For this reason, the civil law presently offers more fruitful avenues of approach. Because there are "no medical indications for routine circumcision," 77 the doctrine of informed consent requires that parents be told that such surgery is not required, that is is painful and that there are significant rates of surgical complications. Failure to give a complete explanation warrants a suit by parents, by the child or by a next friend acting on the child's behalf. Authorizing surgery on an infant after such a warning conceivably opens the door to a subsequent suit by the child against his parents. While state courts have been reluctant to allow suits by children against their parents, there is a growing trend to allow recovery where there is clear adverse interest. 78 Suits for damages against surgeons, hospitals, and conceivably parents, are possible because malice in the sense of ill will or a desire to cause injury is not essential to sustain a recovery for intentional wrongdoing. It is enough for the plaintiff to show that the defendant knowingly and intentionally did the act which caused the damage and that damage was substantially certain to follow. 79
The limitation posed by suits for negligence in this area is the same as that in the criminal law: negligence, like crime, is grounded in societally determined assumptions and expectations. Additionally, in the case of civil suits for circumcision, especially those cases without adverse medical complications, it will be difficult to establish damages other than pain and suffering. As a result, suits for damages are not likely to be numerous or very fruitful. The most promising approach would seem to be a civil rights class action against hospitals designed to prevent routine neonatal circumcision, that is, in cases where circumcision is not medically warranted. A class action suit would focus on the individuals most culpable since competent surgeons are aware that routine neonatal circumcision is not good medical practice. It would also have the advantage of avoiding the constitutional issues of parental rights, as well as religious issues, since the Orthodox Jewish circumcision ceremony is not normally performed in medical centers by medical personnel. |