Circumcision is an ancient tradition that exists as an important part of many cultures today. But in the modern era, it is important to be aware of your rights as a parent, the rights of your child, and the liability of your doctor in regards to circumcision.
Is Male Circumcision Legal in the U.S.?
Male circumcision is currently legal in every state within the U.S. However, the rate of circumcisions performed in hospitals has dropped sharply in the past 30 years, and now only about 60% of all newborns in the U.S. are circumcised. Various groups opposed to the practice have filed lawsuits against the government in over 10 states, attempting to change the law and ban all circumcision (usually by arguing the ban on female circumcision alone is discriminatory). Generally, your doctor or religious professional will likely be up to date on the laws of your state, but checking with an attorney specializing in medical malpractice is always a good idea before undergoing any kind of unnecessary surgery. This is especially true as your child may have certain litigation rights when he turns 18 (see below).
Is Female Circumcision Legal?
Female circumcision, (or more accurately a clitoradectomy) has been labeled as "Female Genital Mutilation" by the World Health Organization. It is accordingly banned in all States, and although it is still prevalent in many sub-Saharan African cultures, performing one on a child or soliciting such a procedure is a crime, and constitutes both a criminal and a civil battery. There is no court-recognized religious necessity defense to this procedure, either.
If a Circumcision is Performed Without Consent, Can I Sue?
Absolutely! Circumcision is a procedure that requires the written consent of at least one parent in every state. If the procedure is performed automatically without getting such consent, you have a very strong case against the hospital and doctor. A few years ago, an Alabama court awarded over $60,000 to a boy who was circumcised without the consent of a parent.
In addition, there is a growing body of law to suggest that if you have been circumcised without your consent (that is, even if your parents consented for you as a child), you can sue the doctor when you reach 18 years of age. The laws here vary as well, but many states allow a six month to two year window from your 18th birthday to initiate litigation for any violations you suffer as a child. If you had a circumcision performed on you for non-medical reasons, then it may qualify as a personal injury, regardless of parental consent. This is especially true if you've suffered any physical, sexual or psychological problems resulting from your circumcision. Time is of the essence for this type of litigation, so you should contact a personal injury lawyer immediately.
What if I My Spouse and I Disagree on Consent?
This is a highly contentious area of the law, and your options vary from state to state. Most states only require the consent of a single parent to perform a circumcision. HOWEVER, although the law is not very established on this subject, a parent or guardian who feels that circumcision will not be in the best interests of the child may file an injunction to prevent the operation.
For the most part, very very few doctors will perform a circumcision if one parent objects to the procedure, usually out of fear of a lawsuit. You should make your objection very clear to all doctors involved, to prevent any misunderstandings (an attorney can also provide you with a "non-circumcision notification form" that will put the hospital on notice).
What if the Doctor Recommends a Circumcision?
If the doctor has no true medical reason to recommend the procedure (future speculative medical benefits are NOT sufficient), then you may have a case against him. In most states, it could be fraudulent misrepresentation and thus professional malpractice for a physician to solicit for a medically unnecessary surgery. Simply giving a parent a circumcision consent form may qualify as such a solicitation, if the parent does not ask for one. Contact a personal injury attorney immediately if you feel you were forced or pressured into having your child circumcised. See also our article about Botched Circumcision and Wrongful Circumcision.
How Can an Attorney Help?
A personal injury or malpractice attorney will greatly improve your chances of winning a lawsuit in this growing field of law. Failing to consent to a circumcision is no less serious than failing to consent to any other kind of surgery, and an experienced lawyer can help you get substantial remedies from your hospital and doctor.