Legislation should allow for courts to order compulsory physical examinations of individuals found at risk of undergoing FGM. Education and guidelines regarding these examinations should be provided to health professionals so they can be effective tools of protection as opposed to discriminatory tactics. Drafters should allow the girl or her guardian a choice of doctors from a selection that have undergone the required education and training on the practice of FGM, its consequences, and the treatment of women or girls who have already undergone the practice.
CASE STUDY: Approaches to Question of Medical Examination
Mandating compulsory medical examinations of individuals at risk for FGM can be problematic and controversial. Such examinations can be seen as an invasion of privacy and an infringement upon parental rights. In addition, such a practice can seem discriminatory in practice. For example in the Netherlands, a special Commission found that the state did not have the authority to order that victims of a crime have their freedom impinged upon, deciding that public health was not at issue. The Commission found that compulsory exams of African girls would not be feasible, and would be discriminatory and repressive. They concluded that the focus should be on increased training of professionals who are likely to come into contact with FGM-practicing communities. (See Leye-Sabbe Expert paper p. 9)
In spite of these potential problems, however, legislation should still allow medical examination as a possible tool for courts to use in circumstances where the risk of FGM is found. To prevent compulsory medical examinations from being ordered in an arbitrary or discriminatory fashion, the standard of proof required before such an order can be issued should be carefully developed and consistently implemented. (See: The FGM Legislation Implemented: Experiences from Sweden) Training should be provided to doctors and personnel who perform examinations and examinations should be used as an opportunity to educate individuals and families regarding the health risks and legal consequences of performing FGM.
In South Australia, a court that suspects a child is at risk of undergoing FGM may make an order for the protection for the child. The order may include the periodic physical examination of the child at risk.
Protection of children at risk of genital mutilation
26B. (1) If the Court is satisfied that there are reasonable grounds to suspect that a child may be at risk of female genital mutilation, the Court may make orders for the protection of the child.
Examples — The Court might for example make an order—
(a) preventing a person from taking the child from the State; or
(b) requiring that the child’s passport be held by the Court for a period specified in the order or until further order; or
(c) providing for the periodic examination of the child to ensure that the child is not subjected to female genital mutilation. (Emphasis added).
The European Parliament has recommended that women and girls who are granted asylum because of the threat of FGM should, as a preventative measure, have regular health check-ups to protect them from any threat of FGM being carried out subsequently in the EU.
The European Parliament, …
4. Insists that women and girls who are granted asylum in the EU because of the threat of FGM should as a preventive measure have regular check-ups by health authorities and/or doctors, to protect them from any threat of FGM being carried out subsequently in the EU; considers that this measure would be in no way discriminatory against these women and girls, but a way to ensure that FGM is banned in the EU;
5. Calls for this overall strategy to be accompanied by educational programmes and the organisation of national and international awareness raising campaigns; …
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