May 21, 2005 - 23:13:25 CDT
Mervin Gajewski remembers hearing an infant's wails while he was having blood tests done in a Watford City hospital a few years ago."Somebody better help that baby. He sounds hurt," the 78-year-old Alexander man says he told a nurse. "You would be, too, if you were being circumcised," she replied.
When a friend's daughter chose to circumcise her son last year, Gajewski decided to sue, in an attempt to get North Dakota courts to ban circumcision.
A judge dismissed Gajewski's case last week, but he said he intends to continue, perhaps with an appeal to the North Dakota Supreme Court.
"I don't intend to be done with this case one way or another," he said.
Circumcision involves the removal of sensitive foreskin from the penis. The procedure is usually done on infants.
Nationally, about 56 percent of male infants are circumcised, according to a 2003 survey compiled by the federal Centers for Disease Control and Prevention.
The Midwestern region, which includes North Dakota, had a 78 percent circumcision rate, which is the highest in the country, said CDC spokesman Bill Crews.
In a March 1999 policy statement, the American Academy of Pediatrics said there are "potential medical benefits" to circumcision, including a lessening of the risk of getting urinary tract infections.
However, existing data "are not sufficient to recommend routine ... circumcision" of newborns, the statement says.
Gajewski says the reasons justifying the procedure are speculative, using the assumption that "somewhere down the line, it's going to be good for you."
"Surgery isn't done that way," he said.
Gajewski said he believes male circumcision is tantamount to genital mutilation. The Legislature made female genital mutilation a felony crime in 1995. Gajewski's lawsuit argued that courts should extend the ban to boys.
Northwest District Judge Gerald Rustad dismissed the case last week, saying Gajewski had no standing to bring the case.
Gajewski was suing on behalf of North Dakota boys younger than 18, but he is 78 years old, and does not represent any young boys, the judge said.
"Although the topic is one which could result in interesting information and analysis in the proper forum, this court has not been presented any precedent which would persuade it that (Gajewski) has standing to bring the action," Rustad wrote in his dismissal order.
North Dakota's state and federal courts have taken up the issue previously.
Last September, the North Dakota Supreme Court ruled in favor of a Fargo doctor who had circumcised an infant in March 1997.
The boy's mother argued she was not told in detail about the procedure's benefits and potential risks.
The woman, Anita Flatt of Hawley, Minn., also had argued that North Dakota's law barring female genital mutilation did not offer equal protection to males. The Supreme Court said Flatt did not have standing to make that argument.
In June 1996, a Bismarck woman, Donna Fishbeck, made similar equal-protection arguments in a federal lawsuit against the state. Fishbeck's infant son had been circumcised with the consent of the boy's father, even though she objected to the procedure.
U.S. District Judge Patrick Conmy dismissed the case, ruling that Fishbeck did not have legal standing to bring the lawsuit. A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld Conmy's ruling in June 1997.
"Even if we were to declare the North Dakota statute invalid because it is underinclusive, and even if ... we could enter some kind of decree that would criminalize male circumcision, there is no assurance at all that the injury claimed by Fishbeck, either on her own behalf of on behalf of her son, would be redressed," the appeals court's decision says.
Circumcision opponents say the foreskin protects the penis and can enhance sexual pleasure. Gajewski, who is not circumcised, said those benefits are being taken away without reason.
"It's unnecessary and detrimental to a male," he said. "You destroy too much potential."
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