IV. INTERPLAY IN THEORY

1. INTERNATIONAL LAW (INTERNATIONAL LAW IS BINDING UNDER PHILIPPINE LAW)

Article II §2 of the 1987 Constitution of the Philippines provides that “[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”[1]  This provision provides for the doctrine of transformation wherein international laws are considered part of the law of the land.  “In other jurisdictions, international law can become part of municipal law only if it is transformed into domestic law through the appropriate constitutional machinery such as an act of Parliament.”[2]

            The Philippines is a signatory to many international human rights conventions such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic and Social Rights, Convention Against Torture, Convention on the Elimination of Discrimination Against Women, Convention of the Rights of the Child, among others.  As a signatory, the Philippines is bound to observe the provisions of these instruments following Article 2 § 2 of the 1987 Constitution.

i.                    CIRCUMCISION IS NOT FOR THE BEST INTEREST OF THE CHILD

The Convention on the Rights of the Child provides for rights that are violated by routine male circumcision.  One of these rights is the Best Interest Principle which provides that in all actions concerning children, the best interest of the child shall be a primary consideration.[3]  It is important to note, however, that “[i]nterpretations of the best interests of children cannot trample or override any of the other rights guaranteed by other articles in the Convention.  The concept acquires particular significance in situations where other more specific provisions of the Convention do not apply.”[4]  Male circumcision is not specifically provided for in the provisions of the Convention on the Rights of the Child.  Following the Implementation Handbook for the Rights of the Child, the issue on male circumcision should be approached with a view to obtaining what is best for him.  A problem in the application of this provision lies on the fact that generally, the parents or guardians who consent to the circumcision of the child do not consent to the practice to carry out abuses on him.  They allow the procedure to be performed because they think it is for the best interest of the child physically as well as socially.  Parents would certainly not want their hijo to be called supot. 

The Convention on the Rights of the Child, however, should be considered as a whole.  The best interests principle should be taken together with the other rights provided in the Convention.  Furthermore, “consideration of best interests must embrace both short and long-term considerations for the child.”[5]  Thus, even if the parents or guardians believe that routine male circumcision is for the benefit of the child, any act based on this belief should not be cruel and/or unreasonable.  Short and long term effects must be taken into consideration in determining whether such is really for the child’s best interest.  As explained earlier, routine male circumcision is based on false medical claims and exposes the child to many risks.  The parents or guardians cannot continue to hold on to the belief that circumcision is for the best interest of the child if they know all the risks involved.  The growth and development of the child must always be anchored on the truth.  The Implementation Handbook of the Convention on the Rights of the Child further limits the parents’ or guardian’s discretion by saying  “State Parties cannot interpret best interests in an overly culturally relativist way and cannot use interpretation of ‘best interests’ to deny rights now guaranteed to children by the Convention, for example to protection against traditional practices and violent punishments.”[6] 

This policy of ensuring the child’s best interest has been integrated in various local laws.  Presidential Decree 603, more popularly known as the Child and Youth Welfare Code, for instance, explicitly states that “[i]n all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration.”[7]  It further recognizes the importance of the child by acknowledging that “every child is endowed with the dignity and worth of a human being from the moment of his conception.”[8]  Moreover, it expressly recognizes the right of the child to “protection against exploitation, improper influences, hazards, and other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral development.  This principle on the best interests of the child is further integrated in other laws such as Republic Act 7610, the Revised Rules on Adoption,[9] Rule on Commitment of Children,[10] Rule on Juveniles in Conflict With the Law,[11] among others.

ii.                  ROUTINE MALE CIRCUMCISION IS A VIOLATION OF A PERSON’S BODILY INTEGRITY

The right to bodily integrity is provided for in many human rights conventions.  Article 3 of the Universal Declaration of Human Rights of which the Philippines is a signatory, provides that “[e]veryone has the right to life, liberty and the security of person.”[12]  This means that everyone has a right to his life which includes being free from things that imposes unnecessary risks on life.  This provision includes a person’s basic right to bodily integrity.  This right to bodily integrity is further protected in Article 19 (1) of the Convention of the Rights of the Child.  Said provision, for instance, provides that “State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child.”[13]  This provision expressly prohibits all forms of physical violence on the child as child abuse.  A careful reading of the provision, however, will reveal that the violator should be the parents, legal guardians or the persons that have the custody of the child.  Routine circumcision can be considered child abuse under this provision but oftentimes, the circumcision is not performed on the child by his parents or legal guardians. 

Republic Act 7610 which incorporated the provisions of the Convention on the Rights of the Child, provides us with the answer.  Unlike the Convention on the Rights of the Child, Republic Act 7610 does not limit child abuse to offenses perpetrated by persons under whose care the victim is committed.  The definition covers all the abusive acts of any person. 

Routine circumcision can be considered as child abuse under these laws.  “Child abuse encompasses all forms of physical, psychological or mental violence including incest and sexual abuse.”[14]  Republic Act 7610 defines child abuse as “the maltreatment of the child, whether habitual or not, and which may be committed in various forms.”  The law provides specific instances of child abuse such as psychological and physical abuse, neglect and cruelty.

            Routine circumcision imposes a risk on the life of a child.  These risks are unreasonable because, as explained earlier, there are no proven medical benefits for the procedure.  Such procedure with such risks that even includes death can be considered a burden to a person’s right to life.  The right to life should embrace the enjoyment by the individual of all the God-given faculties that can make his life worth living, which includes the right to give full rein to all his natural attributes.[15]  Being permanently maimed can be considered an obstacle in giving full rein to a person’s natural attributes. 

Routine male circumcision disregards a young boy’s right to bodily integrity.  The procedure is invasive because it involves the exposure of the most sensitive part of the male anatomy to doctors who then amputate a healthy part of it.  It is an infringement of the boy’s right to bodily integrity because the amputation has no proven therapeutic reason.  The whole procedure is based on outdated beliefs.  All the pain, risks and hardships that the child undergoes in routine male circumcision are merely pursuant to an erroneous belief in its alleged benefits or a warped sense of manhood.  As will be discussed later, the child is often not asked for his consent or is unable to give an informed consent on the procedure.  He naturally relies on his parents or legal guardians to make the choice for him.  In fact, like any other form of child abuse, however, routine circumcision is abuse that is easy to commit because children who depend on their parents for sustenance have to succumb to their authority.[16] 

iii.                ROUTINE CIRCUMCISION IS A TRADITIONAL PRACTICE PREJUDICIAL TO THE HEALTH OF THE CHILD

            The Philippines is a signatory to the Convention on the Rights of the Child, and as such, it is bound to perform certain duties for the protection of the human rights of children.  One of these duties is provided for in Article 24(3) of the Convention which pronounces that the “State Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.  This provision stemmed from a “particular concern over female genital mutilation.”[17]  Various country representatives proposed that the provision should refer in particular to the practice of female circumcision (genital mutilation of girls and young women), which was opposed on the grounds that it would be wrong to single out one practice.[18]  In fact, the UNICEF Implementation Handbook for the Convention on the Rights of the Child provides that a review should be undertaken regarding “all forms of genital mutilation and circumcision.”[19]  Other traditional practices which are to be reviewed include “binding, scarring, burning, branding, forced holding under water…” and similar cruel treatment of children.[20]  Routine male circumcision may be considered as one of those traditional practices contemplated by the drafters of the Convention.

            Routine male circumcision is a traditional practice.  Tradition is composed of past customs and usages which influence or govern present acts or practices.[21]  It is the process of handing down information, opinion, beliefs, and customs by word of mouth or by example without written instruction.[22]  Circumcision in the Philippines can be classified as a tradition.  As previously explained, it is not a religious tradition since both Christian and Muslim religions do not require circumcision as necessary for salvation.  Routine circumcision can be considered a tradition in the Philippines.  The main reason for the routine circumcision of minors in the Philippines is peer pressure.  It’s considered a ritual that every male has to experience.  It is a stamp of manhood, a symbol of Filipino masculinity.  A Filipino teen who is not circumcised is ridiculed by his friends and relatives.  This tradition has passed on from one generation to the next with the new generations forgetting the true origin and rationale of circumcision. 

            Traditional practices are, in themselves, not repugnant.  Only when such are unreasonable and violative of human rights should they be condemned.  Routine male circumcision in the Philippines is obviously a tradition which is unreasonable.  The reasons upon which this tradition started are no longer valid.  As such, it should no longer be observed.  Aside from this, routine male circumcision is prejudicial to the health of the child.  Routine circumcision is not practiced for any valid medical reason.  The clearest medical advantage of circumcision is hygiene.  However, normal cleaning with soap and water can negate the need for the procedure.  Clearly, routine circumcision has no significant medical benefit.  However, the risks of the procedure are significant.

            Circumcision is no walk in the park.  It is not make-up or any form of self-adornment.  It is plain and simple surgery.  No matter where it is performed, whether it is in the province by an “albularyo” or in the urban hospital by a surgeon, it is a procedure that entails the amputation of a normal healthy part of the body.  The amputation of the foreskin is not the same as the cutting of fingernails or the hair.  The foreskin is a very delicate part of the most sensitive part of the male body.  It cannot be removed easily and painlessly.  As such, it shouldn’t be removed without valid reason.

            In the Philippines, routine male circumcision is done for the sake of custom or tradition, and for the child not to be labeled as “supot.”  In exchange for this custom, the child is exposed to many risks.  Circumcision, like any kind of surgery, has inherent risks.  Complications from botched circumcisions are not uncommon.  Excessive bleeding is just one of the many complications that can occur.  There have been reports of botched circumcisions where too much skin was removed causing curvature in the penis and painful erections.  Laceration to the penile skin and scrotum resulting in exposure of both testes was reported in once case.[23]  Amputation of the penis, both partial and total have also been reported.[24]  Gangrene of the penis has also been reported as a result of circumcision.[25]  In some instances, death is the result.  These risks clearly outweigh the actual benefits of routine circumcision.  No matter the stigma of being “supot,” death certainly is not worth being labeled a “totoong lalake.”

iv.                ROUTINE CIRCUMCISION LACKS INFORMED CONSENT

The adverse effects and the risks of complications justify the removal of male circumcision as a routine procedure.  It is surgery accompanied with risks, and as such, should not be done arbitrarily and without informed consent by the person who undergoes it.  Unfortunately, the persons who undergo routine circumcision are mostly children who do not know the risks involved.  They just rely on their parents and peers who tell them that circumcision is normal and is part of being a man.  Culture and social pressure takes precedence over reason which will ultimately conflict with the best interests principle.  Reliance on parents, however, is understandable since male children who undergo circumcision are in their pre-teens.  They still do not have the capacity to understand the effects of complicated surgery such as circumcision. 

Under common law, surgery is a technical battery that can only be excused when there is expressed or implied consent form the patient.[26]  “Because of the fundamental interests at stake, the consent must be ‘informed’ in accordance with accepted standards for disclosure of information by the physician and actual understanding by the patient.”[27]  Indeed, an operation performed without consent is an unauthorized operation and may subject the physician to liability.  In determining the liability, the courts have considered whether or not the patient would have withheld consent if a doctor had provided adequate information.[28]  Even minor surgeries with extremely slight risks such as wart removal need the prior consent of the patients.[29]  Unfortunately, the patients in routine male circumcision are minors who are not capable of intelligently making an informed consent to a surgical procedure.  Furthermore, most parents authorize doctors to conduct routine male circumcision without being informed of the true risks and benefits of the procedure.  By doing so, the child’s fundamental right to bodily integrity is violated.  In order to protect this right, a reassessment is required of the power of minors and parents to consent to surgery, and of the State’s role in protecting the rights of children.

1.      No Informed Consent on the Part of the Minors

“Most jurisdictions severely constrain the ability of minors to consent to medical treatment on the premise the minors lack the considered judgment necessary to act in their own best interest.”[30]  However, the US Supreme Court cautioned that Constitutional rights do not magically appear at the time the child reaches maturity.[31]  The ability of the children to give informed consent on matters affecting them should be subject to the age and level of maturity of the child as provided in the Convention on the Rights of the Child.  Given this information, children in the Philippines who undergo routine male circumcision cannot reasonably be considered capable of giving informed consent because such children are often circumcised between 5 and 15 years of age.  At this young age, the law presumes that they are unable to fully comprehend the nature of non-therapeutic surgery and logically balance the advantages and disadvantages of the procedure. 

2.      NO INFORMED CONSENT ON THE PART OF THE PARENTS

Due to the tender age of children, parents necessarily must make decisions for them.  This is the reason why parents decide whether or not their children should be circumcised.  However, most parents who allow their sons to undergo routine circumcision usually do not fully know the risks of the procedure.  They just rely on the fact that it is a normal procedure that has to be done to a boy when he reaches a certain age.  Most just want to spare their children from future embarrassment from the latter’s peers.  They do not want their sons being called “supot.”  Informed consent on the part of the parents is important because a recent study conducted on the circumcisions performed in Metro Manila, Cebu and Davao concluded that the family has the strongest influence in the decision to circumcise.[32]

If the parents are informed by the physician that male circumcision is not a medical necessity, and by religious leaders that it is not a religious necessity, and if the physicians fully explain to them the various risks of the surgical procedure, such parents may decide not to have their child circumcised or at least defer the circumcision.  Unfortunately, few physicians realize the importance and the need to inform the patients of the advantages and disadvantages of circumcision.  Male circumcision in the Philippines has already become a tradition that is readily accepted by the people.  This unconditional acceptance of the procedure is probably the main reason why there are few statistics on circumcision in the Philippines.

2. CONSTITUTIONAL LAW

i.                    FREEDOM OF RELIGION

The 1987 Constitution of the Philippines provides for basic rights that have to be reconciled with the issue of routine circumcision.  Freedom of religion, for example, is one of those rights found in the Bill of Rights.[33]  Our Constitution has two religious clauses found in Section 5, Article II, the Free Exercise Clause and the Establishment Clause.  The Free Exercise Clause means that the State should not impair the exercise of religion while the Establishment Clause means that the State should be religiously neutral.  Routine male circumcision may be connected to the Free Exercise Clause because religious requirement is one alleged justification for routine male circumcision.  Although Christianity and Islam do not specifically require circumcision, some religions do.  The most prominent religion that mandates male circumcision is Judaism practiced by the Jews.  Despite having a relatively small population in the Philippines, the members of this religion should not be deprived of their right to religion.  The proponent seeks to prohibit routine male circumcision and let the child decide, when he comes of age, whether or not he wants to undergo the procedure.  Such a stand may conflict with the right to free exercise of religion.

“The Constitutional guarantee of religious freedom is the right of man to worship God, and to entertain such religious views as appeal to his individual conscience, without dictation or interference by any person or power, civil or ecclesiastical.”[34]  “It forbids restriction by law or regulation of freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose.”[35]  Religious freedom means that a Filipino citizen has the freedom to believe in a religion and the freedom to act in accordance with such belief.  However, the right to act in accordance with one’s belief is not and cannot be absolute.  Conduct remains subject to regulation and even prohibition for the protection of society.[36]  Religion may not be used to justify action or refusal to act inconsistent with the public safety, health, morals, or general welfare of society, or violative of the criminal law.  The Free Exercise Clause protects religious beliefs absolutely, and religious actions only unqualifiedly.[37]  Thus, religion cannot be used to justify a procedure that places unnecessary risks on the person especially on children whom the State has the duty to provide extraordinary protection.

            To resolve the issue, there should be a balancing of interests.  Religious freedom, on one hand, should be balanced with health and bodily integrity of the child, on the other.  It is argued that routine male circumcision is one of those things that cannot be justified by religion.  The health of the child and his right to bodily integrity outweighs religious freedom of the child’s parents.  Routine male circumcision is surgery that imposes unnecessary risks to the child.  As explained, the risks are unnecessary because the alleged medical benefits are simply not true.  To impose such unnecessary risks on a child under the guise of religious freedom will remove the limitation on this right.  The safety and health of the children requires such routine procedure to be stopped.  Furthermore, imposing the irreversible procedure on the child may even violate the child’s own religious freedom.  By default, the child’s religion is the same as that of his parents.  However, the child is always free to choose his own religion when he grows up.  By circumcising the child at a very early age, the parents might be unwittingly depriving their child his right to religion.

            A careful perusal of the cited Constitutional provision will reveal that it is the State which is required to be religiously neutral and not the citizens.  However, circumcision is done by citizens, specifically doctors, albularyos and barbers.  So how can this Constitutional provision apply in this case?  The provision applies because the State is not merely tolerating routine male circumcision.  It is actually encouraging it.  The Department of Health used to have a circumcision campaign called “Operation Tule” wherein young boys were circumcised for free.  Such campaigns make routine male circumcision one of the acts of the State for which the State may be held liable.

ii.                  PARENTAL AUTHORITY

“Courts have long recognized parental discretion in decisions affecting their children as a ‘fundamental’ interest of the parents, and thus distinct from the interests of the State.”[38]  In the cases of Wisconsin v. Yoder,[39] Meyer v. Nebraska,[40] and Pierce v. Society of Sisters,[41] the US Supreme Court protected parental discretion from State interference after a careful weighing of the State interest and the First Amendment right being asserted by the parents.  However, these cases should not be understood as justification for unlimited parental authority over their children.  “Instead of recognizing a broad Constitutional right of parental discretion, these cases stand for a limited scope of parental discretion in areas of education and religion.[42]  In some instances, the US Supreme Court sharply curtailed parental discretion when the exercise of the discretion may adversely affect the health of a minor.[43]

            “[T]he authority of parents is circumscribed by the welfare of their children; they may not make decisions for their children that are likely to cause them physical harm or otherwise impair their healthy development.[44]  Again, we go back to the best interests principle enunciated in the Convention on the Rights of the Child.

            When it comes to medical treatment on minors of incompetents, the courts have often exercised their power of parens patriae over the discretion of parents.  “Cases of proposed sterilization of incompetents are the most common circumstance in which parental discretion to consent to medical treatment is challenged by the State.”[45]  In such cases, the court balanced the interests of the minors and incompetents, the parents and the State.  The courts have typically held that the proponents of sterilization have the burden of establishing that the proposed procedure is either necessary, or at least in the minor’s best interest.[46]  The reasoning of the courts in sterilization cases can equally be applied to routine circumcision cases.  “Both sterilization and circumcision violate the personal integrity of the minor.”[47]  Both involve procedures that are of dubious benefit nor necessity to the children.  As such, before any routine male circumcision procedure is performed on any child, the parents or the proponents should demonstrate by clear and convincing evidence that the procedure is medically necessary.  Otherwise, there will be a violation of the right of the child to bodily integrity.