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http://www.haaretz.com/hasen/spages/552094.htmlTue., March 15, 2005 Adar2 5, 5765Freedom of circumcision v. health hazard By Nathan Guttman WASHINGTON - The tragic death of an infant in New York's Haredi ultra-Orthodox community has put brit milah (Jewish ritual circumcision) in the spotlight over the past few weeks. The debate, which includes rabbis, mohels (ritual circumcisers) and American health authority representatives, centers on the question of how the mohel should draw blood after performing a circumcision, and whether it is prudent in modern times to permit direct contact between the mohel's mouth and the baby's sex organ. Beyond the issue of this practice itself, the discussion has extended to questions of freedom of religion versus the intervention of authorities and the sanctity of ancient practices versus scientific innovations. The tragedy in question occurred last year in the Haredi community of Monsey, New York. The mohel, Rabbi Yitzchok Fischer, circumcised twins in a double ceremony. The circumcision was performed in the traditional manner accepted among many Haredim, and consists of three stages - incision of the foreskin, its retraction and removal, and drawing of blood. According to ultra-Orthodox practice, this is done directly, with the mohel's mouth on the site of the incision.Ten days after the brit, one of the babies died, and an examination revealed that the cause of death was herpes. The second twin also tested positive for herpes, and after New York City health authorities opened an investigation, they discovered the virus in another baby who had been circumcised by Fischer.The public health department's initial conclusion was that there was a reasonable suspicion that all three babies had been infected by Fischer when he drew blood with his mouth. The authorities immediately forbade Fischer from performing any more oral procedures, ordered him to work only while wearing sterile gloves, and filed a complaint against him at the New York Supreme Court in Manhattan, demanding that he cooperate with the investigation and refrain from drawing blood orally until the matter is resolved.A dangerous customFischer was to report to the courthouse for a hearing on the matter yesterday, but even before it can receive full legal attention, all of the parties already are raising their claims. Fischer's lawyers, attorney Mark Kurzmann and his son Hillel Kurzmann, say that their client has been fully cooperating with the investigation, so any legal action against him is superfluous."The city apparently has a much broader agenda, beyond the actual investigation," says Mark Kurzmann, noting that according to his understanding, the debate is not over the medical question concerning the transmission of herpes, but the broader issue of freedom of religion. To prove his point, Kurzmann notes that even before completion of the investigation, the New York health commissioner declared that the oral drawing of blood "constitutes a threat to the public health."Fischer, who declined to be interviewed for this article on his lawyers' advice, underwent a series of medical tests to detect the herpes virus, and is continuing to perform circumcisions in New York, for the time being without oral suction. Even before the current incident made headlines, Fischer would use a glass tube if the baby's parents requested it.The Jewish community is divided on the question of the continued practice of direct oral contact during the brit. While many in the Haredi and Orthodox community believe direct contact between the mohel's mouth and the site of the cut foreskin is necessary, many others have adopted the more modern approach in which the blood is drawn through a small, sterilized glass tube that ensures no direct oral contact in order to avoid the risk of infection.The Rabbinical Council of America (RCA), America's largest Orthodox rabbinical organization, issued a statement supporting the use of the glass tube two weeks ago."The requirement [of drawing blood] is fulfilled completely and unambiguously by the use of oral suctioning through a tube," declared the RCA, adding, "One absolutely fulfills the precept whilst placing the infant and mohel at no additional risk."Executive VP of the RCA, Rabbi Dr. Basil Herring, who initiated the declaration, says the organization felt the need, in light of the current debate, to clarify that from a halakhic (Jewish legal) and health perspective, and for the sake of appearances, it is preferable to use the tube rather than the direct oral contact method.This approach is also in line with a study conducted and published by the Pediatrics medical magazine last year. The 12 researchers who prepared the report concluded that oral contact with the baby constitutes a risk of the transmission of herpes from the mohel to the baby. The researchers reached this conclusion after examining eight cases in which babies contracted herpes two weeks after their brit. Among the signatories of the report is Rabbi Dr. Moshe Tendler, who teaches biology at New York's Yeshiva University.Tendler stressed in interviews granted to the U.S. Jewish media that herpes is much more common than many people think, and direct oral suction of blood is certainly a dangerous custom. Tendler added that even after this fact became well known, and after studies were published proscribing that adherence to the custom of oral suction needlessly endangers a baby, some parents still insist that the mohel follow the custom, and there are mohels who still continue with this hazardous practice.Not everyone accepts this approach, even when it is presented by an Orthodox authority."For tens of thousands of believing Jews in the New York area, this practice is an integral part of the fulfillment of the circumcision commandment; to them it is not optional," Kurzmann says, noting that only part of the Jewish community has adopted the changes instituted in the suction method in the past 150 years.No one has data on the proportion of circumcisions that use direct oral suction, but Orthodox community sources estimate that thousands are performed annually.Furthermore, certain circles that had displayed lenience toward the use of the glass tube are now returning to direct oral suction and have banned the tube.No fearsWhile in the United States, the Orthodox community is trying to present a creative approach to the issue of oral suction, the Orthodox neighborhoods of Jerusalem have been plastered with posters clarifying that the position of the Chief Rabbinate of Israel remains firm on maintaining the ancient tradition. The posters quote a ruling by Rabbi Yosef Shalom Elyashiv, the leader of the Degel Hatorah party and today's most important Ashkenazi Jewish legal authority, according to which there is nothing to fear from direct oral suction. Elyashiv states that when a mohel has a sore in or on his mouth, he should let someone else perform that part of the ceremony.Degel Hatorah's newspaper, Yated Neeman, defined the Fischer affair as outrageous, "an attempt to harm one of the foundations of the existence of the Jewish people," and "informing (tale bearing) to the gentiles." The newspaper stated that notifying the American media regarding the spreading of herpes was "a modern form of the libel that Jews had poisoned the wells" during the time of the Black Plague.Herring responded that the RCA "has great respect for Rabbi Elyashiv," but noted that other esteemed rabbis see things differently. "We are not the Catholic Church," he said, adding that the RCA "recognizes there are other viewpoints out there, and they have the right to follow their own way."The dispute over the manner in which the brit should be performed, however, may have more far-reaching ramifications. Extensive media interest in the affair, which was covered not only by the Jewish newspapers, but also by local newspapers throughout the country, has placed Jewish customs in a problematic light. The reports portray the brit as a custom that belongs to a bygone era, and which should be modernized in keeping with contemporary medical and public practices.Some members of the Jewish community also expressed fears that the baby's death would lead to increased state involvement in circumcisions. At this point, such intervention has stopped at the decision by New York state health officials to limit Fischer's activities, but the fear of regulatory intervention by state or federal authorities in brit procedures constantly lurks in the background.Kurzmann claims that the zeal of state authorities in handing the issue over to the courts attests to the desire to intervene, and poses a real threat to the freedom of religious expression for Jews who want a brit performed traditionally. At this point, the legal debate is not touching on that aspect, but if Fischer's case reaches the higher courts, and if New York City authorities take sweeping measures against the practice of oral suction, the courts could find themselves deliberating the principle question of freedom of religion versus health concerns.Herring says there is another problem regarding non-Orthodox Jews. "I am more worried about what regular Jews will think, that perhaps they will suddenly say they do not want brit milah, that they are afraid of the consequences. That is my concern."For now, that fear is unfounded. The current assessment is that all Jewish parents in the United States have their baby boys circumcised, and most of them do so according to tradition, with only a small minority opting for a surgical circumcision without a religious ceremony.
I think that this article has some mistakes. According to the most recent State Supreme Court of NY Court documents, (direct quotes)"Defendant [Rabbi Fischer] has failed to comply with the terms of the Order of the Commissioner, [which was] dated November 24, 2004, in that he has failed to cease and desist from engaging in MBP, that he has failed to submit blood specimens to the DHMH to test for the presence of HSV 1 antibodies, and that he continues to perform circumcisions without surgical gloves." And in another paragraph, "Defendant has not complied with the terms of the order in that he has failed to appear at the DOHMH Health Center to provide a medical history, blood samples, and swabs of skin and oral mucosa."
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