Circumcision of boys (TAS 143/2016, issued on 23 August 2016)
The Ombudsman for Equality received an enquiry about the precedents established by the Supreme Court on the circumcision of boys. According to the Supreme Court, the decisions complement a previous precedent in which the Supreme Court concluded that non-medical circumcision of boys constitutes an assault offence but is not punishable when it is considered to be in the best interests of the child. The person contacting the Ombudsman for Equality considered the view to grossly violate the principle of equality because genital mutilation performed on girls is considered unacceptable, even by the Supreme Court.
The Ombudsman for Equality monitors compliance with the Act on Equality between Women and Men (Equality Act). According to the government proposal for the Equality Act (HE 57/1985), the exercise of legislative power and the administration of justice fall outside the oversight purview of the Ombudsman for Equality. Thus, the Ombudsman for Equality has no competence to intervene in decisions made by courts. Under the Constitution of Finland, the highest courts supervise the administration of justice in their own fields of competence. The Chancellor of Justice and the Parliamentary Ombudsman shall ensure that the courts of law obey the law and fulfil their obligations. In the performance of their duties, the Chancellor of Justice and the Parliamentary Ombudsman monitor the implementation of basic rights and liberties and human rights.
In a decision issued on 30 November 1999, a Deputy Parliamentary Ombudsman did not consider the circumcision of boys to be clearly unlawful when carried out within the public healthcare system. However, the Deputy Ombudsman took the view that circumcising young boys, who are unable to give their consent, without a medical reason is highly questionable from a legal standpoint.
In a decision adopted on 17 October 2008, the Supreme Court considered the issue of non-medical circumcision of boys. When comparing the non-medical circumcision of boys to female circumcision in girls, the Supreme Court took the view that the circumcision of girls actually constitutes female genital mutilation and is therefore a clearly more severe violation of bodily integrity than the circumcision of boys when performed in an appropriate manner. According to the Supreme Court, the circumcision of girls mainly constitutes a procedure equal to aggravated assault and can under no circumstances be justified on religious and social grounds; thus, when analysed in terms of criminal law, it is not reasonable to consider the procedure comparable with the circumcision of boys.
On 31 March 2016, the Supreme Court adopted two decisions that complement a previous precedent in which the Court found that the non-medical circumcision of boys constitutes an assault offence but is not punishable when it is considered to be in the best interests of the child. Moreover, the Supreme Court noted that Finland has no legislation dealing specifically with non-medical circumcision. The Ministry of Social Affairs and Health has issued a recommendation on the matter, but the Supreme Court found that it does not resolve the ambiguity in questions concerning circumcision, such as the criminal liability of persons who have violated the recommendation.
Provisions on the non-medical circumcision of boys have been under preparation since 1999. At the time, the National Advisory Board on Social Welfare and Health Care Ethics (ETENE) considered the ethical issues concerning the non-medical circumcision of boys. In 2003, a working group appointed by the Ministry of Social Affairs and Health assessed the need in Finland to pass legislation on the matter and proposed an act on male circumcision in children. However, the Government did not proceed with preparing the legislation.
In 2013, the Nordic Ombudsmen for Children adopted a joint statement stating that boys should be given the chance to decide for themselves whether or not they want to be circumcised. In 2015, the Finnish Ombudsman for Children Tuomas Kurttila proposed that Finland should enact an act prohibiting the non-medical circumcision of young boys. On 8 October 2015, the Ombudsman for Children submitted an initiative on the matter to the Ministry of Social Affairs and Health.
On 23 February 2015, the Ministry of Social Affairs and Health issued new guidelines on the non-medical circumcision of boys. The guidelines allow non-medical circumcision to be performed on boys aged under the age of 18 under certain circumstances. The purpose of the guidelines is to ensure that the procedure is carried out safely.
In Finland, legislative power belongs to Parliament. Legislation may be amended in Parliament with a government proposal, a legislative motion submitted by a Member of Parliament or a citizens’ initiative. When legislative amendments are prepared by the Government and considered by Parliament, it is important to assess their impacts on fundamental and human rights as well as on gender equality.