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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.
I sit on the Board of Governors of the American Association of Jewish Lawyers and Jurists, went to high school and post-high school yeshivas, learned in kollel in Israel for two years after I was married, and send my children to yeshiva schools. So I am very sympathetic to religious liberties concerns.
But the MBP case is one in which the regulation at issue is not only entirely reasonable but in fact necessary to protect the religious (as well as constitutional) rights of parents to make informed choices about their child’s religious upbringing and medical care, and to protect the public health.
My clients filed a submission to the federal district court, which the lower court relied on in an extremely thorough 100-plus page opinion that examined each medical and legal issue in detail in denying the plaintiffs’ request for an injunction blocking the regulation. The court held that any right the mohel has with respect to the religious ritual is “inherently circumscribed by parents’ right to decide whether [it] is performed on their child.”
The plaintiffs have appealed that decision, and we filed a friend of the court brief to the federal court of appeals in support of the lower court’s conclusions.
In addition to the parental rights issues, the lower court found that the “letters and amicus submission from major national medical organizations . . . give us confidence that there is ‘overwhelming scientific evidence demonstrating the increased likelihood that newborns subject to direct oral suction will acquire HSV.’ ”
Simply put, and notwithstanding plaintiffs’ arguments to the contrary, the evidence is incontrovertible that infectious diseases have been transmitted through direct oral suction on numerous occasions, and that MBP increases the risk that an infant will acquire herpes simplex virus.
The evidence includes the investigations of the eleven cases of post-MBP herpes simplex virus in New York City between 2004 and 2011 noted above, two new cases of HSV following direct oral suction in New York City in the past year, and numerous peer-reviewed studies of cases outside of New York City.
For example, a study in the peer-reviewed journal Pediatrics reporting on eight such cases concluded that the connection between oral contact and HSV is strongly suggested by the “exclusive genital distribution of the lesions, timing of their appearance . . ., and absence of clinical signs and symptoms consistent with HSV infections among family members” as well as the fact that of the ritual circumcisers who agreed to be tested, all tested seropositive for disease, meaning the mohelim had been infected with HSV. Five of eight infected babies in the study experienced severe complications from HSV, including seizures and brain damage.
Two hundred years of historical data further support the straightforward proposition that direct oral suction increases the risk of transmission of HSV and other infectious diseases. Much of the historical literature is collected in a lengthy article by Dr. Shlomo Sprecher, a physician with an interest in medical history and halacha that appeared in the journal Hakirah. These include a fatal syphilis epidemic among infants in Krakow, Poland, in the early 1800s and a “spate of fatalities among the newly circumcised infants” observed by the physician in chief of the Jewish Hospital in Vienna in 1837. The doctor consulted the city’s chief rabbi, Rabbi Elazar Horowitz, and “requested authorization to substitute manually applied pressure [with gauze] . . . to accomplish the drawing out of blood instead of utilizing MBP.” This request likely arose because the Talmud requires only “metzitzah” (drawing of blood) and not “metzitzah b’peh” (drawing of blood by mouth).
After Rabbi Horowitz received approval from the Chasam Sofer (Rabbi Moses Sofer), one of the leading authorities of the day, this change was instituted in Vienna, and there were no further fatalities. The historical record includes many other examples.
Moreover, the reported cases, while independently significant, are very likely only a subset of the far larger population of infants who acquire HSV and other infectious diseases through direct oral suction. Tragically, only a few jurisdictions in the world mandate reporting of neonatal HSV.
Indeed, I was told by a pediatrician in New Jersey of a case of post-MBP herpes she was involved with that resulted in the death of the infant, but because New Jersey is not a mandatory reporting jurisdiction, this case and likely many others do not appear in the literature. Neonatal HSV also sometimes presents asymptomatically (without visible symptoms), and its symptoms are often misdiagnosed as sepsis.
Neonatal HSV is also underreported for cultural reasons – namely, the sensitivity of certain communities to publicity regarding the dangers of MBP. There is often active resistance to testing and identification from both ritual circumcisers and parents, even after a child has acquired HSV. These cultural hurdles compound the problem of underreporting.
In sum, there is overwhelming scientific data – and an overwhelming consensus in the medical community, including the leading medical organizations I represent – demonstrating that direct oral suction exposes infants to an increased risk of disease transmission, with sometimes fatal consequences.
Finally, the MBP regulation is consistent with many other statutes in New York that impact religion-related activities for the sake of protecting the public health, such as kosher labeling, or require licensure or written consent before individuals engage in First Amendment activity, such as marriage.
The regulation ensures that parents are aware of MBP’s well-documented risks and that they are the ones making the informed decision as to whether the procedure will be performed on their child, consistent with their halachic and religious beliefs, constitutional rights, and medical-ethical obligations as parents.
About the Author: Akiva Shapiro is a litigator at Gibson, Dunn & Crutcher in New York, focusing on constitutional and appellate law.
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