Photo Credit: Serge Attal/Flash90
Brit Milah/Circumcision

To start, none of the experts the city relied upon were able to scientifically link any specific case of herpes to metzitzah b’peh . The expert affidavits that they submitted said only that it is “biologically plausible” that the virus can be transmitted through metzitzah b’peh , which, they assert, increases the risk of transmission.

Even more damaging is that the rule targets only the few infections that arise after circumcision, even though the vast majority of newborn herpes infections are linked to other factors.


As the court put it, the regulation “pertains to religious conduct associated with a small percentage of (herpes) infection cases among infants, while leaving secular conduct associated with a larger percentage of such infections unaddressed.”

By focusing solely on a small subset of babies’ herpes cases while ignoring all others, the city invites skepticism about whether it was truly driven by a desire to improve health — or just wanted to regulate religion.

I have to disagree with him… and with the federal court’s decision. While I respect the right of any Jew in this country to practice their religion the way they see fit including doing MbP, I do not concede the right to do so without informing parents of a potential risk to their baby’s health. That it hasn’t yet been conclusively established that earlier deaths from herpes infections were the direct result of MbP by a Mohel who had an active herpes virus – does not mean it didn’t. Especially when circumstantial evidence suggests that it did.

Furthermore, I trust that the New York City Health Department has no ax to grind with Judaism and is only interested in preventing unnecessary disease and death. Even if it is rare – as it seems to be – if even one baby can be spared because of this rule, it is worth it.

No one is denying the procedure itself. MbP remains legal. That’s probably because the board of health realizes that deaths from herpes transmission form a Mohel is rare. But parents have a right to be informed of the potential dangers as well as to know that there are many Poskim that rule MbP is not a Halachic requirement. That Metzitza can be Halachicly done in more sterile ways. Once so informed, they can choose wisely. If they choose to still do MbP on their child, that is a calculated risk they should be allowed to take.

I have no love of government regulation on issues that touch upon our beliefs and practices. Ordinarily I am completely opposed to them. I would prefer if we would self regulate on this issue. If for example Agudah would issue the warning themselves and list the pros and cons of MbP – along with the various opinions about whether MbP is a requirement or not – I would prefer that.

But there is little to no chance of them doing so. Possible infections from MbP will never be mentioned. They probably feel that incidences of a baby getting herpes as a result of an infected Mohel is so rare that it is not even worth mentioning. They will also point to the fact that MbP has been practiced for centuries without issue. And they will argue that there has as of yet there has been no conclusive link between a Mohel with herpes transmitting via MbP to a baby who died of it.

They will also argue that MbP is less dangerous than Mila itself – so that using the ‘health argument’ should argue for a similar warning about Mila!

That may be true. But one cannot argue with a commandment by the Divine. Every male Jew is required to have a Bris. And from a health standpoint, current thinking by the medical community is that the health benefits of circumcision outweigh the risks.


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Harry Maryles runs the blog "Emes Ve-Emunah" which focuses on current events and issues that effect the Jewish world in general and Orthodoxy in particular. It discuses Hashkafa and news events of the day - from a Centrist perspctive and a philosphy of Torah U'Mada. He can be reached at [email protected].