City ready to abandon consent forms for circumcision ritual

By Dan Goldberg (Capital New York)
February 24, 2015

The de Blasio administration is giving up on the controversial policy of requiring a written consent form from parents before a mohel can perform metzitzah b'peh, the circumcision ritual that involves orally suctioning blood from the wounded penis.

For nearly a decade, the New York City health department has warned that metzitzah b'peh was a dangerous practice linked to neonatal herpes, which can cause brain damage and death.

In 2012, Mayor Michael Bloomberg's board of health began requiring parents sign a consent form acknowledging that the city health department does not believe the ritual is safe.

That policy enraged members of certain Orthodox sects, who took the city to court, arguing the forms were a violation of their religious freedom and questioning the link between the practice and neonatal herpes.

Dr. Anna Wald, who assisted in drafting guidelines on the management of H.S.V. infection for the federal Centers for Disease Control and Prevention filed an affidavit on behalf of the city's health department, saying the evidence linking direct oral suction with neonatal infection is “strong, consistent, and more than biologically plausible.”

Dr. Jonathan Zenilman, a professor of medicine at the Johns Hopkins University School of Medicine and chief of the infectious diseases division at the Johns Hopkins Bayview Medical Center, also filed an affidavit saying, “it is my professional opinion that suctioning of the fresh circumcision wound puts uninfected infants at risk of acquiring HSV-1 and developing serious illness.”

City health officials linked 17 cases of neonatal herpes to direct oral suction in the last 15 years. Of those, two have died and two more suffered brain damage.

Representatives of the Orthodox communities have said no direct link was ever scientifically proven and without genetic testing, there was no way to know how a baby contracted herpes.

“We've agreed to disagree on that,” said an administration official who provided a background briefing for reporters after the new policy was announced.

In exchange for abandoning the consent forms, which were really never enforceable, the coalition of rabbis negotiating with City Hall agreed that if a baby is diagnosed with H.S.V.-1, the community would identify the mohel who performed the bris, or circumcision, and ask him to undergo testing. If the mohel tests positive for H.S.V.-1, the city's health department will test the D.N.A. of the herpes strain to see if it matches the infant's.

If it does, the mohel will be banned from performing the ritual for life. If it doesn't, the health department will work to find the source of the virus. If that source can't be identified, there are no rules in place to keep that mohel from performing metzitzah b'peh, even though he has tested positive for H.S.V.-1.

The agreement, which is modeled on one Capital reported on in Rockland County, is expected to be solidified when the two sides reach a court settlement, which would end the lawsuit against the city.

If it is written into a settlement and approved by a judge, the city would, in theory, have some way to enforce the agreement because it would be legally binding.

The plan can't implemented, however, without approval from the board of health, a semi-autonomous group led by health commissioner Dr. Mary Bassett. The board must vote to repeal the consent form rule before this deal can be finalized. Their next meeting is in March.

The de Blasio administration's rationale for the new policy, which its own health department says could put infants at risk, is that this is the only way it can receive cooperation from the community. In the two-plus years since the health department has required consent forms, it has collected only one, an administration official said.

“They won't stop practicing no matter what we say,” the de Blasio official said. “If we ban it, it will go underground.”

Practically, that may be true, but that doesn't stop the city's health department from requiring restaurant employees to wash their hands after using the restroom, a regulation that is also hard to enforce.

The difference here is the religious nature of the practice and the vocal opposition from a voting bloc that supported de Blasio during the hotly contested mayoral primary, despite persistent wooing from rival candidate Bill Thompson.

The mayor has close ties with the Orthodox community. Last year, he was feted at Agudath Israel’s 92nd anniversary dinner. He recently attended a Manhattan synagogue service with the chief rabbi of France, and Monday night he was seen kissing the hand of a Hasidic leader in New Square, a Jewish community about 35 miles northeast of New York City.

During the mayoral campaign, de Blasio promised to address the consent-form arrangement on his first day in office, and pledged to find a way to respect religious freedom and protect the safety of infants.

This new policy does that, the administration says, by working with the community and providing for greater education.

The administration will ask hospitals, obstetricians and pediatricians who serve the community to distribute information about the health risks associated with the ritual.

Metzitzah b'peh, which began well before the understanding of how germs and viruses can spread, is practiced by a small segment of the Orthodox Jewish population who believe it is a necessary part of the circumcision, and by some Orthodox Jews who do not believe it is necessary but do it because of its religious significance.

Many Jewish leaders, including prominent Orthodox rabbis, say it is not required and that a sterile pipette may be used to suction the blood away from the wound.

Plenty of details surrounding this agreement still need to be worked out.

The city and the community have not agreed what will happen if a genetic test is inconclusive or how a mohel will be treated if the source of the virus is undetermined. The city also could not yet say who would have access to the list of banned mohels.