This thoroughly-researched article comes from Peter W. Adler, the Legal Advisor for Attorneys for the Rights of the Child and appears in the Richmond Journal of Law and the Public Interest | Vol 16 | No. 3
We look to such groups for guidance in building a case for the rights of children. Slicing-off parts of healthy babies’ bodies is obviously a more egregious personal violation than the spanking, etc. that we take issue with here. Fortunately, in the U.S., circumcision has been on the decline since the 80’s.
Regarding our mission, a child’s rights to be self-directed, or free from coercion, in their work, play, and education, has been on the decline for about 50 years. Peter Gray gives a run-down of some of that info here.
Governments don’t embrace civil rights movements until first the tides of culture change. Exposing the legal hypocrisy is simply an effort to change hearts and minds. This author is talking about circumcision, but replace that act with something like spanking or other initiations of force, and the arguments still hold true.
The right to be free from aggression is the heart of common law. Equal rights mean equal for all (not just for white male landowners as it was centuries ago, and not just for grownups as it is today).
A few excerpts from the article (see the source article for their footnotes and citations):
The fact that circumcision is commonplace, asserted by proponents of circumcision in legal briefs, is not in and of itself a valid legal argument. Slavery was once commonplace, as was drilling holes in the brain to cure epilepsy and mental disorders, the use of leeches to remove blood, and the use of unsterile instruments in surgery.
Circumcision raises one principal issue for its opponents: do boys, like girls, have a right to genital integrity, and, if so, where is the right found? The surgery raises many troublesome legal issues for proponents. Is invasive surgery on boys’ genitals legal when cutting girls’ genitals is a federal crime?
In 1791, the United States passed a constitutional amendment that adopted British common law. The first chapter of Blackstone’s Commentaries,”Of the Absolute Rights of Persons,” states that the rights of the people are to be preserved inviolate.
a. The Right to Personal Security
The principal purpose of the law, Blackstone wrote, is to protect the right of all people to personal security:
1. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health…
The U.S. Supreme Court acknowledged this concept in 1997, citing the Magna Carta: “Among the historic liberties so protected was a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security.”
The Right to Liberty
After discussing personal security, Blackstone wrote that the law of England preserved the personal liberty of individuals:
The absolute rights of man… [include the] power of choosing those measures which appear to him to be most desirable… This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control.”
In 1891, the Supreme Court in Union Pacific Railway Company v.Botsford affirmed the paramount importance of freedom and personal security as derived from the common law:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law…. “The right to one’s person may be said to be a right of complete immunity; to be let alone.”
As the Supreme Court has stated, “[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Constitutional rights are “fundamental” and “may not be submitted to vote.”
The Fourteenth Amendment to the United States Constitution prohibits states from enforcing laws that “deny to any person… equal protection of the laws”. State constitutions also contain equal protection clauses.
The United States Supreme Court held that the protections given by the Bill of Rights imply a constitutional personal right to privacy. In Roe v.Wade, for example, the Supreme Court held that a woman has a constitutional right of privacy to make her own decisions about her bodyand pregnancy, independent of her parents’ beliefs and desires.
As the California Court of Appeals held in American Academy of Pediatrics v. Lungren, citing United States Supreme Court decisions,individuals have an inalienable constitutional right of privacy or liberty to make their own decisions in matters related to sex, life, and health
The California court stated that bodily intrusions violate the privacy right, which includes “interests in making intimate personaldecisions or conducting personal activities without observation, intrusion,or interference (‘autonomy privacy’).” The California court called theright of a minor female to make important choices about her own body “clearly among the most intimate and fundamental of all constitutional rights.
The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” State constitutions sometimes contain similar language, and sometimes add that there is a right to the pursuit of happiness. Circumcision violates the right of every boy to life (it can be fatal), to personal security (it is invasive, risky, and harmful), to liberty (the autonomy to make the circumcision decision for himself as an adult), to property (one’s body parts are surely one’s property), and to pursue happiness however he chooses. Thus, boys have absolute constitutional rights under various provisions of the Fourteenth Amendment to be free from government interference in their decision to be left intact.
The California Penal Code also prohibits… inflicting physical injury or death other than by accidental means upon a child.
Similarly, under the Massachusetts child abuse statute, it is criminal assault and battery to intentionally touch a child in a way that causes bodily injury or substantialbodily injury without justification or excuse…
Any application of force is prima facie an assault. Consent is a defense only to assaults that do not inflict actual bodily harm. Medical treatment is an exception to assaults causing bodily harm, but non-therapeutic circumcision is not medical treatment. American courts also have noted that children, and particularly very young children, are especially vulnerable, require protection under criminal law, and that crimes against them are morally outrageous.
A person is liable to another for civil battery for intentionally causing any harmful or offensive contact.
Several United Nations documents together form the “International Billof Rights.” The U.N. Charter requires member states to promote human rights and fundamental freedoms without distinction as to race, sex, or religion. The Charter specifies that children have the same human rights as adults, and special rights arising from their need for protection during minority. The 1948 Universal Declaration of Human Rights recognizes every person’s right to life, liberty, and security of the person, and to freedom from cruel or degrading treatment. The 1996 International Covenant on Civil and Political Rights gives minors the right to protection from family, society, and the state.
The British Medical Association has also stated that if circumcision is prejudicial to a child’s health and wellbeing, which it is, it is likely that alegal challenge on human rights grounds will be successful.
Blackstone wrote that parental power over children enables them to carry out their duties, including the duty to protect their children.37s The British
House of Lords affirmed this in 1985:
Nor has our law ever treated the child as other than a person with capacities and rights recognized by law. The principle of the law… is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.
In America, as well, “the duty of parents to provide for the safety and welfare of their children… has long been recognized by the common law and by statute.”
Both the common law and child abuse statutes prevent parents from endangering or injuring their children other than for a valid medical purpose.
Parents do not own their children or have the unfettered right to control their lives and bodies; this would constitute slavery, which was abolished by the 13th Amendment to the United StatesConstitution.
“[s]urrogates are expected to make decisions based on what the incompetent patient would want for himself[;]” “[it must be shown to a reasonable degree of certainty that the child would, upon attainment of the age of reason, have desired the surgeryfor himself.”