The controversy lies in whether the Metzitza (withdrawal of the blood from the circumcision wound) requires oral suction… or if some other means may be used such as gauze or a pipette.
The Gemarah requires Metzitza for health reasons and considers it mandatory. It does not however tell us how to do it. Metzitza has been done for centuries by oral suction. But in the last couple of centuries when bacteria were discovered and infections were found to be caused by bacteria, some of the greatest Poskim of the 19th and 20th century Paskined that one need not perform Metzitza orally in order to fulfill the Metzitza requirement.
But not everyone accepted that Psak and many today (mostly in the Chasidic world) believe that the only way to do Metzitza is B’Peh -- by direct contact with the mouth. Long story short after a few babies died as a result of a herpes infection, the city of New York now requires informed consent from all parents before a Mohel does MbP.
This requirement is being challenged by Agudah and other interested parties as a violation of the separation clause of the first amendment. I have always maintained that Agudah and company are wrong to protest it. No rights are being violated in requiring consent.
I am of the firm belief that MbP is not a requirement… that only Metzitza is and that other more sterile means should be used to accomplish it. But I respect the rights of others to believe that MbP is mandatory and that the constitution does protect that religious right. So I am opposed to legislation that would forbid it. What about the danger to health it poses? Well, while it exits, the chances of it happening are minimal.
Nonetheless this procedure is problematic, There appears to be evidence that babies that died from herpes contracted it from a Mohel that was infected. Although there may not be direct causal proof, the CDC has determined that there is nevertheless strong evidence that this is indeed the case. It should be noted that herpes is often asymptomatic in its early stages. So no one accuses a Mohel of knowingly performing MbP while infected. As a precaution a Mohel will rinse his mouth with antiseptics or alcohol. But that does not remove the herpes virus.
Agudah disputes the claim that those babies died because of MbP by a Mohel who had herpes. They say that there is no conclusive proof and cite other experts in the field that dispute the CDC.
The CDC is not an anti Semitic organization. If they were, I would be skeptical too. I would be right there with Agudah protesting evidence used by an anti-Semitic organization to tamper with an ancient religious custom. The CDC’s motives are altruistic. Their mandate is to protect the public from disease.
That said, I do not believe there is any dispute about the rarity of a baby contracting a fatal disease from an infected Mohel. How rare is however a matter of dispute. But certainly the vast majority of circumcisions over the millennia that included MbP were without incident. However I still find it ultimately beneficial for parents to be informed before the procedure is used and giving them the option to refuse MbP if they so choose.
Why would the Agudah fight such a requirement? They claim that it puts an unnecessary stigma on a centuries old procedure that was never questioned until very recently – a procedure that certain segments of Orthodox Jewry insist is a mandatory part of the circumcision. And they also claim this is a slippery slope towards outlawing circumcision altogether.
Here is the problem. MbP is the procedure used by a Charedi Mohel. Most parents are not even aware that it is done. A Mohel never discusses that detail with them. They are hired by reputation. Often by parents who would not necessarly opt for MbP if they were educated about it – both religiously and as a matter of health.
That’s what ought to change. People have a right to know the dangers of a procedure – even if the chances of those dangers happening are slight. Once a parent is informed of the Halachic opinions about MbP; the possible dangers; and the chances of it happening, they can make an intelligent decision. A parent may very well still choose to use a Mohel who does MbP because of experience and reputation. But he ought to be making it from knowledge and not from ignorance.
There are some good people who are defending this position and actually fighting for this right against Agudah. One such individual is an Orthodox Jewish attorney by the name of Akiva Shapiro. He has written an excellent article in the Jewish Press defending what he does and why he does it. Here is an excerpt:
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 glad to see that there are Orthodox Jews on this side of the issue. I think he’s got it exactly right. But I also know that Agudah et al is very concerned about it - perhaps seeing this as an attack on circumcision itself. I of course disagree with that. As does Mr. Shapiro. Makes me kind of wonder how they view Mr. Shapiro in all of this.