Special to the JTA Court Orders Hospital to Permit Ritual Circumcision

A Manhattan hospital, which had refused the Orthodox father of a new-born son his request for a ritual circumcision by a mohel in the hospital, permitted the rite to be performed in response to a court mandate described as the first time a court has ever ordered any American hospital to permit that rite.

The problem for the Orthodox father developed when his wife gave birth to the boy by Caesarean section on July 3 in Lenox Hill Hospital. Because of complications following the delivery, the couple was told that the mother would be required to remain in the hospital beyond the eighth day of the infant’s life when, according to Jewish Law, the rite must be performed.

The problem became religiously critical for the Brooklyn parents when hospital officials, citing a hospital rule banning performance of medical procedures by anyone other than a staff doctor or one affiliated with the hospital, said a ritual circumciser (mohel) could not perform the rite in the hospital. The infant could not be taken out of the hospital for the rite because a state law forbids the return of an infant to a hospital nursery once the infant is removed from the hospital.

The father, who requested anonymity, is an attorney who is a member of the National Jewish Commission on Law and Public Affairs (COLPA). When it became apparent, from the hospital’s negative reaction, that court action might be needed, the father met with Dennis Rapps, COLPA executive director, and State Assemblyman Sheldon Silver (D.Manhattan), who is also a COLPA member, Rapps told the Jewish Telegraphic Agency.

PREPARATIONS FOR SHOW CAUSE ORDER

The father called Silver and Rapps Tuesday evening, July 8, reporting he expected to have by 11 a.m. the next day — the seventh day of his son’s life — a definitive statement from hospital officials as required by the legal proceedings. When the father informed the two COLPA members at noon Wednesday that the hospital of officials remained adamantly opposed, the COLPA attorneys immediately began preparation of an order to the hospital to show cause why it should not permit a mohel to perform the rite in the hospital, plus a supporting petition.

Rapps explained that the papers had to be filed to require hospital officials to appear in court to justify their refusal. Because of the time factor, Rapps said, he knew that he and Silver would have to submit their legal documents promptly to Special Term Part 11 of the State Supreme Court in Manhattan, the customary court for initiating such actions.

Seeking the name of the justice who would be presiding in Special Term Part 11 on Thursday–the eighth day–they learned it would be Acting State Supreme Court Justice Herman Cahn. They also learned Cahn had been assigned to sit in small claims court that Wednesday evening.

The COLPA attorneys met with Cahn that evening and described their problem. Cahn directed that the Lenox Hill Hospital be notified immediately that he would hear the father’s petition the next morning. He also ordered Silver and Rapps to appear in the clerk’s office of the court on the next day–Thursday–at 9:30 a. m. to file their papers, which was done.

An hour later, Silver and Rapps and the attorneys for the hospital presented their positions to Cahn. He ruled that the hospital must admit the mohel, basing that ruling on a provision of the New York State Public Health Law which requires protection of both the civil and religious rights of patients Rapps noted that only four New York City hospitals have such bans on ritual circumcisers. For the other hospitals, a list is maintained of ritual circumcisers who are medically qualified.

REQUEST FOR STAY DENIED

Cahn issued his order at 2:30 p.m. the same day. The hospital attorneys immediately sought a stay of Cahn’s order, which would have made the issue academic, or, in legal language, moot, since a stay would have meant that the ritual circumcision could not have been performed in the hospital that day–the eighth.

The appeals court, after hearing arguments from 5 p.m. to 6:15 p.m., denied a stay. The hospital attorneys then called the hospital to inform hospital officials that the operation by a mohel would have to be permitted under court order. The rite was performed at 7 p.m. that evening of the eighth day by a mohel with whom the father had made prior arrangements.

Rapps, asked what would have happened if the hospital request for a stay had been granted, said that arrangements had been made for the father to take the child out of the hospital to have the rite performed at a nearby synagogue, those arrangements also having been made in advance.