Where Human Rights Collide: Circumcision Debate Has Berlin Searching for Answers
Part 2: The Difficulties of Writing a Law
Herzberg is the person cited by legal scholars in the debate over circumcision. He is 74, a retired professor for the last nine years, and had given little thought to circumcision until he happened upon the book "The Lost Sons," by Islam critic Necla Kelek. In the book, Kelek describes the circumcision of her nine-year-old nephew. He didn't seem like a hero, she writes, but like a "tormented human child." Her description both repelled and fascinated Herzberg. He was particularly astonished that none of his fellow legal scholars had ever addressed the issue and promised Kelek he would do so. He enlisted the help of Holm Putzke, his academic assistant at the time.
For an ambitious academic, no matter what his field, an unresolved and somewhat relevant academic problem is a nugget. Putzke had published on all kinds of issues before, but circumcision promised to be much more exciting.
In February 2008, the results of Putzke's efforts were published in the commemorative publication to mark Herzberg's 70th birthday. The essay, "The Criminal Relevance of the Circumcision of Boys," is 41 pages long and has 222 footnotes. In it, Putzke argues that the physical integrity of a child can and must be give priority over the religious wishes of the parents. He knew that his ideas would be seen as provocative by both Jews and Muslims. In the essay, Putzke draws parallels with the debate over the Danish cartoons of the Prophet Muhammad. Despite the potentially explosive nature of his essay, academia has a duty to voice criticism, Putzke writes. He was prepared to fight.
But the attacks did not materialize. It turned out that only the professional world was interested in the legal subtleties of circumcision. Only those pediatricians who made money with ritual circumcisions showed any anger toward Putzke, who they felt was unnecessarily questioned something that was taken for granted. In 2008, a group of doctors and lawyers met in Berlin to discuss the problem at length. The public heard little of the debate.
In other Western countries, the battle over circumcision has been raging for years. Other governments are having just as much trouble as Berlin with the complicated triangular relationship between parents, children and the state. Sweden is the only European country that expressly regulates circumcision. It applies strict requirements and only permits the practice in hospitals.
A Visit to Cologne
A look into the waiting room at Dr. Ulus's practice in Cologne shows that Germany is still relatively liberal when it comes to circumcision. Boys from all over Europe are sitting there with their parents, including an Iraqi-born family that has traveled from Norway. "We would only have had problems there," says the mother. Fearing that the youth welfare office would have taken away her son in Norway, the family decided to pay a visit to relatives in Cologne.
The French, who are especially strict about the separation between church and state, remain pragmatically silent on the issue. In principle, the removal of a boy's foreskins is considered assault, and consent of the parents only justifies the procedures in exceptional cases. But there are no accounts of criminal charges having been brought to date. Similar situations apply in other European countries. Lawyers have expressed their concerns everywhere, and yet "we have not become aware of a legally binding conviction in any country," says the Max Planck Institute for Foreign and International Criminal Law in the southwestern German city of Freiburg.
The most heated debate is being waged in the United States, where up to 80 percent of men are circumcised in some areas. And skepticism is growing. The number of circumcisions of newborns has been declining for years, from 85 percent in 1965 to only about 55 percent today. The American Academy of Pediatrics takes a more reserved position than it did decades ago, now saying that the risks of the procedure also have to be taken into account.
Circumcision opponents periodically stage protests against what they call "genital mutilation." Since the early 1990s, the National Organization of Restoring Men has been fighting against "butchering babies." Celebrities are coming out against circumcision. Last summer, actor Russell Crowe tweeted: "Circumcision is barbaric and stupid." At the same time, an effort to ban circumcision in San Francisco failed.
A Visit to the Constitutional Court?
Opponents of circumcision are now looking to Germany, where legal experts will have to find a solution. It will not be an easy operation. To begin with, it's completely unclear which code of law should apply to the regulation of circumcision. The criminal code would be one option, but the problem with that is that the criminal code is only supposed to regulate criminal acts. Family law, which defines the rights of parents and children, is another option. Justice Minister Leutheusser-Schnarrenberger has pointed out that the law on the religious education of children is also a possibility. A clear, legal solution, as the German Association of Judges demanded on Friday, will be difficult to find.
The justice minister has appointed a task force of senior legal experts to address the complexities of the issue. The group, which includes the directors of the departments of civil law, criminal law and constitutional law at the Justice Ministry, will spend the summer brooding over how a law could neutralize the Cologne court's decision. "The matter is more complicated than just inserting a simple little sentence somewhere, as some people envision," says the minister. "After this emotional debate, I wouldn't rule out the possibility that the law will come before the Federal Constitutional Court. The judges there will have to determine whether they share the balancing of fundamental rights that we intend to make." This could take years.
Dr. Ulus from Cologne, the man who likes to listen to Bach, has been given a respite for a while -- because of Ramadan, not the debate. Things won't be busy at his practice again for another four weeks.
BY GEORG BÖNISCH, ÖZLEM GEZER, MARC HUJER, SOUAD MEKHENNET, RALF NEUKIRCH, RENÉ PFISTER and CHRISTOPH SCHEUERMANN
Translated from the German by Christopher Sultan
- Part 1: Circumcision Debate Has Berlin Searching for Answers
- Part 2: The Difficulties of Writing a Law
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