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Is multiculturalism bad for health care? The case for re-virgination

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Abstract

Hymenoplasty is a surgical procedure requested by women who are expected to remain virgins until marriage. In this article, I assess the ethical and legal challenges raised by this request, both for the individual physician and for the health care system. I argue that performing hymenoplasty is not always an unethical practice and that, under certain conditions, it should be provided by the health care system.

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Notes

  1. More than five hundred years ago, Fernando de Rojas wrote what is considered one of the summits of Spanish literature, Tragicomedia de Calixto y Melibea (La Celestina) [2]. Celestina, a procuress, owns a brothel and earns her living also by “repairing hymens.” In the seventh scene of the play, Pármeno, one of the characters, says, “For the mending of hymens, some she would make out of bladders and others she would cure with stitches. She had in a little cabinet, in a painted box, some thin needles from glovemakers and silk threads coated with wax. She had there hanging roots of folia-plasme, fuste-sanguinio, squill or sea-onion and ground thistle. With these she worked wonders; that, when the French ambassador went through there, she told one of the maids she had three times as a virgin.”

  2. The description of the case does not clarify whether the marriage was “arranged” (one of the parties or both do not know each other) or “forced” (non-consensual). I thank an anonymous reviewer for pointing out the importance of this distinction.

  3. Virginity testing has been revived among members of the Zulu community in South Africa probably due to the HIV pandemic and the call for chastity [4, pp. 71, 73]. In Spain, a similar rite known as the “Yeli” is still prevalent among gypsies. The practice goes as follows: before the wedding, an old woman particularly skilled for the purpose introduces a handkerchief in the bride’s vagina and announces her condition by exposing the handkerchief. For an account of the historic, cultural, and anthropological roots of the fixation with female virginity (primarily the masculine obsession about legitimate parenthood and the transmission of property), see [4].

  4. As Kopelman argues, by performing the hymenoplasty, one protects the child from a foreseeable honor-killing, but one also facilitates her travel to Yemen and the subsequent non-consensual marriage [3, p. 13].

  5. For an account of the procedures and the alleged reasons for requesting them, see [1, pp. 132–133]. According to the American Society of Plastic Surgeons, “vaginal rejuvenation” procedures have increased about 30 % between 2005 and 2006 [5, p. 1819]. In the past, vaginal plastic surgery was performed to repair anomalies such as uterine, bladder, and rectal prolapse [6, pp. 936–937, 969].

  6. See [7]. More recently the Ethics Committee of the Royal Commission of Gynecologists and Obstetricians of the United Kingdom and the Ethics Committee of the Society of Obstetricians and Gynecologists of Canada have taken a similar stance; see respectively [8] and [9]. For an account of the (minor) surgical risks of vaginal plastic surgery, see [4, p. 1820].

  7. According to Glenn Cohen [12], until 2012, there was only one reported case in which the norm was enforced. Similar specific criminal legislation exists in Australia, Belgium, Canada, Cyprus, Denmark, Italy, New Zealand, Norway, Sweden, and the U.K [11, p. 389].

  8. Under a literal interpretation of the clause, the penalty applies irrespective of gender.

  9. Cosmetic surgery is another instance of the contractual or quasi-contractual nature of the private practice of medicine in the U.S. and elsewhere [13, pp. 69–70, 77–78]. As Rand E. Rosenblatt has argued, “the ideal of the trustworthy, independent physician delivering the best possible medical care for her or his individual patients still has powerful appeal” [14, p. 156].

  10. In Gonzales v. Carhart [15], the Supreme Court upheld the 2003 ban on the misnamed “partial-birth abortion.”.

  11. Persons suffering from Body Identity Integrity Disorder seek the amputation of one, or several, of their healthy limbs. For an account of the disease and the ethical discussion surrounding its treatment, see [18].

  12. Yet, the lack of an explicit legal permission and the statement made in 2007 by ACOG might raise the uncertainty and fear of eventual malpractice suits among gynecologists who are willing to take the patient.

  13. Hospitals might be considered “quasi-public facilities” according to some common law theories: “by virtue of the importance of their services, the funding they receive from public sources, their licensure, and their tendency to enjoy monopoly status in the community” [13, p. 83; 14, pp. 163–164]. See, in this vein, the New Jersey Supreme Court decision in Doe v. Bridgeton Hospital Association, Inc. [19], which affirms the right of physicians to use the facilities of a non-profit, non-religious hospital to perform first-trimester abortions in spite of the fact that the Board of Trustees had issued directives prohibiting physicians from doing so.

  14. See Hurley v. Eddingfield [20]. The case involved a family physician who refused, without giving any reason, to treat a patient (who ultimately died), even though the doctor was not attending to other patients and was informed that no other doctor was available to treat the patient. Another landmark case in which a similar doctrine was affirmed is Childs v. Weis [21]. In this case, a Texas practitioner refused to assist an African-American woman in labor, which led to the newborn dying soon after.

  15. In its Opinion 9.12, the AMA Code of Medical Ethics states, “physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, or any other basis that would constitute invidious discrimination” [22].

  16. The landmark case in the U.S. is In re Baby K [23].

  17. See Payton v. Weaver [24].

  18. For related cases of “fake diagnosis,” see [28].

  19. Principle 2 of the Principles of Medical Ethics issued by the General Assembly of the United Nations states: “It is a gross contravention of medical ethics… particularly [for] physicians to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment” [30].

  20. See, for example, the Declaration of the World Medical Association [31].

  21. In matters of deceit, the ethical guidelines for the medical profession typically address the question of deceit of patients by doctors.

  22. In this, I am following the entry of the Stanford Encyclopedia of Philosophy [34].

  23. In order to claim the existence of deceit, I am relying on the conception of virginity which is prevalent among the members of those communities in which women demand hymen restoration. The concept of virginity is, however, essentially contestable and has varied across history and different cultures. Bill Clinton famously claimed that he did not have sex with Monica Lewinsky, and for early Christians, virginity was mainly a “state of mind.” For an apt account of this conceptual debate, see [4, pp. 73–75].

  24. “The fact about himself that the bullshitter hides,” says Frankfurt, “is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it…. He does not care whether the things he says describe reality correctly” [37, pp. 55–56].

  25. There is a longstanding debate about whether intention affects the nature and value of an action. I remain largely agnostic on that discussion in this paper. I insist that my point is just that in order to morally condemn complicity, knowledge is crucial, and that I do not think that hymen restoration is wrong irrespective of the circumstances. Lending money constitutes a good or bad action depending on what I come to know about the use to which the loan will be put.

  26. At least in a very relevant (morphological) sense.

  27. As I said, it is certainly true that one may have used, or be using, surgical interventions, devices, or drugs to conceal one’s “true nature,” and this attitude may generate disappointment. This is the case, for example, when a person’s partner secretly uses Viagra or when an individual’s slender figure triggers attraction but it turns out that the individual was obese and underwent surgery. I may be somehow betrayed if I am prone to “natural giftedness.” Suppose, in the extreme, that one day, I discover that my wife’s Elizabeth Taylor-like blue eyes are actually color lenses. These and similar cases raise two questions that should be kept distinct. One is the various ways in which one may frustrate others’ expectations and be dishonest, and it is undoubtedly the case that medical treatment might be the means to dishonesty and fraud if, as I said, one is misattributing the cause of his or her sexual arousal, strength, or physical condition in general. A different issue is whether surgery is restorative or transformative (the latter of which I think is generally the case), and the value of what has been “naturally given”—which I think is frequently and erroneously overstated. In the case of hymenoplasty, the hymen is restored, but the loss of virginity—understood as not having had coital sex—is irreparable. I am very grateful to Arthur Laby, Linda Bosniak, and Cymie Payne for making me think more thoroughly about this point.

  28. See, for example, [42]. The case involved a woman who was very likely to develop cancer. Her insurance company challenged the provision of preventive surgery, arguing that the woman was not yet in need.

  29. See also [49].

  30. The tragic story of Dennis Avner (also known as the “Cat Man”) who underwent radical body modifications to achieve a feline look is a poignant example.

  31. “In fact, it is impossible for a surgeon to say categorically that this type of surgery should or should not be performed” [39, p. 831].

  32. For the details of the story, see [53, 54].

  33. In a previous study conducted by Essén and colleagues, 90 % of the interviewees answered that health care services should see and treat patients requesting hymen restoration [57, p. 42].

  34. See N. J. Stat. Ann. § 26:6A-5. For the context of the enactment and a discussion of the objection clause, see [58].

  35. This strategy has been recently labeled as “uniformist” by Peter Cumper [61, p. 33].

  36. In contrast, in Iran, as it has been reported by Azal Ahmadi, the legal status of hymenoplasty is more dubious. The public, and physicians at large, conceive it as illegal, but some clerics have stated that, from a religious point of view, is permissible [63].

  37. For more on the very difficult issues faced in places like Malaysia, in which parallel jurisdictions—civil and sharia Law—coexist, see Cumper [61, p. 44].

  38. Features such as generality, publicity, predictability, and congruence, among others, conform an “inner morality of law,” as Lon Fuller famously stated [68, p. 39].

  39. Paraphrasing Dworkin’s famous example of “checkerboard statutes” in the context of the discussion about abortion and the law’s integrity, we would not permit the government to address the fact of religious and cultural diversity by giving a bit of satisfaction to all the sensibilities at stake in allowing the provision of hymenosplaty for, say, women born in even years or flipping a coin to give equal chances to both sides [69, p. 178].

  40. Neutrality is, therefore, a proxy for equality, in the Dworkinian sense of treating everyone with equal concern and respect.

  41. See, for example, Cumper [61].

  42. The idea is very nicely captured by Lisa Stevenson in an exchange between a neurologist and an interfaith chaplain at a research hospital. The neurologist was telling the chaplain how much she was shocked by the discovery that some patients talked to spirits, and the chaplain responded that there was no need to be shocked: “I do it everyday—he said. It’s called prayer” [72, p. 94].

  43. On the one hand, cultural diversity may erode national solidarity with a pernicious effect on the collection of taxes. On the other hand, multicultural policies, as I said, are costly. It is noteworthy that among the costly policies considered by Kymlicka and Banting—education, bilingualism, the funding of minority groups, and other legal exemptions—health care is not included [71, p. 294].

  44. In 2008, a court in Lille, France, reached that very controversial decision [38].

  45. Sometimes the accusation of taking a belief or creed too seriously comes from believers themselves, who tend to relativize certain dogmas or official doctrine in order to make the belief more congenial with others’ beliefs. Although in a different context (an invitation extended to attend Passover), Simon Blackburn [75] provides a very nice discussion of what I am trying to convey. Yet, hypocrisy has a “civilizing effect” [76, p. 111] and is the homage that vice pays to virtue according to La Rochefoucauld.

  46. In a similar vein, Bernard Williams has emphasized the paradoxical, even contradictory, character of “tolerance” [77, pp. 128–129].

  47. The United States has not ratified the Convention.

  48. According to this practice, the apology offered to the father of a rape victim, even without her knowledge, can be considered sufficient redress for the crime.

  49. Gerald Cohen has argued that treating multicultural demands as “expensive tastes” is an elliptical way of asking the individual who belongs to a minority to “alienate from what is deep in her” [83, p. 7].

  50. From a libertarian perspective, the distribution of health care—including hymenoplasty—should be market-based in the same way in which services in general, like hair-cuts, for example, are provided. This approach was prominently defended by Robert Nozick [84, pp. 233–235]. The existence of clear asymmetries of information between “customer-patients” and “doctors-providers,” that providing health care is a public good (to a certain extent), and the commitment to correcting the unfairness produced by the natural lottery, are all reasons that justify the existence of a public health care system in which the criterion to allocate resources is need and not the willingness or capacity to pay. In any case, this is a debate that goes beyond my purposes at this point.

  51. A similar reasoning has been deployed by William Saletan [85]. Within the community of Muslim physicians and jurists, there is controversy over whether it is permissible to perform hymenoplasty in exceptional circumstances; see [86]. The truth of the matter is that for many women in Muslim countries, the only solution is to get hymen-reconstruction surgery abroad, in Tunisia, for example [38].

  52. See, for example, the classic piece by Elizabeth Anderson [88].

  53. Segall, however, recognizes that one may point to a difference between the types of reconstructive breast surgery that Daniels refers to in his example. It seems that complete removal of the breast is more traumatic or aggressive than self-perceived congenital deficiencies. “Thus, [argues Segall], given budgetary constraints in health policy as well as in other areas of policy, it is obvious that reconstructive surgery would have priority over cosmetic surgery” [87, p. 352]. There are other instances of non-elective conditions that are also highly influential in developing as a moral agent—gender or race, to mention the most obvious. In those cases, LE favors a radical change in social and institutional structures more than biomedical intervention [87, pp. 352–353].

  54. I assume that such a renouncement can at times be very costly.

  55. It should be pointed out that, as Addison notes [4, p. 72], this is not the interpretation given by the majority of the male members of the Muslim communities in which the expectation of virginity is deeply ingrained: tragically enough, some of the honor-crimes have been committed irrespective of the fact that the woman was raped.

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Acknowledgments

I was prompted to think about hymenoplasty when Dr. Sohaila Bastami referred to me a case in which she was involved while practicing medicine in Switzerland. The case was subsequently discussed at the Ethics Consortium organized by the Division of Medical Ethics (Harvard University) in 2012 and at the Faculty Colloquium at Rutgers Law School (Camden) where I presented a first draft of this paper on March 24, 2014. I am grateful to Christine Mitchell, Robert Truog, John Oberdiek, and Greg Lastowka for giving me the opportunity to discuss it and to the audiences of those events for their very valuable advice and feedback, as well as to Luara Ferracioli and Lydia Mayer for their comments on a preliminary version of the paper. Justin Corbalis provided invaluable proof-editing.

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  1. Department of Legal Philosophy, Law School, Universidad Autónoma de Madrid, Calle Kelsen s/n, 28049, Madrid, Spain

    Pablo de Lora

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de Lora, P. Is multiculturalism bad for health care? The case for re-virgination. Theor Med Bioeth 36, 141–166 (2015). https://doi.org/10.1007/s11017-015-9322-z

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