Exclusive: Agudah Preparing To Sue City Over Metzitza Informed Consent

On eve of Board of Health vote, haredi umbrella group wants to bring ‘freedom of religion’ case.

09/11/12
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The haredi umbrella organization Agudath Israel is planning to sue the City of New York should the Board of Health pass a law this week requiring that mohels obtain informed consent from parents whose infant sons will undergo metztizah b’peh, The Jewish Week has learned.

The informed consent document would provide information about the oral suction procedure’s risks, which include infection with the herpes virus that could lead to brain damage or death.

A copy of an e-mail obtained by The Jewish Week shows that the organization is looking for a New York law firm that would work pro bono or on “a reduced rate basis” to bring “a lawsuit against the City of New York to prevent the City from issuing a regulation that would require written parental consent for an aspect of bris milah (‘metzitzah b’peh’).”

The e-mail, apparently from Agudath Israel’s general counsel, Mordechai Biser and forwarded to The Jewish Week by two separate individuals, explains that “The lawsuit would argue that this regulation is unconstitutional on the grounds that it interferes with both freedom of religion and freedom of speech (the latter, because it requires the mohel to distribute certain information to parents.)”

“We are concerned that if this regulation goes into effect,” Biser writes, “the next step will be further regulation of bris milah.” 

As of press time, Biser had not responded to an e-mail request for comment.

Just last week, Agudath Israel’s executive vice president, Rabbi David Zwiebel, lobbied Mayor Michael Bloomberg in a letter, asking him to postpone the Board of Health vote scheduled for Thursday, Sept. 13, and urging him instead to meet with Agudah representatives for a “serious substantive dialogue regarding the sensitive issues at hand.” 

It appears, however, that the vote will proceed as planned, according to a spokeswoman for the mayor, Samantha Levine.

In an e-mail to The Jewish Week yesterday, Levine reiterated the health department’s position that “There is no safe way to perform oral suction on any open wound in a newborn” and noting that “[l]eading medical authorities have also identified these serious risks.”

“Ultimately, the City’s highest obligation is to protect its children,” Levine wrote, adding that “therefore it is important that parents know the risks associated with the practice.”

Rabbi Zwiebel’s letter, co-signed by Agudath Israel’s board chairman Rabbi Gedaliah Weinberger, noted that there is “serious skepticism in the community about the Health Department’s conclusion that metzitzah b’peh poses an unacceptably high level of risk, and more generally about the statistical accuracy of the Department’s estimate of risk.”

It also asserted that the city’s effort to require informed consent “has generated concern, chagrin and even outrage in many parts of the Orthodox Jewish community” regarding what is perceived to be government infringement on the community’s religious freedom. (Rabbi Zweibel points as an example to a pamphlet issued by the city encouraging the mohel to wear gloves, and notes that “many segments of the Jewish community follow a religious tradition that the mohel may not wear gloves when performing the bris.”)

The letter concludes with a plea that the city forgo the informed consent law and instead work with the religious community to establish protocols similar to those enacted by New York State in 2006, allowing the community essentially to police itself.

Those protocols were widely criticized by members of the medical and public health communities and ultimately rescinded by the incoming head of the state Department of Health in 2007.  Among other things, the protocols required that parents be “fully informed” by rabbis of the risks of metzitzah b’peh and that any mohel who performed a bris on an infected infant be tested. They also noted that community rabbis are “expected to lend their support and cooperation in the event of any such public health investigation.” Reporting by The Jewish Week has indicated that these requirements were not met in connection with the five known cases that occurred after the protocols were enacted, including the death of a baby last September.

Writing in his own letter (dated Sept. 10) to the mayor, Dr. Jonathan Zenilman, chief of the Infectious Diseases Division at Johns Hopkins Bayview, professor of medicine and past president of American Sexually Transmitted Diseases Association, accuses Agudath Israel of “doing a terrible disservice to the Jewish Community and the public at large by framing the legitimate health related arguments against metziza b’peh (MBP) as attempts to impede religious freedom and brith milah (circumcision) practice.”

Zenilman goes on to claim that the Agudah letter represents “a troubling misunderstanding of infectious diseases issues and transmission, as well as standard health care practices as they are performed in the 21st century,” noting that “Since the mid 1980s, the standard of care for all medical interactions involving any blood or secretions has required the use of gloves and other barrier precautions. When appropriate infection prevention techniques are not followed, infection rates, especially post surgical infections, are higher.”

Zenilman’s letter also notes that “The clinical and epidemiological data are incontrovertible” and “In the infectious diseases community, there is no doubt that MBP carries risk.”

“The studies if anything,” writes Zenilman, “actually underestimate the risk and represent only data that is obtained from New York, where the disease is reportable. A standard epidemiological concept is that reports of cases almost always are underestimates.

“Furthermore, there are very few places in the United States where neonatal herpes is reportable, and therefore data are not available from other communities where MBP may be widely practiced.”

In the meantime, the Modern Orthodox Rabbinical Council of America yesterday expressed opposition to the proposed informed consent law, although it does not endorse the use of metzitzah b’peh. A statement released by the RCA on Monday said that while it accepted the position of religious authorities who permitted the use of a sterile tube in place of direct oral suction it nevertheless “respects the convictions and sensitivities of those in the Orthodox Jewish community who disagree with this ruling and joins in their deep concern about government regulation of religious practices.”

This statement comes in the wake of proclamation signed by 200 haredi rabbis accusing the health department of “spreading lies” and “decreeing that according to our opinion, it is forbidden according to the Torah to participate in the evil plans of the NYC Health Dept. in any form that it may be whether it be the Moihilim, or the parents — with agreements or signatures.”

The Conservative movement’s Rabbinical Assembly released a statement on Monday in support of informed consent and, while the Union for Reform Judaism’s Brit Milah program has not issued a public statement about the vote it has, according to a report by the JTA, “a strong policy that no mohelim trained by its program should perform the procedure.”

Last Update:

09/13/2012 - 05:09

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"However, the evidence is not only faulty, but it is obscuring the real problems...

"A similar analysis can be made of the other DOH 'facts', but the conclusion, that NYC is looking to regulate religious observance, and using MbP as a way to get their foot in the door, is immensely disturbing."

You really don't know what you're talking about.

To: Anonymous dentist,

The issue is that your assumption, that MbP involves increased risks of illness and death, is what is being fought over. You are quite right, that if there were issues of health, this would probably override the MbP procedure. However, the evidence is not only faulty, but it is obscuring the real problems.

So, in the death that occurred, there was a child in the home who had an active Herpes infection. The Dept of Health, despite being informed of this, ignored it, and did not even test the sibling. The conclusion, that MbP is the culprit, not only was pre-determined, but prevented the proper investigation and perhaps precautions from being put in place to prevent future transmissions.

A similar analysis can be made of the other DOH 'facts', but the conclusion, that NYC is looking to regulate religious observance, and using MbP as a way to get their foot in the door, is immensely disturbing.

As a dentist I have seen several cases of primary herpetic stomatitis and herpetic whitlow in adults. It's painful, mildly debilitating and, fortunately, self-limiting. Neonatal primary herpes infection is a far nastier disease, with occasional fatal outcomes. The immune system has not developed enough at eight days to always fight it off. So allow me to pose a question to the rabbis of Agudath: "Since it has been established that ‘metzitzah b’peh’ involves risks of illness and even death that other forms of post-circumcision hemostasis do not entail, why should it be retained? Does the question not fall out of the religious freedom area and into the preservation of life category?"

"Agudah is reportedly trying to find a New York law firm to work pro bono or on 'a reduced rate basis' to bring 'a lawsuit against the City of New York... "

What, Nat Lewin isn't available?

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