As Bris Policy Nears, Mayor Seen In Bind

As the de Blasio administration grapples with the church-state implications of its push for full-day, government-funded prekindergarten, another such thorny issue — this one with potential life-and-death consequences — looms: How, and whether, to regulate the controversial ritual circumcision practice known as “metzitzah b’peh.”

The technique, in which a mohel performs oral suction on an infant boy’s penis to stanch the flow of blood after a bris, is favored by more than 100,000 charedi Jews in Brooklyn; for them, a circumcision is not considered kosher under Jewish law unless metzitzah b’peh is performed.

However, the practice, known as MBP, has led to the deaths of two infants, and brain damage in two others, after they contracted neonatal herpes from a mohel who performed the procedure, according to city health officials. While charedi leaders say the procedure is basically safe, the Centers for Disease Control has declared the practice out-and-out dangerous.

As a candidate for mayor, Bill de Blasio called the parental informed consent forms drawn up under the Bloomberg administration to regulate the practice “a stop-gap measure” that didn’t go far enough in protecting children’s health. In an interview with The Jewish Week in the run-up to the election — where all the candidates were trying to court the important charedi vote — de Blasio said would he would try to “reach consensus with community leaders on the proper procedure.”

To date, seven months into de Blasio’s term, no conversations have taken place, according to Rabbi David Zwiebel of the charedi umbrella group Agudath Israel.

Now, with three more cases of neo-natal herpes reported since the mayor took office in January (with two in July alone), the city appears poised to have a revised policy on MBP in place soon, officials confirmed to The Jewish Week. How that policy comes down seems to be anyone’s guess, with electoral politics playing a potentially big role in a debate that pits religious freedom against public health.

“This is a real right-wing, left-wing issue,” said political consultant Hank Sheinkopf. “There’s no middle in this. So the question for [de Blasio] is: Who is more important to him, the charedi or the non-charedi?”

From a political calculus, said political commentator William Helmreich, it’s a no-brainer.

“All these guys court the charedi vote because it’s a bloc vote and there aren’t many of those left,” said Helmreich, who teaches sociology at City College of New York’s Colin Powell School for Civic and Global Leadership and its Graduate Center. “I don’t know that there’s any pressure from the opposite side because they don’t have that much of a stake in it. It doesn’t make sense for him to go to mat on this, why should he?”

Since 2000, there have been 16 reported cases of infants who have contracted herpes following metzitzah b’peh in New York City, according to the CDC report. In addition, in 2009 there were two cases reported in Rockland County confirmed by The Jewish Week and two 2012 cases in New Jersey reported by the Forward.

In 2007, Rabbi Yitzchok Fischer, a mohel who health officials have determined infected four of the infants, including one who died and one who suffered brain damage, was ordered by the state to stop practicing MBP, however in recordings obtained by the Jewish Week in 2012, Rabbi Fischer is heard scheduling a bris that will include MBP.

In the two most recent cases, the babies were brought to the hospital about a week after undergoing metzitzah b’peh with “pustular lesions on the penis and genital area.” Both babies were hospitalized for several days and treated with anti-viral drugs. One needed to return to the hospital for intravenous treatment after a culture showed the HSV virus still in his system.

The health department has banned both mohels from practicing MBP, a health department spokeswoman said via email. The department has not released the names of the mohels, and since Rabbi Fischer has already been banned from the state, it is unlikely that he was involved in these cases.

In the emailed statement, the health department also noted that since the informed consent went into law in 2012, there have been five cases of neonatal herpes from MBP. “In all of the cases, we have asked whether there were forms and, in the two cases where we were able to identify the mohel, we have requested them from him. One of the mohels had a form which he provided. The other one did not,” the statement reads.

Ex-Mayor Michael Bloomberg, who at the time was not facing re-election to a fourth term, carved out a strongly pro-public health position on the issue when he argued that a person’s right to religious freedom does not extend to harming infants. But his health department stopped short of a ban on the practice, opting instead for requiring mohels to have parents sign an informed consent form advising them of the risks. (Agudath Israel and other charedi groups promptly filed a lawsuit in United State District Court for the Southern District of New York in 2012, to get the consent form requirement ruled unconstitutional. The court sided with the city, and the coalition is currently appealing the case.)

When facing the church-state issues inherent in using public dollars to pay for pre-K programs held in religious schools, there is compromise to be had: schools are allowed to teach about the cultural components of a religious holiday, but not the religious aspects. But with metzitzah b’peh there seems to be little middle ground.

Simply broaching the topic with the charedi community is tricky.

With the practice of circumcision as a whole coming under fire in Europe, and a movement to ban the practice in San Francisco back in 2011, the charedi community is particularly sensitive right now to any government intervention concerning circumcision, said Agudath’s Rabbi Zweibel.

And while charedi leaders would be willing to sit down with de Blasio, their agenda would be to discuss “more comprehensive testing” for other caregivers of infants who contract herpes, and perhaps discuss establishing protocols to could make the procedure safer.

But, according to the CDC, there is no way to make metzitzah b’peh safe, and safety protocols established in the past, such as requiring mohels to sanitize their hands and rinse with mouthwash, have been deemed ineffective by medical experts. Even requiring all mohels to be tested for the virus would be ineffective, since, according to the CDC, 73 percent of adults are infected (with many never showing symptoms).

City officials say they hope to have a revised policy in place soon, but it’s hard to imagine what they could do that would make a difference.

If the health department is instructed to make sure the consent forms are universally distributed — which, according to Rabbi Zwiebel, is not likely happening now, in a community that believes metzitzah b’peh is a religious requirement — it’s unlikely they change many minds.

If the city instituted an outright ban on the practice, which American Jewish Committee attorney Marc Stern said the city “could probably get away with,” how would the city enforce it?

Dr. Jay Varma, the health department’s deputy commissioner for disease control, told The Jewish Week shortly after the informed consent forms were proposed, that because the city doesn’t have the manpower to monitor every circumcision, a policy of informed consent would be more effective than an outright ban.

“We also don’t feel that if we went and passed some type of ban we would likely be able to influence the mohelim in this community to change their practices,” he said. “We just simply don’t believe that, given the political and religious circumstances in which this is occurring, [a ban] would really make any impact on the procedure.”

With all the obstacles in place, it’s not surprising that so far, de Blasio hasn’t proposed any changes to the status quo.

“Politicians,” said Helmreich, “don’t like to take stands on lose-lose situations.”

amyclark@jewishweek.org