New York Fails To Enforce Consent Forms for Metzitzah B'Peh Circumcision Rite

2 More Infants Contract Herpes But No Sign of City Action

getty images

By Paul Berger

Published February 05, 2014.
  • Print
  • Share Share
  • Multi Page

It has been more than a year since New York City introduced a regulation requiring mohels to obtain written consent before performing a controversial rite that risks infecting infants with neonatal herpes.

The regulation put Mayor Michael Bloomberg at loggerheads with the ultra-Orthodox community. And it promises to be a headache for his successor, Bill de Blasio, who has said that he would maintain the consent form requirement.

Since the regulation was introduced, the city’s health department has warned of two cases in which infant boys contracted herpes following metzitzah b’peh, a rite in which the mohel places his lips directly on the circumcision wound to suck away blood. The most recent case was at the end of January.

Yet the city health department will not say whether it has ever enforced its own regulation by requesting copies of consent forms from a mohel. Nor has the city ever issued a warning to a mohel for failing to comply with the regulation.

A health department spokeswoman said the department has not warned or fined any mohels, because it “has not received a complaint about the failure to seek consent.”

That’s despite a case of neonatal herpes in the spring of 2013, in which health officials said the infected infant’s parents did not sign a consent form. In that case, the parents refused to name the mohel who performed the circumcision.

“It’s a real problem with the regime,” said Akiva Shapiro, a lawyer who represents several medical groups that support the city regulation. “There’s essentially no enforcement, and I’ve seen certain people in the community that practices MBP [metzitzah b’peh] thumbing their noses at the regulation for this very reason, saying it will never be enforced and it can’t be enforced.”

Rabbi David Zwiebel, executive vice president of America’s largest ultra-Orthodox umbrella group, Agudath Israel of America, said he had no hard evidence on compliance. However, Zwiebel added, “I’m guessing that the answer is, some mohelim are complying and some are not.”

Fourteen babies have contracted herpes following MBP since 2000, according to city health officials. Two of those babies died, and two more suffered brain damage.

The health department issued its latest health warning related to MBP on January 28. An infant was diagnosed with a rash on his genitals five days after his circumcision. When cream failed to stop the spread of lesions, he was diagnosed with neonatal herpes and admitted to a hospital for treatment.

A health department spokeswoman declined to say whether a consent form had been signed in the most recent case or whether the infant’s parents had told officials the mohel’s name. “We are currently investigating the case and won’t discuss its details,” the spokeswoman said.

Health regulations stipulate that a mohel must keep copies of consent forms for one year. Asked whether the health department had ever requested that a mohel provide a copy of a signed consent form, the department spokeswoman said, “We are not commenting beyond what was in the [January] Health Alert.”

The ultra-Orthodox community vehemently opposed the consent form regulation when it was introduced in the fall of 2012.

The form asks parents to verify that they are aware that the city’s health department advises against MBP and that there is a risk of transmission of “herpes simplex virus infection, which may result in brain damage or death.”

The regulation was put on hold during its first few months, while a group of ultra-Orthodox organizations — Agudah, the Central Rabbinical Congress of the United States and Canada, and the International Bris Association — sought a preliminary injunction to prevent its implementation. The groups argued that because they do not agree with the information on the consent form, it violates their freedom of speech.

A district judge ruled against the injunction in January 2013, paving the way for the regulation to be enforced. An appeal is currently pending before the United States Court of Appeals for the 2nd Circuit.

For centuries, metzitzah b’peh was a common practice for cleaning the circumcision wound, until some rabbis ruled that a sponge, and later a sterile pipette, could be used instead. Zwiebel said that only some ultra-Orthodox groups use a pipette, while others insist on direct oral suction.

Ultra-Orthodox rabbis do not believe that MBP poses a health risk to infants. Instead, they believe that other caregivers may have been responsible for the infections recorded in New York.

In court papers, the ultra-Orthodox groups rely, in part, on the affidavit of Daniel S. Berman, chief of infectious diseases at the New York Westchester Square Hospital, who states that “the evidence does not show that MBP has ever resulted in transmission” of neonatal herpes.

An array of groups represented by Shapiro contradicted Berman’s testimony, among them the American Academy of Pediatrics and the Infectious Diseases Society of America.

“On one hand, the plaintiffs say the department of health hasn’t collected blood samples or gotten proof of contraction,” Shapiro said. “On the other hand, people are refusing to identify the mohel, and mohels are refusing to be tested. The community’s intransigence makes it impossible to obtain the proof they say is necessary” to show that MBP causes neonatal herpes.

During last year’s mayoral race, some ultra-Orthodox groups hoped that de Blasio would get rid of the consent forms. During the campaign, de Blasio said that Bloomberg had been “wrong to simply dictate to a community on a matter of religious tradition.”

At a January press conference after taking office, de Blasio said he would keep the forms in place “while searching for a solution that we think is more effective.”

De Blasio added: “I think it’s evident that because there hasn’t been the kind of dialogue necessary to get to common ground on this issue, [that DEL] we can do a better job of coming up with an approach that I think is much more effective at protecting the lives of our children.”

The mayor’s press office did not respond to a request to explain what a more effective solution might look like.

Zwiebel said it was unlikely that he would discuss the consent forms with the new mayor until the appeal is decided. But he said that he could meet with de Blasio ahead of time to discuss how the city investigates cases of neonatal herpes linked to MBP.

“Is there an automatic assumption it must have come from a mohel during metzitzah b’peh, or is there a readiness to consider other sources of transmission?” he said.

Zwiebel added that the ultra-Orthodox community sees the city’s attempts to regulate MBP in light of recent efforts to strictly limit or ban ritual circumcision, which are gaining traction in Europe.

“We fear a slippery slope that could lead in that direction,” Zwiebel said.

Contact Paul Berger at berger@forward.com or on Twitter, @pdberger


The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.





Find us on Facebook!
  • "I am wrapping up the summer with a beach vacation with my non-Jewish in-laws. They’re good people and real leftists who try to live the values they preach. This was a quality I admired, until the latest war in Gaza. Now they are adamant that American Jews need to take more responsibility for the deaths in Gaza. They are educated people who understand the political complexity, but I don’t think they get the emotional complexity of being an American Jew who is capable of criticizing Israel but still feels a deep connection to it. How can I get this across to them?"
  • “'I made a new friend,' my son told his grandfather later that day. 'I don’t know her name, but she was very nice. We met on the bus.' Welcome to Israel."
  • A Jewish female sword swallower. It's as cool as it sounds (and looks)!
  • Why did David Menachem Gordon join the IDF? In his own words: "The Israel Defense Forces is an army that fights for her nation’s survival and the absence of its warriors equals destruction from numerous regional foes. America is not quite under the threat of total annihilation… Simply put, I felt I was needed more in Israel than in the United States."
  • Leonard Fein's most enduring legacy may be his rejection of dualism: the idea that Jews must choose between assertiveness and compassion, between tribalism and universalism. Steven M. Cohen remembers a great Jewish progressive:
  • BREAKING: Missing lone soldier David Menachem Gordon has been found dead in central Israel. The Ohio native was 21 years old.
  • “They think they can slap on an Amish hat and a long black robe, and they’ve created a Hasid." What do you think of Hollywood's portrayal of Hasidic Jews?
  • “I’ve been doing this since I was a teenager. I didn’t think I would have to do it when I was 90.” Hedy Epstein fled Nazi Germany in 1933 on a Kinderstransport.
  • "A few decades ago, it would have been easy to add Jews to that list of disempowered victims. I could throw in Leo Frank, the victim of mob justice; or otherwise privileged Jewish men denied entrance to elite universities. These days, however, we have to search a lot harder." Are you worried about what's going in on #Ferguson?
  • Will you accept the challenge?
  • In the six years since Dothan launched its relocation program, 8 families have made the jump — but will they stay? We went there to find out:
  • "Jewish Israelis and West Bank Palestinians are witnessing — and living — two very different wars." Naomi Zeveloff's first on-the-ground dispatch from Israel:
  • This deserves a whistle: Lauren Bacall's stylish wardrobe is getting its own museum exhibit at Fashion Institute of Technology.
  • How do you make people laugh when they're fighting on the front lines or ducking bombs?
  • "Hamas and others have dredged up passages form the Quran that demonize Jews horribly. Some imams rail about international Jewish conspiracies. But they’d have a much smaller audience for their ravings if Israel could find a way to lower the flames in the conflict." Do you agree with J.J. Goldberg?
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.