With Metzizah B’Peh, Is ‘Informed Consent’ Proposal Enough?


While haredi spokesmen are remaining mum about a new New York City health department proposal to require informed consent from parents whose newborn sons will undergo direct oral suction as part of the bris ritual, the plan is drawing criticism from some outside the religious community.

“The proposed policy is a contractual maneuver to shift liability for endangering the infant from the mohel to the parents,” said Marci Hamilton, a leading church-state scholar and professor at the Cardozo School of Law.

“Mayor [Michael] Bloomberg appears to be more concerned about sugary drinks than he is about an infant contracting herpes, which is potentially fatal,” Hamilton told The Jewish Week, adding that “oral suction should be banned regardless of politics and religious identity.”

Health department officials see the issue differently, however.

In an interview with The Jewish Week, Dr. Jay Varma, the health department’s deputy commissioner for disease control, said that an inability to monitor circumcisions on an ongoing basis would likely make a ban ineffective.

Varma added that “we also don’t feel that if we went and passed some type of ban we would likely be able to influence the mohelim in this community to change their practices. We just simply don't believe that, given the political and religious circumstances in which this is occurring, [a ban] would really make any impact on the procedure.”

Instead, Varma said, “our goal with all of this is to protect the health of infants in New York City … by informing the parents or guardians of these infants of the hazards to their health and trying to get them to make the best possible decision.” According to Varma, the document will also “have specific language about the risks of infectious diseases, including herpes, from performing direct oral suction.”

A spokesman for the haredi umbrella organization Agudath Israel declined to comment on the proposed rule, and a call and e-mail to Rabbi David Niederman, the executive director and president of the United Jewish Organizations of Williamsburg, Inc. (UJO), were not returned.

As recently as March, Rabbi Niederman told The Jewish Week that “we are convinced that there is no connection” between neonatal herpes and metzitzah b’peh and that “we will continue to make metzitzah b’peh.”

Rabbi Avi Shafran, the spokesman for the Agudah, told The Jewish Week at the time that, while he does “not claim any scientific assessment of infection risk from metzitzah b’peh … I do believe that if there were indeed anything approaching a ‘substantial risk’ … we would be hearing, at least anecdotally, of high infant mortality in certain areas of Brooklyn, which we do not.”

The new proposal comes on the heels of the release by the city’s health department of a strongly worded statement asserting that there is “no safe way to perform [direct] oral suction on any open wound in a newborn” and advising against the practice. A number of city hospitals — including Maimonides Medical Center in Brooklyn, where several of these infections have been treated—have agreed to distribute a brochure describing the risks of MbP to the parents of newborn sons.

These statements coincided with the release of a Center for Disease Control report that describes 11 cases of MbP-related herpes infections — including two deaths and one case of brain damage — in New York City between 2000 and 2011 (The report does not include two 2009 cases in Rockland County confirmed by the Jewish Week and two recent cases in New Jersey reported by the Forward.) From this data, the CDC estimates a relative (though not absolute) risk of herpes to those undergoing MbP as being 3.4 times greater than that among male infants unlikely to have had MbP. (Depending on how a statewide analysis might change the ratio of infections to total MbP procedures performed, the relative risk might be different than suggested by this report).

The CDC report also notes that one family whose child was infected chose to use the same mohel on another son three years later, who also became infected. Further, according to the report, in the case of an infant who died this past September, “the parents would not directly answer questions about whether direct orogenital suction occurred.” However, The Jewish Week obtained recordings of conversations involving family members of the deceased infant that indicated that MbP was in fact a part of the bris ceremony and that the mother planned to use the same mohel again if she were to have another son.

Since the death of an infant in 2004 from herpes contracted from a mohel who practiced MbP, the ritual has been a source of conflict between city health officials and the politically powerful ultra-Orthodox community, some segments of which believe that MbP is integral to the bris. While the practice has never been outlawed by the city, in 2007 the New York State health department banned one mohel, Yitzchok Fischer, from engaging in it (The Jewish Week obtained information indicating that Fischer may have violated the ban).

The 11-member Board of Health is now accepting public comments on this proposed rule, until July 13 and a public hearing will be held on July 23, at 10 a.m. The Board of Health will vote whether to adopt this rule during its next meeting on Sept. 13, 2012. Public comments may be submitted in writing or orally and can also be submitted online at: http://www.nyc.gov/html/nycrules/downloads/rules/P-DOHMH-06-12-12-e.pdf