Circumcision Litigation Snips Away at Reason

Dennis Nebus wants his son circumcised. When Chase was born on Halloween 2010, his mother did, too. Now, however, the unmarried Florida parents find themselves in court over this decision and, as to be expected in a circumcision dispute, the case has several wrinkles.

About a year after Chase was born, Nebus and the boy’s mother, Heather Hironimus, agreed to the circumcision, at Nebus’ expense. They even set out the terms in a written parenting agreement. Two years later, Hironimus changed her mind.

With a vengeance.

Now aligned with an “intactivist” movement that views circumcision as genital mutilation and believe foreskins should remain intact, Hironimus sued in Palm Beach County Circuit Court seeking to prevent the procedure. Hironimus believes Chase, who she describes as “fully aware” at age 3½, should make the circumcision decision for himself.

The litigation quickly revealed the complexities of the issue, even in a case with no apparent religious dimension. At an evidentiary hearing that concluded May 7, Hironimus offered her view that the procedure was medically unnecessary and expressed concern about Chase undergoing general anesthesia, for fear of death.

A pediatric urologist also testified at the hearing. He agreed circumcision is not medically necessary but stated it reduces the risk of penile cancer and lowers the risk of HIV infection. Curiously, the doctor also opined that he would not recommend circumcising Chase at his current age.

Although not part of the Florida hearing, the medical testimony was consistent with a 2012 policy statement issued by the American Academy of Pediatrics, indicating a strong link between early circumcision and several health benefits to boys, men and their female partners. Predating recorded history, the benefits of circumcision are reported to include a reduced risk of developing genital herpes and cervical cancer.

Yet, like the testifying urologist, the academy hedged its bets on this increasingly contentious subject by offering the surprisingly ambiguous conclusion that while “the health benefits of newborn male circumcision outweigh the risks,” the benefits of the procedure “are not great enough to recommend routine circumcision for all male newborns.”

The World Health Organization is more definitive, citing “compelling evidence” that circumcisions reduce the HIV risk in heterosexual men by approximately 60 percent.

Also noteworthy is a 2012 study published in JAMA (Journal of the American Medical Association) Pediatrics that made use of a computerized economic model to estimate that if the U.S. circumcision rate dropped to European levels, the increased risks faced by uncircumcised males could drive health‐care costs up some $4.4 billion over the next 10 years.

For the Palm Beach trial judge, it was the parties’ contract that proved decisive. He ruled the original parenting agreement controlled and enforced Nebus’ right to schedule the procedure. Hironimus’ argument that the best interests of the child trump the contract failed, though it is unclear whether the judge determined that circumcision was in Chase’s best interest.

The judge’s ruling leaves thought‐provoking questions in its wake. Unexplored is why Nebus procrastinated for more than two years before acting to circumcise his son, and he has offered no explanation.

Hironimus’ dramatic change of heart on the subject is also beguiling, as is her concern over the exceedingly low risk posed by anesthesia, measured against the procedure’s significant medical benefits.

Adding to the intrigue is the judge’s decision to attach an unusual gag order to his order permitting the circumcision. The court barred Hironimus from ever communicating to Chase that she did not want him to undergo the procedure.

This part of the order, preventing a mother from sharing with her own son her feelings about his health, will surely tug on most maternal instincts and seems unlikely to withstand an appeal.

And naturally, an appeal is underway. At deadline, a Florida appellate court had issued a temporary stay of the lower court’s ruling, so the parents will have to wait a bit longer before learning whether Chase’s circumcision can go ahead.

©2014 by Law Bulletin