Thursday, January 01, 2015

Informed Consent - Not a Ban

I’ve have many times expressed my opposition here to the procedure known as Metzitza B’Peh (MbP). This involves direct oral suction of blood from the circumcision wound. I am opposed because it unnecessarily endangers the child when a Mohel has the herpes virus in the early stages and is not yet symptomatic. They are then not yet aware of it and can transfer it by mouth to the child via the open wound. A child infected at that age can cause brain damage and even death.  The fact that it is relatively rare, does not help the parent whose child happened to be the one infected.

There are some opinions that say that MbP is a Halachicly required portion of the the Bris. That is based on the Gemarah that requires Metzitza (withdrawal of the blood) as a health benefit to the child since leaving the blood would endanger his life. In ancient times before the discovery of bacteria and viruses, the best and most effective method of removing the blood from the circumcision wound was to use the mouth to suck it out of the wound. That procedure was used for centuries… and is still used today, even thought the Gemarah does not mention how Metzitza should be done. In any case, even if it is required, it is clearly in the category of Sakana (danger to the baby’s health) and not an integral part of the actual Bris, So that even if one were to omit Metzitza entirely and be in serious violation of Halacha, the Bris itself would be valid.

Today we know about viruses. And many great Poskim of the past and present (some of whom were known as Machmirim  and very strict in other areas of Halacha like Rabbi Moshe Sofer – better known as the Chasam Sofer) allowed  Metzitza to be done in more sterile ways. Either by use of gauze to draw out the blood, or the use of a sterile pipette that most Poskim feel still qualifies as MbP. This way there would be no danger of a Mohel ever transmitting the virus to the child.

There are some Poskim (for reasons I do not fully understand) that say that not only is Metzitza part of the actual Bris, but that MbP is part of it. Accordingly (if I understand correctly) without MbP the Bris would not be valid.

What about the danger? They will say that there has not yet been any conclusive proof that any Mohel ever transferred a Herpes virus to children infected by it shortly after their Bris. They will also say will say that anyone that had any contact with the child could have transferred the virus unknowingly – including the mother. Besides they will also point to the rarity that it happens at all, and the fact that MbP has been used exclusively for hundreds of years without incident… and that even now is used by most Mohelim. They believe that attempts to outlaw it or limit it in any way is a denial of their right to practice their religion as they see fit.

While it is true that the constitution guarantees the right of all citizens to practice their religion as they see fit, it does not allow people to practice rituals that are considered harmful.  Which the medical community considers MbP to be. So why haven’t they outlawed it? My guess is that it is because they also understand the rarity... and probably did not want to get involved in a church state issue. So they came up with a compromise, which I support. They require written parental consent for MbP to be performed after they are made aware of the dangers.

The Chasidic world went apoplectic at this requirement. And they got support from organizations like Agudah. They are trying to challenge the constitutionality of that requirement saying it is an unnecessary interference by the government into religious practice and violates the separation clause of the first amendment. They agree with the argument that there is no conclusive proof that any Mohel ever transferred a herpes virus to a child because of MbP and that all the evidence that any Mohel ever did - is circumstantial.

I never understood that claim personally. Just because the evidence in specific cases is not conclusive, does not mean the danger doesn’t exist. Nor does it mean that parents should not be made aware of it and make an informed choice. In my view there is no constitutional issue at all here since there is no impediment whatsoever to doing MbP. Anyone who chooses to do so (after they are informed) can do so without the slightest problem. No law will be broken.

Those who are nevertheless opposed claim that it still interferes with their religious rights since the warning paints the dangers in alarmist terms - much greater by far than they actually are. But even if that’s true, it is still not an impediment. So I am in favor of this law. Knowledge is power. Let the parent decide what procedure he wants for his child after he is fully informed. I’m sure that in virtually at every Chasidic Bris MbP will still be used.

I bring all of this up because there has been another case where a child has become infected with the Herpes virus after his Bris. Which of course stirred up the controversy again. For me, that yet another baby contracted the Herpes virus after his Bris is the best argument to keep this law in place. But for some they want to go further and outlaw MbP entirely.

This is what Reform Rabbi Eric Yaffie has called for in a Ha’aretz op-ed. Here is what he said:
New York Mayor Bill de Blasio needs to be more concerned about the death of Jewish children and less concerned about the clout of ultra-Orthodox rabbis who have done nothing to prevent those deaths. His administration needs to do whatever is necessary to outlaw metzitzah b’peh (MBP), the controversial circumcision ritual according to which themohel, the ritual circumciser, cleans the wound by sucking the blood from the circumcised penis with his mouth.
Mayor de Blasio is on record ( 2013 as a candidate for mayor) supporting the right to perform MbP and perhaps even doing away with the requirement for informed consent.  Which in my view is a big mistake. That said, I am opposed to banning it completely. I do not agree at all with Rabbi Yaffie.  Outlawing a religious practice that has a very low risk of harm and has been used by virtually all Jews across many centuries might very well be a violation of the constitution.

In my view, people who believe that MbP is integral to a Bris should be allowed to practice it – provided they are informed of the dangers. MbP is widely used even among non Chasidim.

Outlawing MbP comes perilously close to outlawing Bris itself. Because the same argument might be made there. There are children that have died after being circumcised. In fact Halacha clearly states that if 2 children in one family die after they have been circumcised, it is forbidden to circumcise the 3rd.

If the possibility of death guides you even when the probabilities are low, then the government might want to consider outlawing Bris altogether. There are plenty of opponents lobbying to outlaw circumcision in spite of the fact that both the American Academy of Pediatrics and the Center for Disease Control and Prevention (CDC) recommend it for health reasons – saying that the benefits outweigh the risks. I am therefore adamantly opposed to outlawing MbP. The slope is too slippery.

Although I am personally opposed to it and believe it is foolish to do from both a health and Halachic perspective, let’s keep MbP legal, with a requirement of informed consent. And then - Caveat Emptor.