New Controversial Circumcision Rite Rules: Don’t Ask, Don’t Tell
By Paul Berger September 25, 2015
New York City has not only stopped requiring mohels to obtain written consent before performing a controversial circumcision rite — the city has also stopped alerting doctors and the public when it suspects that a mohel has infected a baby with herpes following the ritual, known as metzitzah b’peh or MBP.
Between January 2013 and December 2014 — when the city enforced its short-lived attempt to regulate MBP through a consent form — each time health officials identified a neonatal herpes infection linked to the practice, they reminded doctors of the care and sampling procedures to follow if infants displayed symptoms.
The alerts also brought media and public attention to the ongoing health issues related to the practice.
During that period, there were six cases in which city health officials believed that the ritual — in which the mohel uses his mouth to suction blood from the circumcision wound — infected a baby with herpes.
Since 2000 MBP has been blamed for 18 cases of neonatal herpes in New York City. Two of those babies died, and two others suffered brain damage.
But at the beginning of 2015, under pressure from the ultra-Orthodox community, the administration of New York City’s mayor, Bill de Blasio, announced the city’s intention to revoke the consent form regulation.
At a meeting of the city’s board of health September 9, when the consent form regulation was officially revoked, health commissioner Dr. Mary Bassett revealed that there had been a case of neonatal herpes infection linked to MBP this past April.
The April case came as a surprise, because the city had never before publicly disclosed it. Indeed, when the Forward asked the health department several times in late August and early September whether there had been any suspected case of neonatal herpes related to MBP this year, health officials did not respond.
Asked why the health department did not confirm the April case to the Forward, the department’s press secretary, Christopher Miller, gave no explanation. He later told the Forward in an email that the department did not issue a health alert for the April case because “we believed that awareness at the provider level was sufficiently high given all the press in recent months.”
But media attention surrounding MBP, which is practiced exclusively by a subset of ultra-Orthodox mohels, has been no greater this year than in previous years.
According to a search of news articles and transcripts on LexisNexis during 2013 and 2014, when the health department issued five health alerts — one for each month in which it became aware of a case or multiple cases — there were some 200 media stories about MBP and neonatal herpes.
What has changed this year is the city’s approach toward MBP. During his 2013 election campaign, de Blasio pledged to replace a city regulation of MBP enacted in 2012 under former mayor Michael Bloomberg.
The regulation, which enraged the ultra-Orthodox community, required mohels to get written consent from parents before performing MBP.
The consent form, drafted by the city’s health department, warned parents that MBP poses a risk of infecting their child with herpes, which could result in brain damage or death.
Many leading ultra-Orthodox rabbis and mohels do not believe that MBP causes herpes infection in infants.
The virus, which commonly causes cold sores, is prevalent in more than two-thirds of adults in New York City.
Mohels say that by using the correct infection control practices, such as gargling with mouthwash, they can prevent the spread of the disease.
They believe that many neonatal herpes cases the city attributes to mohels were caused by a family member or a caregiver touching the circumcision wound with a finger or hand.
A group of mohels and ultra-Orthodox organizations sued the city, claiming that the consent form violated a mohel’s freedom of religion and freedom of speech.
The group failed to obtain a preliminary injunction against the consent form in early 2013. But a federal appeals court ruled in August 2014 that the regulation did target a religious practice and was therefore subject to a very high level of legal scrutiny. The regulation never faced that legal scrutiny, because the consent form was officially scrapped this year, and the legal case was dropped.
City officials said that in return for repealing the regulation, they hoped to win the cooperation of the ultra-Orthodox community, including parents who, in several recent cases, have refused to identify a mohel suspected of infecting a child with herpes.
Health officials said that, according to the new system, the mohel suspected of infecting an infant would submit to DNA testing to see whether he was the source of the infection.
A similar scheme has been in place in Rockland County, a suburb of New York City, for a couple of years.
But at the September 9 meeting, Bassett said that the parents of the child in the April case refused to identify the mohel who circumcised their child.
Yerachmiel Simins, a lawyer who represents the ultra-Orthodox community in its negotiations with the city over MBP, invoked attorney-client privilege in not discussing details of the April infection case with the Forward.
He said the reason that the parents failed to comply with health officials is simple: Despite the repeal of the consent form regulation, the ultra-Orthodox community still does not trust the city health department. “There’s a difference in New York City between dealing with the mayor’s office and the department of health,” he said.
Simins said that the ultra-Orthodox community has still not come to an agreement with the health department over the terms of the DNA protocol. He said that the ultra-Orthodox community has been keen to conduct DNA testing on mohels for years, but the city has “steadfastly and consistently” refused.
Asked for a response to Simins’s statement, Miller did not respond.
Jonathan Zenilman, chief of the infectious diseases division at Johns Hopkins University, said that by allowing the ultra-Orthodox community to continue performing MBP as it did before the consent form regulation was brought into force, the city’s health department was being cowardly by acting in a “pusillanimous” fashion.
“They are accepting a situation where every major expert in the country has said this is a bad idea,” Zenilman said.
As far as the health alerts are concerned, Kenneth Bromberg, chair of pediatrics at The Brooklyn Hospital Center, said he is not sure it made sense to issue so many alerts regarding MBP to begin with.
The health department issues about 40 to 50 health alerts each year. Usually they warn about epidemics, outbreaks or seasonal illnesses.
Bromberg, a pediatric infectious disease expert, said that neonatal herpes infection fits none of those categories and that therefore, after the first or second health alert on MBP, there was probably no need for further action.
Instead, he said that it was more important to ask whether the message about the risks of MBP is getting through to the people who need it. Bromberg asked, “Can we protect people from themselves?”
Contact Paul Berger at [email protected] or on Twitter, @pdberger
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