Unrechtmäßige Beschneidung
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Unrechtmäßige Beschneidung occurs when a circumcision is performed in the absence of a valid consent granted by a person authorized to grant consent for the amputation and destruction of functional tissue.[1]
It is not sufficient simply to sign a document, as a proper consent is broad and includes the full understanding of the signor and any oral representations used to adduce the consent. All such grants of consent must meet the standards established by the doctrine of informed consent.[2]
Any person who grants consent for circumcision must be of sound mind at the time that consent was granted or the consent may be invalidated. A person granting consent cannot, for instance, be impaired by therapeutic drugs.
Parents are frequently asked to serve as surrogates for their minor children. A surrogate has limited powers of consent. The surrogate must not exceed the limited powers granted. Surrogates are generally limited to the granting of consent for diagnosis and treatment of a proven, disease condition.[3] [4] An infant circumcision neither diagnoses nor treats disease because no disease exists, so a surrogate consent for infant circumcision may be invalid.
Common law background
Blackstone (1765) stated in his Commentaries on the Laws of England:
I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.[5]
The United States Supreme Court (1891) stated the common law of the United States when it ruled:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.[6]
Damages
The foreskin is the primary erogenous functional part of the penis. The functions are classified as protective functions that provide physical protection, immunological functions that provide protection from disease, sensory functions that provide stimulation, and sexual functions that aid sexual intercourse. The excision and amputation of the foreskin by wrongful circumcision irreversibly destroys these functions. subjects the patient to severe pain, and produces significant psychic and physical trauma.
Sir James Munby, a prominent British family court judge, said that male circumcision produces "significant harm".[7]
Money damages may be awarded by a court for the permanent loss of function and injuries caused by wrongful circumcision.
Lawsuits
A lawsuit may be filed by parents or other guardians on behalf of an injured boy or, in the alternative, the injured boy may initiate litigation after he reaches majority status at age 18. All states have a prescribed time limit in which suits must be filed. That prescription varies from one to three years depending on the state, so the plaintiff must file his suit promptly after reaching age 18. Battery is the proper complaint for wrongful circumcision.
William Stowell is an outstanding example of a young man who was wrongfully circumcised and brought a suit upon reaching the age of majority. He sued his circumciser for battery and obtained an out-of-court settlement.
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