web analytics
September 16, 2014 / 21 Elul, 5774
At a Glance
InDepth
Sponsored Post
Apartment 758x530 Africa-Israel at the Israel Real Estate Exhibition in New York

Africa Israel Residences, part of the Africa Israel Investments Group led by international businessman Lev Leviev, will present 7 leading projects on the The Israel Real Estate Exhibition in New York on Sep 14-15, 2014.



Home » InDepth » Op-Eds »

In Defense of Parental Consent for ‘Metzitzah B’peh’

Not only does it not infringe on the religious liberties of mohelim, it actually protects the religious liberties of parent.
baby

Imagine the following commonplace scenario: The parents of a newborn Jewish boy are looking for a mohel to perform a bris on their son, but do not know any personally. They ask around and receive a recommendation from a friend. They call the mohel, who agrees to perform the circumcision. On the appointed day, the mohel appears, performs the circumcision, and the parents make a donation to a charity of the mohel’s choice in lieu of payment.

Now imagine this: A week later, the child begins to develop lesions (sores or blisters) at the site of the circumcision. An investigation reveals the mohel performed the procedure known as metzitzah b’peh (MBP), direct oral suction of the incision. This practice is the subject of intense halachic dispute. Some hold it is an essential requirement of Jewish circumcision; others, that it is permitted but not required; and still others, such as Rav Chaim Soloveitchik (the Brisker Rav) and his son Rav Moshe Soloveitchik, that it is forbidden because of the risk of disease transmission. The parents, however, like the fourth son at the Seder, did not know to ask, because they, like many Jewish parents, had never heard of MBP. The lesions spread. Soon after, in the worst case scenario, the child dies.

The question: Should the mohel have explained the MBP procedure and told the parents he would be performing it as part of the bris, giving them the opportunity to choose not to have it done, whether for halachic or medical reasons?

Last year, after receiving complaints from parents that MBP had been performed as part of their child’s bris without their knowledge and consent, and after confirming eleven 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, the city passed a parental consent regulation to ensure that parents are the ones making the informed decision about whether MBP is performed on their child.

Agudah and groups affiliated with segments of Chabad and Satmar, as well as some individual mohelim, brought a federal lawsuit to challenge the regulation. The regulation at issue does not, in any way, limit the permissibility of MBP. The law only requires that, prior to the circumcision, the parent or legal guardian has to give written informed consent, which must include notice that “direct oral suction exposes the infant to the risk of transmission of herpes simplex virus infection and other infectious diseases.”

In this way, not only does it not infringe on the religious liberties of mohelim, it actually protects the religious liberties of parents by ensuring that they make the decision whether MBP – a religious act – is performed on their child.

As a matter of constitutional law, medical ethics and common sense, it is the parents – the individuals ultimately responsible for their child’s well-being – who must make fully informed decisions regarding their child’s healthcare and religious upbringing. As the U.S. Supreme Court has recognized, a parent’s rights in the care, custody, and control of his or her children is “perhaps the oldest of the fundamental liberty interests.”

I’m the lawyer representing major national medical organizations in the case. My clients include the American Academy of Pediatrics, the Infectious Diseases Society of America, the Pediatric Infectious Diseases Society, and the Sexually Transmitted Diseases Society of America. My clients felt compelled to get involved in the case because they are gravely concerned about the public health and public policy implications if the challenged regulation is blocked.

In many ways, I’m an unlikely advocate for the defense of the metzitzah b’peh regulation. I’m a constitutional litigator and Orthodox Jew who is a lot more accustomed to suing New York City than defending it. I’ve been involved in cases against the mayor, the City Council, the Department of Buildings, the NYPD, the Taxi & Limousine Commission, and other city and state agencies and officers.

And I’m a lot more accustomed to bringing religious liberties cases than defending them. Among other cases, I’ve represented dozens of members of Congress at the U.S. Supreme Court in the Zivotofsky passport case and my shul in Teaneck in an ongoing religious liberties lawsuit against the local zoning board under the First Amendment.

About the Author: Akiva Shapiro is a litigator at Gibson, Dunn & Crutcher in New York, focusing on constitutional and appellate law.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

3 Responses to “In Defense of Parental Consent for ‘Metzitzah B’peh’”

  1. deliverabe says:

    Shame on the Jewish(?) Press for publishing such a distorted “opinion” piece.  Are you trying to emulate the N.Y. Times?

  2. Ted Stewart says:

    It's hypocritical to use religious tolerance as a justification for having a child to young to consent undergo surgery for religious reasons. Forcing a surgery on someone for religious reasons is not tolerance.

    Judaism is a very practical and grounded faith. Things like kosher foods were intended to standardize food handling practices and reduce incidence of disease. Circumcision was likely a good idea to improve hygiene in an unhygienic environment.

    The problem is that those traditions are now outdated. We understand trichinosis and can treat it, so pork is now safe. We have a better understanding of how to handle food, so kosher is no longer necessary. We have modern hygiene, so circumcision should no longer be practiced.

    Religious beliefs need to change as they come into conflict with our understanding of the world around us.

  3. Ron Low says:

    Medical ethics dictates that proxy (parental) consent for any irreversible intervention is valid only if waiting for the patient's own consent would lead to harm, and when less-destructive options are exhausted. Infant circumcision fails this test decidedly.

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
A scene from the opera "Death of Klinghoffer." Protests at Lincoln Center start Sept. 22, at 4:30.
Klinghoffer: Pretending Art Means Never Having to Say You’re Sorry
Latest Indepth Stories
Donny-Fuchs-medium

Originally scheduled to be held elsewhere, the hotel canceled, pressured by local missionary groups

syria_stratfo

It’s likely that some of the rebel factions, including US clients, have indeed made pacts with ISIS

Phyllis Chesler

Imam Tafsirli of the Harlem Islamic center: “You cannot be a Muslim without believing in Jesus”

Gas Pump

If simple fuel choice were implemented, the power of petroleum and those who sell it would cease.

Value of IS: It enables people to see the place to which all other Islamist fascism is headed.

“When Frank does something he does it well and you don’t have to worry about dotting the i’s or crossing the t’s.”

President Obama: “ISIL is not Islamic. No religion condones the killing of innocents”

he time of the Uman pilgrimage is upon us, and we dare not ignore the opportunity to highlight the danger.

Healing requires that the victim be validated for being harmed and the guilty assume responsibility.

During the war, not once was Hashem’s name mentioned to the nation by Israel’s PM or gov’t officials

How many illegal Arab structures are there in the city? Why are they not being destroyed?

We did not win the war in Gaza because we are still captive to the concept of the 2 state solution.

Trapped in a false notion of power, America will lose the battle in the same way Israel now loses.

It’s a cliché, but nonetheless true that 9/11 changed my life. There is evil in the world. Our grandparents were right.

More Articles from Akiva Shapiro
baby

Not only does it not infringe on the religious liberties of mohelim, it actually protects the religious liberties of parent.

Printed from: http://www.jewishpress.com/indepth/opinions/in-defense-of-parental-consent-for-metzitzah-bpeh/2013/10/16/

Scan this QR code to visit this page online: