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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.

Along with other arguments based on the legislative history of the regulation, Professor McConnell concludes: “ The regulation triggers strict scrutiny because it targets a particular practice, and only that practice.”

Strict scrutiny is a standard of judicial review for a challenged policy (in our case the anti-MBP advice form) in which the court presumes the policy to be invalid unless the government can prove that a solid scientific foundation justifies the policy. (Plaintiffs have argued that the regulation, in addition, violates the First Amendment by compelling mohelim to speech they disagree with; this important issue is beyond the scope of this article.)

What, then, is the scientific evidence that would justify – let alone meet the supreme standard of strict scrutiny for – the regulation in general and, more specifically, the mandated statement about MBP exposing “an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death”?

Mr. Shapiro repeats the words of the NYCDHMH “confirming 11 cases of herpes simplex virus (HSV) acquired by infants in New York City from MBP in recent years resulting in two deaths and two cases of permanent brain damage.” (“Recent years” refers to a period of 12 years.) Mr. Shapiro also states that “the evidence is incontrovertible that MBP increases the risk that an infant will acquire herpes simplex virus.”

The truth, though, is as mentioned – i.e., there is not a single case that has been confirmed as resulting from MBP. There has never been a single case of matching the DNA makeup of a herpes virus from a mohel to that of a baby with herpes. Although the NYCDHMH claimed to prove through a statistical analysis that there is a greater risk of neonatal herpes in boys with MBP than those without, expert statisticians, epidemiologists and mathematicians have reviewed the statistics and concluded, on the record in affidavits and publications, that there is no statistical proof whatsoever.

(In the interest of full disclosure, we have served as expert witnesses in the above litigation. However, we have never sought a penny’s worth of remuneration for our efforts. Furthermore, we belong to Modern Orthodox communities where MBP is rarely performed and have no ideological commitment to the issue.)

In December 2012, the prestigious University of Pennsylvania (U Penn)’s Center for Evidence-based Practice published as an “evidence review” its analysis of the data relating to the possibility of transmission of herpes through MBP. It includes all the literature presented by Mr. Shapiro and concludes that the “evidence base is significantly limited by a very small number of reported infections, most of which were not identified or documented systematically. Other important limitations include incomplete data about relevant elements of the cases, the presence of confounding factors, and indirect data sources.”

Commenting on the single study of the NYCDHMH, which claimed to find statistical evidence for an elevated risk among babies exposed to MBP,  the UPenn authors note that “this finding is limited by methodological challenges in determining the total population at risk, limited information about some of the cases, and the small number of infected infants.”

(UPenn has previously taken issue with our quoting this report and our characterization of its findings; however the above quotes are verbatim. The report is in the public domain and can be viewed at www.brisnyc.com.)

* * * * *

A position paper on MBP was published in June 2012 by the Interministerial Oversight Committee of Mohelim of the Israeli Chief Rabbinate and the Ministry of Health. It states that “according to those halachic authorities who hold that MBP is an essential part of the mitzvah of milah, there is no necessity to cease this procedure unless there will be clear-cut scientific evidence for endangering the baby by MBP in a statistically significant rate. This has yet to be proven.”

The principal author of this position paper is the widely respected Rabbi Prof. Avraham Steinberg, M.D., author of the Encyclopedia of Jewish Medical Ethics. He is also a senior pediatric neurologist at Shaarei Tzedek Medical Center and director of the Medical Ethics unit there, as well as the only individual to have received the Israel Prize twice.

The New York City Department of Health has, relentlessly, been going after MBP for the last nine years. In December 2005, Thomas Frieden, now the head of the CDC and then the commissioner of the NYCDHMH, sent an “open letter to the Jewish community” stating that “there is no reasonable doubt that the practice of MBP has infected several infants in New York City with the herpes virus, including one child who died and another who has evidence of brain damage.”

Up until April 2006, cases of neonatal herpes did not have to be reported to government authorities. The New York City Department of Health mandated at that time that it become a reportable disease. This means any case with any clinical suspicion of herpes must be thoroughly tested and when identified must be reported to the Department of Health. Many thought this would lead to the discovery of numerous cases of neonatal herpes among babies exposed to MBP, with terrible complications. However, rather than going up, the annual number of reported cases showed a modest decline during the strict surveillance period from April 2006 to the end of 2011.

At the end of 2010, the New York City Department of Health published interim findings in a medical journal, reporting that there had been 15 deaths related to neonatal herpes from April 2006 through December 2010. None of those children had MBP.

Mr. Shapiro suggests that the reported cases are “very likely only a subset of the far larger population of infants who acquire HSV and other infectious diseases through direct oral suction.” He claims that this is because “tragically, only a few jurisdictions in the world mandate reporting of neonatal HSV.”

The New York City experience demonstrates that this is false. In New York City from 2000-through April 2006, during which time there was no mandatory reporting, six cases were identified. Five cases, a lower annual rate, were identified from April 2006 through December 2011 when there was both mandatory reporting and an increased number (30,000) of brissim performed with MBP.

Mr. Shapiro claims that “cultural hurdles compound the problem of underreporting,” implying that there are many cases that are not reported. This is absurd. It is not up to the family to report the cases. It is up to the physicians, hospitals and laboratories, who would face very severe penalties for not reporting infections that require such reporting.

To justify the regulation, Mr. Shapiro speaks of parents who “never heard of MBP.” At this point, we do not know of anybody in the New York City Jewish community who has not heard of MBP. It has been given so much attention in the media. Moreover, the city has placed for distribution in New York City hospitals a brochure titled “Before the Bris,” in which the Health Department explains in detail what MBP is and “strongly advises that parents not have MBP performed during the bris.”

Mr. Shapiro also claims that the form “actually protects the religious liberties of parents by ensuring that they make the decision whether MBP – a religious act – is performed on their child.” Following this logic, there should be a government consent form for any bris milah, with or without MBP, which should state that the bris milah should not be performed because it can lead to complications such as bleeding and infection.

In fact, Rabbi Professor Steinberg in his above-mentioned position paper states that “the incidence of neonatal herpes after MBP is significantly lower than other infections related to circumcision, and certainly much lower than the other complications related to circumcision.”

There should also be a consent form for Shabbos and Chanukah candles, which on occasion have led to tragic fires, and for parents requiring their 12-year-old daughters and 13-year-old sons to refrain from eating  on fast days, in view of possible medical risks.

Furthermore, no children should be allowed to participate in any recreational activities (bicycling, skiing, swimming, football, baseball) that carry risk without a written consent form stating “The government recommends that these activities not be performed because they may cause death, paralysis, brain damage, and other injuries.”

In all these examples there is at least some justification for a consent form of the above type because a clear causal link exists between the activity and the stated consequences; in contrast no causal link has ever been established in the case of MBP.

Mr. Shapiro states that for “cultural reasons” there is often active resistance to testing and identification from both ritual circumcisers and parents, even after a child has acquired HSV. But he is well aware that in 2006 there was a protocol agreed to between the New York State Health Department and the Jewish community that would have directed such testing. This was approved by gedolei Yisrael in the United States and Israel, including the late Rav Elyashiv, Rav Yosef and Rav Lefkowitz as well as Rav Kanievsky and Rav Steinman, to mention but a few. It was also signed by chassidic leaders in the United States.

It was New York City that never agreed to the protocol, which would have allowed for testing. One year after adopting the protocol, New York State also withdrew. The Jewish communities that practice MBP are eager to have testing done in an unbiased manner. They are just waiting for New York City to agree to it.

* * * * *

In closing, we return to Professor Mc Connell’s statement: “The regulation was, the city concedes, specifically targeted at Orthodox Jews and specifically at the religious ritual of MBP.” Indeed, during the above-mentioned surveillance period, 79 unrelated cases of neonatal herpes were identified, along with the five boys who had been exposed to MBP. At least publicly, the city never attempted to identify the causes behind those 79 cases, let alone to prevent similar occurrences.

As noted by Mr. Shapiro, this is not the first time in the 3,500 years during which MBP has been practiced that this part of bris milah or the entire circumcision procedure itself has been attacked. (The Council of the European Union recently recommended that circumcision be banned altogether.) In the eighties, for example, many who were convinced that MBP results in increased risk for HIV infections pressured major poskim like Rav Moshe Feinstein to suspend the practice. Rav Feinstein refused, finding the evidence entirely lacking. As with the current debate regarding herpes, the arguments were confined to theoretical plausibility. We now know that HIV has never been transmitted through MBP.

May the Jewish community continue its millennia-long commitment to the commandment of bris milah, without any unwarranted government interference. As we read this past Shabbat, that commandment was first given to Avraham Avinu and characterizes our nation in an unparalleled way.

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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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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