"The ultra-Orthodox argue that any regulation of this practice impinges on their religious freedom. In this they are correct. But religious freedom is not automatically a winning argument. It must be balanced against other state interests, among which the protection of children is paramount. As the U.S. Supreme Court said in in 1943 (Prince v. Massachusetts), 'neither the rights of religion nor the rights of parenthood are beyond limitation . . . The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death . . .' [NYC Mayor Michael] Bloomberg should begin the process of making this procedure illegal."
Ritual Circumcision: Ban Metzitzah b’peh
Dena S. Davis, J.D., Ph.D. • Hastings Center Bioethics Forum
Male newborn circumcision has been much in the news of late. In Germany, the procedure was criminalized in the Cologne Regional Court, and on August 21 the first mohel (Jewish traditional practitioner) was charged with the offense. In Denmark, the prime minister initiated an investigation into whether the procedure violates the health code. A Swedish law requires that a medical doctor or anesthesia nurse accompany registered circumcisers, and that the procedure include analgesia.
In a number of countries, medical associations are equivocal about the practice, but in the U.S., the American Academy of Pediatrics (AAP) recently gave modest approval to the procedure, as reported here, while reaffirming the importance of each family making its own decision, based on “the health benefits and risks in light of their own religious, cultural, and personal preferences . . .”
The AAP used relatively strong language to recommend against the practice of metzitzah b’peh, in which a mohel completes the procedure by taking the newly circumcised penis into his mouth, and orally suctioning out blood. The mohel repeatedly takes wine in his mouth and applies his lips to the wound, after which he spits the mixture of blood and wine into a receptacle. This was originally done to care for the wound. The Babylonian Talmud declares that, for the sake of the infant, the mohel must perform this act, “so as not to bring on risk.”
However, if the mohel has herpes simplex virus (HSV-1), as do over half the adults in the U.S., the newborn is at risk of contracting the disease. According to the New York City Department of Health and Mental Hygiene, 11 infants in the state have contracted the virus in this manner since 2004; two suffered permanent brain damage and two died. Two New Jersey babies have also died from this practice. The department also received “multiple complaints” from parents who were not aware that direct oral suction was going to be part of their baby’s circumcision. The department has produced a brochure for hospitals to give to Jewish parents, Before the Bris, warning against the practice, and telling parents that the use of a sterile pipette appears to be safe.
Most mohels, even among the Orthodox, do use a sterile pipette, avoiding direct oral-genital contact. In 2005, the Rabbinical Council of America, the main union of modern Orthodox rabbis, issued a statement urging the abandonment of direct suction. Rabbi Moshe Tendler, a medical ethicist and dean of Yeshiva University’s (Orthodox) rabbinical school, was quoted in The Jewish Daily Forward as saying: “There is no requirement to make metzitzah b’peh. The Talmud says plainly it is not part of the ritual but belongs to the medical, post-surgical component. There is no doubt that insistence on metzitzah b’peh is wrong. I firmly believe that making metzitzah b’peh is a criminal act.”
According to the New York Times, metzitzah b’peh “remains commonplace” among the more than 250,000 ultra-Orthodox Jews in the New York area. The CDC estimates that 3,600 newborn boys a year in New York have circumcisions that include the procedure, which puts them at more than triple the normal risk of contracting HSV-1. Agudath Israel, an organization representing ultra-Orthodox Jews, has reacted with intransigence, claiming that the state health departments cannot prove that the babies were infected by mohels without a DNA comparison of the virus. The organization argues that, given the large number of babies who undergo the procedure, the small number who contract the virus proves the procedure’s safety.
New York Mayor Michael Bloomberg has handled this issue with kid gloves, trying to work with the ultra-Orthodox community but refraining from directly confronting them by pursuing legal remedies. Sporadic attempts at investigation, e.g. by the Brooklyn district attorney, have sputtered to a halt, frustrated by lack of community cooperation. According to The Jewish Week, the mother of the baby who died last year has refused to cooperate with an investigation and has stated that should she give birth to another son, she would use the same mohel.
On June 6, the New York State Department of Health issued a statement “strongly advising” against direct oral-genital suction. On September 13, the department will vote on whether to implement a plan to require signed parental consent before the procedure is undertaken. The consent would “provide information about the risks involved, including possible infection with herpes simplex virus and its potentially serious consequences, such as brain damage and death. Knowing the risks posed by direct oral suction, a parent or legal guardian can then make an informed choice about whether it should be performed as part of the circumcision.”
It is not clear how the affected community will react. Some rabbis have noted that signing the form does not impinge on the religious ritual; others have promised civil disobedience, regarding a required consent form as the beginning of a slippery slope toward criminalization of all religious circumcision. The New York Post reported that some 200 rabbis have signed a statement alleging that the health department “printed and spread lies . . . in order to justify their evil decree. It is clear to us that there is not even an iota of blame or danger in this ancient and holy custom.” Shamefully, some local politicians have been expressing support for the intransigent position.
From both a legal and ethical perspective, informed consent is the wrong path to take here. First, parents can give permission, but not consent. As a competent adult I can consent to all sorts of dangerous and “unreasonable” activities. As a parent, however, my permission derives from the presumption that I have my children’s welfare at heart and am likely to know what is best for them. If oral suction puts infants at unreasonable risk of death, it ought explicitly to be made illegal (in fact, one could argue that it already is illegal and could be prosecuted as negligent homicide or child endangerment).
Further, calling this proposed document “informed consent,” gives a medical cast to a procedure that is anything but. In fact, ritual circumcision occupies a very strange place in American law and life, and is difficult to define. It is a religious ritual that includes a common secular medical procedure, is often performed by mohels who are also physicians, is minor surgery performed in the home, can legally be performed by anybody, and has absolutely no regulation (this in a state that regulates who may shampoo a person’s hair).
If one then adds metzitzah b’peh, one has the spectacle of a man taking into his mouth the genitals of a baby, with no legal consequence. This is extraordinary deference to the religious practice of one set of Americans. Contrast this with the federal law prohibiting a tiny nick on the genitals of a female minor, even when performed by a physician in sterile conditions (in the absence of a medical reason), and which specifically bars giving any weight to religious motivation.
The ultra-Orthodox argue that any regulation of this practice impinges on their religious freedom. In this they are correct. But religious freedom is not automatically a winning argument. It must be balanced against other state interests, among which the protection of children is paramount. As the U.S. Supreme Court said in in 1943 (Prince v. Massachusetts), “neither the rights of religion nor the rights of parenthood are beyond limitation . . . The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death . . .” Bloomberg should begin the process of making this procedure illegal.
Dena S. Davis is Presidential Chair in Health – Humanities/Social Sciences and Professor of Religion Studies at Lehigh University, and Adjunct Professor of Bioethics at Case Western Reserve University. She is the author of Genetic Dilemmas: Reproductive Technology, Parental Choices, and Children’s Futures, 2nd edition (2010) and co-editor with Laurie Zoloth of Notes from a Narrow Ridge: Religious Studies and Bioethics (1999).