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The new politics of male circumcision: HIV/AIDS, health law and social justice

Published online by Cambridge University Press:  02 January 2018

Marie Fox  and
Michael Thomson
Marie Fox
Affiliation:
University of Birmingham
Michael Thomson
Affiliation:
Keele University*
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Abstract

This paper engages with a changing politics of male circumcision. It suggests that various shifts which have occurred in how the issue is debated challenge legal constructions of the practice as a private familial issue. Although circumcision rates have declined in those Western nations which have traditionally practised it, the procedure is now being promoted as a medicalised response to the HIV/AIDS pandemic in sub-Saharan Africa. Such initiatives propose a new biomedical rationale for the practice and have been difficult to confine to the African context or to adult bodies, prompting a resurgence of enthusiasm for neonatal male circumcision on the part of professional bodies in the USA and elsewhere. Although we have reservations about such public health policies, which we suggest downplay risks inherent in the procedure both for the individual and for the advancement of public health, we argue that such strategies have the potential to move debates about circumcision beyond the parameters of traditional ‘medical law’, with its focus on the doctor–patient nexus and the issue of who can validly consent to medical procedures. We suggest that, as with female genital cutting, male circumcision ought to be debated within a paradigm of social justice which gives adequate weighting to the interests of all affected parties (including women whose health may actually be compromised by the procedure) and which renders visible the socio-economic dimensions of the issue. In line with a social justice approach, we argue that public health initiatives must comply with international ethico-legal standards and be attentive to the emergence of an international human right to health. The shift in analytical frame that we propose has the potential not only to make us re-think our approach to the ethics and legality of male circumcision by challenging its construction as a familial decision but also to impact on the need for a broader conceptualisation of health law as rooted in social justice.

Type
Research Article
Information
Legal Studies , Volume 32 , Issue 2 , June 2012 , pp. 255 - 281
Copyright
Copyright © Society of Legal Scholars 2012

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References

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38. We would suggest that, while space precludes a full consideration here, the role of such private philanthropic organisations in this arena merits further scrutiny. For all the plaudits it has attracted, the Gates Foundation has been criticised for its lack of transparency or accountability, while its commitment to peer review of grant making has been questioned – see L White ‘Tipping the balance’Sunday Times 3 July 2005; A Beckett ‘Inside the Bill and Melinda Gates Foundation’Guardian 12 July 2010. Furthermore, as Booth has argued, homogenising constructions of Africa as ‘desperate’, ‘needy’ and dependent on intervention by international bodies, omits any ‘acknowledgement of US and Western European participation in creating and worsening the various disasters faced by many of the countries hosting [various HIV related] trials’– see Booth, K ‘Magic bullet for the “African” mother? Neo-imperial reproductive futurism and the pharmaceutical “solution” to the Hiv/Aids crisis’ (2010) 17 Social Politics 349 CrossRefGoogle Scholar at 365.

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41. The absence of an adequate information base for public health interventions is a pervasive problem in the field. For instance, in the UK the Wanless Report noted that: ‘Although there is often evidence on the scientific justification for action and for some specific interventions, there is generally little evidence about the cost-effectiveness of public health and preventative policies or their practical implementation. Research in this area can be technically difficult and there is a lack of depth and expertise in the core disciplines. This, coupled with a lack of funding of public health intervention research and slower acceptance of economic perspectives within public health, all contribute to the dearth of evidence of cost-effectiveness. This has led to the introduction of a very wide range of initiatives, often with unclear objectives and little quantification of outcomes and it has meant it is difficult to sustain support for initiatives, even those which are successful’. D Wanless Securing Good Health for the Whole Population (London: Department of Health, 2004) Summary ch 5. The report also deplored the ‘very poor information base’ and noted the ‘lack of conclusive evidence for action’. See also McHale, J ‘Law, regulation and public health research: a case for fundamental reform?’ Current Legal Problems (2010) 63 Google Scholar 475.

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72. Ibid, ch 2.

73. Ibid. Commentators persist in drawing a clear distinction between genital cutting of boys and girls – see for instance CL Annas ‘Irreversible error: the power and prejudice of female genital mutilation’ in Mann et al, above n 8, p 337. However, as Berer notes, ‘the concept of genital integrity is one of the most potent reasons put forward for opposition to female genital mutilation which begs the question of why it does not apply with equal force to male genitalia even if there would be public health benefits from removing men's foreskins en masse’. Berer, M ‘Male circumcision for Hiv transmission: perspectives on gender and sexuality’ (2007) 15 Reproductive Health Matters 45 CrossRefGoogle Scholar at 47.

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94. Although in the UK and some Australian states law prohibits even competent adult women from consenting to this procedure. For a discussion of the Australian position see Sullivan, N ‘“the price to pay for our common good”: genital modification and the somatechnologies of cultural (in)difference’ (2007) 13 Social Semiotics 395 CrossRefGoogle Scholar.

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102. Isselmuiden and Faden suggest such a position underpins the CIOMS Guidelines on Medical Research, above n 100, p 368. (The Council for International Organizations of Medical Sciences (CIOMS) is an international NGO established jointly by the WHO and UNESCO. It published international guidance on the ethical principles to govern human experiments in 1993 which were updated in 2002, available at http://www.cioms.ch/publications/layout_guide2002.pdf).

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108. Berer, above n 67, at 171.

109. Berer, above n 73, at 46.

110. C Dugger ‘South Africa redoubles efforts against AIDS’New York Times 25 April 2010.

111. Berer, above n 67, at 174. As she points out, this needs to include much more information than merely crude figures of how many men have been circumcised.

112. These factors of course also heighten the risk that circumcision surgery performed in unhygienic conditions could itself act as a vehicle for HIV transmission.

113. Baeten, JM, Clum, C and Coates, TJ ‘Male circumcision and Hiv benefits and risk for women’ (2009) 374 Lancet 182 CrossRefGoogle Scholar.

114. Wawer, above n 50.

115. Berer, above n 73, argues that this proposal is ethically indefensible.

116. Nuffield Council on Bioethics Public Health: Ethical Issues (Cambridge: Cambridge Publishers Limited, 2007)Google ScholarPubMed para 2.24.

117. For example, Kalichman, SC ‘Neonatal circumcision for Hiv prevention: cost, culture and behavioural considerations’ (2010) PLoS Med 7(1): e1000219 CrossRefGoogle Scholar.doi:10.1371/journalpmed.1000219. For a contrary view, see Sidler, D, Smith, J and Rode, H ‘Neonatal circumcision does not reduce Hiv/Aids infection rates’ (2008) 98 1(0) South African Medical Journal 762 Google Scholar.

118. Powers and Faden, above n 71, p 165. See also A Nolan ‘The child's right to heath and the courts’ in Harrington and Stuttaford, above n 80.

119. Although see ‘Leading edge, circumcision and circumspection’ (2007) 7 Lancet Infectious Diseases 303.

120. Gable et al, above n 107.

121. See Fox and Thomson ‘Interrogating bodily integrity’ (forthcoming).

122. Powers and Faden, above n 71, at 19. In this context the authors are referring to criminal actions, such as rape, battery and FGM, but as we have argued elsewhere ( Fox, M and Thomson, M ‘Older minors and circumcision: questioning the limits of religious actions’ (2008) 9 Medical Law International 283 CrossRefGoogle Scholar), it is the reluctance of Anglo-American law to conceptualise male circumcision as a criminal action which precludes it being regarded in the same light as female genital cutting or other bodily interventions which attract criminal sanctions.

123. http://www.sld.cu/galerias/pdf/servicios/sida/discurso_de_iniauguracion_de_conferencia_mundial_2010.pdf last accessed. In March 2010 UNAIDS also launched its Agenda for Accelerated Country Action for Women, Girls, Gender Equality and HIV.

124. http://data.unaids.org/pub/SpeechEXD/2010/20100322_sp_sidibe_faith_en.pdf.

125. Gostin and Mann, above n 96, p 60.

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128. Wawer, above n 50. And of course there are also risks to male sexual partners.

129. J du Guerny and E Sjoberg ‘Interrelationship between gender relations and the HIV/AIDS epidemic: some possible consideration for policies and programs’ in Mann et al, above n 8.

130. Joint UN Programme on HIV/AIDS and WHO. AIDS epidemic update (December 2009).

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132. The report of the South African HIV Prevalence, HIV Incidence, Behaviour and Communication Survey in 2008 showed that in the age group 20–24, HIV prevalence among males was 5.1% as against 21.1% for females. In the age group 25–29 male pralelence was 15.7% compared with 32.7% for females. http://avert.org/safricastats.htm.

133. P Piot ‘Address to the VIIth Conference on Woman and AIDS’ Dakar Senegal 14–17 December 1998.

134. Booth, above n 38, p 358.

135. Bujra, J and Mkake, SN ‘AIDS activism in Dar es Salaam: Many struggles; a single goal’ in Baylies, C and Bujira, J (eds) AIDS, Sexuality and Gender in Africa: Collective Strategies and Struggles in Tanzania and Zambia (London: Routledge, 2000)Google Scholar p 154.

136. Wawer, above n 50, p 236.

137. Berer, above n 73.

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140. As P Treichler has noted, the ‘exotic bodies, sexual practices, or who knows what [of African women] are seen to be so radically different from those of women in the US that anything can happen to them’. ‘AIDS, homophobia, and biomedical discourse: an epidemic of signification’ in Crimp, above n 28, pp 45–46.

141. This is comparable to the erasure of women as individuals with interests in their own right in programmes to prevent maternal transmission of HIV to babies. See Annas and Grodin, above n 59; Booth, above n 38. It also, of course, erases non-heterosexual sex.

142. Gable et al, above n 107, p 133.

143. GJ Annas ‘The impact of health policies on human rights: AIDS and TB control’ in Mann et al, above n 8, p 37.

144. Leigh Pigg, S and Adams, V ‘Introduction: the moral object of sex’ in Leigh Pigg, S and Adams, V (eds) Sex in Development: Science, Sexuality, and Morality in Global Perspective (Durham: Duke University Press, 2005)Google Scholar pp 25–26.

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148. DeLaet, above n 74, at 405.

149. Dowsett and Couch, above n 11, p 40.

150. Brazier and Harris, above n 8, p 173.

151. Esacove, above n 55, p 84.

152. Baxi, above n 88, p 19.

153. Harrington, above n 9, citing Baxi, U ‘Global development and impoverishment’ in Cane, P and Tushnet, M (eds) Oxford Handbook of Legal Studies (Oxford: OUP, 2003)Google Scholar.

154. JM Mann ‘Human rights and AIDS: the future of the pandemic’ in Mann et al, above n 8, p 221.

155. du Guerny and Sjoberg, above n 129, p 204.

156. Dowsett and Couch, above n 11, at 35.

157. Fox, M and Thomson, M ‘Foreskin is a feminist issue’ (2009) 24 Australian Feminist Studies 195 CrossRefGoogle Scholar.

158. Gostin, above n 31, ch 1.

159. Some of those who challenge the construction of male circumcision as a private familial matter argue in favour of criminalising the practice, but for reasons outlined elsewhere, we believe this would be counter-productive; see Fox and Thomson, above n 122.

160. Martin, above n 9.

161. Epstein, above n 42, p 3.

162. Freedman, above n. 8.