Neo-natal circumcision not in conflict with Children’s Act of 2005

Much confusion has been generated recently regarding the legality of performing medical male circumcision on boys below the age of 16 in South Africa. This confusion seems to be based on a poor reading of the Children’s Act 38 of 2005. This confusion has caused some providers to be hesitant to perform circumcisions on infant boys, even where the parents have provided consent and slowed down the implementation of programmes ultimately aimed at preventing new HIV infections in the future.

SECTION27 has prepared a legal memo analysing the issue and has concluded that the Children’s Act contains no legal limitation – beyond current informed consent requirements – that prohibits medical practitioners from recommending and providing neo-natal male circumcisions to infants boys of consenting parents.

The full memo is reproduced below and is also available here.

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To: File

From: Brian Honermann, Researcher, SECTION27, incorporating the AIDS Law Project

Date: 3 August 2010

Subject: Legality of elective neo-natal male circumcision under the Children’s Act of 2005

Question Presented

Does the Children’s Act 38 of 2005 (“Children’s Act”) prohibit elective neo-natal medical male circumcisions for medical reasons?¹

Short Answer

No. Section 12(8)(b) of the Children’s Act expressly allows for circumcision of males under the age of 16 when such circumcisions are conducted for medical reasons on the recommendation of a medical practitioner.²

Given the ample scientific evidence that medical male circumcision substantially reduces the risk of contracting HIV³ and other sexually transmitted diseases⁴ and that neo-natal medical male circumcision carries a lower risk of complications than child or adult medical male circumcision,⁵ a medical practitioner is well within the law to recommend elective neo-natal male circumcision to parents of new born boys.

As with any medical procedure involving a child, informed consent for the procedure must be obtained as prescribed in section 129 of the Children’s Act, sections 6 – 8 of the National Health Act 61 of 2003 (“The National Health Act”) and utilising current practice for obtaining consent to perform surgical procedures on children below the age of 12.

Long Answer

Introduction

Much confusion has been generated recently regarding the legality of performing medical male circumcision on boys below the age of 16. This confusion seems to be based on a poor reading of the Children’s Act. At present, there is no legal limitation – beyond standard informed consent requirements – that prohibits the provision of elective neo-natal medical male circumcision.

Applicable law

Section 12(8) of the Children’s Act regulates circumcision of male children under the age of 16. It states in full:

8. Circumcision of male children under the age of 16 is prohibited, except when –
   1. circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed; or
   2. circumcision is performed for medical reasons on the recommendation of a medical practitioner.

As is clear, section 12(8)(b) allows for circumcisions to be conducted on male children below the age of 16 if such circumcision is performed for medical reasons on the recommendation of a medical practitioner.

Neither the Children’s Act nor the General Regulations Regarding Children⁶ (“General Regulations”) under the Children’s Act provide a definition of “medical reasons”. In the absence of a definition, and based on the evidence that male circumcision reduces the risk of HIV infection by up to 64%,⁷ reduces the risk of HSV-2 and HPV infection,⁸ and that neo-natal circumcision carries a lower risk of complications than childhood or adult circumcisions, any reasonable interpretation of “medical reasons” will be sufficiently broad for a medical practitioner to recommend elective neo-natal medical male circumcision to the parents of infant boys and remain within the ambit of the Children’s Act. In addition – while not inherently necessary for obtaining the protective benefits of medical male circumcision – it is best for circumcision to be done prior to the onset of sexual activity to avoid transmission prior to circumcision.

Consent

As with any medical intervention, informed consent must be provided prior to performing a medical procedure. For infants, consent is governed by section 129 of the Children’s Act as well as sections 6 – 8 of the National Health Act of 2003. Section 129 of the Children’s Act states in relevant part:

129 Consent to medical treatment and surgical operation

1. Subject to section 5(2) of the Choice on Termination of Pregnancy Act, 1996 (Act 92 of 1996), a child may be subjected to medical treatment or a surgical operation only if consent for such treatment or operation has been given in terms of either subsection (2), (3), (4), (5), (6) or (7).

. . .

5. The parent or guardian of a child may, subject to section 31,⁹ consent to a surgical operation on the child if the child is –
   1. under the age of 12 years; or
   2. over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the operation.

While Chapter 8 of the General Regulations provides forms and additional requirements for obtaining consent for medical procedures on children in certain circumstances,¹⁰ no additional forms or guidance is provided regarding consent for children under the age of 12 to undergo medical treatment or surgical procedures. As such, consent must be given according to current practice for obtaining consent for surgical procedures on children below the age of 12.

In order to obtain informed consent, the medical practitioner recommending neo-natal male circumcision must explain the risks of complications as a result of the circumcision as well as the potential benefits of circumcision.¹¹

Conclusion

So long as all informed consent requirements are met by obtaining consent from a parent or guardian of a newly born boy prior to performing a neo-natal male circumcision, there is no legal impediment to a medical practitioner recommending and performing elective neo-natal male circumcisions.

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