A Miscarriage of Justice in Florida

A Miscarriage of Justice In Florida

by David Balashinsky

Consider this hypothetical case:  A man and a woman living in the United States, immigrants, perhaps, from a genital-cutting culture in which female genital mutilation (FGM) is routinely practiced, once agreed to have their daughter cut.  The mother, having been exposed to the Enlightenment- and Western concepts that an individual's body belongs to herself and to no one else, has had a change of heart and now wants to protect her daughter from an irreversible, unnecessary and harmful surgical alteration to her genitalia.  The daughter herself, having grown up here and having become imbued, likewise, with the radical notion that nobody should be able to force her to undergo a surgical modification to her genitals against her wishes, also objects.  For his part, the father regards female genital cutting as "just the normal thing to do." The parents' disagreement brings them to court before a judge who orders that the girl, her objections notwithstanding, undergo the procedure anyway.Why? Because the father wishes to have it done and the mother had previously assented in writing to having it done.  A contract is a contract, after all.  The daughter's wishes, of course, do not signify.  In spite of the fact that it is her genitalia over which her parents are contending - the father, fighting to exercise his ownership of and control over his dughter's genitals and the mother, fighting on behalf of her daughter's genital autonomy - the girl herself has no legal standing in the matter.  Her wishes regarding her genital integrity are considered by the judge to be irrelevant.  Such a scenario will, no doubt, strike many as deeply offensive to our sense of justice and to our sense of right and wrong.   And deeply offensive to our notions of the right of the individual to exercise ownership and control of her own body. And yet this is what is going on, right now, in Florida to a four-and-a-half-year-old boy.

The case of Chase Nebus-Hironimus is now well known.  In broad strokes, its particulars are essentially the same as those of the hypothetical case offered just above.  The child's parents, no longer together, were both parties to a custody agreement that granted to the child's father the prerogative to have his son circumcised.   The father, Dennis Nebus, did not attempt to exercise this prerogative until his son, Chase, had reached the age of about three, by which time the mother, Heather Hironimus,  had come to object to the surgery - not only on the grounds that there was no medical reason for it but because of serious concerns that she now had about the risks to her child's safety and wellbeing posed by the anesthesia and surgery itself.  As for Chase, he had now reached an age at which he was fully cognizant of the impending circumcision and had, moreover, expressed a profound fear of and objection to being forced to undergo this surgery.  We can, of course, only speculate about what this child is going through emotionally but I think that most of us, if we imagine ourselves in Chase's position, might object to having a significant part of our genitals surgically amputated for no more compelling a reason than that it's "just the normal thing to do."  That, not incidentally, was the father's originally-stated reason for the proposed genital cutting of his son: it's "just the normal thing to do."

There is, of course, one glaring difference between the hypothetical case of female genital cutting offered above and the Chase Nebus-Hironimus case: genital cutting of girls is illegal in the United States and has been since 1996 whereas genital cutting of boys remains perfectly legal.  Why this should be so requires a brief detour into the peculiar history of male genital cutting -  or "circumcision" - in the United States.

During the 19th century, circumcision was promoted as an effective remedy for a host of ailments including, but not limited to, rheumatism, epilepsy, asthma, skin cancer, insanity, and venereal disease.  However, it was as a remedy for "masturbatory insanity," which was believed to result from masturbation or "self-abuse," that circumcision was originally most widely promoted by its supporters.  One of its most passionate Victorian advocates, none other than John Harvey Kellogg, the co-creator of Corn Flakes, also advocated putting carbolic acid on girls' clitorises for the same purpose: that is, to decrease sexual sensation and thus to inhibit masturbation.  Because it was widely pushed by its supporters both outside of and within the medical profession, infant male circumcision increasingly came to be accepted as normal and routine, even as the medical and sexually-repressive justifications for infant circumcision were debunked, one after the other.  Now, because it has seldom been questioned, and because its continuation is supported by the sheer momentum of long practice, routine infant circumcision has metamorphosed from pure pseudoscience and behavior modification into a cultural norm masquerading as a medical procedure: it has become the proverbial cure in search of a disease.  These are the historical, pseudo-scientific and cultural roots of routine infant circumcision as it is practiced in the United States.  Added to this are the current determined efforts of a financially interested and entrenched pro-circumcision lobby. Circumcision, it should be noted,  is a $400 million per year industry. This, then, is how we have arrived at a state of affairs in which the United States is one of the few developed nations on Earth that now practices routine infant circumcision, notwithstanding the fact that there is not a single professional medical organization on Earth that actually recommends routine infant circumcision for medical reasons.

Routine infant circumcision (RIC) is a medically unnecessary surgery that violates four of the most basic and important principles of medical ethics. First, not to do harm. Second, not to provide a "treatment" in the absence of a medical problem (such as a disease or harmful congenital deformity). Third, to opt for the least invasive or aggressive treatment available when there is a disease or other medical problem. And, fourth, to obtain consent from the patient before rendering care unless the patient is incapable of providing consent and the treatment is required urgently to save life or limb. Routine infant circumcision violates every one of these principles. That is another reason why there is not a single professional medical organization on Earth that affirmatively advocates RIC on the basis of its putative health benefits. Of these - and they are scant - there is not a one that could not be achieved through less invasive means, such as the practice of basic hygiene, the administration of antibiotics in the relatively rare cases of UTIs, and the use of condoms to prevent the spread of STDs.

Along comes the Chase Nebus-Hironimus case.  This case, because it involves a child old enough to express his wishes that a normal and functional part of his penis not be amputated, brings the injustice - the human-rights violation - of genital cutting of infant and child males (as well as of intersex children) into conspicuous relief.  Indeed, this case is particularly shocking to the sensibilities of thoughtful and reasonable people in our society, where notions of autonomy and bodily integrity run very deep, because it involves what amounts to a judicially-ordered genital cutting of an unwilling victim.  The judge in this case, Jeffrey Gillen, by extorting a "consent" for the genital cutting from Chase's mother, Ms. Hironimus, on pain of indefinite incarceration as a penalty for her failure to comply, has, in effect, issued a decree that the involuntary genital cutting of this child be carried out despite the objections of both the victim himself and his mother. Gillen has thus comported himself in a manner far more befitting a tribal elder in a remote rural village of Pakistan or Iran than a sitting county judge in the United States of America. 

It will be argued that parents have not only a right but a duty to make medical decisions on behalf of their children.  But amputating a normal, functional, sensitive part of a child's penis, not because there is a medical reason to do so but simply because  it's "just the normal thing to do," is not a medical decision: it is a cultural practice.  A pediatric urologist testified at the trial that there was no medical condition that necessitated Chase's being subjected to a circumcision and this physician also testified that he would not recommend a circumcision at Chase's current age.  

It is crucial to bear in mind that our duty to protect children and our right to make medical decisions on their behalf does not confer upon us the right to regard them as entities devoid of freewill and existing beyond the ambit of basic human rights and the protection of the law. For better or worse, our evolving system of jurisprudence, along with our evolving social and cultural definition of what it means to be a child, has attempted to strike a balance between protecting children on the one hand and asserting some degree of control over them on the other.  But these countervailing principles are not mutually exclusive. Rather, they exist in a sort of equilibrium, with the center of balance shifting ever farther toward independence and away from parental control as the child grows up. With each passing year, humans are understood to become increasingly autonomous and independent and thus not only increasingly capable of exercising choices about their bodies and their lives but, in consequence of their developing maturity, reason and judgment, increasingly deserving of the right to make those choices for themselves.

That is why this case is so distressing and so offensive to our concepts of individual autonomy and bodily self-ownership.  Chase's age highlights the egregiousness of this miscarriage of justice because he is already at an age at which he can fully comprehend the violation of his rights and can fully experience, both physically and psychologically, the violence to which his body is to be subjected as a result of this court-ordered involuntary genital cutting.  In other words, he is at an age at which he is capable of experiencing the urge to freewill and thus will be fully cognizant that that urge is being thwarted. Yet, at the same time, and precisely because of his youth, if ever a case cried out for judicial intervention on behalf of the child and in the interest of protecting the child's physical and psychological welfare, this case did.  But the court turned its back on Chase, denying a motion to appoint an ad litem guardian to represent Chase's interests in the court proceedings and abandoning its rightful role, in loco parentis, as a protector of this child. (Of course, such a role need not have been assumed in the first place by the county court since Chase's own mother vigorously objected to this forced genital cutting and pursued every legal remedy available to her to prevent it - now, sadly, in vain.)

Beyond the concern for the rights and welfare of this particular child, the reason that Chase has become a "poster boy" for the effort to end forced male genital cutting is because Chase's case has become "the "Dred Scott case" of the Intactivist movement.  Dred Scott, of course, was an enslaved African American man whose attempt to gain his freedom through the courts was ultimately thwarted by the Supreme Court in its infamous 1857 decision that held that blacks could not be American citizens and thus had no standing to sue in federal court.  Rather than settling the question of slavery once and for all, however, the Dred Scott decision instead helped to galvanize the abolitionist movement.   Similarly, this case - with a judicial decision and an outcome every bit as perverse as that in Dred Scott - has merely galvanized those of us who believe in the basic human right of bodily self-ownership - especially when it comes to genital integrity - and inspired us to redouble our efforts in the furtherance of that cause.

Martin Luther King, Jr. wrote, "Injustice anywhere is a threat to justice everywhere." Those words are especially applicable to the saga of Chase. That is why this case has resonated with the public and not just with the Intactivist community.  It is not merely the involuntary genital cutting - without a whit of medical justification - of a fully cognizant child who does not want it done that has aroused pity, indignation and outrage on the part of those who support the cause of genital integrity.  Nor is it merely because we believe in the basic right of each human being to decide for her- or himself what parts of her or his body she or he gets to keep.  It is because a sitting judge in the United States of America has ruled in this case as though the victim were not a flesh-and-blood human being endowed with basic human rights but rather an inanimate object: perhaps an automobile, or a piece of furniture.  By rendering his decision in accordance merely with contract law, Judge Gillen has treated this child as though he were mere chattel.  More broadly, Gillen's decision treats the principle of genital autonomy and the right not to have one's genitals surgically altered without one's consent (and absent any urgent and compelling medical reason to do so) as though they do not matter and have no standing in a court in Palm Beach County. That is the principle in this case and that is the reason that it has drawn international attention.  Judge Gillen has effectively ordered the amputation of a normal, healthy body part from a normal, healthy child in a flagrant disregard of medical ethics, medical best-practices, the child's mother's wishes, the child's own wishes, and, of course, in a flagrant disregard of  Chase's basic human rights. Thus, it is not merely the callousness and inhumanity of Gillen's ruling in this case but that his decision constitutes a repudiation of the bedrock principle that each person is born with an inviolable ownership of and right to determine what is done to his or her own body. That should leave not only Intactivists but abortion-rights advocates, children's rights advocates, gay rights advocates, transgendered rights advocates, civil rights advocates, and, indeed, all Americans, outraged.