Infant Circumcision: Criminalization or Regulation of Religious Practice?

Abstract

The paper presents a critical analysis of discussions on the criminalization of infant circumcision performed for religious reasons. It includes an overview of the current status and relevance of the discussion, and an evaluation of different arguments that have been presented in favor of criminalization of the practice. From the position taken in this paper, parents or guardians who choose to circumcise a child for religious reasons are guaranteeing their right to participate in the religious activities of their community, and therefore prohibition of the practice is not recommended. Specifically in the context of the Argentine legal system, it is argued that the prohibition of circumcision would be subject to strict scrutiny in the face of a claim by individuals or religious groups affected by such a rule, and therefore would be based on a presumption of unconstitutionality that would be very difficult to rebut. On the contrary, the legislator could opt for a regulation of the practice by imposing the respect of certain medical standards, as a risk reduction measure.