Eliyahu Ungar-Sargon, the director of the documentary film Cut, interviews lawyer David Llewellyn about the legality of forced male circumcision, genital-injury cases, and his motivations for taking part in the Intactivist Movement. Here is the recording.
From the White Letter Productions studios in Los Angeles, California, I'm [Eliyahu] Ungar-Sargon, and this is The Cut Podcast.
I'm sitting here now with David Llewellyn, so thank you so much for joining us. Why don't we jump off by having you explain to our audience what it is you do.
Well, I'm a trial lawyer in Atlanta, GA, and the majority of my work is now—and has been for several years—in the area of genital injury litigation, by which I mean cases where [men or babies] have been damaged by circumcision or circumcised against their or their parents' wishes—and I know that sounds strange, but I've actually had a case where an adult [who was] having other genital surgery was assured that he would retain his foreskin and did not because of a mistake (apparently on the part of the resident, who did not know how to do this surgery without removing the foreskin).
I also do a variety of other cases, but I do these cases all across the country; I would be happy to do a case involving mutilation of female[s] too, which does occur upon occasion either through malpractice or intent.
How is it that you came to practice this kind of very special brand of law?
I'm intact myself; I was born in 1950 and I was a premature infant, [so] they refused to circumcise me [(presumably on the grounds that it would be too dangerous)], so I grew up knowing the difference.
When [my wife and I started having] children, we read Edward Wallerstein's book on circumcision, and determined that circumcision [is] a bad thing and [that] we would not do it to our sons—I have 2 adult sons.
I started doing some parental education; I needed some information to pass out, and I had read about:
- The International Symposia on [Genital Integrity]
- Marilyn Milos
I called Marilyn (whom I did not know), [and] I had a long discussion with her. Eventually, she got me involved in a case in Montgomery, Alabama, [in which] she was going to appear as an expert witness; a child had been circumcised against his parents' instructions, and we got a verdict which—at that time—was a record: $65 thousand for that child, just for the loss of the foreskin—now, I don't mean to minimize that, but that's how it was considered, so that sort of success puts you on the road to other cases.
- Another one in Montgomery.
- One up in New York.
and then it sort of snowballed to the point where I probably do more genital-injury cases than anybody else in this country—or frankly any place else.
At the moment, the law in every state is that parents—one parent—[may] consent to the circumcision of an infant; I do believe that legally [this] is an incorrect proposition—[I believe] that a parent [may] consent only to medically necessary procedures. With the exception of perhaps one or two people around the world, I don't think anyone would argue that circumcision is medically necessary; there are those who of course believe that [circumcision] is medically beneficial or at least beneficial in the long-run. I can think perhaps of one person who has called for mandatory circumcision world-wide, and that would be Brian Morris in Australia, but otherwise, I can't think of anyone who has made that claim.
[Mandatory circumcision is] a really fringe position even in the medical community—
I would agree!
[It's a fringe position] even among pro-circumcision activists (and there is a small group that I would identify as such; they might not agree, but that's how I would view them [in] my opinion). I would [definitely] say that is an outlying position, and [it] would be one that would be very hard to justify [on] a public health basis and [on] an individual rights basis; I think [it] could probably never be adopted here in the United States—not with present law that we have.
[However], it's more problematic to argue that parents can't consent at all [to the circumcision of even a completely healthy child]. [Personally], I think that no parent [may legally] consent—it's proxy consent: Children, in the view of modern law and certainly the law of [the United States], are not just objects [with which] the parents [may] do whatever they want; parents have responsibilities to [their children], and they [only] have a responsibility to consent to medically required treatment (it seems to me, at least when there's a permanent body modification).
Is there a statute of limitations on circumcision as injury?
It depends upon the [laws of a particular] state—we have 50 states, and all of them have different statutes of limitations for different things.
Some of them have specific statutes of limitations for medical cases—even for infants. [For a certain period of years after he has come of age], a lot of states allow someone who has become an adult to bring an action [to court as long as it has] not been brought on his behalf before that time.
[However], there are states that limit even children's rights, such that the parents [must be the ones] to bring the cause of action within the same period of time as they would for themselves.
So, that varies from state to state, and [it's] a constant challenge to keep up with it; I generally tell the folks who call me that I will give them a general idea, but since I'm not a lawyer in [their particular] state and can't practice law in that state without being admitted for a particular case, they'll have to talk to a lawyer in their state about the specific statute of limitations.
Now, is it legal for [people who are not medical professionals] to perform circumcisions?
At present, the answer is probably “Yes”.
If you're talking about criminal law, it's an interesting question. I think that the present controversy arising out of the effort in San Francisco to [age-restrict] circumcision has raised some interesting issues.
I know of no law that says it is all right for [someone who is not a medical professional] to cut the flesh of any child, but the law [usually] follows society—the law rarily leads society; the only time I can think of in my lifetime where the law has actually led society is in the area of sex and race discrimination—the Civil Rights Acts from the 1960s. That did lead society, but even that didn't occur until a substantial section of society agreed that society needed to go there.
At the moment, I would say that in all 50 states, a doctor [may legally] perform a circumcision [in the sense that it would be extremely difficult to prosecute him under the present interpretation of the law]; a religious functionary such as a mohel [may] legally perform a circumcision.
Now, [may an untrained] parent legally perform a circumcision even if done in a sterile manner? The answer is probably [“No”], but certainly the parent could make that argument. There have been several cases recently where parents attempted to perform circumcisions on their children and have been punished criminally—I don't know [whether] they have raised in those cases the similarity between what they [did] and what is done religiously in Judaism or Islam; I think the difference in those cases, though, is there was no sterile technique used (they were certainly not [using] standard instruments and this sort of thing).
The interesting [case] would be if a parent wished to circumcise [an infant] for whatever reason and used the same techniques that are commonly used by doctors [and mohels]. Would that be permitted? I really don't have the answer to that; I don't do criminal law, [but] I think it would be defensible simply because it's allowed to others.
[However], I think most judges and prosecutors would view that as being wrong and that it would be criminal to do that, which then of course creates an anomaly in the law; you're making an exception in saying:
You don't have to be a doctor; you can do it religiously, [but even though] there are no standards for training, we won't let [just any parent] do it.
So, I think it's a gray area that really has never been addressed because the problem until very recently has just never presented itself.
Because of the work I do, I know a number of [mohels]. The ones who have appeared as expert witnesses for me:
- are trained medical doctors,
- use sterile technique [to perform circumcision],
- and do it the same way as [some] would do it in a hospital setting (with the exception of the religious portion).
In fact, a lot of [these mohels also perform circumcisions] in hospital settings; I think probably most of them [perform circumcision] for so-called “medical reasons”, so if a [secular] parent or an adult wants it done in a hospital setting, they'll do it [in that setting].
One [such mohel of which] I'm thinking is a urologist, and of course, as a urologist, [he] has [performed circumcisions on both children and adults]—not just religiously.
Another is an obstetrician; I expect that he probably [performs circumcisions] at the hospital as well as on the eighth day [according to Judaism].
[Nevertheless], I have had 2 cases involving [mohels], in which both of them were [not] doctors. The second case—an extraordinarily tragic case—resulted in a judgment against Mogen Circumcision Instruments for [around $10.7 million] in New York (once again, funny enough, in the eastern district); in that case, the mohel had been trained by another mohel who was also not a physician (I believe that's correct)—I have a suit pending against the trainer at the moment. [The mohel in question] had done a number of procedures [as a matter of training], but I would contend not nearly enough [to be considered properly trained].
He used a Mogen clamp and ended up severing the entire glans penis [(the head of the penis]) of a child, which luckily was noticed by [a] physician who was at the bris [(ritual Jewish circumcision ceremony)]; reattachment was attempted, [but] that was not particularly successful, regrettably.
Yes, I think [the] training of mohels is an issue that really hasn't been addressed by the law except perhaps in these cases that I've brought [forward], where I've contended [that the mohel] was not well trained; he settled with us—I think I'm on my 6th case involving a full or partial [severing of the penis] with the Mogen clamp [which is commonly used by Jews]—
Which brings me to this very important point: When talking about the risks and complications of circumcision, [the medical professionals] tend to minimize them.
I don't want to get into the numbers, because that's a whole other subject (it's very difficult to know [the statistics exactly; it depends largely on how you define a complication).
[However], you're seeing all of the complications; you're seeing a lot of these issues—
Do you think [the practice of routine circumcision can be considered responsible medicine]?
Well, I think it's really irresponsible of the doctors not to face up to how many botched circumcisions there are.
If you talk to any labor and delivery nurse, [that nurse is going to tell] you there are lots of them.
If you talk to any honest pediatric urologist, he is going tell you there are lots of them.
I had an interesting experience some years ago: One of the more common [complicatins of circumcision is] either taking off all the shaft skin (on top or the bottom), or taking off too much shaft skin and leaving too much inner-foreskin lining.
It's hard to explain verbally how this can happen, but one [difficulty of circumcision] is [that] the foreskin is not [just] “skin”—it has skin on it, but it is a five-layered structure, which includes a muscle layer called the dartos fascia that starts behind the scrotum, surrounds the scrotum, and runs straight down the shaft of the penis all the way to the end of the foreskin. On top of [it is the] skin (epidermis and dermis) and underneath it [is] a supporting layer called lamina propria and then inner mucosa.
This [tissue system] is flexible, and whether or not the dartos fascia is tightly bound to what's called Buck's fascia makes a lot of difference in the end result of [a] circumcision.
I think a lot of physicians don't understand the penile skin system; in fact, I feel quite confident that they don't.
They don't understand that [during a circumcision], they need to push back on where the skin joins the scrotal skin so [as to make sure the tissue is properly] spread out.
[They don't understand] that they've got to be very careful about how much [and which kind of tissue they amputate or leave behind]; shaft stripping is really common.
I think if you ask any pediatric urologist, [he or she is going to tell] you that [he or she sees] at least on a weekly basis (if not more often) some damage beyond the damage of circumcision itself—whether it's injury to the glans penis, whether it's shaft stripping; whatever it is, they see it [regularly].
David Gibbons, who is the director of pediatric urology at:
Georgetown University Medical Center
[remarked about this] a couple of times. He published a letter in one of the urological journals and then also in an online comment [in] a popular magazine, [discussing] how many [cases of unintended] damage he has seen; he has certainly seen one [per] week, if not 2 [per] week, and I think that's pretty typical.
I don't know how many pediatric urologists there are (there used to be few, [but] there are more now); there are maybe 300 in the United States, and if you figure 2 [cases] per week times 52 weeks—[let's say 100 cases] per year—times 300, [that is 30 thousand boys per year who receive damage needing correction on top of the damage of circumcision itself], and all of these [problems] are hidden because the genitals are hidden.
I want to transition into a discussion of some of the basic legal issues surrounding this practice.
One of the arguments that's often made by intactivists [against this practice] is that ever since female genital cutting [NOTE: including even a pin prick of just the labia!] was outlawed in [the United States]—there are federal laws against it on the books now—we are in a situation of gender inequality: Boys do not enjoy equal protection from genital cutting under the law.
Can you address that? Does that argument have any merit in your opinion?
Well, equal protection analysis is one of the more difficult areas of constitutional law. First of all, the federal statute [against female genital cutting] is a criminal statute, and I believe [it] only applies where federal criminal law applies:
- The high seas.
- Federal reservations.
- Perhaps federal hospitals.
- On federal land.
So, [the federal statute] really doesn't outlaw [something that] happens within the boundaries of a state [and] that is not affected by federal criminal law; in other words, it may affect what happens in the Chattahoochee National Forest, on military reservations—and because I don't practice criminal law, I don't want to be definitive about this, but I don't believe that [this] statute actually covers what happens in hospitals in the various states; that's covered by state criminal law, and it's one of the anomalies of our system [of law]: The states have different laws.
Do we have an equal protection problem? Well, I have not researched the issue, and I'm always careful about offering legal opinions until I have [done so].
Does it seem to me that it is unfair to outlaw ([at least federally]) all genital cutting of females—even the cutting which is the anatomical equivalent of male circumcision (which would be removal of the [clitoral hood] or clitoral prepuce [or] the clitoral “foreskin”)? Is it anomalous to say we'll outlaw it for girls when it is no worse (and arguably less invasive) than the circumcision of a boy?
Yes, it is wrong.
Now, whether or not anyone can challenge [this situation] under any particular [legal] circumstances is another question; it is quite possible that the only one who would be able to challenge it is somebody who's being prosecuted under the [federal law in question; such a defendant] would argue [that the law is unconstitutional for the reason of inequality]; it's not quite as simple as saying:
Well, it violates the constitution to do this.
That analysis is unfortunately simplistic—it sounds right, but I'm not sure who is in a position to challenge the statute.
You can't positively create a right; in other words, I don't believe a court is ever going to say [that] we've outlawed it for girls, so therefore it's outlawed for boys. It really doesn't work that way; it's more like you would be able to strike down the statute as being unequal.
People have varying degrees of knowledge of what happened this summer—this was a big summer for this issue. I was wondering if you could give us a run-down of the time-line of events that happened, and then we can get into some of the analysis.
Well, I have not been involved in any of those efforts, so this is sort of what you would call rank hearsay. [However], as I understand it, for some years, there has been an effort by at least one individual to pass what is known as The MGM Bill:
which essentially mirrors the federal statute [that outlaws all] female genital cutting. There have been several means by which that effort has been put forth. One is to convince legislators to introduce the bill within various [state and federal] legislatures.
Massachusetts has a [legislative] process whereby a citizen [may get] his legislator “to sponsor” a bill within the legislature; a gentleman managed to [get The MGM Bill proposed this way, but] it did not make it out of committee, and as I recall, it was somewhat derisively treated in committee.
Then, someone else (not directly connected with a particular organization) decided after having attended a conference on circumcision (held last summer in Berkeley, CA) that he would [use the San Francisco legislature to propose an ordinance using similar language. To do so], you have [to collect a large number] of signatures [from citizens].
Lloyd Schofield (who is the individual) decided that circumcision [is] wrong and he [and a group of others] solicited signatures throughout the city of San Francisco. Interestingly, a number of [those who were collecting signatures are] Jewish, I believe. At any rate, they solicited [more than] enough signatures to get [an age-restriction for circumcision] on the ballot.
When there were enough signatures to get this on the ballot and this [fact] became [widely publicized], a number of groups (some [of which are] religious) sued for an injunction [to prevent the measure from appearing on the ballot]; the judge granted [the injunction] using somewhat broad language, but the essence of the [judge's thinking is]:
State law says the local communities [may not] regulate the practice of medicine.
Circumcision is the practice of medicine.
Therefore, on this basis alone, I'll issue the injunction, [and] if I didn't issue [a total] injuction—if I just limit it to doctors—then it becomes religiously discrimatory [because the religious] are the only [other] people who are doing it, and therefore it would violate the first amendment [of the United States' Constitution].
The state law in question was meant to keep lawmakers from prohibiting the practice of declawing cats; that law was written in very vague language, allowing proponents of circumcision to extend its meaning to include the circumcision of completely healthy boys.
The religious (e.g., Orthodox Jews) do not consider circumcision to be the practice of medicine.]
Lately, I've been hearing a lot of people suggest that any attempt to pass a law against circumcision would be a violation either of the first amendment or of the establishment clause, so I was wondering if you could address those legal issues, and [give us] your opinion.
As I said earlier, the law follows society, and the law in regard to constitutional interpretation is very much [whatever] the courts say that it is.
Generally, the Supreme Court has held [the notion] that belief is protected, and [that] you cannot regulate belief, but [that] you can regulate behavior. There was a case which made this pretty plain:
Prince v. Masachussetts
As I recall, that's the case that says parents are able to make martyrs of themselves but should not be able to make martyrs of their children.
It had to do with [refusing] blood transfusions, as I recall; the Jehovah's Witnesses do not believe in receiving blood transfusions, and the question was: Could a parent deny that to the child?
Whatever the facts of that case, that is the general feeling of the court. So, in my opinion, a statute that [outlaws] all [medically unnecessary] circumcision of males under the age of 18 [years] would not be unconstitutional; such a law could be passed, and under what I understand [of] the prior precidence of the Supreme Court, [it] would be entirely legal and constitutional, because it would treat [everybody] the same, and the fact that certain religions require or encourage circumcision would not be an impediment to the passing of that law, because circumcision is the changing of the natural body.
Having said that, I think it is unlikely that any legislature is going to pass that within the foreseeable future, and it is certainly not impossible that a religious exception would be made if such a statute passed. In other words, [the Supreme Court might] hold that [a restriction that impacts religion is] unconstitutional because [circumcision is] such a basic issue in certain religions (Judaism in particular).
I don't think the court has ever quite been presented with an issue that would be quite so inflammatory, and I say that because:
[There is a] long history involving Jews and Christians in the Western world.
The sanction [that] the scripture (at least in the Old Testament) gives to circumcision is a little bit different than a view [like that on blood transfusions] that is held by far fewer folks and that is of relatively recent origin.
Now, I can only speculate what a court would do [with such a case], but I do think that [one cannot blanketly say]:
The first amendment prohibits any legislature from prohibiting circumcision of minors for [medically unnecessary] reasons.
I don't believe that is true under the present interpretation of the law. Now, what a court would do with that in the end, I don't think anyone can predict. It would certainly be an interesting case, and I can't really say in the end what would happen, but I think I can say that you cannot make the blanket statement—as was made by a number of folks in California recently—that the first amendment prohibits the passage of such a law.
At any rate, the judge [in San Francisco] issued the injuction [against The MGM Bill ballot measure], and to date, [that decision] has not been appealed. I really don't know enough to know whether the time for appeal has passed, but [this case] brought a lot of attention [to the issue] world wide.
As a person who's opposed to routine infant circumcision, what is your assessment of the strategic wisdom of what people did in San Francisco this summer?
There are differing opinions about that. The effort itself has been useful in the sense that it has raised people's awareness.
It was certainly well intentioned. From what I know of the people who are directly involved in that effort, it certainly was not meant to attack Judaism (or any particular religion). I know [that] some of the people who were involved are Jewish; they just believe circumcision [of non-consenting minors]—whether it's religious or non-religious—is wrong.
I really don't know of anyone who opposes an adult [choosing for himself] to be circumcised; there may be people out there who feel that shouldn't happen, but I don't know of anybody who thinks that ought to be prohibited.
There are those within Judaism (as well as without) who feel that regardless of religion, parents ought not to be able to consent to the circumcision of a minor. After all, we don't know what religion the minor will [choose for himself as an adult], and [circumcision] is a permanent body modification.
There are others, of course, who feel that [cutting up the penis of somebody else] is so central to [their own beliefs] that it ought to be permitted, and this is [the crux of] the [debate].
Was this strategically wise? I'll leave that to others to decide. It certainly has aroused a lot of passions, and perhaps it was not the wisest thing to do, but I think it was well intentioned. I think it's unfortunate that those who viewed it as a threat viewed it as opposition to their religion in general, which I certainly don't think it is.
There is no central command [in the Intactivist Movement]! This [is a] very loose movement of those of us who think that circumcision is unwise. I got involved in this because I thought that the doctors [are] essentially continuing to pervert medicine—they [are] making arguments that [are] bad from a medical standpoint. They [are] ignoring the harm [of circumcision].
[While there are papers that show the harm of circumcision], the harm should be intuitive to folks; certainly The Rambam (Maimonides, [the beloved Jewish scholar]) understood that there [is] harm, and I think generally it was accepted up until about [the early 1960s] that circumcision [lessens] you in some sense sexually—but that was considered a good thing!
It wasn't until the Sexual Revolution happened that suddenly [people became adamant that circumcision] doesn't cause any difference at all—which intuitively is [nonsense]; I mean, you cannot cut [a sizable portion of] normal, functional tissue off the body without making some change to [physiology].
My involvement really came about because I thought that doctors weren't being honest about [circumcision]—I still think many doctors are not being honest about it.
We have a [societal] situation where PEPFAR (the President's program for [HIV/AIDS] relief in Africa) is now encouraging the circumcision of infants all over Africa—without any discussion whatsoever; I have seen no discussion [whatsoever] coming out of Africa about the function of the foreskin—its protective [and] sexual purposes. Instead, we're getting [laughably] astounding studies—one that came out the other day [essentially said]:
100% of the adult men who have been circumcised in Africa are satisfied with [having been circumcised], and most of them love it!
Maybe that's what that study shows, but I find [such figures] to be an astounding proposition just given the number of men who have complained to me that they do not like [having been] circumcised—
I liken [that] to an election in Iran where you have 99% of the people [voting] for the incumbent.
Well, it would be astounding to think that 100% of any group [having undergone] any surgery were happy with [the results]!
Ron Goldman, who runs the Circumcision Resource Center in Boston and is Jewish, has said numerous times [that] before we discuss circumcision, everybody needs to declare [his or her] status:
- [Were you] or [were you] not circumcised?
- Have [you] ever circumcised somebody?
- [What are your religious beliefs on circumcision?]
- [Is your sexual partner circumcised?]
Why [is this necessary]? It clears the air! That's why I don't mind [anymore] saying [that] I'm intact—[I mean], I'm 60 years old [and] I'm too old to worry about whether people know I'm intact or not, but I think it's fair that people know that [fact], because then they can say:
Well, your status colors your opinion!
Does it? Probably!
At the same time, if you could show me [convincing evidence] that circumcision really [is] worth [something]—really [does] something that [is] worthwhile—and that there [is] overwhelming evidence that it [does] something good to a person, whereby [a circumcised man] would not acquire a disease that could be acquired just by being in a room with [an infected individual]—because that's what [vaccination does]; we vaccinate against diseases that can be gotten by mere touching, by a sneeze, by something that is easily communicable rather than by theoretically reducing [the] incidence [of] a disease I can get by having sex voluntarily with an infected person [NOTE: Circumcision has been hailed as a “surgical vaccine” even in developed countries, based solely on the rather dubious data of a few poorly conducted trials in third-world, HIV/AIDS-riddled Africa. Also, see here.]
[If you could show me that], then you might convince me that circumcision is something that ought to continue, but I haven't seen that evidence yet.
I do think bias does affect studies and does affect the issue—it's almost impossible [for bias not to factor into the debate because we are all flawed] human beings, but we all ought be able [to recognize this fact openly and then] look at this [issue] dispassionately rather than being so passionate about it.
David Llewellyn, thank you so much for joining us. I really appreciate it, and I look forward to having you at the screening [of Cut] tonight.
Well, I look forward to seeing [your film] again—it's a wonderful film.
That's our show; if you have any questions, comments, or suggestions, please email them to us at:
cutdocumentary AT gmail (.) com
If you like what you heard today, please support us by buying our film at: