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Consent Forms For Metzitzah B’Peh – Empowering Parents Or Interfering In Religious Practice?

The term metzitzah b’peh (MBP) conjures up distasteful images to many. That plus the heightened sensitivity to inappropriate touching of children, as well as the legal issues surrounding circumcision in Europe, make MBP perfect for playing on people’s fears. Science and changes to religious practices cannot, however, be based on fear alone.

In a recent Jewish Press op-ed article (“In Defense of Parental Consent for Metzizah B’Peh,” Oct. 18), the reader was asked to “imagine” (emphasis ours) what the author described as a “commonplace scenario” where parents who are ignorant about MBP have a child die as a result of this procedure.

Such an episode is just that – one of wild imagination, manipulatively appealing to fear rather than reason. As we will substantiate, there is not a single case of neonatal herpes that has been confirmed as occurring from MBP.

However, there is one tragic story that is real. In September 2011, as communicated directly to us by the parents, a four-day-old baby was visited by his three-year-old sibling who had active herpes lesions on his lip. The sibling spent one-and-a-half hours in intimate contact with the newborn baby, even sharing a pacifier. (We possess medical records that indicate the brother had active herpes before and after the newborn’s birth.) At the time, the parents had no idea that it is extremely dangerous to expose a baby to anyone with an active herpes lesion. Their baby died of neonatal herpes several days after the exposure.

The danger of such exposure is well documented. Gutierrez et al. write in Infectious Diseases of the Fetus and Newborn Infant (Elsevier, 2011, chapter 26): “Relatives and hospital personnel with oral labial herpes may be a reservoir of virus for infection of the newborn,” referencing DNA matching as part of the evidence.

There are multiple other references in the medical literature regarding infection of newborns with herpes from family members and other contacts.

* * * * *

On September 12, 2012, the New York City Board of Health  passed  two regulations: the first barred the sale of sweetened  drinks,  16 ounces and over; the second addressed neonatal herpes. But instead of educating the general population about the risks of exposing a baby to anyone with an active herpes lesion, the new regulation attacked MBP. More specifically, it made it illegal for a mohel to perform MBP as part of the circumcision procedure unless he obtains a signed form from the parents.

The form includes a city-mandated narrative describing the procedure as involving major risks for the infant:  “I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene (NYCDHMH) advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.”

The legality of both resolutions is currently being challenged in New York’s  Court of Appeals and  the U.S. Court of Appeals for the Second Circuit, respectively.

What is wrong with a form ensuring parental consent for a procedure performed on their baby? That was the question asked by the author of the Oct. 18 Jewish Press op-ed, Akiva Shapiro. Mr. Shapiro is an attorney who has been retained by several amici organizations in support of the NYCDHMH, the defendant in the appellate case.

The simple answer is offered in an amicus brief submitted in opposition to the regulation by the Becket Fund for Religious Liberty, one of whose authors, Michael Mc Connell, professor at Stanford University’s Law School and director of its Constitutional Law Center, is a former federal appellate judge who is universally recognized as one of the nation’s foremost experts in the area of religious freedom:

“The regulation was, the city concedes, specifically targeted at Orthodox Jews and specifically at the religious ritual of MBP. The regulation stands alone; it is not part of a broader or more general effort to protect infants from consensual practices that carry similar risks or even greater risks of disease. Moreover, the regulation was put forward in a context of hostility toward Orthodox Jews.”

* * * * *

Everyone agrees that the government has the right, indeed the responsibility, to monitor practices that  represent a risk to public health. However, the Constitution mandates, under specific conditions, that when burdening religious exercise, any government regulation must withstand strict scrutiny of the medical and scientific evidence on which the intervention is based.

About the Author: Dr. Daniel Berman is an infectious disease specialist at Albert Einstein Hospital and Montefiore Medical Center; Professor Brenda Breuer is director of epidemiologic research, Department of Pain Medicine and Palliative Care, Beth Israel Medical Center; Professor Awi Federgruen is Charles E. Exley professor of management at Columbia University’s Graduate School of Business.


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More Articles from Dr. Daniel Berman and Prof. Brenda Breuer and Prof. Awi Federgruen

In a recent Jewish Press op-ed article (“In Defense of Parental Consent for Metzizah B’Peh,” Oct. 18), the reader was asked to “imagine” (emphasis ours) what the author described as a “commonplace scenario” where parents who are ignorant about MBP have a child die as a result of this procedure.

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