Up until April 2006, cases of neonatal herpes did not have to be reported to government authorities. The New York City Department of Health mandated at that time that it become a reportable disease. This means any case with any clinical suspicion of herpes must be thoroughly tested and when identified must be reported to the Department of Health. Many thought this would lead to the discovery of numerous cases of neonatal herpes among babies exposed to MBP, with terrible complications. However, rather than going up, the annual number of reported cases showed a modest decline during the strict surveillance period from April 2006 to the end of 2011.
At the end of 2010, the New York City Department of Health published interim findings in a medical journal, reporting that there had been 15 deaths related to neonatal herpes from April 2006 through December 2010. None of those children had MBP.
Mr. Shapiro suggests that the reported cases are “very likely only a subset of the far larger population of infants who acquire HSV and other infectious diseases through direct oral suction.” He claims that this is because “tragically, only a few jurisdictions in the world mandate reporting of neonatal HSV.”
The New York City experience demonstrates that this is false. In New York City from 2000-through April 2006, during which time there was no mandatory reporting, six cases were identified. Five cases, a lower annual rate, were identified from April 2006 through December 2011 when there was both mandatory reporting and an increased number (30,000) of brissim performed with MBP.
Mr. Shapiro claims that “cultural hurdles compound the problem of underreporting,” implying that there are many cases that are not reported. This is absurd. It is not up to the family to report the cases. It is up to the physicians, hospitals and laboratories, who would face very severe penalties for not reporting infections that require such reporting.
To justify the regulation, Mr. Shapiro speaks of parents who “never heard of MBP.” At this point, we do not know of anybody in the New York City Jewish community who has not heard of MBP. It has been given so much attention in the media. Moreover, the city has placed for distribution in New York City hospitals a brochure titled “Before the Bris,” in which the Health Department explains in detail what MBP is and “strongly advises that parents not have MBP performed during the bris.”
Mr. Shapiro also claims that the form “actually protects the religious liberties of parents by ensuring that they make the decision whether MBP – a religious act – is performed on their child.” Following this logic, there should be a government consent form for any bris milah, with or without MBP, which should state that the bris milah should not be performed because it can lead to complications such as bleeding and infection.
In fact, Rabbi Professor Steinberg in his above-mentioned position paper states that “the incidence of neonatal herpes after MBP is significantly lower than other infections related to circumcision, and certainly much lower than the other complications related to circumcision.”
There should also be a consent form for Shabbos and Chanukah candles, which on occasion have led to tragic fires, and for parents requiring their 12-year-old daughters and 13-year-old sons to refrain from eating on fast days, in view of possible medical risks.
Furthermore, no children should be allowed to participate in any recreational activities (bicycling, skiing, swimming, football, baseball) that carry risk without a written consent form stating “The government recommends that these activities not be performed because they may cause death, paralysis, brain damage, and other injuries.”
In all these examples there is at least some justification for a consent form of the above type because a clear causal link exists between the activity and the stated consequences; in contrast no causal link has ever been established in the case of MBP.
Mr. Shapiro states that for “cultural reasons” there is often active resistance to testing and identification from both ritual circumcisers and parents, even after a child has acquired HSV. But he is well aware that in 2006 there was a protocol agreed to between the New York State Health Department and the Jewish community that would have directed such testing. This was approved by gedolei Yisrael in the United States and Israel, including the late Rav Elyashiv, Rav Yosef and Rav Lefkowitz as well as Rav Kanievsky and Rav Steinman, to mention but a few. It was also signed by chassidic leaders in the United States.