Yisroel Pensack: New York City Board of Health Vote Scheduled Today on Requiring Informed Consent for Direct Oral-Genital Suction During Infant Circumcision

The New York Times reports:

…part of the circumcision ritual, known in Hebrew as metzitzah b’peh [direct oral-genital suction], … is still commonplace in parts of the ultra-Orthodox Jewish community but is rare in other branches of Judaism.

The city estimates that metzitzah b’peh is used in some 3,600 local circumcisions each year. The city’s health department says that, between 2000 and 2011, 11 babies contracted herpes as a result, and 2 of them died. This spring, the Centers for Disease Control and Prevention declared that the procedure created a risk for transmission of herpes and other pathogens and was “not safe.”

…on Thursday, the city’s Board of Health is scheduled to vote on a proposal that would require parents to sign a consent form indicating that they are aware of the risk of herpes transmission when a circumcision procedure, or bris, includes direct oral contact.

The measure, which Mayor Michael R. Bloomberg strongly supports, would probably be the first governmental regulation of the ritual in the United States, rabbis say. It would not affect the way most Jewish ritual circumcisions are performed — gauze or a sterile pipette is used to pull blood from the wound — nor would it ban the practice. But the issue being raised in New York coincides with moves in Denmark, Germany and other countries toward restricting or banning infant circumcision.

…city health officials say…safeguards [such as the Jewish ritual circumciser] rinsing with Listerine before the procedure, sterilizing tools, scrubbing hands with surgical soap and being tested annually for pathogens, are insufficient.

The main virus that worries the city is oral herpes, which is present in some 70 percent of the city’s adult population and can cause fatal infections in babies. Highly contagious, it is spread through contact with infected saliva, even by sharing drinks or towels.

“There is no safe way to perform oral suction on an open wound in a newborn,” said Dr. Jay K. Varma, the city’s deputy commissioner for disease control. If the measure passes, he said, circumcisers who do not comply could face warning letters or fines.

Ultra-Orthodox leaders plan to sue the city if the regulation is passed, arguing that the measure would constitute an unconstitutional infringement on their religious freedom. Some 200 ultra-Orthodox rabbis published a decree in late August warning adherents that it was forbidden “to participate in the evil plans of the New York City health department,” according to a translation by Yeshiva World News. And a Jewish religious court in Crown Heights, Brooklyn, went further, stating that oral suction was a mandatory part of the procedure that should be promoted.

“There is nothing to worry from metzitzah b’peh,” the judges wrote, according to a translation by the Chabad Lubavitch movement. “To the contrary, it is very beneficial, even according to the doctors.”

But other Jewish leaders disagree.

Rabbi Gerald C. Skolnik, the president of the Rabbinical Assembly, the international association of conservative rabbis, said he supported the Board of Health’s move to require parental consent. He said that direct suction was not required by Jewish law and that the serious risks of the practice were “inconsistent with the Jewish tradition’s pre-eminent concern with human life and health.”

In 2005, the Rabbinical Council of America, the main union of modern Orthodox rabbis, urged that a sterile glass tube be used for suction, rather than the mohel’s mouth. But the group opposes the city’s effort to regulate the practice; instead it has asked the city to work with Orthodox groups “to voluntarily develop procedures to effectively prevent the unintended spread of infection.”

According to a city Health Department notice from June (linked in the current Times article above) which had announced a scheduled July 23 public hearing on this issue, “The purpose of the proposed amendment [to the city Health Code] is to require informed consent from a parent or legal guardian when direct oral suction will be performed during his or her son’s circumcision. A written informed consent will be required, which would provide information about the risks involved, including possible infection with herpes simplex virus and its potentially serious consequences, such as brain damage and death. Knowing the risks posed by direct oral suction, a parent or legal guardian can then make an informed choice about whether it should be performed as part of the circumcision.

“The proposed amendment will require practitioners of oral suction during circumcision to retain copies of informed consent forms for at least one year and to make them available to the Department upon request,” the city’s June announcement said.

The legal language proposed at the time said, “A person may not perform a circumcision that involves direct oral suction on a child under one year of age without obtaining, prior to circumcision, the written informed consent of a parent or legal guardian of the child who is being circumcised in a form approved or provided by the Department.”

UPDATE:  The Times reports:

The New York City Board of Health passed a regulation on Thursday that will require consent from parents before an infant can have a form of Jewish ritual circumcision, prevalent in parts of the ultra-Orthodox community, in which the circumciser uses his mouth to remove blood from the incision.

In a morning meeting, the nine-member panel of doctors and public health professionals said that though the regulation had been challenged by some Orthodox Jewish religious authorities as an unconstitutional infringement of their religious freedom, the risk of disease from the ancient procedure was serious enough to warrant action.

…the city will now require ritual circumcisers to inform parents in writing if they will use direct oral contact during the circumcision, and must receive their written consent. The consent form states that the health department advises against the procedure because of the possibility of herpes transmission, which may cause brain damage or death. The mohelim must keep that permission document for one year.

Failure to comply may result in warning letters or fines to the mohelim. Enforcement, though, will be based on investigation of specific complaints and herpes cases, not spot checks or raids, and there are no mandatory punishments, said Dr. Jay K. Varma, the city’s deputy commissioner for disease control.

Orthodox groups, including Agudath Israel of America and the Central Rabbinical Congress, have announced that they plan to sue the city to block the regulation, which is scheduled to go into effect 30 days from official publication of the rule.

“We are convinced that this amendment will be thrown out by the courts,” said Rabbi David Niederman, a Satmar Hasidic leader.

The city believes about 3,600 male infants are circumcised with direct oral suction each year and estimates their risk of contracting herpes at roughly 1 in 4,000. The Centers for Disease Control and Prevention has called the procedure unsafe and recommended against it.

But among doctors that work with ultra-Orthodox families, there is some doubt whether regulation is the right course.

“They feel that if their child doesn’t have the metzitzah b’peh, he is not Jewish, so this, to them, is the most important act that they can do for their son in life,” said Dr. Kenneth I. Glassberg, the director of the division of pediatric urology at Morgan Stanley Children’s Hospital at NewYork-Presbyterian.

“Medically, I don’t approve of it,” he added of the oral contact, “but if you’re asking me, ‘Does it cause harm?’, I haven’t seen enough proof that it causes harm.”

About Yisroel Pensack

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