Posted on November 28, 2018 at 1:05 AM
by Rosie Duivenbode and Aasim I. Padela, MD, MSc
In April 2017, Dr. Jumana Nagarwala, at that time an emergency medicine physician at Henry Ford Hospital in Detroit, was arrested and jailed. Together with seven others she will be among the first persons to be tried under the U.S. federal Female Genital Mutilation (FGM) law.i
While those involved are awaiting their trial,ii we have observed that the strategic use of stigmatizing terminology used to describe the procedure in public circles, combined with the sidelining of religious perspectives on the meaning of this practice, have obscured nuanced deliberation over the complex issues FGC raises. Perhaps most saliently the case highlights the porous boundaries of medical practice in multicultural societies, and challenges the ethical and legal bases of ‘medicalizing’ religious and cultural practices.
The Case: American Physician to be tried under U.S. federal ‘Female Genital Mutilation’ law
Dr. Nagarwala, the lead defendant in the case, is charged with performing ‘Female Genital Mutilation’ on several female minors at an outpatient clinic in Detroit between 2005 and 2017.ii The clinic was owned by another (internal medicine) physician, Dr. Fakhruddin Attar, who is indicted for providing his medical office. With two doctors at the center of the trial, many physicians might wonder how ‘one of their own’ could commit a crime that violates professional ethics, human rights and the U.S. law.
The other defendants in the case include two women accused of assisting with the procedures, and four mothers who arranged the appointments and brought their daughters to the clinic.iv Several other instances have been uncovered recently as the trial now spans three states (Michigan, Minnesota and Illinois) and the number of victims, most of whom were seven years old at the time of the suspected procedures, adds up to nine.v
Dr. Nagarwala is 44 years old and had a successful professional medical career. She received her medical degree from John Hopkins University School of Medicine in 1998, was an assistant director of the emergency medicine residency program at Henry Ford Hospital until they fired her following her arrest, and has published five Medline-indexed papers between 2013 and 2017.
National media have reported about Dr. Nagarwala’s private life as well: she is married and has four children, two of whom study abroad. She is part of a minority religious community called Dawoodi Bohra, a small Shia Muslim sect with roots in India. Here we find an important clue to understanding the case: the Dawoodi Bohra are known to practice circumcision on both their sons and daughters and believe this to be a religious requirement. In line with this, Dr. Nagarwala and her lawyer maintain that what she performed does not constitute ‘mutilation’, but instead involved the removal of a minor amount of tissue– in accordance with a religious ritual called Khatna.
Her claims are easily dismissed by the dominant narrative which classifies all such procedures as ‘mutilation’; and by the many statements from Muslim activists and scholars alike that proclaim there to be no religious basis for such removal of genital tissue.
Over the past year and a half, we have observed that these two oft-repeated assertions have left little oxygen for other voices to share different perspectives. As a result the opportunity this case presents for bioethical discourse and public health policy debate is being lost. For one, the case foregrounds the porous boundaries of modern medical practice. Our healthcare systems serve individuals with a wide array of preferences about how their bodies should look and function, and thereby might be called to perform procedures that may be rooted in cultural or religious values, or perhaps on social preference rather than good medical practice. The question of how physicians and policy makers can formulate fair and just responses to such requests remains unanswered.
The strategic use of language: mutilation, cutting or circumcision?
The first issue is the loaded terminology used in clinical practice and policy making. While the term “mutilation” may be deserved it also precludes dialogue — no conscientious doctor would willfully mutilate a patient, and no respectable government would authorize the mutilation of its citizens.
When using the term mutilation, the following nuances are easily missed:
First, there are many types of procedures that are currently classified as mutilation, as the World Health Organization (WHO) includes any of the following practices under this term: the nicking of the clitoral hood, procedures that involve the reduction or removal of the clitoris, labia minora and labia majora, and infibulation. As one can imagine, these procedures differ in their physical nature and future health consequences.
For example, the ritual nicking of the clitoral hood, which Dr. Nagarwala claims to have performed, has recently been classified by two gynecologists as a procedure that “should not have a lasting effect on morphology or function.” We wonder whether the label of mutilation is applied for the purpose of condemning the underlying motivations for, and cultural significance attached to, such procedures, or rather because it refers to the morphological changes and accompanying bio-psycho-social harms these carry? Commenting on this sort of labelling, an Australian court judge deemed the “ritual circumcision” of two Dawoodi Bohra girls not to constitute ‘mutilation’ based on the medical evidence that their clitorises were intact.vi
Indeed some of the procedures that fall under FGC are similar to cosmetic genital alteration and vaginal rejuvenation surgeries. Additionally, and somewhat counter-intuitively, scholars have reported that in some societies women support certain modifications for aesthetic reasons and refer to the relevant procedures as “genital beautification”.
At the same time, for some women, the suggestion that their bodies are mutilated conveys stigma, that carries over into their subsequent clinical encounters and healthcare-seeking decisions. And one could question the accuracy of the moral and legal distinction made between ritual genital procedures performed on male versus female children.
Lastly, Tostan International—an African organization that has led one of the most successful FGC reduction campaigns worldwide—notes that using the term mutilation may be counter-productive. They report that using the term cutting instead of mutilation “allows them to accomplish more (…) because it is less judgmental and value-laden…(it) is more effective for engaging groups in dialogue around this practice, and eventually bringing about its end.”
As clinicians, and policy makers we should use terminology that serves the profession as well as the societies we serve. This means that when discussing female genital procedures we should use terms that do not suggest ethical prejudgment, yet are respectful of women’s bodies and convey the physical aspects of procedures accurately. We suggest, as others have before us, that the term female genital cutting (FGC) may be more effective in dialogue and debate because it recognizes that a woman’s physical integrity is disrupted through a “cut”, but does not stigmatize people or prevent dialogue.
Religious perspectives on female genital cutting
The second obstacle to deliberating over FGC is the neglect of broad, multi-layered religious discourses on the topic. Indeed detailed presentations on the religious grounds for FGC are not within scope for public and policy communiques, yet religious arguments are also not germane to academic bioethics discourse. Hence an important piece of the puzzle remains hidden.
In contrast to the popular mantra, FGC is not entirely foreign to Muslims, or to Islam, as it is practiced by different Muslim communities around the world including Muslim majority countries and elsewhere. Islamic legal discourse does include several references to ‘female circumcision’, often in conjunction with male circumcision. While a thorough analysis of the Islamic legal discourse is beyond the scope of this essay, our research reveals that the four classic Sunni legal schools consider a prepuce removing or clitoral nicking procedure to be permitted, and in the case of one school obligatory (wājib). Critically, scholars are unanimous that a procedure of greater scope is forbidden. These religious perspectives must be first understood and then addressed if we desire to change attitudes and behaviors related to FGC among the Muslim public.
Opening up the conversation: The Cultural Boundaries of Medicine
By highlighting two important considerations for dialogue—using “neutral” language and including religious perspectives—we hope to set the ground for open and nuanced ethical professional, and legal deliberation regarding this momentous case and its greater implications for medical practice.
The broader question in the context of increasingly pluralistic societies is pressing: How do we, as clinicians and policy makers, fairly adjudicate the porous boundaries of modern medical practice? Indeed, procedures performed within the confines of a healthcare system are not always directly related to health outcome benefits. Our individual preferences, cultural and religious values, and societal norms necessarily inform some of what doctors do. Botox clinics, for example, help some people look younger and breast augmentation might help others feel more attractive – such procedures are part and parcel of some doctors’ daily practices. At the same time, nearly 80% of American men are circumcised for religio-cultural reasons despite the health benefit remaining ambiguous.
How should doctors, and law-makers, respond to requests for such procedures at the margins of medical practice?
i The U.S. law (18 U.S. Code § 116 – Female genital mutilation) states: “whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.”
ii On November 20th a federal judge in Michigan ruled the existing FGM law to be unconstitutional, resulting in the dismissal of several charges. In additional, four defendants were dropped from the case. The government is expected to appeal the decision. The trial, initially scheduled for October 10th 2017 is currently set for April 2019.
iii Second Superseding Indictment. United States of America v. Nagarwala, No. 17-20274 U.S. (2017).
v Motion and Brief for End of Justice Continuance. United States of America v. Nagarwala, No. 17-20274 U.S. (2018).
vi “A2 v R; Magennis v R; Vaziri v R. NSWCCA 174” (2018)