of personal persuasion, the mere presumption can hardly warrant authorizing an invasive intervention into the body of another human being, even if in cases of parents and their children. Without a definite proof that such an intervention would bring metaphysical benefits (provided these are defined more precisely) to the child, circumcision cannot be justified [on best interest grounds].

Furthermore, the claim about metaphysical salvation “presumes that the child will necessarily share their parents’ metaphysical beliefs once it is grown up.” But research shows that children are increasingly abandoning their parents’ religion or otherwise changing their core beliefs as they get older. In multi-religious, multi-ethnic, multi-cultural societies, children are regularly exposed to different belief systems and ways of life, and they often find as they mature that worldviews other than the one with which they were raised are more compelling. Permanently altering a child’s body in accordance with just one defeasible metaphysical belief system—one which there is a non-trivial likelihood the child will later reject—is therefore problematic.

Another common argument against delaying NTC is that the surgery is “less risky” in infancy, such that deferring the decision to an age-of-consent would be undesirable from a medical perspective. If so, this would count as an ethically-relevant asymmetry pointing in the opposite direction to the one concerning available remedies for resentful adults. But this argument, too, is not straightforward. In the first place, it may be the case that any number of nontherapeutic bodily interventions are less risky in infancy compared to later in life: removing the earlobes, for example, may carry fewer surgical risks in the neonatal period than in adulthood, although we are not aware of any data on this question. The same may be true of ritualized tooth extractions, or of the facial scarification procedures practiced by some groups. The initial question, however, is whether such interventions are permissible at all, given the prevailing moral and legal norms of the wider society in which the child is being raised. If they are not, then the question of preferred timing on the basis of relative risk profiles does not arise.

Second, it is not clear that infant circumcision, compared to adult circumcision, does in fact carry less surgical risk. The claim that it does, oft-repeated by NTC proponents, is based largely upon retrospective comparisons of non-concurrent studies with results drawn from dissimilar populations, using dissimilar methods and criteria for identifying complications. Thus, these comparisons do not adequately control for the skill of the practitioner, the specific technique employed, the setting of the surgery, and the methods of data collection, among other factors.

But even if we simply grant that there is an increase in the relative risk of complications between the surgery performed in childhood versus adulthood, it is the difference in absolute risk that is most ethically relevant. Even proponents of circumcision contend that the absolute likelihood of clinically important, difficult-to-resolve surgical complications associated with circumcision is “low,” irrespective of the age at which the procedure is performed. Given such a low baseline risk according to the proponents’ view, the existence of a relative risk reduction in the incidence of adverse events in infancy compared to adulthood is unlikely to be morally decisive: a small risk divided by any amount is still a small risk.

If that much is right, the analysis returns to the necessary effects of circumcision, outlined earlier: (1) the loss of the foreskin itself, along with the loss of all sensations and erotic activities that rely on its being preserved, and (2) the loss of free choice in the matter if the procedure is performed in infancy or early childhood. As we have seen, men’s attitudes regarding these necessary outcomes vary widely, and such attitudes are likely to be much more predictive of their satisfaction with circumcision than any minor discrepancies in surgical risk profiles as a function of timing.

5. Relevance of Cultural And Subjective Factors: A Summary

To summarize, whether NTC is harmful depends in large part upon the value one assigns to the foreskin. If the foreskin has value—or if it is reasonable for a man to regard his foreskin as having value—then its sheer removal can be counted as a harm. In the United States, Israel, and in some Muslim-majority countries, where infant and child circumcision remain common, the majority of adult males and their partners have never experienced sex with a foreskin. The bulk of their information comes from informal sources, such as TV shows or magazines, where the natural penis is likely to be referred to as “uncircumcised”—an arguably pejorative term that treats the surgically modified penis as the default —and where it may also be regarded as a source of crude humor. In these cultural settings, even among health professionals, the foreskin may be erroneously regarded as a “useless flap of skin” that is prone to infection and other medical problems. Since the foreskin itself is assumed to have little value in such contexts, the principal perceived drawback of NTC becomes simply the risk of surgical complications. Especially when compared against the various medical and non-medical benefits that are often attributed to NTC in these societies, such a minor perceived risk can easily be discounted.

In contrast, in societies where NTC is relatively rare—i.e., most other industrialized nations—the foreskin is typically regarded with greater favor, and it is the circumcised penis that is perceived as strange-looking and less than functionally optimal. This contrast serves to highlight the contingent and at least partially arbitrary nature of such judgments: some men regard their own neonatal or childhood circumcisions as representing an aesthetic or sexual enhancement compared to the natural state, while others see it as a disfigurement or even a mutilation. Since the cultural norms that inform such judgments are not stable, however, as noted supra—especially given advanced information technology, other forces of globalization, and accelerated cross-cultural exchange—there is a growing risk that parents’ valuations of a proposed circumcision will differ from those of the child himself when he is older.

By authorizing the removal of an infant or young child’s foreskin, therefore, a trade-off is initiated whose overall status rests upon future subjective norms and preferences that will become increasingly hard to predict. As Hannah Maslen and colleagues argue:

Whilst adults are in a position to decide whether effect X is valuable enough (to them) to justify incurring [loss] Y, children do not yet have the capacity or the life experience to make such trade-off decisions. They do not know what they will value when they grow up and nor do their parents. Whilst an intervention that improves X may count as an enhancement for the individual who does not care much about Y, another individual, valuing Y over X, will view the very same outcome as an impairment. In such cases—that is, cases in which the very status of an intervention’s being an (overall) enhancement vs. an impairment is controversial—the weight of considerations should shift toward delaying the intervention until the individual who will actually be affected by it has sufficient capacity to decide. The more permanent and substantial the trade-off, the more this argument has force.

6. Tentative Conclusion: Toward Gender Equality?

The foregoing analysis does not necessarily show that parents should be legally prohibited from making decisions about the nontherapeutic surgical alteration of their children’s genitals. But once again we must emphasize that in the case of female children, such alterations are already illegal in countries such as Germany and the United States, and the law in these countries appears to be settled. As Munzer notes, these laws cover alterations to the vulva that are less physically invasive than male circumcision (such as pricking of the clitoral hood), as well as interventions that may be performed, at least in some groups, for similar if not identical reasons on both boys and girls. As Dena Davis argued more than a decade ago with respect to the United States, this creates a legal “collision course” that can no longer be avoided:

When one begins to question the normative status of male newborn alteration in the West, and when one thinks of female alteration as including even an hygienically administered ‘nick,’ one sees that the two practices, dramatically separated in the public imagination, actually have significant areas of overlap. [In fact] the two practices lack a legally defensible distinction, given the current wording of state and federal statutes. Thus, a complete laissez-faire attitude toward one practice coupled with total criminalization of the other, runs afoul of the ‘free exercise’ clause of the First Amendment. There are also troubling implications for the constitutional requirement of equal protection, because the laws appear to protect little girls, but not little boys, from religious and culturally motivated surgery.

Munzer deserves credit for dedicating a section of his article to this “problematic” legal situation, as it is often side-stepped in these debates. As he notes, in the aftermath of the Cologne judgment, just as the law was being clarified to ensure the legality of nontherapeutic circumcision of male infants, the law against any form of nontherapeutic female genital cutting (FGC) was being strengthened. This sort of inconsistency arises in part from the inherent subjectivity in harm judgments we have emphasized, which allows for gendered and other cultural assumptions to seep in. One such assumption may be that boys are (or should be) “tougher” than girls and therefore less liable to suffer harm given a comparable injury. As Bettina Shell-Duncan and Yvla Hernlund note, “there appears to exist in the West a tolerance of, and perhaps appreciation for, the assumption that masculine [but not feminine] ideals are honed through painful initiations that respond to group needs.” Similarly, Fox and Thomson argue:

Debates concerning [female] bodies have often focused on their vulnerability to harm – as is evident in the framing of debates around female circumcision. By contrast, male bodies are typically constructed as safe, bounded and impermeable … this may make it more difficult to uncover harms to boys – a contention which seems to be borne out by the tendency of Anglo-American legal commentators to minimise the harms inflicted on boys by circumcision with a concomitant propensity to exacerbate the risks occasioned by less invasive forms of female circumcision.

Such an analysis has implications for interpreting the obligations contained in the UN Convention on the Rights of the Child (CRC), particularly the ambiguous article 24 (3): “States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” In his recent discussion of what this phrasing means, John Tobin points out:

this phrase does not appear to require that the harm suffered to a child’s health reach a certain threshold before the obligations of a State are invoked under Article 24 (3). On the contrary, it suggests that any aspect of a traditional practice which in any way has a negative impact on the health of a child, whether mental or physical, temporary or permanent, must be abolished. Moreover, the assessment as to the prejudicial impact of such a practice is not to be based on assumptions or speculation, which are invariably informed by social and cultural values, but on medical evidence which quantifies its physiological and or psychological impact.

Unfortunately, as discussed supra, taking medical evidence as the benchmark “obscures the complex debates as to the purported objectivity of medical knowledge.” The advantage of relying on medical claims, from the UN committee’s point of view, was that it allowed them “to avoid the explicit condemnation of cultural practices by diverting attention from their cultural significance to their health impact.” Such a distinction is, however, difficult to maintain in practice because

cultural and social values will invariably influence the understanding of harm, especially psychological harm. Ritual initiation ceremonies provide a good example of such a dilemma. They may involve the infliction of significant physiological harm which would prima facie fall within the scope of Article 24 (3).

The contrary argument, as we noted earlier, is that if the traditional practice were prohibited or abolished, children who were not subject to the relevant initiation might be excluded or suffer other social setbacks which could lead to psychological harm. This empirically unsubstantiated proposition has long been prominent in the arguments of those who support the preservation of genital cutting rites, not only for boys, but also for girls, who may similarly suffer ridicule or discrimination from their peers for having failed to undergo the prescribed rituals. Yet this way of arguing ignores the fact that a successful prohibition would alter the social norms all at once: no child can be teased for being “different down there” if all children have intact genitalia.

Notwithstanding this and other similarities between male and female genital cutting, Tobin notes that the CRC “has failed to make any substantive comments with respect to male circumcision, also a traditional practice.” In attempting to explain this discrepancy, Tobin refers to the (Anglophone) tendency to construct male circumcision as a “standard and benign medical practice,” and observes that while the negative impact of FGC on a girl’s health is “virtually uncontested,” the evidence with respect to male circumcision is equivocal, at least when performed in a clinical setting. This would not, however, explain the “absence of concern for the practice in non-medical settings, where performance of the procedure is associated with significant levels of pain and the risk of infection.” Thus, again, the construction of harm appears to be influenced not only by “objective” factors, such as the degree of pain or the likelihood of surgical complications, but also by the sex or gender of the affected individual.

How the law, in Germany and elsewhere, will begin to address these inconsistencies is unclear. Given the special significance of the genitals as compared to other body parts, however, the widely varying cultural and individual attitudes concerning the state of them—cut or uncut—and the growing number of adults of all sexes and genders who are “coming out” as feeling harmed by their childhood genital surgeries, the inconsistencies will need to be addressed somehow. Whichever way the debate proceeds, the relative statuses and acceptability of male, female, and indeed intersex genital cutting are likely to remain prominent in the legal and bioethical literatures for many years to come.