Two Pieces of Good News: Israeli Ruling and Danish Medical Student Association Protect Boys

Two pieces of good news have recently come to pass.

First, Israel's High Court of Justice has overturned the Supreme Rabbinical Court's decision last November that compelled a mother to have her son circumcised when her husband insisted on it during divorce proceedings. The High Court's decision was not primarily based in the right to bodily integrity but rather in the fact that such an order is not a proper part of a divorce proceeding as it is irrelevant to the pertinent issues in a divorce. Such grounds may actually be better than an ethically or rights-based legal analysis as this decision is probably less subject to being challenged or changed.

Second, the Danish Association of Medical Students (FADL) has issued a position statement opposing ritual male circumcision on ethical, legal, and human rights grounds.Thanks to ARC Newsletter Editor/Webmaster Jonathan Friedman for his work on the translation.

Both articles appear below.

Steven Svoboda
Attorneys for the Rights of the Child


Israel's High Court voids rabbinical ruling ordering woman to circumcise son

Justice Miriam Naor ruled that there was no justification for tying circumcision to a divorce proceeding, rabbinical court had exceeded its authority with its decision.

By Revital Hovel

Haaretz

Jun. 29, 2014

http://www.haaretz.com/mobile/.premium-1.602016

The High Court of Justice on Sunday voided a ruling by the Supreme Rabbinical Court that obligated a woman to circumcise her son in response to her husband’s demand in divorce proceedings, saying the rabbinical court had exceeded its authority by doing so.

The ruling was issued by a panel of seven justices, of whom six supported the ruling, written by Justice Miriam Naor. Naor ruled that ritual circumcision cannot be attached to a divorce proceeding, but said the father could take his case to the family court.

The Supreme Rabbinical Court, in its ruling, was upholding a ruling by the Netanya Regional Rabbinical Court, which instructed the mother to cooperate and allow the father to circumcise his son, who by then was a year old. The Netanya court imposed a fine of 500 shekels ($146) a day for every day that she refused.

The woman had argued that the father had been a partner to the decision not to circumcise their son, but that when the two launched divorce proceedings in the Netanya court, the father suddenly demanded that the child be circumcised.

The focal point of the mother’s petition to the High Court was whether a demand to circumcise could be attached to a divorce proceeding, and that was the issue addressed by Naor’s ruling.

“I don’t think there’s practical justification for dealing with this conflict in a divorce proceeding, since there is no sufficient linkage between this disagreement and divorce proceedings,” Naor wrote. “Circumcision is not an issue that requires a decision when a marriage breaks up; it need not accompany the act of divorce; and it isn’t even an issue that is generally connected to divorce proceedings. In this, circumcision is different than other issues that precedent holds are relevant to divorce proceedings, such as physical custody, allocating the burden of supporting the divorcing couple’s children and dividing the couple’s joint property.”

Naor clarified that both parents have a right to express their opinion on the issue of circumcision, and that disagreements on the issue could arise among parents who were not divorcing or who had never married at all. Therefore, there is nothing about circumcision that is materially linked to divorce.

As to the argument by the rabbinical courts’ legal adviser that ritual circumcision is the foundation of a child’s education, and that educational issues are often addressed during divorce proceedings, Naor ruled that the question of whether to decide on educational issues during these divorce proceedings had not yet been made, and there was no need to decide it now.

Other issues were also raised during the High Court hearing on the petition. When the justices asked Attorney General Yehuda Weinstein for his input, his position was also that the mother’s petition should be accepted, because “the rabbinical court had exceeded its authority” and because “it’s doubtful that the rabbinic court’s decision was made based on the principle of what’s best for the child.”

But the prosecution, in its response, also addressed the special circumstances of this case, in that the son was already more than a year old and thus the circumcision would require general anesthesia or sedation and would need to be performed by a physician. Any case involving medical procedures, the prosecution argued, had to be heard in family court, and thus the father could not ask the rabbinical court to enforce his demand.

After the hearing on the petition in February, the justices asked Weinstein for his opinion on the essential question of whether the rabbinic court has the authority to impose a circumcision that doesn’t involve an operation or anesthesia when a parent tries to make a demand as part of divorce proceedings.

In his reply, Weinstein clarified that this decision remained in the realm of the family court, even if at issue was a circumcision to be performed on the eighth day. However, he rejected the mother’s claim that no court, state or rabbinic, had the authority to impose a circumcision against her will. Weinstein cited two previous cases in which the family court had indeed ordered a circumcision performed on a minor, even though one of the parents objected.

The justices supporting Naor’s ruling were Hanan Melcer, Esther Hayut, Neal Hendel, Yoram Danziger and Salim Joubran. Justice Elyakim Rubinstein was in the minority. Although he agreed that the woman’s petition should be accepted, it wasn’t because the rabbinic court had exceeded its authority. He stated that one could attach the issue of circumcision to a divorce proceeding, but in this case the court had not sufficiently examined what was best for the child. He recommended returning the case to the Netanya Regional Rabbinical Court after it received a medical opinion.

In his ruling, Rubinstein quoted extensively from Jewish sources about the importance of ritual circumcision, saying that “a question relating to the essence of the child’s Judaism” was indeed an issue relevant to a divorce proceeding.

Chief Rabbi and Rabbinical Court President Yitzhak Yosef responded: “The Supreme Court’s decision to prefer the civil court over the rabbinical court even for religious issues like circumcision is outrageous, and it also symbolizes the troubling trend in recent years of constricting the rabbinical court’s authority.

"As the court president, I call on the Supreme Court president to hold another hearing on this issue, and reverse this troubling decision and end the erosion of the rabbinical courts’ power.”

 


Statement on the Ritual Circumcision of Boys

The Danish Association of Medical Students (FADL) Main Association

June 24, 2014

http://www.fadl.dk/fadldk/politik/fadl-mener/rituel-drengeomskaering/ (original in Danish)

FADL believes that individuals have the right to decide on ritual circumcision, and that the right to an intact body should be independent of the individual's sex. As girls already are guaranteed legal protection against ritual circumcision in Denmark, boys should also be guaranteed the same rights.

Ritual circumcision of boys removes healthy and functional tissue from a helpless, healthy child, and the question of ritual circumcision of boys is therefore in its starting point not a health issue. The question of whether ritual boy circumcision should be legal or not, is rather an ethical issue and a question of rights. Therefore, physicians and medical students are on an equal footing with all others in the community, and take a stance on whether a person's right to to their body should take precedence over religious and cultural traditions or not.

FADL wants this resolution to: express respect for children's - both girls and boys - recognized constitutional right to safeguarding their bodily integrity; and will appeal to physicians and other health professionals to take an active stance on whether to respect children and thus boys' constitutional rights to an intact body by making use of their right to refuse to perform the ritual circumcision of boys.

FADL would like to stress that our approach to ritual boys circumcision is neither rooted in anti-Semitism nor Islamophobia. Men who have reached the age of majority [18 years], may even choose to be circumcised for religious or cultural reasons, if they wish to do so.

FADLs position is not about whether to circumcise or not. Our position is that each individual should have the choice.

- Kasper Gasbjerg, President of the Danish Association of Medical Students (FADL)

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