Anyone who reads the text of the New York City Department of Health’s proposed rule regarding metzitzah b’peh will immediately notice that two fundamental concerns have been virtually ignored in all of the public debate over the measure.
Certainly there have been very public arguments over the propriety or impropriety of governmental regulation of a religious practice and over the evidence or lack of same linking the procedure to herpes. And there are many who have raised the “slippery slope” concern that regulating an adjunct of bris milah will inevitably lead to further restrictions on the core practice itself, even though the DOH proposal would only require that parents be made aware of the risks associated with the practice in order to be able to make an informed consent. But therein lies the rub.
In pertinent part, the proposed new rule provides as follows:
Consent for direct oral suction as part of a circumcision.(a) Direct oral suction means contact between the mouth of a person performing circumcision and the infant’s circumcised penis.
(b) Written informed consent required. A person may not perform a circumcision that involves direct oral suction on a child under one year of age without obtaining, prior to the 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. The written informed consent must include notice that direct oral suction exposes the infant to the risk of transmission of herpes simplex virus infection and other infectious diseases.
(C) Retention of consent forms. The person performing the circumcision must give the parent or legal guardian a copy of the signed consent form and retain the original for one year from the date of the circumcision, making it available for inspection if requested by the Department.
For one thing, we do not know the language the actual consent form will contain. Indeed, after the adoption of the general rule, it would seem the DOH will have open-ended authority to come up with descriptions of the alleged risks and its choices will not be subjected to standard limitations on rule-making authority. The possibilities are enormous if not endless. This is especially problematic since the rule is not limited to the risk of transmission of the herpes virus but to “other infectious diseases” as well.
Also of great concern is the possibility of child-abuse charges being leveled against the mohel or parents should metzitzah b’peh be performed and, God forbid, one of the diseases described in the consent form is thought to have resulted. Indeed, there have been reports that the Brooklyn district attorney is looking into bringing criminal charges in a case where a child who underwent metzitzah b’peh died.
And it just seems incongruous that parents will be required to sign a form acknowledging that they are knowingly placing their child in harm’s way.
Moreover, what we have here is a government regulation that will declare – with unknown particulars – that a time-honored Jewish religious practice, albeit one not universally accepted and employed by all observant Jews, risks the health and well-being of newborns. This is never a good thing for Jews, particularly so today, as witness the outbreak of challenges to circumcision and schechita in a number of countries.
It is crucial that our community stand up in defense of our traditions. In this connection we are still uncomfortable with the election to the New York City Council three years ago of a Jewish candidate who never fully apologized for publicly describing bris milah as “the ritual violence of circumcision.” The Jewish Press at the time forcefully condemned the comments of that candidate, who ran in a majority Jewish district with the fulsome support of an elected official well known for his advocacy of Jewish causes.
Effective free passes like that are not helpful no matter who bestows them.
