At a bris, proud parents, friends and relatives gather around to see the reenactment of the covenant Abraham made with Hashem, a permanent mark in the male child’s flesh performed eight days after birth along with the naming.
Yet one part of the ritual, metzitzah b’peh (direct oral suction of the blood from the wound), a requirement based in the Zohar and mystical Jewish tradition, which most rabbis adjudged mohelim to abandon more than a hundred years ago as a ritual that could spread disease, has seen a resurgence in recent years. Satmar, Bobov, Lubavitch and other Hasidic groups despite their acknowledgement, according to court papers, that the ritual could spread disease to the children insist the bris is not kosher without the touching of lips to the wound.
Studies done by Dr. Anna Wald, who assists in drafting guidelines on the management of HSV (Herpes) infection for the Centers for Disease Control and Prevention, “characterizes the evidence linking direct oral suction with neonatal infection as ‘strong, consistent, and more than biologically plausible.’”
The American Academy of Pediatrics, the Infectious Diseases Society of America, the Pediatric Infectious Diseases Society and the American Sexually Transmitted Diseases Association have stated “it is incontrovertible that infectious diseased can be and have been transmitted through MBP (metzitzah b’peh). And that direct oral suction increased the risk that a neonate will acquire herpes simplex virus …and other communicable diseases.”
A study published in Morbidity and Mortality Weekly, identified 11 confirmed cases of neonatal herpes infection in infants born in NYC between 2000 and 2011 with two dead and two left with brain damage. Two more in New York died recently and another two infant boys admitted to a hospital close to Lakewood, NJ died in the last four years. It could have been more as until 2006 neonatal herpes was not a reportable disease in New York State and it’s still not reportable in New Jersey.
According to the New York City Department of Health and Mental Hygiene more than half of adults have oral HSV-1 infection (herpes) which may cause cold sores in the mouth though most people with the infection do not present symptoms or know they are infected. Those infected with the disease can spread the virus to others even when they are asymptomatic.
However newborn babies are at risk for severe infection if they are exposed to the virus because their immune systems are still not mature enough to fight off infection.
With direct oral suctioning, the mohel places his mouth and lips directly on the baby’s circumcision wound to draw blood away from the cut, the HSV-1 infection spreads through saliva. This is especially true when the saliva touches a cut or a break in the skin. If the mohel has HSV-1 infection, he may not know it and he may transmit the virus to the baby.
Many mohelim who practice and indeed, insist on performing metzitzah b’peh, acknowledge the risk of the spread of infection because they do take precautions to prevent it such as rinsing their mouths with alcohol-containing mouthwash (which only impedes further growth of viruses but does not kill them) and taking antiviral medications but there is no proof that these tactics reduce the risk of the infection spreading.
In an appearance before the United States Court of Appeals for the Second Circuit on August 15, three mohelim, Rabbi Samuel Blum; Rabbi Aharon Leiman; and Rabbi Shloime Ecichenstein, along with three ultra orthodox associations, won a small battle in their war not to abide by a New York City Department of Health and Mental Hygiene regulation they claimed is a violation of their First Amendment right to freedom of religion.
The regulation, Section, 181.21 of the NYC Health code, prohibits a person from performing oral suction during a circumcision unless that person obtains signed consent from a parent or guardian of the infant being circumcised. This consent form must be of a type provided by the Department or prescribed by the Department and it must be labeled, “Consent to perform oral suction during circumcision” and contain the following statement: “I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.” The person conducting the circumcision must give the parent or guardian a copy of the signed consent form and retain the original for one year.
The mohelim bringing the lawsuit, along with the other plaintiffs, The Central Rabbinical Congress of the United States and Canada; Agudath Israel of America, International Bris Association, lost their first court battle on January 10, 2013 in US District Court for the Southern District of New York but won their appeal in part because the regulation was specifically directed at a religious practice, one only known to take place as part of the bris milah, exclusively as ritually practiced by a subset of Orthodox Jews.
The plaintiffs (rabbis) also stated that there was no DNA proof that any mohel had passed the disease to any child (even though three children who contracted Herpes underwent a bris by the same mohel who tested positive for Herpes. The DNA from the virus the children had and that the mohel had did not match.)
The regulation was neither neutral nor generally applicable, two requirements of such regulations, because they did not apply to non-religious conduct during a circumcision that could result in transmission of disease.
The Court of Appeals vacated the judgment of the District Court but sent it back to it “for further proceedings,” with stricter scrutiny under the Free Exercise Clause of the First Amendment, however it denied the plaintiff’s (the rabbis) request for a temporary stay on the enforcement of the NYC regulation.
In response to the decision, Professor Marci A. Hamilton, the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, writes on Justia.com, “This is all a distraction from what truly matters: the protection of children…. A line must be drawn to prevent adults, even religious believers, from causing a child’s death and/or permanent disability. This practice easily crosses that line. There does not even need to be a regulation specific to the practice. The neglect laws are neutral, generally applicable laws that apply to all parents who medically neglect their children.”
Of the four modern orthodox rabbis interviewed for this article all said they have always advised against direct oral suction and suggested the use of a glass tube or a glass tube attached to a rubber bulb be used to suction blood in a way that does not include contact between the mohel’s mouth and the baby’s cut. Another method they advise is to use a sponge or sterile gauze bad to suction the blood.
Rabbi Menachem Genack, CEO of the Orthodox Union Kosher Division said of metzitzah b’peh “I did not use it for my children or my grandchildren. There are alternate methods in terms of using a tube and so on and that’s what I personally use or recommend.” He said that Chaim (Halevi) Soloveitchik, known as Reb Chaim Brisker (1853 to 1918), a rabbi and Talmudic scholar, recommended against Metzitzah b’peh.
Rabbi Schmuel Goldin, of Congregation Ahavath Torah in Englwaood and former president of the Rabbinical Council of America (RCA) said “the position of most Orthodox rabbis is that we allow and in fact encourage the use of a tube so there is no direct contact between the mohel and the child and we consider that to be Halachically valid and that is what the mohelim that we use generally do.” He said that the studies don’t appear to be conclusive but if more evidence develops then “we should act accordingly.”
Rabbi Mark Dratch, Executive Vice President of the RCA said most of the members of the RCA insist on using a pipette and not to have direct oral contact with the wound. “This is something that has been practiced for generations and supported by Halachic authorities. Where we’re concerned about the tradition, we’re concerned about the health and welfare of our children.” Rabbi Dratch said there have been more efforts into fighting the NYC Health Department than fighting the potential threat to children.
JLBC asked about the practice of “Pikuach Nefesh” that anything and everything should be done to prevent endangering a life except commit incest, idolatry and murder, wouldn’t efforts to get legislation passed preventing this practice as it can endanger the life of the child or to have a brief issued to the courts on the present court case.
Rabbi Dratch said, “We don’t feel that our differences in interpretation of Jewish practices and Jewish law should be held in civil courts. The whole institution of suction of the blood was instituted in the Torah and Talmud for reasons of safety and health. It was believed that it was necessary to suction the blood to prevent the baby from getting sick. According to the Talmud if the procedure is not done the mohel cannot continue as a circumciser.” He said the Haraddi and other ultra-orthodox groups have not made a connection between this practice and the contraction of Herpes. “We disagree with that and I think if there’s even a small chance of this happening then it’s not necessary because there are other ways to satisfy the ritual requirements. We continue to urge them that if they don’t want government regulation on this then they have to find ways to insure that the children are safe.”
He said that though it is stated in the Zohar that there be direct oral contact, the RCA says “it’s not necessary as long as there is some kind of other suction or the use of a gauze pad to suction the blood. If the concern is only the suction of the blood and we can afford to have a more liberal interpretation. If you insist on using other sources that it needs to be direct oral suction, then you’re in a bind.” He said rabbis have debated this since the discovery that there are microscopic organisms and that they can cause disease.
Rabbi Asher Lopatin, President of Yeshivat Chovevei Torah Rabbinical School in Riverdale, NY also referenced the teachings of Rabbi Chaim Soloveichik saying he strongly felt that using gauze is a halachic means of performing metzitzah b’peh.
“The great rabbis prohibited the direct oral suction because of syphilis. In Europe the rabbis definitely prohibited it because of the transmittal of diseases because the mohel had gotten the syphilis from someone. It’s an old issue that was solved in some quarters a hundred years ago and now it’s resurfaced. It’s not a question of should we do metzitzah b’peh or not do metzitzah b’peh but do it in a medically responsible way.”
He said that in Czarist Russia, where the practice was forbidden a way was found (such as the use of gauze) to get around it. But in America, where there is empowerment, “we get away with all this stuff, not following the proper halacha wherever there is a risk of life, that takes priority. It’s American that we ignore halacha and just flex our political muscles and our political muscles are we want to do it our way.”
By Anne Phyllis Pinzow
