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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