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Circumcision wars, child custody, culture and the girl child

The issue of circumcision is divisive and is still being battled out in the US and Canada.

Last Modified: 16 Mar 2013 12:17
Rafia Zakaria

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.
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Both Canada and the US are signatories to the The Hague Convention on the Civil Aspects of Child Abduction, meaning both countries are obliged to cooperate with one another in the case of child abductions [AP]

Aden and Aly met through a Muslim dating website. Aden was a trained nurse, originally from Somalia but living in Minnesota, while Aly was an Egyptian engineering student living in Canada. Despite the hurdles of visas, borders and immigration hassles, their relationship blossomed and in April 2011, they married. The newly married couple began their life together, with Aden commuting across the border to the United States to work as a nurse and Aly continuing his studies in Ontario.

However, it wasn't long before their secret pasts were revealed to one another. Aly learned that Aden had been married before to a Somali man whom she had divorced, and Aden learned that Aly had been married not once but four times before, and suspected that he was still married to another woman in Egypt. As the skeletons in the closet were revealed, their relationship became increasingly strained, leading to bickering, fights and even physical violence. Despite all the abuse suffered by Aden, she continually returned to Aly after leaving him multiple times. Despite the roller coaster of bruises and betrayals, Aden became pregnant, giving birth to a baby girl in April 2012.     

About six months after the birth, Aden returned to work as a nurse across the border in Buffalo, New York, entrusting the baby to Aly's care while she worked. Although this arrangement lasted for some time, the violence returned, its ugliness magnified even more by the presence of the baby. In the incident that ended it all, Aden alleged that Aly had not only beaten her but thrown the baby - now eight months old - across the room. She did not, however, take the baby to the emergency room; when the child was seen at a scheduled appointment the next day, doctors found no sign of injuries. Regardless, the terror of the altercation was enough to get Aden to finally pack her bags in secret and leave with the baby for Minnesota.

Making a case

In legal terms, the child - now taken across an international border from her place of "habitual residence" - became what is considered to be an abducted child. The applicable law governing the matter is The Hague Convention on the Civil Aspects of Child Abduction, to which both Canada and the United States are signatories. Under the provisions of the Convention, a parent whose child is abducted to another country can file a lawsuit in that country seeking to have the child returned to the home country so that courts can resolve any custody disputes. The purpose of the Convention [PDF] "is to protect children internationally from the harmful effects of their wrongful removal or retention caused either by the removal of a child from the state of its habitual residence or the refusal to return a child to its state of habitual residence".

Horror of female circumcision

Since the place of the child's "habitual residence" was Canada, all that Aly had to do under the provisions was to prove by a preponderance of evidence that the child was "wrongfully removed" by Aden when she absconded to Minnesota without his knowledge. It is at this point that the issue of FGC, or "female genital circumcision", enters the courtroom. To counter Aly's case, Aden had to prove by clear and convincing evidence that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". To prove this point, Aden could have presented evidence of the abuse inflicted on her. However, according to precedent in the United States, general evidence of abuse of the mother is not determinative in child custody cases "except when the child faces a real risk of being hurt physically or psychologically".

To prove that the risk to child was of such a sort, Aden alleged, that Aly believed in "female genital circumcision" and that he had told her during the period of their marriage that he would like Aden to take their baby to Kenya where her mother lived and have the procedure performed. She further alleged that Aly said that if she did not do so, he would take the baby to Egypt and have his own mother arrange for the procedure. Aly denied all of Aden's allegations but brought it to the notice of the court that Aden had herself had the procedure performed and that it was Aden and her mother who were proponents of the procedure. He also added that none of his own family members had been subjected to the procedure and he strongly opposes it.

Both sides presented experts, the one testifying on behalf of Aden explained the numerous detrimental effects of FGC on girls. Aly's expert presented evidence that while the practice was still carried out in Egypt, it had been denounced by various Egyptian Muslim scholars as well as in Egyptian law. In addition, it was banned in Canada where Aly had chosen to emigrate, emphasising of course that Aly had himself insisted that he did not wish the procedure to be performed. With this set of facts then, the American court, applying The Hague Convention as it relates to child abductions, was given the task of determining whether returning the child to the father in Canada could in the future subject the infant to Female Genital Circumcision.

In the end, in an opinion of more than fifty pages, the Court decided in favour of Aly, ordering the child returned to Canada for a final custody determination by a Canadian court. In its decision, it emphasised that the basis of "potential harm" from FGC was largely speculative given that the procedure was banned in Canada and the United States. Based on Aden's own assertions, the Court further surmised that the likelihood of the practice being performed also existed if the child was allowed to remain with the mother. To prevent the child being taken out of the country by either parent, the court decided, the child's passport could be placed with a neutral third party - such as the Canadian court - that would have jurisdiction over the child.

The battle over circumcision

Everywoman
Female Genital Mutilation

Circumcision and the inability of minors to consent to it as a procedure has in recent years become an issue of much legal wrangling. In June last year, a court in Cologne, Germany ruled that that the "fundamental right of a child to bodily integrity, outweighed the fundamental rights of the parents." In that case, a four year-old Muslim boy who had undergone circumcision was brought to a hospital with heavy bleeding, and the court found that "the body of the child is irreparably and permanently changed by circumcision" and that this change contravened the child's later rights to decide his religious beliefs. Months after the ruling, a Jewish rabbi in Germany was charged with causing bodily harm for performing male circumcision. The charges were dropped only recently when the German Parliament passed a law this October allowing traditional male circumcision.

The controversy over circumcision rests essentially on whether the practice is legally weighed as an issue of health or the religious belief of parents and the minor's inability to consent. If health - both psychological and physical - is used as the determinant, then FGC emerges as a devastating and debilitating practice that has been shown to have grave health consequences, cause physical impairment and psychological harm. On the other hand, male circumcision has, according to some studies, been shown to have health benefits in reducing risk of transmission of HIV.

However, if the issue is judged on the basis of parental consent, then the issue becomes more complicated (at least in the United States). While there have been no cases permitting FGC, there are cases - such as one in Oregon - which affirmed the right of a Jewish father with custody to have circumcision performed on his 12 year-old son even though the divorced mother of the child opposed the procedure. Furthermore, in other cases related to religious freedom, American courts have found that the Free Exercise Clause of the First Amendment allows Amish parents to keep children out of school even though it may harm their future educational prospects. Furthermore, hospitals in the United States confronted with Jehovah's Witness parents who refuse blood transfusions for minor children based on religious belief must often obtain a court order prior to overriding requirements of consent.

A recent strengthening of the movement to ban all circumcision suggests that the debate may be moving from health-based considerations to an issue of freedom of religious exercise. Like the court in Germany, those advocating a complete ban on the circumcision of all minors insist that the practice inhibits choice by doing something irreversible to a child's body owing to the beliefs of the parents. If this strain of argument continues to gain force (it was almost a ballot initiative in San Francisco last November), then the opponents of FGC who have fought the misogynistic and detrimental effects of the practice are likely to face some obstacles in maintaining the health-based bans on all forms of FGC at all ages.

If choice is made central to the issue of circumcision, male or female, then adult females supposedly "consenting" to the procedure owing to cultural or family pressures will once again be vulnerable to a dangerous practice with permanent drawbacks. The issue of FGC in contemporary courts then, illustrates the limits of the law when confronted by the diffuse and hard-to-quantify influences of culture. In the case of the female child of Aden and Aly, the danger then may not be the parents that would impose the procedure on her, but the cultural pressures that may influence her as an adult to choose it.

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.

Follow her on Twitter: @RafiaZakaria

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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