web analytics
July 31, 2015 / 15 Av, 5775
At a Glance
InDepth
Sponsored Post


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.

Current Top Story
Matt Lee of the Associated Press at the State Department press briefing.
ObameDeal Exposed: It’s not ‘Secret’ from Congress but not in Writing
Latest Indepth Stories
Silhouette of "hilltop settler."

“Yesha” and Binyamin Regional Council leaders said the attack “is not the path of Jews in Judea and Samaria.”

Schwartz-073115

The occasion? The rarely performed mitzvah of pidyon peter chamor: Redemption of a firstborn donkey.

Rabbi YY Rubinstein

American leftists have a pathological self-inflicted blindness to the dangers of political Islam

Tobin-073115

Hillary should THANK Trump; By dominating the news he’s overshadowed the implosion of her campaign

Hard to remember when Jewish youth were so hostile to their heritage as they are on campuses today.

Names of the enablers of Iran’s Nuclear weapons will be added next to Hitler’s on the list of infamy

By most accounts, the one person with the political muscle to swing enough Democratic votes to override a veto is Sen. Schumer.

The next day, in a speech in New York to the Council on Foreign Relations, Mr. Kerry substantially upped the ante.

In Israel, the judiciary has established itself as superior to ALL other branches of the government.

The Fifteenth Day of the month of Av became a day of national rejoicing. The moment that had seemed hopeless became the moment of Redemption.

I think the melodies in our religious services have a haunting sound to them that just permeates your guts and gets into your soul. If you have any musical inclination, I think they inspire you to compose.

Cavalier analogies to the Holocaust are unacceptable, but Huckabee’s analogy was very appropriate.

Pollard was a Jewish-head-on-a-pike for all American Jews to see and to learn the explicit lesson.

If the Iran deal passes, Obama’s WH becomes world’s leading financier of terrorism against Americans

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: