1 2 The need for a unified ethical stance on child genital cutting 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Brian D. Earp,1 Arianne Shahvisi,2 Samuel Reis-Dennis,3 & Elizabeth Reis4 This is the authors’ copy of a published paper. Earp, B. D., Shahvisi, A., Reis-Dennis, S., & Reis, E. (2021). The need for a unified ethical stance on child genital cutting. Nursing Ethics, 28(7-8), 1294–1305. doi: 10.1177/0969733020983397. 1 Associate Director, Yale-Hastings Program in Ethics and Health Policy, Yale University and The Hastings Center 2 Senior Lecturer in Ethics, Brighton and Sussex Medical School 3 Assistant Professor, Alden March Bioethics Institute, Albany Medical College 4 Professor, Macaulay Honors College, City University of New York 21 22 23 24 The American College of Nurse-Midwives (ACNM), American Society for Pain Management 25 Nursing (ASPMN), American Academy of Pediatrics (AAP), and other largely U.S.-based medical 26 organizations have argued that at least some forms of non-therapeutic child genital cutting, 27 including routine penile circumcision, are ethically permissible even when performed on non- 28 consenting minors. In support of this view, these organizations have at times appealed to 29 potential health benefits that may follow from removing sexually sensitive, non-diseased tissue 30 from the genitals of such minors. We argue that these appeals to “health benefits” as a way of 31 justifying medically unnecessary child genital cutting practices may have unintended 32 consequences. For example, it may create a “loophole” through which certain forms of female 33 genital cutting—or female genital mutilation (FGM) as it is defined by the World Health 34 Organization (WHO)—could potentially be legitimized. Moreover, by comparing current dominant 35 Western attitudes toward “FGM” and so-called intersex genital “normalization” surgeries (i.e., 36 surgeries on children with certain differences of sex development), we show that the concept of 37 health invoked in each case is inconsistent and culturally biased. It is time for Western 38 healthcare organizations—including the ACNM, ASPMN, AAP, and WHO—to adopt a more 39 consistent concept of health and a unified ethical stance when it comes to child genital cutting 40 practices. Abstract 1 41 42 43 Introduction 44 medically necessary (see Box 1) to do so? According to the World Health Organization (WHO), 45 all non-Western forms of medically unnecessary female genital cutting (NWFGC; see Table 1 for 46 a detailed explanation of this terminology) constitute mutilation and violate the human right to 47 bodily integrity (1). It does not matter whether the cutting is done for religious or cultural reasons, 48 whether it is performed by a skilled operator using pain control or sterile instruments, which part 49 of the vulva is affected, or whether any tissue is removed: even a “ritual nick” to the clitoral 50 prepuce or hood that heals completely is considered a human rights violation by the WHO (2–4). 51 At the same time, the WHO does not consider medically unnecessary male genital cutting or 52 circumcision to be a human rights violation, even when it is done by a non-medical practitioner 53 without pain control under unhygienic conditions and/or without the consent of the affected 54 individual (5–8). Finally, although the WHO has referred to medically unnecessary intersex 55 genital cutting (discussed below) as a form of “abuse” in at least one policy document (9), it has 56 not taken an unqualified stand against such procedures, nor mobilized a global campaign to 57 58 59 “eliminate” them as it has for NWFGC. 60 discussed at length in the recent bioethics literature (10–21). The present analysis will therefore 61 focus on the comparison between female and intersex genital cutting, which has received 62 relatively less attention [but see (22–26)].1 Although the WHO has, in the above-mentioned policy 63 document, brought its stance on intersex genital cutting into closer alignment with its stance on 64 NWFGC, most Western healthcare organizations and legal regimes have not explicitly pursued 65 such alignment. The question for this paper, then, is whether a “zero tolerance” policy for 66 NWFGC can be coherently maintained without also adopting such a policy for medically 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 unnecessary intersex genital cutting, without recourse to cultural or moral double standards (29). When or under what conditions is it morally wrong to cut a child’s genitals when it is not The moral similarities and differences between female and male genital cutting have been Box 1: Defining medical necessity According to a recent international consensus statement, “an intervention to alter a bodily state is medically necessary when (a) the bodily state poses a serious, time-sensitive threat to the person’s well-being, typically due to a functional impairment in an associated somatic process, and (b) the intervention, as performed without delay, is the least harmful feasible means of changing the bodily state to one that alleviates the threat. ‘Medically necessary’ is therefore different from ‘medically beneficial’—a weaker standard—which requires only that the expected health-related benefits outweigh the expected health-related harms. The latter ratio is often contested as it depends on the specific weights assigned to the potential outcomes of the intervention, given, among other things, (a) the subjective value to the individual of the body parts that may be affected, (b) the individual’s tolerance for different kinds or degrees of risk to which those body parts may be exposed, and (c) any preferences the individual may have for alternative (e.g., less invasive or risky) means of pursuing the intended health-related benefits” (2) (p. 18). For further discussion and conceptual analysis, see (30–32). 1 The comparison between male and intersex genital cutting has been ably discussed by Kira Antinuk in a previous issue of this journal (27). See also (28). 2 84 Consider a form of intersex genital cutting that involves surgically reducing an enlarged clitoris 85 (clitoropenis), also known as “feminizing” clitoroplasty (33). This surgery may be pursued in the 86 case of children with certain differences of sex development or intersex traits2 who are assigned 87 female at birth, so as to make their genitals appear more stereotypically feminine (37). 88 Compared to ritual nicking, pricking, or partial removal of the clitoral hood, for example (all of 89 which have been defined as “mutilations” by the WHO), such a practice would seem to be, if 90 anything, far more invasive and physically risky; and it is not usually any more consensual. The 91 ethical implications of this comparison can be reached by different routes. For example, one may 92 pursue a utilitarian or harm-based analysis, focused on potential adverse consequences of the 93 respective forms of genital cutting; or, one may pursue a rights-based analysis, focused on the 94 non-consensual nature of the cutting and its targeting of the sexual anatomy (i.e., the “private 95 parts”) of a vulnerable person without urgent medical need (38). Either route leads to the 96 conclusion that, insofar as the female-affecting procedures are morally condemnable, so too are 97 98 99 the procedures affecting children with intersex traits. In fact, the problem runs deeper. Some people with intersex traits may also be female, whether 100 genetically, by sex assignment, or in terms of their gender identity (39–41). This makes it even 101 harder to ground a principled distinction between medically unnecessary “female” and “intersex” 102 genital cutting. As Nancy Ehrenreich and Mark Barr argued in a classic article exploring this 103 comparison, if one extends the arguments usually raised against NWFGC to medically 104 unnecessary intersex cutting, one will find that they have “equal force in the intersex context” 105 (22) (p. 75). And yet the latter procedures remain legal and are largely accepted in virtually all of 106 107 108 the same Western societies that have categorically forbidden NWFGC. 109 standard is at play that reflects Western cultural bias and moral exceptionalism. According to 110 them, “the posture of white privilege” that is encoded in prevailing arguments against NWFGC 111 prevents Western opponents of such cutting from acknowledging that “similar unnecessary and 112 harmful genital cutting occurs in their own backyards” (22) (p. 75). Ehrenreich and Barr conclude 113 that this insight has policy implications: the unequivocal condemnation of those who practice 114 NWFGC “is inappropriate unless we are equally willing to condemn physicians performing 115 intersex operations” (22) (p. 75). Can this situation be justified? Ehrenreich and Barr argue otherwise. They allege that a double Note: terminology surrounding sex categorization is controversial. Language used by and about members of marginalized populations is often contested (34) but people who are born with differences of sex development—or who have a range of what are sometimes called variations of sex characteristics or intersex variations—are identifiable precisely because their bodies raise questions about their membership in either the male or female sex class, according to conventional or biological criteria for sex class membership in their society (35). Decisions about such matters are often made by others according to their interests and not necessarily those of the affected individuals. People with intersex variations, medical professionals, parents, human rights advocates, and other stakeholders vie for terms and concepts that are consistent with their aims, leading to a proliferation of terms and no consensus about how to use them. This footnote is adapted from (36) and was drafted in consultation with Morgan Carpenter, the current president of Intersex Human Rights Australia. 2 3 116 Table 1. Non-Western FGC vs. Western-style “Cosmetic” FGC. Adapted from (42,43). 117 Category Non-Western FGC or “Female Genital Mutilation” as it is defined by the WHO: namely, all medically unnecessary procedures involving partial or total removal of the external female genitalia, or other injury to the female genital organs—widely condemned as human rights violations and thought to be primarily non-consensual Western-style “Cosmetic” FGC: typically medically unnecessary procedures involving partial or total removal of the external female genitalia, or other alterations to the female genital organs for perceived cosmesis—widely practiced in Western countries and generally considered acceptable if performed with the informed consent of the individual. Procedures: WHO typology Type I: Alterations of the clitoris or clitoral hood, within which Type Ia is partial or total removal of the clitoral hood, and Type Ib is partial or total removal of the clitoral hood and the clitoral glans. Alterations of the clitoris or clitoral hood, including clitoral reshaping, clitoral unhooding, and feminizing clitoroplasty Type II: Alterations of the labia, within which Type IIa is partial or total removal of the labia minora, Type IIb is partial or total removal of the labia minora and/or the clitoral glans, and Type IIc is the partial or total removal of the labia minora, labia majora, and clitoral glans. Alterations of the labia, including trimming of the labia minora and/or majora, also known as “labiaplasty” Type III: Alterations of the vaginal opening (with or without cutting of the clitoris), within which Type IIIa is the partial or total removal and appositioning of the labia minora, and Type IIIb is the partial or total removal and appositioning of the labia majora, both as ways of narrowing the vaginal opening. Alterations of the vaginal opening (with or without cutting of the clitoris), typified by narrowing of the vaginal opening, variously known as “vaginal tightening,” “vaginal rejuvenation,” or “husband stitch” Type IV: Miscellaneous, including piercing, pricking, nicking, scraping, and cauterization. Miscellaneous, including piercing, tattooing, pubic liposuction, and vulval fat injections Examples of relatively highprevalence countries Depending on procedure: Burkina Faso, Chad, Cote d’Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Gambia, Guinea, Guinea Bissau, Indonesia, Iraqi Kurdistan, Liberia, Malaysia, Mali, Mauritania, Senegal, Sierra Leone, Somalia, Sudan, and concomitant diaspora communities Depending on the procedure: Brazil, Colombia, France, Germany, India, Japan, Mexico, Russia, South Korea, Spain, Turkey, United States Actor Traditional practitioner, midwife, nurse or paramedic, surgeon. Surgeon, tattoo artist, body piercer. Age at which typically performed Depending on the procedure/community: typically around puberty, but ranging from infancy to adulthood. Typically in adulthood, but increasingly on adolescent girls or even younger minors; intersex surgeries (e.g., clitoroplasty) more common in infancy, but ranging through adolescence and adulthood. Presumed Western status Unlawful and morally impermissible Lawful and morally permissible Analysis Given that there is overlap (or a close anatomical parallel) between each form of WHO-defined “mutilation” and Western-style “cosmetic” FGC, neither of which is medically necessary, one must ask what the widely perceived categorical moral difference is between these two sets of procedures. Controlling for clinical context—which varies across the two sets and is often functionally similar—the most promising candidate for such a difference appears to be the typical age, and hence presumed or likely consent-status, of the subject. But if that is correct, it is not ultimately the degree of invasiveness (which ranges widely across both sets of practices), specific tissues affected, or the precise medical or nonmedical benefit-to-risk profile of medically unnecessary (female) genital cutting that is most central to determining its perceived moral acceptability. Rather, it is the extent to which the affected individual desires the genital cutting and is capable of consenting to it. This suggests that the core of the rights violation is the lack of consent regarding a medically unnecessary interference with one’s sexual anatomy, a consideration that applies regardless of the sex or gender of the non-consenting person. 4 118 119 What about (psychosocial) health benefits? 120 In opposition to the view presented in the previous section, it might be argued that there are in 121 fact morally relevant differences between NWFGC and intersex genital cutting that can explain 122 their differential treatment in Western law and policy. For example, it is sometimes claimed, albeit 123 without strong or consistent evidence, that children with visibly atypical genitalia would be 124 embarrassed or otherwise psychosocially disadvantaged by virtue of their bodily difference. If 125 this were so, early surgery to “normalize” their genitals (i.e., before they are capable of providing 126 their own informed consent) could potentially be justified on grounds of mental health— 127 notwithstanding the risks to physical or indeed mental health entailed by the surgery itself 128 (30,44). At the same time, following the WHO, it is often claimed that NWFGC “has no health 129 benefits,” and only causes harm (1). Taken together, these two claims might seem to ground a 130 principled distinction between the two forms of genital cutting, helping to explain why the former 131 is considered permissible in Western countries while the latter is not. 132 133 However, there are problems with this line of reasoning. First, as noted, there is very little good 134 evidence to support the claim that non-consensual intersex “normalization” surgeries do in fact 135 reliably tend to promote mental health (45). At the same time, there is growing evidence that 136 many individuals who were subjected to medically unnecessary genital cutting when they were 137 pre-autonomous regard themselves as seriously harmed by it, both physically and 138 psychologically (46–48). 139 140 Second, even if there were strong evidence that non-consensual intersex genital cutting 141 promoted mental health (for example, by reducing the chances of being teased for having 142 genitals that are not visually typical for one’s assigned sex), this would not make the surgeries 143 “medically necessary” as defined in Box 1. This is because all other less harmful means of 144 promoting mental health would first have to have been ruled out as infeasible or ineffective (e.g., 145 encouraging more accepting attitudes toward genitals of all shapes and sizes, addressing 146 teasing or bullying directly, encouraging resilience and self-acceptance through psychosocial 147 means, such as therapy or counselling, or at least waiting until the person whose most intimate 148 anatomy would be permanently affected could meaningfully participate in any decisions about 149 150 151 surgery) (49). 152 purported social harms associated with being perceived as “different,” this would not serve to 153 categorically distinguish it from NWFGC. This is for the simple reason that, in societies where 154 genital modification of children is culturally normative, any child who has not undergone the 155 prescribed modification would be left with “atypical” genitalia vis-a-vis local standards. Because 156 of this, the child would presumably be just as liable to teasing or other forms of social Third, even if intersex genital cutting could be shown to promote mental health by mitigating 5 157 disadvantage claimed to adversely affect a person’s mental health (50–52). If that is right, then 158 NWFGC may in fact have “health benefits” in certain contexts according to the WHO’s own 159 definition. According to the WHO, “health” is not simply the absence of disease or infirmity, but 160 rather, is a state of “complete physical, mental, and social well-being” (53). Yet as the 161 paediatrician and scholar Robert Van Howe has argued: 162 163 Many women who were circumcised as children do not perceive themselves as harmed. 164 When the many [alleged] cultural benefits are factored in, practitioners could easily 165 convince themselves that any harm is more than offset by the many perceived benefits. 166 (54) (p. 167) 167 168 Indeed, given such a broad definition of health as the one employed by the WHO, it is misleading 169 to assume that the mere attribution of “health benefits” (of some kind or another) to non- 170 consensual genital cutting is sufficient to make it morally permissible. This is especially the case 171 if there are other, less risky, more autonomy-respecting ways of achieving the same or 172 substantively similar health benefits (55). Such an assumption can only incentivize supporters of 173 non-consensual genital cutting to medicalize the practice and look for evidence of “health 174 benefits,” however questionable or readily achievable by other means (see Box 2), as has 175 happened historically in the case of male circumcision (56–58). 176 177 In the case of NWFGC, however, the WHO opposes medicalization even as a harm reduction 178 measure, claiming instead that such procedures are intrinsically wrong (59). But if NWFGC is 179 intrinsically wrong unless medically necessary, then the purported lack of health benefits is 180 conceptually irrelevant to the moral analysis. In other words, even if there were health benefits to 181 medically unnecessary, non-consensual female genital cutting, the WHO would still regard such 182 cutting as a rights violation. The only conceivable exception to this rule would be if (a) the health 183 benefits were central to the child’s well-being and (b) they could not be achieved in a less 184 harmful or disrespectful way (for example, a way that didn’t involve non-consensual genital 185 186 187 cutting) (60). 188 189 190 191 192 193 194 195 196 197 198 Box 2: Might NWFGC have physical health benefits? The case of “infant labiaplasty.” Adapted from (55). The WHO defines female genital mutilation or “FGM” as all medically unnecessary cutting of the external female genitalia, irrespective of consent. It also asserts that such cutting “has no health benefits, only harms.” But it is not clear that this is so. Consider medically unnecessary cutting of the labia, a WHO Type II “mutilation.” When carried out by a licensed medical practitioner in a Western country, such cutting may be termed “labiaplasty” and regarded as a form of genital enhancement. Labiaplasty is similar to penile circumcision, a practice the WHO approves on 6 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 grounds of health benefit, in that it concerns genital tissue whose removal does not necessarily preclude sexual enjoyment, but which nevertheless has certain tactile and sensory properties that many people value. It is also similar to circumcision in that the genital tissue it removes is often moist and may trap bacteria, can become infected or even cancerous, may be injured or torn during sexual activity, and requires regular washing to maintain good hygiene. Removing the labia, therefore, likely does confer at least some potential health benefits in that it reduces the surface area of genital tissue that is not essential for sexual function (narrowly construed) but which still has the potential to occasionally pose a health problem of one kind or another. In addition, such removal may plausibly confer at least some “mental” health benefits for some women, insofar as they prefer the aesthetics of a vulva that has been subjected to labiaplasty and this helps them feel more comfortable in their bodies. Now, assume for the sake of argument that labiaplasty does in fact have the above-mentioned health benefits, and that performing labiaplasty in infancy is medically better (technically simpler, safer, more costeffective, shorter healing time, etc.) than labiaplasty performed on a consenting adult. Would these considerations be enough, from a moral perspective, to make non-consensual “infant labiaplasty” acceptable? Would it be tolerated by the WHO? If not, it seems the “no health benefits” claim is a moral red herring, and that the more pertinent issue is whether or not the affected individual has given their informed consent. 220 221 222 223 [ 224 and social well-being” allegedly afforded to children through ritualistic genital cutting in societies 225 where such cutting is culturally normative3 should be given no less moral weight (all else being 226 equal) than the “mental and social well-being” allegedly afforded to children with intersex traits 227 through “normalization” surgeries in Western countries. Yet in the case of NWFGC, it is widely 228 argued that, instead of surgically shaping children’s genitals to make them conform to unjust or 229 harmfully constrictive societal expectations, it is the societal expectations themselves that should 230 be changed (for example, through education and consciousness-raising). If surgically unmodified 231 genitalia thereby became more culturally normative, a “lack of genital cutting” could no longer 232 reasonably be construed as prejudicial to a child’s mental health or social well-being (61). In any case, insofar as anticipated health benefits are deemed to be morally relevant, the “mental 233 234 Assuming that such cultural change is morally desirable on balance, it should, at least 235 presumptively in societies that recognize a gender-inclusive right to bodily integrity (62), be 236 pursued not only with respect to the genitals of non-consenting persons who have 237 characteristically female sexual anatomy, but rather, with respect to all non-consenting persons 238 regardless of their anatomy. 239 240 For example: acceptance by one’s peers and elders, avoidance of teasing, initiation into a religious community, elevation to adult status in the case of a rite of passage, greater perceived attractiveness, and so on (24). 3 7 241 242 243 244 245 The right to bodily, especially genital, integrity The legal theorist Kai Möller has recently argued that the categorical condemnation of NWFGC— 246 including its relatively minor forms such as medicalized nicking, pricking, or partial removal of the 247 clitoral hood (the most common forms of ritual female genital cutting in Malaysia, for instance) 248 (63)—cannot be adequately justified using current approaches. That is, it cannot be justified by 249 adopting a “balancing” approach centered on the contestable weighing-up of expected harms 250 and benefits (including “health” benefits, broadly construed). Instead, he argues that “even if a 251 plausible claim could be made that the child would benefit from being genitally cut, it is wrong as 252 a matter of principle to ‘trade’ a part of the child’s genitals for another supposed benefit” (10) (p. 253 24, emphasis added). In other words, given the highly personal, psychosexual significance of the 254 genitals to most people, such a controversial “trade” should be the prerogative of the affected 255 individual to assess in light of their own values when they are sufficiently autonomous. According 256 to this view, “the wrong of genital cutting flows not (in the first instance) from contingent empirical 257 factors relating, for example, to harm or social structures, but from the child’s right to have his or 258 259 260 her physical integrity respected and protected” (10) (p. 24). 261 scholars in law, medicine, ethics, and other areas. These authors noted that under most ordinary 262 circumstances, cutting any person’s genitals without their own informed consent is a gross 263 violation of their right to bodily integrity and sexual self-authorship. Therefore, such cutting 264 should be considered “morally impermissible unless the person is nonautonomous (incapable of 265 consent) and the cutting is medically necessary” (42) (p. 17). Otherwise, the authors argued, the 266 decision should be left to the affected individual, with social change efforts aimed at protecting 267 “all non-consenting persons, regardless of sex or gender, from medically unnecessary genital 268 cutting” (42) (p. 22). Such a policy would eliminate any double standards between medically 269 270 271 272 273 unnecessary intersex genital cutting and NWFGC. 274 healthcare practitioners. Within the nursing literature, it is common to read about NWFGC from a 275 child safeguarding perspective. In line with this perspective, the cutting, regardless of severity or 276 parental intentions, is usually characterized as harmful and demeaning, or even as a form of 277 “child abuse.” Although it is the case that families who practice what they call “female 278 circumcision” virtually always also practice male circumcision (but not vice versa) (17,64,65), 279 only the former type of cutting is described as abusive. Accordingly, such language helps to 280 establish a seemingly uncrossable conceptual boundary: between what “they” do to children’s 281 genitals in far-off countries (deemed to be categorically impermissible) versus what “we” do to A similar conclusion was recently reached by a large international coalition of more than 90 Conclusion We would like to conclude by drawing some lessons from our analysis for nurses and other 8 282 children’s genitals in the more familiar context of Western medicine (deemed to be a matter of 283 284 285 parental choice).4 286 (68); that is, persons who are likely to be perceived as cultural outsiders—the proverbial “Other.” 287 Consequently, nurses and other healthcare providers who receive training on this topic are 288 typically advised to “educate” ethnic minority parents who are even suspected of supporting 289 NWFGC,5 instructing them only about drawbacks of the practice. For example, the Registered 290 291 292 293 294 295 296 297 298 299 300 Nurse Misbah Shah recently argued: 301 such language to refer to medically unnecessary intersex genital cutting or even routine penile 302 circumcision, both of which are commonly performed on non-consenting minors by Western 303 medical professionals for largely cultural reasons at the behest of parents. We have argued that 304 if an argument centered on “health benefits” cannot be used as moral justification for NWFGC, it 305 cannot justify these practices either. So why aren’t nurses and other healthcare providers trained 306 307 308 to convince parents who are considering these “Western” practices not to pursue them? 309 imagine “educating” a parent about the “risk of genital mutilation” to which their child may be 310 exposed, when their own professional organizations openly tolerate at least some such 311 “mutilation” (see footnote 4) and their own colleagues willingly perform it for a fee (73). Perhaps, 312 then, it is “we” in the West who need to be educated about the questionable ethics of our own 313 genital cutting “traditions” (notwithstanding that those traditions have been medicalized in recent 314 history) (56,74–76). And perhaps it is “we” who need to be educated about the deep-seated 315 cultural bias that prevents us from holding ourselves to the same moral standards that we so 316 confidently apply to others (77–80). So, for example, it is often stressed that NWFGC is practiced by “minority ethnic communities” healthcare professionals such as nurses play an essential role in educating patients and informing them of the negative effects the operation could potentially cause … nurses can identify females who are at risk for genital mutilation. For instance, one factor to consider is that the daughters of women who have had their genitalia harmed are in jeopardy. Since their mothers experienced the painful act, there is a chance that the tradition will continue in the family. Therefore, nurses must provide patient education and be aware of individuals who may be at risk. (72) Notice the language here: “at risk,” “mutilation,” “harm,” “jeopardy,” “tradition.” Now imagine using The question answers itself. It must be very hard for a nurse or other healthcare provider to 317 For example, both the American College of Nurse-Midwives (ACNM) and the American Society for Pain Management Nursing (ASPMN) regard medically unnecessary penile circumcision to be ethically acceptable and not to violate the child’s right to bodily integrity. For example, the ACNM states that the “decision to circumcise is challenging in that the procedure permanently alters the anatomically intact male penis” but nevertheless counsels that midwives “may provide newborn male circumcision as part of expanded scope of practice” (66) (p. 2). 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