Despite widespread regulatory non-interventionism[1] on the subject of male circumcision, it is possible to identify a homogeneous attitude of tolerance on the part of the various European and Western legal systems: the performance of the practice is seen on the one hand as an expression of freedom, especially religious freedom, and on the other hand as the exercise of one of the powers inherent in parental responsibility, that of the right and duty of parents to transmit their cultural and religious values to their offspring.
Male circumcision is usually considered a 'medical act' by which, even to a minimal and tolerated extent, the physical integrity of the individual or minor is undermined. Therefore, its lawfulness is often subject to the application of certain precautions and usually assisted by the rules governing medical treatment.
In general, there is therefore a balancing act between the value of the physical integrity of the individual and the child involved, as well as his or her right to health, and that of his or her or their parents' religious and/or cultural freedom. The latter are guaranteed, provided that, through certain precautions (e.g. respect for certain accredited practices in the medical-surgical sphere, the regulation of parents’ consent, etc.) suitable for reducing the risks inherent in the practice, a minimum protection of the child’s rights at stake is also ensured.
In Italy too, male circumcision is considered compatible with the discipline of Article 5 of the Civil Code concerning acts of disposition of one's own body.[2] However, in terms of criminal law, as emerges from a well-known ruling on the subject,[3] the balance seems to be differentiated according to whether one is referring to a 'religious' or 'ethnic-cultural' circumcision.
Religious circumcision, which, moreover, is identified in the pronouncement mostly with Jewish circumcision, is afforded absolute protection by Article 19 of the Constitution on freedom of worship and by the Law of Agreement between the State and the Jewish Community (Law 101/1989). In this case, the predominantly religious nature of the act is affirmed and the medical reservation does not apply.[4]
In relation to ethno-cultural circumcision, performed apparently for reasons of ethnicity, the ruling in question excludes the configurability of a cultural exemption, finding no basis in the legal system, although in the case at hand it recognises non-punishability due to excusable ignorance of the criminal law.[5] Cultural rights have very little place in this issue.
​When compared to other cultural practices that are prohibited on the basis only of their potential risk,[6] it is actually surprising that the Italian legal system allows religious male circumcision while never questioning the permanent change caused to the physical integrity of the minor, and his lack of consent: probably the familiarity with the practice brought to Italy centuries ago by the Jewish community, and the political consequences of prohibiting a practice which is already so widespread contribute to the status quo. The question of harm focuses, in Italy, on the ways in which male circumcision is performed. In the prevailing discourses within Italy, as well as in Europe and the West, it is not the practice itself that causes harm, but its performance by persons of dubious competence and/or in unsuitable contexts, such as in the home. It is in these cases that consequences such as permanent injury (e.g. the penis is cut more than needed by the ordinary circumcision) and in the most serious, though particularly rare, cases, death (e.g. by hemorrhage) can result from the practice.
The Italian balancing scheme produces, in our opinion, some inconsistencies.
Firstly, the distinction between religious circumcision and ethno-cultural circumcision omits the fact that both are performed without child consent and both produce a permanent alteration of the child’s genitals, therefore permanently affecting his physical integrity even if the circumcision is well performed. Judgements that reflect more on the rights of the child could help to put questions of the legitimacy of the practice back into the intercultural debate.



​

Secondly, the distinction between religious and cultural circumcision is not sustainable anymore, in the light of the inviolability of not only religious but also 'cultural' rights, recognised in 2018 by the Supreme Court of Cassation.[7] After such recognition, an abstract 'cultural', as well as religious, exemption could apply.
Even staying within the judicial discourse that maintains the distinction between religious and cultural circumcision, a greater use of anthropological data would be desirable in order to assess whether the circumcision in question is perhaps religious in nature, although not conducted in the context of the Islamic or Jewish religions.[8]
Another inconsistency seems to be the different treatment between Islamic and Jewish circumcisions, even if both are religious. Islamic circumcision, being of religious nature, would be fully covered by the protection of Article 19 of the Constitution, but it is always theoretically prosecutable for abusive exercise of the medical profession under Article 348 of the criminal code if not performed in healthcare facilities as there are no certified circumcisers in Islam.[9]
The 'reservation of profession' (the requirement that circumcision is performed by a doctor) as a derivative of the 'medical' conception of the act of circumcision is required in order to guarantee standards of safety and protection of the psycho-physical well-being of the child. Those standards, in the case of the Jewish religion, are met, according to the judges, by objective factors such as the fact that the practice is performed only by specially trained ministers of religion, that it is performed only on newborn babies and is therefore less dangerous, that it must be officially certified and therefore the use of clandestine practices is excluded.
Nevertheless this requirement (the fact that the circumcision is performed by a doctor or similar accredited religious figure) has not solved the problem of 'clandestine' operations, which are ascertained to account for around 35% of those performed in Italy.[10] Clandestine male circumcision are sometimes a consequence of the fact that the family does not have the money to perform the operation in private health facilities and the majority of the Italian hospitals do not cover the costs of the practice.[11]
The criminal rule providing for the professional exception (if performed by a doctor or religious professional) does not address the issue at the root of male circumcision (the infringement of children rights), which actually is a problem to be addressed by the legislature through a dialogue with the groups that perform it and/or policies aimed to discourage the practice, and through attempts to make parents aware of the child’s rights (e.g. consent, sexual freedom/pleasure, the right to an intact body etc.).
Interventions on the matter, already urged by the Italian Parliamentary Commission for the Protection of Childhood and Adolescence in a special report,[12] focus on safety in performing the practice, not on its abolition. Similarly, the Parliamentary Assembly of the Council of Europe,[13] in its request that states adopt specific protection tools in relation to those practices that involve interference with the physical integrity of minors, including male circumcision, does not clearly declare if by ‘physical integrity’ it refers to the right to intact genitals or the fact that the practice should be performed with a safe procedure. In fact, on one hand, it condemns male circumcision as a violation of children rights (sec. 2), while on the other hand it urges states to allow it in public health facilities to avoid risk to the health of the children (sec. 7.5). Probably, the need to prevent risks for the health of the children subjected to circumcision by non-professionals is so urgent that it postpones the debate on the abandonment of the practice per se.
 

notes

​[1] In Europe only Germany and Sweden have adopted legislation on ritual male circumcision. In Germany, circumcision for cultural reasons is regulated in Section 1631 BGB. If carried out in the first six months of life, the practice may be performed not only by physicians, but also by persons commissioned by the religious community and competent to do so. The issue is brought under civil law by the German discipline, among the powers included in the exercise of parental responsibility and specifically, in the right and duty of care and protection of parents towards minors. In Sweden, male circumcision is regulated by Act No. 499 of 2001 and prescribes that it may be performed for ritual purposes on minors up to two months old, by a doctor or other person authorised by the Minister of Health, in the presence of a doctor or an anaesthetist. Outside this hypothesis, it must always be performed by a doctor. (Garetti, 2017).

[2] National Bioethics Committee, 1998.

[3] Cass. Pen. sez. VI - 22/06/2011, no. 43646.

[4] Jewish circumcision is not carried out by doctors but by special ministers of the cult, the Mohalim, who have professional skills ascertained by accredited bodies in the Jewish community and for whom a special register is established. The conduct exercised by the Mohel, as well as that of the parents requesting the execution of the operation on the minor, could never integrate, according to the case law under examination, the crime of abusive exercise of the profession under Article 348 of the Criminal Code and would be justified, as is the case for the objectively harmful act, by the exercise of a right of religious freedom (Article 51. Criminal Code) and the discipline on consent (Article 50 of the Criminal Code).

[5] The case concerned a Nigerian mother who had subjected her infant son to a circumcision operation, turning to a person with no medical-professional competence and agreeing to have the operation performed in a domestic setting. The child then suffered haemorrhages following the operation, which led the mother to turn to the appropriate medical facilities to limit the damage of the post-operative consequences. The Court of legitimacy recognised, unlike the courts of merit, the non-punishability for ignorantia legis, pursuant to Article 5 of the Criminal Code, recognising the excusability of the lack of knowledge of criminal law due to the Nigerian mother's ethnic origin and non-integration in Italy.

[6] In Italy the kirpan, the Sikh ritual knife, has been prohibited as is considered violating security although no one Sikh never used the kirpan to strike anybody (see kirpan in this Guidebook). Kissing one’s child genitals for cultural reason is considered impairing the sexual freedom of the child, although no harm is proved when the practice is performed as a gesture of affection without pedhopylic intents (see the entry Displays of affection concerning children’s genitals in this Guidebook).

[7] Cass. Pen. III Sec. of 29/01/2018 No. 29613.

[8] This is what emerges on the basis of the anthropological data collected in the file on the practice of some Christian groups from sub-Saharan Africa.

[9] In the Islamic community, circumcision procedures are not assisted by an organisational and census system of the circumcisers as is the case in the Jewish system. Germany and Sweden try to solve this problem thus: although they provide for forms of control over circumcisers, allow the practice to be carried out also outside health facilities and by ministers of religion provided that they are competent and that the intervention is carried out in the first months of life.

[10] Parliamentary Committee on Childhood and Adolescence, Report on the problems related to the practice of ritual circumcision of minors, adopted in the afternoon session of 7 July 2021, Rapporteur: Paola Boldrini.

[11] The Italian Parliamentary Committee on Childhood and Adolescence, Report on the problems related to the practice of ritual circumcision of minors, adopted in the afternoon session of 7 July 2021, Rapporteur: Paola Boldrini does not condemn male circumcision per se, but is rather concerned to promote safe circuncision under medical supervision. The report highlighted that in Italy only in Tuscany and the Marches are the costs for circumcision fully covered by the SSR (Health public service). In Calabria, Campania, Apulia, Basilicata, Sardinia, Molise, Abruzzo, Liguria, Lombardy, Trentino and Valle d'Aosta it is not possible to perform circumcision in public facilities (except in some cases with the contrivance of phimosis, in this regard see Cass. Pen. sez. V - 18/06/2015, no. 35026). In Piedmont, Veneto, Friuli Venezia Giulia, Emilia-Romagna, Latium, Umbria and Sicily it is possible to perform ritual circumcision by means of a hospital stay and if covered by insurance.

[12] Parliamentary Committee on Childhood and Adolescence, Report on the problems related to the practice of ritual circumcision of minors, adopted in the afternoon session of 7 July 2021, Rapporteur: Paola Boldrini, footnote 36).

[13] Resolution 1952(2013), adopted by the Parliamentary Assembly of the Council of Europe, on 1.10.2013, entitled Children's Rights to Physical Integrity.