The Right of the Child against Compulsory Religious Belonging

The recent bill in Iceland that would make nonmedical infant circumcision for boys a crime reminds me once again how international human rights standards are still ambiguous with regard to balancing the right of the child with the right of the religious parent. The bill, already sponsored by at least a quarter of Iceland’s doctors and more than 1000 nurses and midwives, inevitably met with criticism from religious groups that practice male circumcision. The drafters of the bill denied the suspicion that the legislation is an attack on religious freedom, citing health reasons as its primary motivation. Unsurprisingly, the controversy is framed in terms of whether certain public health mandates for children should trump the religious freedom of parents not to conform to these mandates. In Iceland, the issue is magnified by the extremely small Jewish and Muslim populations in the country – adding charges of xenophobia to the controversy. In this blog post, I will not focus on recounting the history of the debate of male circumcision and international law, but to articulate my general frustration with a discourse like this that takes the right of religious parents to impose religious memberships and beliefs onto their biological children for granted. Why is it so rarely discussed, that the child born into a religious household may have a form of agency not yet recognized by our current legal and ethical discourse? Why should we grant parents the benefit of the doubt that they have “the best interest of their child” in mind when acting as proxies in medical and health matters?

Unlike the ICCPR, which gives a blanket statement that allows parents “to ensure the religious and moral education of their children in conformity with their own convictions” (ICCPR, Art. 18 (4)),” the United Nations Convention on the Right of the Child does not simply conflate the religious freedom of children with that of their parents and recognizes the agency of children to a much greater extent. Art. 13 (1) states that:

“The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.”

The freedom to “seek, receive and impart information and ideas of all kinds” indicates that a diverse source of information is important for the child to formulate his/her own views and expressions. Coupled with Art. 14(1) that asks state parties to respect the right of the child “to freedom of thought, conscience, and religion,” the child should be able to have access to more than one source of information, other than their parents, in regard to which religious views or non-religious views to adhere and practice. Thus, these provisions seem to help the case that children have the right to not follow the religious views of their immediate family or culture, and should not be compelled to do so. However, the second part of Art. 14 takes a step back to reaffirm the agency of the religious parents:

“States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”

If the parent has the “rights and duties” to “provide direction” to the child’s religious formation, it does not necessarily mean that they have the right to “impose.” Nonetheless, the last part of the sentence, “in a manner consistent with the evolving capacities of the child,” likely suggests that the degree to which a parent can influence a child’s religious formation is inversely proportional to the age of the child. In other words, parents may be able to raise their children in accordance with their own religious faith and practice, but they should gradually grant the child more freedom on religious matters as they mature into adulthood.

This approach, or what I tentatively call the “evolving capabilities” approach, seems like a reasonable compromise or balance; however, it does not do much for issues like infant baptism or infant circumcision, when the child had virtually no way to exercise informed consent of any sort. The “evolving capabilities” approach is not equally applicable to all faith traditions and practices. A Catholic baptized as an infant may renounce her faith anytime, and even reject the baptism itself as invalid; but an infant circumcision in Judaism is physically irreversible. In Islam, a boy can undergo circumcision between ages 4 and 13, making the “evolving capabilities” approach more applicable. But in any case, a religious ritual can “mark” a body either physically or psychically at a young age, when the child had not evolved the ability to make a valid informed consent to a given ritual or medical procedure.

Moreover, Article 24 states that: “States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.” This provision is especially important in cases in which religious parents refuse to give their children access to certain health services or coverage due to religious reasons. Does the child have a right to receive services against the religious views of their parents? In the United States, parents in Christian Science churches have refused to take their kids to medical facilities, even in time of emergency, and sometimes resulted in the children’s death. In my own research on HCSMs, Christian (mostly evangelical) parents can enroll their children in cost-sharing ministries that do not share certain essential health expenses. If we continue our neglect of the agency of children in religious households, and conflate the religious freedom of parents with that of their children, more children may suffer from similar tragedies and unnecessary health risks. These debates and reflections, no matter how controversial or risky, must be seriously carried out further.

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