The welfare of Klal Yisroel will be upheld. This is how I see the new regulation requiring informed consent before performing Metzitza B’Peh (MbP).
For those not up to speed about this ritual procedure – it involves suctioning off the blood by mouth from a circumcision wound. The Gemarah, in its description of the very important Mitzvah of Bris Milah, explains the procedure for that in relative detail.
As has always been the case throughout Jewish history, the rabbis understood that the Torah always put the health of the individual above just about all else. So they mandated what was a safety feature of the bris – the suctioning of the blood (metzitza) off the wound so that it would not become a source of infection. In fact that is clearly how metzitza is stated in the Gemarah. As a safety precaution.
So according to the Gemarah even though it does not invalidate the actual bris if metzizah is not done, it is nonetheless a Halachic requirement to do so.
The Gemarah does not describe the method of suction one must use. It just says “metzitza” – suction. Historically the most efficient method was to simply suction it off quickly by mouth. For thousands of years that is how every bris was done. Until the 19th century. At that time many of the greatest poskim of the era allowed alternative methods of suctioning after there were some deaths attributed to a possibly infected mohel.
But that did not stop the hardcore traditionalists from insisting that doing so by mouth was not only preferable but required! Those who argued saying that there were legitimate poskim who permitted non-oral suction methods were rebuffed with claims that these poskim never intended their kulos (leniencies) to be permanent.
They insist that MbP is an integral part of the bris. Here is the way the Forward put it in the name of one of the most prominent mohalim, Rabbi Avrohom Cohn who heads the American Board of Ritual Circumcision and who is in the forefront of fighting this new regulation:
[T]he ultra-Orthodox minority who do use metzitzah b’peh, including members of Cohn’s group, avow that this technique must be part of the circumcision ritual in order to fulfill divine commandments set out in the Torah and the Talmud. Personally I don’t know how they can make that claim. If there were ever circumcisions done without MbP, they would be invalid by this definition. Which would make those poskim guilty of being machti es haRabim (causing the public to sin). Besides – what would those poskim gain by omitting MbP? Why bother doing it at all?! If MbP is integral then there was no point to doing a bris! Furthermore they are casting aspersions on every circumcision that does not do MbP.
Nonetheless they feel that any interference with that practice violates their right to practice their religion as they see fit. Even New York city’s Department of Health and Mental Hygene (DOHMH) requirement to sign an informed consent form stating they have been made aware of the possible risk of infection to the child.
One may ask, “What is the big deal?” “Let them sign the forms and they can do what they want!” That’s how I feel about it. But they feel they cannot sign a document that would in effect be saying that Halacha as they understand it is dangerous to your health.
They claim is that there is no danger to a child that has MbP. That’s the way it has been done for millennia. And that there is no poof that the few babies that died were because of infections transferred by mouth from the mohel. And that even if it were proven in one or 2 cases – the statistical probability of it happening is negligible considering the tens of thousands of times each year MbP was done without incident.
The Department of Health obviously disagrees and points to studies that have show a strong likelihood of several babies being infected by a mohel with the herpes virus. From the Forward:
More recent DOHMH studies have revealed 12 area infants who have contracted herpes after circumcision. with two of the infants dying soon after.
And since herpes can be asymptomatic, the risks are real, small though they may be. Hence the regulation. Which carries financial penalties if not followed.