After the death of an infant who contracted herpes during a controversial circumcision practice, the Brooklyn District Attorney’s office said it is investigating the case as a possible criminal matter.
Jerry Schmetterer, the spokesman for Brooklyn DA Charles Hynes, told The Jewish Week Monday, “Our Crimes Against Children Bureau is looking into this situation. I would not assume what any possible charges would be.”
As the Daily News reported on Sunday, a 2-week-old infant died at Brooklyn’s Maimonides Hospital in September after contracting the herpes simplex virus Type 1 during the practice of metzitzah b’peh, otherwise known as “oral suction,” or the suctioning of blood from the circumcision wound directly by mouth.
Neither the name of the child nor that of the ritual circumciser, or mohel, who performed the ritual has been released to the public. However, “herpes infections in infants aged 60 days or younger” are on the list of communicable diseases that require reporting to the New York State Department of Health.
The new death, which follows the herpes-related death of another infant in 2005 tied to the ritual practice, reignited calls this week for the government to regulate or ban the practice.
“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,” Marci Hamilton, a professor at Cardozo law school and an expert in church-state matters, told The Jewish Week.
“The DA should step in and this mohel should go to jail [for a felony],” Hamilton continued, adding that the state should create a criminal penalty for such behavior, which would be constitutional as long as it does not target direct oral suction as a Jewish behavior.
In response to a request by The Jewish Week for comment on this latest case, David Zwiebel, executive vice president of the ultra-Orthodox umbrella group Agudath Israel, noted that in 2006, the New York State Department of Health and a “broad array” of Orthodox rabbis signed off on a Circumcision Protocol Regarding the Prevention of Neonatal Herpes Transmission.
“We have no information whether the mohel [in the new case] took the precautionary hygienic steps outlined in the DOH Protocol, whether an investigation was done to determine the cause and source of the child’s infection, or what any such investigation may have determined,” Zwiebel said. “Until we know those things, I think it is premature for us — or anyone, for that matter — to offer public comment.”
The state guidelines were the subject of heated controversy at the time they were signed, as doctors and other medical experts claimed that the practices they outlined — including requiring mohels to sanitize their hands and rinse their mouths with mouthwash — did nothing to guard against the transmission of the herpes virus. Indeed, even the city’s health commissioner at the time, Dr. Thomas Frieden, expressed serious reservations about the sufficiency of the guidelines.
In fact, the website of the city’s Health Department currently notes that “there is no proven way to reduce the risk of metzitzah b’peh” and that, while “a mohel may use oral rinses or sip wine” before performing the ritual, “there is no evidence that these actions reduce the spread of herpes.” The site also states that “[a] mohel who takes antiviral medication may reduce the risk of spreading the virus during [the ritual], but there is no evidence that taking medication eliminates the risk.”
According to state Health Department estimates, 54 percent of people in the U.S. are carriers of the virus, which remains dormant within the nerve cells between outbreaks and can still be transmitted absent any obvious signs and symptoms. Therefore the department has noted that “it is likely many mohelim performing metzitzah b’peh may place infants at risk of infection.” Because of the virus’ association with the nervous system, it poses significant threat of complications in newborns and can result in brain damage and even death.
Despite these warnings, metzitzah b’peh remains legal and continues to be practiced in some ultra-Orthodox circles, which view it as mandatory. Indeed, while early rabbinic law lists direct oral suction as one of the three steps involved in performing a bris, many decisors of Jewish law believe that it was never seen as an essential aspect of the bris, but something done to prevent health risks to the child after the circumcision.
In the 19th-century Rabbi Moshe Schreiber (The Chasam Sofer) ruled that direct oral suction is not an integral part of circumcision and, as such, other methods of drawing the blood were permissible. Rulings by 19th-century rabbis, including Samson Raphael Hirsch and Azriel Hildesheimer, publicized a ruling that metzitzah could be performed using a glass tube. Rabbi Chaim Soloveitchik (1853-1918), instructed mohels in Brisk not to do the suctioning with direct oral contact.
Several years ago, Rabbi Moshe Tendler, a microbiologist and professor of Talmud and medical ethics at Yeshiva University, argued that the known health risks associated with direct oral suction prohibit its practice under Jewish law.
News of this latest death comes nearly seven years after the death of an infant and the infection with the herpes virus of his twin and another child sparked a heated public controversy about the practice. Each of these three children underwent metzitzah b’peh by a prominent mohel, Rabbi Yitzchok Fischer. The city filed a legal complaint against Fischer to compel him to stop engaging in the practice while it investigated his connection to the infections, but he did not comply and the matter was ultimately referred by the city to a beit din, or religious tribunal, for review.
It is not known whether Fischer was involved in this most recent death. A 2010 form letter to rabbis from the state health commissioner notes that in July of 2007, the commissioner “restricted the practice of one mohel who was epidemiologically linked to several such cases,” though it did not name the mohel.
On the heels of the revelations about the cases linked to Fischer, the city’s health department issued a public warning about the practice, which touched off a firestorm in the ultra-Orthodox community. Some among the rabbinic leadership accused the health department of overstepping its authority and infringing on religious freedom and rabbis’ rights to regulate ritual practice. Mayor Michael Bloomberg and the Frieden, the health commissioner — both non-Orthodox Jews — were compared to Nazis and Russian czars.
Ultimately, the mayor intervened, promising to study the matter and, according to a story in The New York Times, noting that “it is not the government’s business to tell people how to practice their religion.” At the time, Rabbi David Niederman of the United Jewish Organization in Williamsburg told The Times that “the Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years.”
When it came to light that two more babies had been infected (apparently not by Fischer), Frieden issued an “Open Letter to the Jewish Community,” which recommended — but stopped short of requiring — a cessation of the practice altogether, instead endorsing alternatives to the practice, like using a sterile glass tube (which is done in modern Orthodox circles).
Frieden’s letter was met with renewed outrage by the ultra-Orthodox community. And, once again, the health department came under fire for what the community considered an overstepping of its bounds.
Agudath Israel’s Zwiebel told The Jewish Week at the time that, rather than advising parents to consult their mohel and pediatrician about the procedure, “[the letter] probably would have been more respectful to have said ‘consult your rabbi.’ It’s almost as if the health department didn’t want to encourage people to speak to their rabbi and figure out with him their traditional regulations.”
Zwiebel also told a well-regarded Jewish blogger that because “we … know … that any incidence of neonatal herpes after metzitzah b’peh is extremely rare, and that any incidence of serious harm is rarer still … given the fact that we’re talking about an essential religious practice, we feel it was inappropriate for the Health Department to issue this type of public warning.”
For its part, the state health department — then headed by Antonina Novello, appointed by Republican Gov. Pataki, who himself had strong ties to the Orthodox community — reached its own agreement with chasidic leaders in June of 2006, hailed by Rabbi Niederman in a press release as a “historic protocol” and the one to which Zwiebel referred to above.
The 2010 letter to rabbis from the commissioner of the state health department, referenced above, noted that “over the past five years” there have been “several documented cases” of herpes simplex Type 1 viruses in newborns who underwent metzitzah b’peh in New York City.
Calls and e-mails to Rabbi Niederman had received no response as of Monday afternoon. The current commissioners of the state and city health departments also did not provide comment in time for publication.
According to Rachel W, a chasidic woman who lives in Brooklyn and works in the health care field, but did not want to use her full name for fear of appearing to challenge the rabbis, “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,” she added, “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.”
Cardozo’s Marci Hamilton, however, disagrees.
“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.”
By Hella Winston * The Jewish Week
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