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Circumcision under the Knife


Cruel decrees against circumcision can no longer be dismissed as remnants of the ancient Greek and Roman empires. FromGermanytoLondontoSan Francisco, Jews suddenly find themselves on the defensive, fighting for the right to perform bris milah — the Torah’s first defining Jewish mitzvah.

Wednesday, July 18, 2012

flagThe simchah that a German Jewish family felt at the beginning of the month after being blessed with a healthy, newborn boy turned to shock when their mohel informed them that he could only perform the bris inAntwerp, because he feared German authorities might sue him for the mere act of performing a circumcision.

The rights of Jewish — and Muslim — parents to circumcise their children are under unprecedented legal attack following a June 26 district court ruling in Cologne, Germany, in the case of a Muslim doctor who botched a circumcision on a four-year old Muslim boy.

While the court cleared the doctor of criminal charges, it issued a far-reaching decision: since circumcision irreversibly modifies a child’s body, it would not be considered an infringement of parents’ rights, orGermany’s Basic Laws, if they are forced to delay the procedure until the child reaches the age of legal maturity and consents to his own circumcision.


Raging Debate The ramifications of the ruling caused the cancellation of one bris in Cologne and the unusual request by the Belgian mohel to transport the newborn toAntwerp, and also led the Berlin Jewish Hospital to announce a suspension of all circumcisions.

ThroughoutEurope, the ruling drew intense media scrutiny, often punctuated by shrill public debate over the rights of children versus those of their parents, and over the health benefits of circumcision.

“At the moment — in our view — the verdict formally does not severely affect the ability to perform circumcision, since the decision of the court is formally not binding for other cases,” asserted Stephan Kramer, secretary-general of the Central Council of Jews in Germany, in e-mail correspondence between his office and Israel’s Chief Rabbinate made available to Mishpacha for publication.

Kramer noted prior cases where courts have implied that parents’ consent is sufficient to perform circumcision.

However, the district court decision inColognecomplicates matters. Since it resulted in the doctor’s acquittal, the case is closed. There are no grounds to appeal this particular decision to higher courts, such as the Federal Constitutional Court,Germany’s highest judicial body.

If another case of religious circumcision were to be brought to the Federal Constitutional Court, and if that court were to rule that religious circumcision is prohibited, such a verdict would put the question of Jewish existence in Germany on the table, noted Kramer.

In the meantime, theCologneruling stands and has set a new legal precedent inGermany.

“Every court and every prosecutor will be taking a look at this decision and will orientate their own behavior around this case,” says Dr. Hans Michael Heinig, professor of public law at theUniversityofGottingen. “They could decide differently, but they will consider the arguments of theColognecourt.”

Professor Heinig says there are three options — two legal and one legislative — open to pro-circumcision forces. The legal avenues include seeking a contrary ruling from theFederal Constitutional Courtin a different test case, or as a last resort, a binding opinion from the European Court of Human Rights inStrasbourg,France.

The legislative option would call for the Bundestag, the German parliament, to amend German family law to clearly allow parents the right to circumcise their sons.

“Jewish boys need to be circumcised eight days after birth. The gap between those eight days and the time it will take for the German government to pass such a law is vast,” says Oded Wiener, managing director of the office ofIsrael’s Chief Rabbinate.


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