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March 28, 2015 / 8 Nisan, 5775
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Metzitza B’Peh: Infant Russian Roulette

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The most recent issue of Ami Magazine called on readers to oppose New York City’s proposed law requiring informed parental consent before performing Metzitza B’Peh.

Just when I thought there was nothing more to say on the issue of Metzitza B’Peh (MbP), the cover story in Ami Magazine compels me to comment.

The ultimate analogy to MbP is the following. Take a gun that has a 1 million bullet capacity. Place one bullet in one of the chambers leaving the rest empty. Take that gun, point it at the head of your 8 day old infant and pull the trigger.

Is there a sane person in the world that would do that? I think the answer is obvious.You would have to be literally insane to do such a thing even though the odds of killing the baby are statistically insignificant. Why would anyone do such a foolish thing? There is a loaded gun and a chance that the bullet will end up in your child’s head!

And yet that is precisely the argument being made by those who oppose the proposed New York City law requiring informed consent by parents before allowing a Mohel to do Metzitza B’Peh. The argument is that the percentage of infants found to have been infected by herpes due to MbP is statistically so insignificant that requiring parents be informed about the danger is an unwarranted governmental interference in the practice of Judaism.

The logic of this argument truly escapes me. I wonder how they would answer the question I posed? Would they tell you that you should point a loaded gun to your child and pull the trigger? Even if the chances are 1 in a million that the bullet will not be fired? I think I know what their answer would be.

Another argument they make is that there is no absolute incontrovertible evidence connecting the herpes contracted by the infant to the Mohel. This is true. Furthermore they say that in any case the Mohel washes his mouth out with an antiseptic mouthwash like Listerine.

The problem with these arguments is that they lack any common sense. Is there any question that it is possible that a Mohel with an active herpes virus (unbeknownst to him) can transmit it to a child via oral contact with an open wound? Even people with the most rudimentary knowledge of medical science know that it is possible.The fact that there is no conclusive proof that this was the case in the cases cited above doesn’t mean that it didn’t happen. The circumstantial evidence that they did pass it on to the infant was very persuasive to the CDC. Furthermore washing a mouth out with a strong mouthwash like Listerine has no effect on viruses. Antiseptics only work on bacteria.

My friends, performing MbP is playing Russian roulette with your child’s life! Are you willing to pull that trigger?

And yet there is a religious argument to be made in favor of it. This is what is really at stake here. Chasidim are adamant that MbP is an absolute religious requirement! If I understand correctly – they view a Bris done without MbP to be invalid! Leaving out the fact that that is certainly not the universal view in Judaism – including the view of many Gedolim of the past and present, let us grant them their right to believe that. They therefore argue that this is a church-state issue.

The problem with this argument is that the constitutional right to freedom of religion is not absolute. When there is a compelling interest of society that contradicts a religious ritual, the government has a right to interfere. To put this point in stark relief I will use an extreme example. If there was a religion that required human sacrifice, the government would certainly be within its rights to legislate against it. While MbP is nowhere near human sacrifice, the principle is the same. Where to draw the line of “compelling interest” is beyond my pay-scale and I will leave it to constitutional scholars to sort out.

That said, I would be opposed to the government legislating against doing MbP. That it is considered so vital by so large a segment of Jewry combined by the low probability of a child ever contracting herpes moves me to oppose it. In this case I do feel that banning the procedure would be an unconstitutional impediment to freedom of religion.

But that is not the law being proposed. The law being proposed is a requirement for parents to be informed of the dangers. That means that not a single parent would be denied the opportunity for their child to be circumcised with the accompanying MbP. The only difference would be that parents would know that there are risks attached – small though they may be.

One of the most upsetting things in the Ami article is their characterizing this law as an “anti circumcision” law. I have to protest that characterization. No one in the United States has ever suggested that the government ban circumcision itself except for some on the fringes of society. Not only that, but the American Academy of Pediatrics who has been studying this issue long term has just concluded that the health benefits of circumcision outweigh the possible risks. Having been neutral in the past – they now advocate it. It is therefore ridiculous – and insulting to the intelligence – to say that this is all about banning Bris Milah.

One of the more incredible arguments I read in that Ami article is the assertion that the Mohalim are the experts here and not the CDC whose studies and reports on herpes infected infants are behind the proposed NY legislation. Yes, Mohalim are experts in the procedure. But they are ignoramuses about Herpes and how it infects a newborn. Calling them experts on this issue is a shocking assertion to my mind.

What about the slippery slope argument? … if you start legislating MbP – actual Bris Mila will be next? That’s like saying cars will be banned if we start legislating safe driving laws.

And finally asking people to sign an informed consent form before MbP is performed is no different than asking a heart patient to sign an informed consent form before open heart surgery. Signing an informed consent form does not equate to interfering in either MbP or surgery.

This is important legislation. There are circumcisions being performed multiple times every day in this country. Most of them are done in the city of New York. Until recently I would be willing to bet that the vast majority of parents about to have their son circumcised had never heard of MbP. The way most people chose a Mohel is by reputation. They had no clue about the actual procedure – certainly not the MbP aspect of it. They just assume that the Mohel they hired will do a great job based on his reputation and experience. In the vast majority of those cases that is what happens.

Although MbP has been in the news over the last few years, I’d be willing to bet that a lot of people still don’t what it is or what the risks are. This legislation will enable them to make an informed decision about it. There is nothing wrong with that. My guess is that the phenomenon of “moving to the right” will result in most parents still opting for MbP.

I believe that at least some of the motivation behind this opposition is not the fear that Chasidim or other Charedim will opt out of MbP. They are afraid that informed consent in other segments of Jewry will make them to decide to opt out of it. And therefore out of what they believe to be an essential part of a Bris. And that ultimately parents will be frightened out of what was a centuries old part of Bris Milah.

My answer to them is that it is not their job to decide what is Halachicly permissible for Jews outside of their own community. It is far more important for people to know the truth.

Visit the author’s blog, Emes Ve-Emunah.

About the Author: Harry Maryles runs the blog "Emes Ve-Emunah" which focuses on current events and issues that effect the Jewish world in general and Orthodoxy in particular. It discuses Hashkafa and news events of the day - from a Centrist perspctive and a philosphy of Torah U'Mada. He can be reached at hmaryles@yahoo.com.


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