We should hesitate, however, to read the decision through the lens of anti-Semitism. For one, the case concerned the circumcision of a young Muslim boy. If religious prejudice was involved, it was more likely anti-Islamic than anti-Semitic. More profoundly, the ruling actually emerged from Germany’s sincere efforts to learn the lessons of the Holocaust and vow “never again.” Strange as it may seem, the court based its decision on principles of individual freedom and physical integrity that make sense only as products of Germany’s particular reckoning with its past, from the Nuremberg trials to the present.

Just after the Second World War, Germany established a legacy important for future bioethical determinations. The 1947 Nuremberg Code, which was drafted while twenty-three Nazi doctors were being prosecuted for medical atrocities, mandated the full consent of individuals to be “absolutely essential” in medical practices. But this applied only to human research subjects in medical experiments; that bioethical limitations might extend to widely practiced communal or religious rites was not yet considered. Germany also enshrined “human dignity” in its Basic Law of 1949 as an inviolable first principle, reinforced by the right to the free development of one’s personality and physical integrity.

Thus when new biomedical technologies arrived in the 1980s and 1990s, German attitudes and policies toward them differed widely from those in the rest of the west. When the Council of Europe drew up a Convention on Human Rights and Biomedicine in 1997, which promised to protect the dignity and integrity of all individuals, Germany refused to sign on, finding its protections weak. Unlike many other western states at the millennium, Germany prohibited research on embryonic stem cells, making an exception in 2002 for lines imported from abroad. (That Israel was quick to send its embryos raised fewer questions than it might have.)

But the circumcision ruling became possible only because, in the past two decades, the importance of physical integrity to individual development became especially invested in the child and therefore limited what parents could do to their children’s bodies. Until last year, German parents were completely forbidden from diagnosing the genetic makeup of in vitro embryos. The ban wasn’t just about the fear of designer babies; selecting embryos so as to avoid diseases like Huntington’s was considered a violation of the future child’s right to free development. Today genetic diagnosis is permitted for the purpose of avoiding a “severe hereditary disease,” but the imperative to preserve children’s bodies remains. In the circumcision case, the court ruled that boys face similar threats to their free development when their parents want them circumcised.

In the court’s view, the child should decide whether to get circumcised, and whether to affiliate with Islam, after he reaches the age of consent. Germany’s postwar history by no means made such a ruling inevitable but does explain how it came to be. By calling the boy “unable to consent,” the court mechanically identified him with vulnerable populations in Germany’s history, including severely mentally disabled persons whom the Nazis would have euthanized. And it made circumcision irreconcilable with the principles of the Basic Law. According to the court, circumcision irreparably altered the boy’s body for medically unnecessary reasons, thus violating his right to control over his physical integrity. And it permanently marked him as a Muslim, violating his right to self-determination. At the heart of the ruling, then, is an idealized individualism, which imagines that children’s bodies should be preserved from any community intrusion—and implicitly assumes the adult will not feel alienated and hollow as a result.

Americans more readily accept the power of religion and community to shape the individual. But when it comes to economic issues, many of us imagine that the individual stands alone. Just as it is impossible to enter adulthood and choose one’s religion without cultural influence, so it is absurd to have a fully free choice about when one needs, say, modern health care. In the Obamacare ruling, a majority of the justices imagined that individuals could somehow separate their bodies from the health-care market until they freely chose to enter into it, even though emergency-room care is unforeseeable and society foots the bill. Both the German and American legal arguments suspend the individual body above its social world: the former from a long-practiced religious rite, the latter from the structure of medical care in America.

Germany’s circumcision ruling has now moved into politics. And politics is where this debate belongs. The German parliament recently passed a symbolic measure in favor of legalized circumcision and promised a binding resolution in the fall. Biomedical issues like this one, which are only increasing in importance and number, inspire a real clash of values about the relationship between body and society. It should be we as political communities—more than we as subjects of court rulings—who decide which values prevail.

Kristen Loveland is a PhD candidate at Harvard University, studying the ethical debates surrounding new reproductive technologies in Germany.

Source: Dissent, July 30, 2012