A German court has ruled that the religious circumcision of a Muslim boy was unlawful as it violated his constitutional rights to bodily integrity. A doctor was prosecuted for carrying out the circumcision but acquitted on the basis that the law was unclear as to whether such an action was illegal. Under paragraph 17 of the German Criminal Code there is no liability if acting under an unavoidable mistake of law. The UK Human Rights blog therefore makes the observation that as the law is now clear on this point doctors could be convicted for carrying out circumcisions in the future.
The German court held that carrying out the circumcision is an offence as firstly the defence of social adequacy (which the UK Human Right blog states is akin to the defence of necessity in English law) did not defeat the child’s right to self-determination. Further to this, the offence can’t be justified by the child’s consent as the child didn’t have the ‘intellectual maturity’ to give the consent. Finally, the court balanced the rights of the parents to freedom of faith and conscience and the right of the child to physical integrity and found that the limits of the parents’ rights were breached by the circumcision. Notably the court laid emphasis on the fact that the child’s body would be so irreparably changed that it could affect his own rights to freedom of faith and conscience, for example if he decided later in life not to be a Muslim.
Click here to read a post about the case on the UK Human Rights blog.