On the Wednesday evening of September 28, 2011 at Maimonides Medical Center in the Borough Park section of Brooklyn, in a section of the hospital far away from the sound of ambulance sirens, out of the sight of doctors reviewing patients’ charts, and hidden away from family members and friends visiting loved ones, an infant, no more than three weeks old, succumbed to an infection of HSV-1, more commonly known as herpes.
The New York City medical examiner later concluded that the child had contracted the virus through a process of “complicating ritual circumcision with oral suction.” Those words alluded to a ritual called metzitzah b’peh practiced by some ultra- Orthodox Jews. And the examiner’s finding contributed to a rising controversy about the procedure.
According to a June report from the federal Centers for Disease Control, based on New York City’s Health Department’s findings, the unidentified infant was one of 11 infants between 2000 and 2011 who “had laboratory-confirmed HSV infection in the weeks following out-of-hospital Jewish ritual circumcision,” and one of two babies who died. New York City’s Department of Health and Mental Hygiene’s website stated the “11 infants contracted the herpes virus when mohelim, or ritual circumcisers, placed their mouths directly on the child’s circumcision wound to draw blood away from the circumcision cut.” At least two of the 11 infants developed brain damage, and 10 of the 11 were hospitalized. To date, the health department has identified at least three different mohelim in these cases, and according to the June report, in four cases the mohelim haven’t been identified due to parents not answering “questions about whether direct orogenital suction occurred.” As of yet, no one has been prosecuted to the fullest extent of New York City law.
On September 13th, in an effort to help educate parents as to the risks of metzitzah b’peh, New York City’s Board of Health, will vote on a new health proposal. If passed, the proposed amendment to the health code would require that parents provide written consent on an official form, “which would provide information about the risks involved, including possible infection with herpes simplex virus and its potentially serious consequences, such as brain damage and death.”
Even though New York City’s Health Commissioner, Dr. Thomas Farley, believes “there is no safe way to perform oral suction on any open wound in a newborn,” the amendment is not a ban on the practice of circumcision. The department’s website states circumcision along with safe-sex practices can actually improve health benefits such as possibly preventing “men from getting HIV and other STDs.”
However, the debate of banning the circumcision altogether has been argued across the globe. In April 2011, a group of self-described “infants’ rights” activists in San Francisco were able to have a circumcision ban added to the November ballot there. Three months later, Superior Court judge Loretta Giorgi ordered it to be removed, ruling that by California law, only the state has the authority to regulate medical procedures, not individual cities. As recently as this past June, a district court in Cologne, Germany ruled that circumcisions constitute illegal bodily harm, even if preformed for religious reasons, thus banning the procedure in that city. Two months later, Rabbi David Goldberg was the first mohel charged with a criminal complaint since the court’s ruling by a doctor in Hesse because he continued to practice circumcisions.
While some haredi Orthodox rabbis see the New York’s health department proposal as the first step to banning circumcision overall in the New York area, department officials are presenting the proposal as an educational tool for parents who might not know or understand the risks of metzitzah b’peh.
“Knowing the risks posed by direct oral suction,” the proposed amendment states, “ a parent or legal guardian can then make an informed choice about whether it should be preformed as part of the circumcision.”
Rabbi Romi Cohen, chairman of the American Board of Ritual Circumcision, said in a recent interview that the Hasidic community in Brooklyn has already begun to legally fight this proposal. “I feel terrible,” he said. “I mean, it’s something that you’re asking the mohel to tell the parents, that if he makes the oral suction, the baby’s in tremendous danger, his life is jeopardized. There’s no truth to it.”
But Marci Hamilton, a church/state scholar at the Benjamin N. Cardozo School of Law – which is part of Yeshiva University, as Orthodox Jewish institution – strongly disagreed with such an assertion. “Whether it’s religious or otherwise, there’s no constitutional right to harm a child,” she said. “There’s certainly no constitutional right to kill a child. While we believe in the freedom of religion, the framers did not believe in the freedom of endangering others. And religious liberty was never intended to give protection to those who were going to harm children.”
Hamilton said that even though most states have statutory exemptions that protect groups for faith healing, there are no constitutional protections. Thus, if a child is permanently disabled or dies, the statutory exemptions can potentially be overturned. “We’re becoming less willing to let the parents off for letting their children die for religious reasons,” Hamilton said.
In 2008, for instance, 11-year-old Madeline Neumann died from undiagnosed diabetes in Wisconsin. Her parents, Dale and Leilani, had refused to call for medical help when Madeline lost her ability to eat, drink, walk, and talk. Instead the Neumanns, associated with a website of Unleavened Bread Ministries, prayed over her. Both were convicted in 2009 of second-degree reckless homicide.
In a similar situation in 2009, Herbert and Catherine Schaible’s two-year-old son died of bacterial pneumonia. Instead of asking for medical help, the two members of the First Century Gospel Church in Philadelphia, a congregation that believes in faith-healing, prayed for his recovery. Almost a year later, both parents were convicted of involuntary manslaughter.
At times, the courts will also intervene in situations involving adult health, as in the case of Stamford Hospital vs. Vega. In 1996, after the birth of her first child, Nelly Vega, a Jehovah’s Witness, began hemorrhaging but refused what her physician and others believed was an essential life-saving blood transfusion. The trial court agreed to let a blood transfusion proceed and she survived. Even while her physician was trying to save her, she appealed the decision.
In Brooklyn, the District Attorney’s office confirmed that it was investigating the September incident at Maimonides Medical Center, but refused to comment further on how the investigation is proceeding.
“The big problem here is politics,” Hamilton said. “And prosecutors who are elected will hesitate to prosecute a group that votes for them.”
As written in the book of Genesis, eight days after a Jewish male baby is born, the bris, is performed as a sign of the covenant between God, Abraham, and Abraham’s descendants.
In the majority of cases, numerous relatives, friends, and community members gather together in the new parents’ home while a mohel, a rabbi or other qualified person well versed in Jewish tradition and practice, performs the brit milah. In some communities, such as the Hasidic and very small sections of the non-Hasidic Orthodox, metzitzah b’peh is sometimes but not uniformly practiced. The theological basis of oral suction in the Talmud, Shabbat 19:2 and Shabbat 133b, states that everything necessary for circumcision can be preformed on the Sabbath, including sucking out the blood. And if any mohel refuses to perform metzitzah, he would be seen as creating a danger to the child, and would be dismissed from his position.
In a 2005 interview with the JewishJournal.com, Rabbi Yitzchok Adlerstein, director of Project Next Step at the Simon Wiesenthal Center, explained, “Even within the Hasidic community, the procedure is restricted to only parts of that community.” He went on to say, “And in the non-Hasidic community, some of the most [Orthodox] conservative thinkers have gone on record as being opposed to the procedure.” The CDC’s June report estimated 3,564 boys in New York City are potentially exposed to this practice each year.
“There is nothing in Jewish law that requires it,” said Rabbi Moshe Tendler, a professor of biology and Jewish medical ethics, who opposes the practice of metzitzah b’peh. “It increases a danger to the baby.” Tendler explained that under Jewish law, it is forbidden to cause harm to another individual, and that the idea of oral suction with the mouth was replaced over 100 years ago in the 19th century with the idea of using a tube. In addition, he said it “is never mentioned how you suction, but the assumption was you suction it by oral suction by putting the cut surface in the mouth and sucking on it.”
One of the dangers is HSV-1, or the herpes simplex virus type-1. According to the Mayo Clinic, this strain usually causes cold sores and can be found on the lips and sometimes on the genitals. The virus can spread from person to person even if no lesions are visible. Since a baby’s immune system is not fully developed at eight days old, infants are especially susceptible to this type of virus in a non-sterile environment.
Rabbi Cohen disagrees. “I’ve done thousands and thousands of them,” he said, “and it was never an issue.”
Cohen said it was commonplace for him and the majority of his colleagues to practice metzitzah b’peh. He also noted that in order to become a member the American Board of Ritual Circumcision a mohel must follow very strict rules and undergo a lengthy application process. A spokeswoman for the city health department said mohelim are not regulated in New York City, and thus, one doesn’t have to be a member of an official organization to practice. Still, Cohen says, there are people who will practice without proper precautions and sterilizations.
According to The New York Times, Rabbi Yitzchok Fischer was identified as the mohel who is allegedly responsible for three of the 11 recorded cases. In March, Fischer “did not return a phone call seeking comment” to The New York Times, and his attorney from a 2004 investigation, Mark J. Kurzmann, would not comment to the Times either. The HSV-1 virus was passed along to a boy from Staten Island, who ultimately survived, and a set of twins from Brooklyn. While one of the twins survived, the other one died. In 2007, Fischer was banned by the health department from practicing oral suction but was “still scheduling brises with metzitzah b’peh in Rockland County,” according to a March 2012 article on the website TheJewishWeek.com.
“This is a religious event,” said Arnold Kriss, a former assistant district attorney. “And supposedly it’s a joyous religious event which now has very serious consequences if the child is seriously injured or dies.”
In an American court of law, every defendant is granted the presumption of innocence while a prosecutor has to prove beyond a reasonable doubt that the defendant committed the crime. Due to the nature of the crime and complexity of the religious issue, this type of litigation could be long, and drawn out for an extended amount of time.
To prosecute a case, such as the September case at Maimonides Medical Center, under the penal law, the medical examiner would first have to conduct an autopsy to find out how the child died. If it were concluded that a child died from the HSV-1 virus due to ritual circumcision with oral suction, then the prosecution would have to prove there was a direct connection to the mohel in question. DNA analysis would be one way to prove guilt or innocence, but the specific strain of the HSV-1 virus would have to be identified and matched to each person.
“Given two samples, you can do a sequencing type of procedure,” said Lawrence Kobilinsky, professor of forensic sciences and chairman of the department of sciences at John Jay College, a division of the City University of New York that specializes in subjects related to law enforcement. “It would seal the finding that he was the source of that particular virus.”
Once the defendant is identified, a prosecutor can then start to build a case based on his theories. Before a prosecutor decides which charges to press, Kriss said the main question he asks is, “Did the individual you’re going to charge, the defendant, did he intend to commit these acts?” Based on this answer and the evidence, multiple charges ranging from different degrees of assault to manslaughter could be sought.
Furthermore, some of the most important elements of the trial are witnesses. Each witness would have to be granted immunity and brought before a grand jury to testify.
“The question would be whether or not a prosecutor can get those witness who observed the mohel do this act, at the date, time, and place to testify,” explained Kriss. “And that could be difficult. Not impossible, difficult.”
“You see this is such an important commandment,” said Cohen. “So you want to make it not in secrecy, but one in public.”
A bris, like a wedding, is a major life-cycle event for observant Jews. Any given ceremony can draw between dozens and hundreds of people who observe the ritual. Even with all of the onlookers, the identity of the mohel is not always revealed, especially if something happens to the baby.
Shmarya Rosenberg, a blogger and investigative journalist on the website FailedMessiah.com, said that there are no formal records kept in each ritual, which complicates matters. “There’s no registration for which mohel does which bris,” he added. “And the families aren’t cooperating with the health department.”
Marc Shapiro, who holds the Weinberg Chair of Judaic Studies at the University of Scranton, made a similar point in a separate interview. “In those communities, it’s considered one of the worst things – informing to the government,” he said. “This goes back to Europe when you dealt with anti-Semitic dictatorships where the worst possible thing was to give up a Jew to the secular government if he was a criminal.”
If a family were to turn in a mohel, the social consequences within the ultra-Orthodox community would be severe.
“It’s sort of social suicide,” Shapiro said. The families “would be ostracized and they would no longer be part of the community.”
Shapiro explained families who leave the community for various reasons would no longer be welcome in the synagogue, and the religious schools would make it very difficult for the parents to comfortably keep their children in the system. In the past, some of the most extreme cases of ostracizing included destruction of family-owned property, slashed car tires, and even arson.
According to Hamilton, if a baby were to be harmed in any way, the mohel wouldn’t necessarily be the only one legally culpable. “Parents need to understand that they can be sued for medical and child neglect if they hand over an infant to a mohel without knowing whether or not he has herpes,” she explained.
As for the future, Hamilton sounded guardedly optimistic that prosecutions would be somewhat easier. “What’s been helpful as time has gone on,” she said, “is we have this increasing sense of children’s rights that they do have their own rights independent of the parents and the society.”