An analogy from designer deafness

Is the open future principle applicable to permanent physical alterations that parents may wish to impose on children—and indeed that children may wish to impose on themselves—such as branding, tattoos, piercing and various forms of genital cutting? Although parents are generally entitled to the custody of their children and to bring them up in accordance with their own values, Feinberg argues that they are constrained by limitations relating to physical integrity, medical treatment and education: If a parent … has a legally recognised right to the custody of his own child then we should expect courts to infringe that right only with the greatest reluctance and for the most compelling reasons. One such reason would be conflict with an even more important right of the child himself. Parents who beat, torture or mutilate their children, or who wilfully refuse to allow them to be educated, can expect the state … to intervene.7

He suggests that refusal to provide appropriate medical care, or insistence on providing inappropriate or ineffective medical care would also be grounds for state intervention. On this basis, if circumcision could be considered mutilation or inappropriate medical care, then the state would be entitled to intervene to protect children from parental desires to circumcise them, as indeed it has done in the case of girls.10

The example of deaf parents taking deliberate steps to ensure that they have deaf children ‘because they will be like us’ is of particular interest because it is closely analogous to the reason why many parents want their children circumcised. The analogy is doubly valid because although most people would regard deafness as a disability, some deaf people regard their condition as a linguistic identity or minority culture that ought to be accorded the status of other minority cultures in accordance with the multicultural promise. A storm of comment was provoked by news in 2002 that a deaf female/female couple had deliberately sought to mother a deaf child by selecting a deaf sperm donor. The ensuing debate has many points of analogy with the controversy over circumcision. Defenders of the women's action asserted that the deaf world was a legitimate culture which parents would naturally wish their children to be part of, and into which they were entitled to induct them by taking steps to ensure that they had the same key physical characteristic as the parents.11 Opponents regarded the action as unethical because it focused exclusively on the desires of the parents and ignored the long-term best interests and possible future wishes of the child.12–15

Two points are of particular relevance. First, it is interesting that such a mild action should attract such heavy censure. The couple were not seeking deliberately to deprive an existing child of the capacity to hear, but to increase the likelihood that a deaf child would be born to them through sperm selection. There is a world of difference between this strategy and intentionally causing an unborn child to be deaf by getting infected with German measles; causing a deaf child to remain deaf by failing to correct the deficiency, where possible, by medical treatment; or, worst of all, performing surgery on a hearing child to sever the auditory nerves or remove the ear drums. Critics regarded the couple's action as unethically impermissible; yet the more severe surgical possibility is comparable with what is done in a circumcision operation, which severs the nerves of the penis and removes sensitive tissue, with irreversible adverse effects on sexual sensation.16 If genetic selection for abnormality to ensure the birth of a child that fits into the parental culture is objectionable, surgery on a child who would otherwise be normal—capable of the full range of sensory experience, whether auditory or erotic—is even more problematic. Second, it is significant that many of the critics explicitly invoked the open future principle as the basis of their position.12 ,14 ,15 Nunes argues that because childhood was more a stage than a status, parental reproductive rights must be balanced by regard for the future interests of the child: ‘Parents do not own their children, but are only guardians on their behalf. It follows that a child's scope of future choices must be protected’.12 Hladek argues that it is unethical not only to take steps to produce a deaf child because he might well prefer to be able to hear, but also to fail to correct deafness by means of technologies such as the cochlear implant.15

Deafness and foreskin loss as harm

For critics who did not cite the open future principle explicitly, it was the harm to the child's interests—both immediate and long term—that made selection for deafness unethical. Shaw argues that the couple's action was wrong because it was ‘choosing to deprive their child … of one of the five senses that makes us part of the world’.13 Davis likewise argues that deliberately creating a deaf child is a cruel act that denies autonomy to the future adult (who might well prefer being able to hear) and deprives him of the many additional opportunities available to people with all five senses: deliberately creating a deaf child is harmful because it curtails the child's right to an open future.8 To illustrate this point, she imagines a couple who are deaf for non-genetic reasons and want their child to be likewise. Because this is unlikely to happen through the genetic lottery, the mother exposes herself to an infection known to cause deafness in babies. Accordingly, ‘Baby Ann had two possibilities: being born hearing or being born deaf. Her parents deliberately did something to ensure the latter condition. If being deaf is less desirable than being able to hear, then Ann has been harmed’.8

This example is directly applicable to circumcision, since all boys are born with foreskins and thus have two possibilities—growing up with a foreskin or growing up without one—and only deliberate surgical intervention will produce the latter situation. To paraphrase Davis's words, if being deprived of one's foreskin is less desirable than having it—and thus preserving the choice of keeping or losing it—then the circumcised boy has been harmed. This point may be more contentious than the example of deafness, since some men are vehement that they like being circumcised, and circumcision advocates insist that the foreskin is itself harmful. This claim is at best contentious, since competent medical authorities agree that routine (non-therapeutic) circumcision of minors is not necessary; even if some benefits can be detected, they are not sufficient to justify imposition of the surgery on non-consenting children.17–24 Furthermore, even if the benefits claimed were substantial, the decision could still safely be left until maturity, since the only significant ones (reduced risk of penile cancer and sexually transmitted infections) do not apply until adulthood.

Some commentators on the open future principle have questioned whether parents have the right to indoctrinate children into particular religious or political beliefs2 ,3 ,6, but there is no need to take the argument as far as that in order to recognise that there is a profound difference between mental conditioning and physically marking the body. While an individual may never completely throw off the influences of his socialisation and upbringing, many children challenge and reject the values of their parents and set themselves on different courses in adulthood. As Davis writes, although the transformation would never be complete, ‘a person raised as a secular Jew could decide to become a Roman Catholic’. The situation is quite different when irreversible changes have been made to the body: When choices are irreversible, such as whether a person will be hearing or deaf, or when they can be postponed until the child is old enough to decide for herself, such as whether or not to be tested for adult onset diseases, then good parenthood consists in allowing the child the greatest possible latitude of choice when that child reaches adulthood.8

While it may be possible to change one's mind about religion or other values, it will not be possible to erase permanent physical marks or to restore lost capabilities or body parts. The same principle applies to actions that carry risk. James Dwyer argues that the state's authority to restrict parental control of children ‘is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. … The right to practise religion does not include liberty to expose the community or the child to communicable diseases or the latter to ill-health or death’.25 Referring to the case in which the US Supreme Court held that Jehovah's Witnesses could not prevent hospitals from giving their children life-saving blood transfusions, Dyer further argues that while the Free Exercise clause gives parents the right to ‘train and indoctrinate their children in religious matters’, the placing of a child in danger is not a form of training, and is thus not constitutionally protected. These cases impose broad limits on the extent of parental authority in religious matters: ‘these rights did not include a right to endanger seriously a child's physical health or safety’; parental rights were ‘limited to indoctrinating their children and involving them in (non-dangerous) religious practices’.25 If these principles were applied consistently, they would throw doubt on any customary ritual that carried a known risk of infecting a child with a disease, or causing other forms of ill health. Circumcision, like any surgical procedure, does carry such risks.26 ,27

Childhood is a temporary phase … circumcision is for ever

Several authorities that do not name the open future principle, nonetheless rely on the same idea when proposing that a child's future interests and wishes should be given weight in the circumcision decision. Australian paediatricians have stated that they are ‘opposed to male children being subjected to a procedure, which had they been old enough to consider the advantages and disadvantages, may well have opted to reject the operation and retain their prepuce’.28 Referring specifically to culturally motivated circumcision, the Royal Dutch Medical Association has commented that children also have a right to religious freedom: The right to physical integrity and the right to religious freedom of the child imply that religiously motivated, irreversible interventions to the body of the child should be avoided. This leaves the child the freedom to make up its own mind whether and in what form he/she wishes to relate to a particular religious community. Baptising children, for example, leaves no irreversible marks on the body, and as such is not a curtailment of the child's religious freedom, whereas irreversible non-therapeutic circumcision is.20

A similar view was the basis for the decision by the Cologne District Court that since non-therapeutic circumcision of a minor constituted both harm and an infringement of the child's religious freedom, it was unlawful: because circumcision ‘changes the child's body permanently and irreparably’ it ‘runs contrary to the interests of the child in deciding his religious affiliation independently later in life’.29

The open future principle can supplement other ethical rules devised for the protection of minors and other incompetents. An objection sometimes raised to the proposition that children have rights is that they lack power to enforce them. It is true that most children are vulnerable and unable to invoke the institutional mechanisms that could protect them from an unwanted intervention, but this fact highlights the need to give them better protection. Indeed, it seems perverse to deny rights to those who need them most, for as Michael Ignatieff has observed, a right is an assertion against power by one in a position of weakness.30 Recognising this, the state has often stepped in to protect the lives and bodies of incompetent adults and disabled children against family wishes; if this is legitimate, how much more important must it be to protect those whose whole lives lie before them and whose undamaged bodies require no special care? Dwyer suggests that children should not have fewer rights or be treated with less consideration than incompetent adults, in accordance with the substituted judgement principle—what the child would choose for him/herself if rationally able to do so.25 ,31 Dwyer acknowledges that infants and very young children would not have shown much evidence of preferences on any aspect of their lives, but does not regard this as invalidating the substituted judgement principle so long as there are reasonable grounds for determining what the incompetent person would choose if he or she were competent.

The open future principle can solve this problem. Whenever a child is too young to express preferences, the imperative is to refrain from actions that unnecessarily and irreversibly close off options. This principle would not prevent, say, dental care, since good teeth in adulthood are in the child's long-term interests, no matter how great the discomfort at the time or how much resistance he shows. We can reasonably assume that if a child appreciated the discomfort of tooth decay and the disadvantages of losing teeth, he would choose to have them looked after properly. But the principle would prevent amputation of body parts (unless essential for therapeutic purposes) because it is impossible to put them back later, and when the child reaches adulthood, or even before, he may well regret their loss. As Dwyer comments It seems unlikely that any individual, upon reaching adulthood, would resent having had a range of options in matters of belief, lifestyle and health preserved for her during childhood. It seems reasonable to believe that she might want to make her own choices as an adult in accordance with the personal attitudes and ambitions she has developed, rather than having almost all options closed off to her just because her parents wished to determine her life for her.25

Thus, a boy is far more likely to resent having been circumcised than having been left uncircumcised, because if left alone, he can always get himself circumcised as an adult if that is what he wants. A boy who has been circumcised by his parents does not have this option and must live for ever with the choice that somebody else has made.ⁱ

The open future principle is a corrective to the ‘coercive paternalism’ that may result when adults make decisions that they consider to be in a child's best interests. Theorists of children's rights, such as John Eekelaar,32–34 are concerned that the best interests formula so often applied in court and medical decision making, can ignore the child's own views and violate his rights by denying him choice in matters that affect his present and future wishes: Although it might logically be held that B has the right that A should promote B's welfare in accordance with A's perception of that welfare, such a right is really no right at all. A person who surrenders to another the power to determine where his own welfare lies has … abdicated his personal autonomy.34

The problem has surfaced in several custody cases, where one parent (eg, Muslim father) has wanted the boy to be circumcised, while the other (eg, non-Muslim mother) has not; and the court has then decided on the basis of whether he was more likely to join the mother's or the father's culture. In the British case of re J, the court decided that because the boy was unlikely to be brought up as a practicing Muslim it was inappropriate for him to be circumcised—a ruling that implies the converse: that if the court thought he was likely to be brought up as a Muslim, his ‘best interests’ lay in being circumcised.35 The court was applying the best interests standard as assessed by adults, but it did not ask the boy what he wanted, and how could it really judge the lifelong best interests and likely future wishes of somebody so young? Such decisions can never be much more than guesswork and, in the case of culturally motivated circumcision, the application of cultural stereotypes. Not all children brought up as Muslims are glad to have been circumcised, and some are on record as fleeing from or bitterly resenting it.36 ,37 Because the later preferences of a child cannot be known, the safest course is, wherever possible, to keep the options open.ⁱⁱ

Respect for the open future principle thus requires parents to leave their boys’ foreskins alone and let them make up their own minds about such an intimate personal choice when they reach the age of consent. Delaying circumcision until the child is mature enough to make an informed decision about it, which in most cases would not be until his mid- to late teens, is not only the soundest policy from an ethical point of view, but also the least-risk approach, in that it avoids both the risks of the surgery and the danger that the adult will resent what was done to him as an infant. The only justification for removing a functional and highly visible part of a sensitive organ, such as the penis, from a minor would be if there was a high risk that its presence would cause death or serious illness before the boy reached adulthood. No boy with normal (healthy) genitals has ever died because his parents neglected to circumcise him, though many have died or suffered crippling injuries as a direct consequence of circumcision. If, for any reason, an adult male prefers to have a circumcised penis, the open future principle ensures that he is free to make this decision for himself, and also that he will be able to select his own surgeon, style of cut, degree of pain control and postoperative care and so on, thus maximising the likelihood that he will be happy with the outcome, and reducing the likelihood of regrets.39

The fact that very few men seek circumcision in adulthood suggests that if they had been offered the choice in infancy or childhood the vast majority would have opted to retain their foreskin. Evidence of this is provided by a study of adult men in San Francisco, which found that even if there were proof that it gave them significant protection against AIDS, only 0.7% said they would agree to get circumcised,40 and by numerous complaints from circumcised men that they resent their condition and would prefer to have been left alone.41–43 In many cases, their objection is not only to the physical effects of circumcision on bodily appearance and sexual function, but to the denial of choice and the sense of violated human dignity—as these typical comments from an Australian survey demonstrate: It is the indignation of somebody else making decisions for my body that pisses me off the most. I feel a great loss of both choice and control in relation to my circumcision.44

Using the substituted judgement test, we may conclude that if an infant or child were rationally capable of assessing the relevant information, the vast majority would reject circumcision. In this connection, is it significant that Davis considers the greatest moral harm in parents deliberately causing their child to be deaf to be not the physical effects of the deafness itself, but the denial of choice: ‘The primary argument against deliberately seeking to produce deaf children is that it violates the child's own autonomy and narrows the scope of her choices when she grows up; in other words, it violates her right to an “open future”’.45