|Mohel and MbP advocate, Rabbi Romi Cohen|
I understand the right wing argument against this requirement. But I still strongly disagree with them. To briefly restate the issue, the sages delineated the procedure for a Halachic circumcision (Bris Mila). The final step - Metziza (withdrawal of the blood) - is listed as the mandatory health requirement part of this procedure. Chazal required it in the belief that it was dangerous to the health of the child to leave that blood on the open circumcision wound. Although the Talmud never tells us how to do it, Metzitza has always been done B’Peh - by oral suction.
Over a century ago, when some babies died as a result of doing MbP, there were major Poskim who said it could be done in other, more sterile ways. There are Poskim today that say the same thing. On the other hand there are Poskim that disagree and say that MbP is an absolute requirement and that Metzitza must be done orally.
A few years ago there were some babies that died shortly after their Bris - having contracted the herpes virus. It was determined that the Mohel had a live herpes virus but at the time it was asymptomatic. The New York City Health Department concluded that the herpes virus was contracted by the baby via the direct oral suction of the circumcision wound by the Mohel. Long story short - as a result of that conclusion they issued a requirement that parents give their informed consent in writing if they wanted the Mohel to use MbP.
Then all hell broke loose. Those communities (mostly Chasidic) that believe that MbP is a Halachic requirement felt that the government was encroaching on their religious rights. They took legal action and were joined by Agudath Israel in filing a federal lawsuit claiming a violation of the separation clause of the first amendment. Furthermore fueling the debate is the fact that many non Chasidic Yeshiva type communities prefer MbP - considering it more Mehudar (an enhancment of the basic Halachic requirement).
The right wing has also characterized this as an attack on Bris Mila itself – seeing this intrusion into our religious practices a slippery slope towards a ban on Mila itself.
The New York board of health on the other hand saw this as a health issue. In a nod to the first amendment they did not ban MbP since a baby contracting herpes from an infected Mohel is a rare occurrence. But they do consider it dangerous enough to require a warning. This is why they require informed consent in writing by the parents of a child about to be circumcised by a Mohel using MbP.
This all made sense to me. But in an surprising decision, a federal court issued a sharp criticism of this rule as specifically targeting a religious community… and thus violating the constitutional amendment separating church from state.
Avi Shick has written an op-ed in the New York Daily News supporting that decision – asking New York Mayor, Bill de Blasio to rescind the requirement for informed consent. Avi is basically saying that the government should keep its nose out of our business. What about the health issue? He calls their argument about that weak. Among other things he says the following:
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.
The bottom line for me is that knowledge is power. Parents need to know the risks and they need to know the Halacha of any medical procedure done on their child. I don’t really see any other way to approach it. If we will not inform ourselves, then the government needs to do it for us.