According to the New York medical examiner, on September 28, 2011, a two week old infant died at Maimonides Hospital from a Herpes Simplex I (HSV1) infection acquired after the child was circumcized by a mohel who used direct oral suction to “clean”the wound.
The case is currently being investigated by the Brooklyn DA, but the family is not cooperating. Despite the medical examiners report the community is closing ranks around the mohel and instead blaming the mother, claiming that she did not care properly for her child.
Oral suction (metzitzah b’peh) is a high risk practice that has been rejected by many Jewish halachic experts. The Haredi community insists it is an essential part of circumcision and considers its right to continue the practice a matter of religious liberty.
The last recorded death from Metzitzah B’Peh acquired HSV1 was in 2004 when two twins were allegedly infected by mohel Yitzak Fischer. Fischer was banned from performing oral suction in 2007, but the ban does not appear to have been enforced. The Jewish week found that he was still scheduling brit milah with oral suction even two weeks ago. The Lower Hudson news reported that Fischer is also under investigation in connection with the most recent death.
New York City’s attempt to crack down on the practice in 2005 ended with a state wide 2006 “protocol” that allowed the Haredi community to continue the practice despite objections of medical personel and on-going concerns about health risks. This protocol was rescinded in 2007, but Agudat Israel who played a major role in the 2006 protocol claims that they were never informed of the change. The Health Commission plans on letting the Brooklyn DA take the lead in the current investigation.
In 2005 Mayor Bloomberg vowed not to interfere with religious practice, has begun to shift his rhetoric:
There is probably nobody in public life who fights harder for the separation of church and state than I do, but I just wanted to remind everybody: religious liberty does not simply extend to injuring others or putting children at risk … And we will continue working with the community and others to prevent more baby boys from suffering these tragic fates. (Source: NY Times)
Only time will tell if this new assertiveness will result in government action. Many of the themes of Haredi-state interaction apparent in Israel also seem to be at play in New York.
In Israel, inaction and non-enforcement of laws and court judgements are often blamed on a status quo established by Ben Gurion in the early days of statehood. New York’s backing down in 2005 can’t be blamed on such a status quo and forces us to look at other factors that make non-Haredi politicians reluctant to oppose Haredi interests.
Cold Sores Can Kill Infants
In New York State since 2003, there have been at least nine cases in New York State reported in the press: one in 2003, two in 2004, two in 2005, one in 2007, two in 2009, and the recent death in September. Although cases are infrequent, consequences are serious: Of the nine known cases in the New York City area since 2003, two children died and one was sustained serious brain injury.
Herpes Simplex I is the same virus that causes cold sores. In adults HSV1 little more than an annoyance but in new born infants, this virus can make the child desparately ill. According to an article published in the New England Journal of Medecine, in the first 28 days of life, 60% of untreated children die. If treatment is started immediately, the survival rates are better but there can still be long term severe neurological damage including mental retardation and cerebal palsy.
Adults also have neuron involvement, but the effects are more subtle. After a first infection, the virus stays dormant in the neurons and from time to time travels along the neurons back to the skin for renewed outbreaks of cold sores. Over the long term, research also indicates a link between cold sores and Alzheimer disease.
In new born infants, the HSVI virus is more likely to go beyond the skin to invade internal organs such as the lungs and liver. It can also travel from the neurons to the brain and cause a life threatening episode of encephelitis or menengitis.
Risk is greater than death from infant cancer, AIDS or car crashes
Defenders of the practice have tried to claim that the linkage between metzitzah b’peh and Herpes is tenuous at best. The number of cases are too medically rare to be significant and in any case the linkage to oral suction is tenuous at best. They have suggested that it was another disease that looked like HSV1 or that the infection came from normal parental kissing or the birth process. They also insist that the number of cases is so rare as to be inconsequential.
In 2005 after the last death of a child from HSV1 related to oral suction, Rabbi David Zeibel, vice president of Agudat Israel of America, said to Stephen I. Weiss of the Cannonist blog not only denied the existance of meaningful risk but used his own communities inaction as proof of the absence of risk.
any incidence of neonatal herpes after metzitzah b’peh is extremely rare, and that any incidence of serious harm is rarer still…What level of demonstrated risk would justify … a public warning or a ban? Dunno, but I’d imagine that if that level of risk existed, the religious leaders of the community would beat the Health Department to the punch.
However, articles in medical journals suggest strong evidence to the contrary. As of 2005 there were eleven reports in the medical literature. The children all tested positive for HSV1. The mothers did not have HSV1 making infection from birth an impossibility. The location of the sores in the genital region and buttocks implied oral to genital contact. HSV1 transmitted by kissing or skin contact usually appears above the waist, particularly on the face and mouth. Finally, the infection occurred only after the circumcision.
There are no good estimates of death rates from HSV1 infection from circumcisions with oral suction. The CDC does not track statistics nationally and there hasn’t been a formal nation wide demographic survey of American Jews since the late 1990’s. New York State has only required mandatory reporting since 2006.
It is suspected that many cases are not brought to the attention of the general public or wider medical community. Numbers even in New York before 2006 rely on anecdotal evidence drawn from published reports and Health department organizational memory. Additionally, there is evidence that hospitals are relunctant to publicize cases. When the Forward contacted a Baltimore hospital about potential cases, the hospital declined to comment saying,
With such a close-knit community as the Baltimore Orthodox one is, I would not want to chance that any family or families would realize they were in an article like this.
However, even a very rough guess shows that the risk is significant relative to other causes of neonatal death even when we consider only those New York cases known by anecdotal evidence. Such a guess would put the infection rate in New York State to something around 1 in 3500. This assumes that 10 percent of New York State’s 1.6million Jews are Haredi, average Haredi family size is 8 people including children, each year 1 in 3 adult Haredi women of child bearing age bear a child, and half of those births are boys.
New York seems to have one death every four years. That puts the risk of death at about 1 in 14,000 per year or 7 in 100,000 on average year in and year out. This risk is greater than the risk of a new-born infant dying from a car crash (5.6 per 100,000), congenital anomalies (4.6 per 100,000), cancer (3.1 per 100,000), heart disease (1.6 per 100,000), or AIDS (1.3 per 100,000). One certainly wouldn’t dismiss preventing infant deaths from car crashes, cancer, heart disease or AIDS as something too trivial to prevent.
Haredi religious arguments for the Practice
Despite evidence of the health risks, defenders of the practice insist that the practice must be maintained because it has always been done. Since early rabbinic literature lists it as one of the three steps in the process of circumcision it cannot be removed.
In 2004 when Mayor Bloomberg tried to convince the Haredi community to abandon oral suction, Satmar Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn told Mayor Bloomberg and the press
The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years…We do not change. And we will not change.
When the New York City Health Commission published an open letter at the end of 2005 begging parents to think twice about circumcision with oral suction, Agudat Israel of America responded with an open letter of their own complaining,
Agudath Israel of America is deeply troubled by the Department’s unprecedented and highly selective use of its bully pulpit authority to publicly attack a millennia-old practice that many Orthodox Jewish communities and rabbinical authorities regard as an integral and indispensable part of the ritual obligation of brit milah.
The arguments for it also are based on a strong denial of the role of reason and also of ordinary meanings of compassion. One Vos Iz Neias reader explained
We live how halacha requires and we die how Halacha requires. That’s who we are and that’s the only way we survive as yiden [Jews]. Would our grandparents have changed halachos and minhagim for every heart breaking story that came up, there would be no Yiddishkeit left today. We follow Halacha first’ Hearts second.
Defenders argue that even if it once had a medical basis, it has become so entrenched in Jewish tradition that it must be done. If there are no reasonable arguments in its favor, we still must rely on the rabbis who condone it because there are hidden reasons (al pi derech sod) that only the wisest rabbis truly understand and we dare not challenge. If a child dies from it, then that simply means it was God’s will for that child to die at that time.
Rabbinic consensus against Metzitziah b’Peh
The defender arguments run counter to the rulings of several rabbis in the nineteenth and twentieth century. The rabbis who have ruled against it include all ends of the nineteenth century debate over the enlightenment: the Chatam Sofer, Samson Raphael Hirsch, Azriel Hildesheimer, Chaim Soloveitchik. and nearly all rabbis whose ideas influenced the development of progressive and conservative Judaism. The Chatam Sofer, a Hungarian rabbi, represented one of the most extreme positions against enlightenment influences in the nineteenth century European Judaism. Samson Raphael Hirsch represented mainstream west European opposition to Enlightenment influences. He and Azriel Hildesheimer are considered the father of modern orthodoxy. Hirsch’s translation and commentary on the Humash is still used today in many Orthodox and Conservative synagogues. Chaim Soleveitchik, also known as Reb Chaim Brisker, was the founder of the REITS rabbinic school at Yeshiva University.
In the twentieth century liberal rabbis continue to oppose the practice, as do modern orthodox rabbis and even more Haredi rabbis such as Moshe Tendler, a microbiologist and professor of Talmud and medical ethics at Yeshiva University. He is chairman of the Rabbinical Council of America (RCA) Bioethical Commission Tendler forbids the practice of Metzitzah b’peh because of the health risks. In Israel, senior Haredi rabbis, including Rabbi Eliashiv and Rabbi Auerbach, have also rejected direct oral contact and have advocated for the use of a sterile pipette.
Safer alternatives to oral suction include sponges, sucking through a sterile glass pipette, and using a pipe with a suction bulb on the end to to remove blood.
Religious Rights or Religious Coercion?
On Wednesday (March 14, 2012), Avi Shafran, spokesman from Agudat Israel, claimed that this is a matter of relgious freedom. He explained, “the issue isn’t the mohel or the method, but people’s rights to practice their religious beliefs in a safe manner.” Agudat Israel of America and other Haredi leaders also claimed religious freedom in 2005 after the previous child died.
Three of the HSV1 infections in 2003-2004, including that of the child that died, were eventually traced to Yitzak Fischer. He refused to be tested for HSV1. In late 2004, the New York Supreme Court put in place an injunction requiring him to stop metzitzah b’peh until he was tested and medically cleared. The Haredim viewed this as a slippery slope that could lead to state control of their practice and advocated heavily to have the injunction dropped.
To counter this injunction and set the grounds for a case against religious interference from the government, three rabbis approved the mohel’s continued practice. Agudat Israel and several other Haredi rabbis also suggested that the state was applying health concerns selectively. The state had granted religious exemptions from vaccinations when the parents did not believe in them. Failing to vaccinate a child increases the child’s risk of disease and also exposes anyone the child meets to disease risk as well. They argued that this exemption set a precedent for the state setting aside its responsibility for public health in the name of religious requirements, including oral suction during circumcision.
However, the situations are not necessarily comparable. Vaccination laws require a person to submit to an invasive procedure, i.e. a vaccination. Failing to submit endangers others but only in a passive way by their being in the same vicinity.
On the other hand, a law against oral suction protects someone from having to submit to an invasive act rather than forcing them to submit. Allowing oral sunction endangers a third party in an active and invasive way rather than causing passive endangerment from being in the same vicinity. The US Supreme Court has consistently upheld the right of the state to protect minors from negative consequences of their parents religious beliefs. It has also upheld the right of states to legislate against behavior in the name of public health so long as the law is religion neutral and generally applicable. Marci Hamilton, a professor at Cardozo law school and an expert in church-state matters, told The Jewish Week that the state has the right to pass a law making oral suction of a minor against the law a criminal offense. The law would be constitutional so long as it didn’t specifically limit it to Jewish contexts. She told the Jewish week
The state has a compelling interest in protecting the health of children and needs to step in on an emergency basis to make sure this practice is halted immediately… The DA should step in and this mohel should go to jail [for a felony]… This is an issue that absolutely cannot be left to the religious authorities. It is a violation of the child’s right to life and just basic moral values.
Claiming religious freedom as the right to force others to submit to potentially damaging acts seems to be a common theme in recent Haredi issues in the news. Haredi communities in Israel made the news for their efforts to force women onto the backs of buses, certain sides of the street, and off podiums in the name of male needs to be in a space far from women. In each case when objections were raised, community members complained interference with their practice of religion.Leading rabbis, including the Ashkenazi chief rabbi, Yona Metzger, eventually spoke up against claiming the right to humiliate or physically force women until they moved to the back of the public buses, but then affirmed the right to segregated buses if privately owned. They continued to defend the removal of women from secular podiums such as the Puah conference on halachah and gynecological innovation, arguing that such exclusion was necessary to enable men to attend the conference.
This month women were relieved of Friday night shifts and asked to lose income for the benefit of male customers whom a kashrut authority didn’t want near men. The kashrut authority still has not withdrawn its demands for women to avoid serving tables with men. Yet as offensive as these acts are, they do not come close to demanding the right to put a child’s life at risk in the name of religion.
Disregard of Law and Legal Processes
Another common theme in the Israeli Haredi relationship to state is also making its appearance in the New York Jewish community : namely that one should not legislate against Haredi behavior because it will only make things worse. Rachel W., a Hasidic woman, told the Jewish Week last week
Any government ban will only drive [metzitzah b’peh] underground, making neonatal herpes even less likely to be reported and treated…If it is deemed unlawful, it will also become an issue worth fighting over for my people. That’s why gaining the cooperation of the rabbis is the way to go.
It is also clear that the refusal to support the Supreme Court injunction against Yitzak Fischer was not merely for show. Both in 2005 and currently Agudat Israel of America has defended his right to perform circumcisions with oral suction. The current support continues despite the state eventually implementing the injunction it originally dismissed.
Eventually Haredim convinced the state to drop the injunction against mohel Yitzak Fischer without prejudice. According to the Jewish Week, the state agreed to drop the case in April, 2005 “after receiving a written assurance from a Hasidic business man, Jacob Spitzer, that the community was instituting its own self-policing procedures.”
After yet another child was infected by him in 2007, the health department ordered Fischer to stop practizing oral suction in the Stae of New York. However, Jewish week obtained evidence of Fischer scheduling a bris and insisting that he could do metzitzah b’peh without a problem in Rockland county just two weeks ago. New York State Department of Health spokesman Michael Moran says that the ban against him is still in effect.
- Neonatal Herpes Cases From ‘Metzitzah’ In ’09 Now Confirmed In Rockland , Jewish Week, 2012-03-16.
- Two Babies Sickened by Circumcision Rite. Forward, 2012-03-16.
- Rockland mohel part of probe into Brooklyn baby’s death , The Journal, 2012-03-14.
- Banned Mohel: ‘Metzitzah’ ‘Not A Problem’ , Jewish Week, 2012-03-13.
- Family stonewalling authorities after newborn dies from herpes contracted in ritual circumcision , New York Daily News, 2012-03-08.
- Exclusive: Protocol On Controversial Bris Practice Was Rescinded In 2007, Jewish Week, 2012-03-08.
- Metzitzah be-Peh and Protecting Jewish Infants – by Rabbi Zev Farber, Morthodoxy blog, 2012-03-07.
- Baby’s Death Renews Debate Over a Circumcision Ritual, New York Times, 2012-03-07.
- Brooklyn DA Looking Into Infant’s Death From Controversial Bris Practice , Jewish Week, 2012-03-05.
- Borough Park, NY – Report: Infant’s Death at Maimonides Hospital Linked to ‘Metzitzah B’Peh’ At Bris-Milah – Comments section , Vos Iz Neias, 2012-03-04.
- Baby Dies in Circumcision, New York Daily News, 2012-03-03.
- Maternal and Neonatal Herpes Simplex Virus Infections, by Lawrence Corey, M.D., and Anna Wald, M.D., M.P.H.. N Engl J Med 2009; 361:1376-1385.
- Metzitzah B’peh Controversy: The View from Israel, by Mordachai Halperin, Jewish Action On Line, 2006
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- Agudath Israel on Metzitzah B’feh as a Health Risk , Cannonist blog, 2005-12-23.
- Agudath Israel’s Statement on Herpes Circumcisions, Cannonist blog, 2005-12-21.
- Open Letter to the Jewish Community from the New York City Health Commissioner, Dec 13, 2005.
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