Op-Ed: Consent Form or Anti Metzitza BePeh Form?

To some, Metzitza BePeh may seem distasteful. That, plus heightened sensitivity to inappropriate touching of children, as well as recently proposed circumcision bans in Europe, make MBP perfect prey for unfounded fears. Science and religious practices, however, cannot be based on such.

In a recent Jewish Press article, the reader was asked to “imagine a commonplace scenario,” with parents, ignorant about MBP, causing a child to die.

Such an episode is just that, one of wild imagination, manipulatively appealing to fear rather than reason. As we will substantiate, there is not a single case of neonatal herpes confirmed to have resulted from MBP.

However, one tragic story is real. In 2011, as communicated directly to us by the parents, a newborn spent hours in intimate contact with his older brother with active herpes lesions on his lip. They even shared a pacifier. (We possess medical records of the brother having active herpes before and after the newborn’s birth.) At the time, the parents were unaware of the danger and the baby died.

The danger of such exposures is repeatedly documented in the literature. Gutierrez et al. write in Infectious diseases of the fetus and newborn infant: “Relatives and hospital personnel with oral labial herpes may be a reservoir of virus for infection of the newborn,” referencing DNA matching as part of the evidence.

Despite this, the New York City Department of Health and Mental Hygiene (NYCDHMH) blamed the death on MBP and in September, 2012 passed a regulation declaring MBP illegal, unless the Mohel obtains a signed form from the parents, including: “I understand that direct oral suction will be performed … and that (NYCDHMH) advises parents that direct oral suction should not be performed because it exposes an infant to the risk of … herpes … infection, which may result in brain damage or death.”

The legality of this resolution is being challenged in a federal appellate court.

What is wrong with such a form? So argues the above article’s author, Akiva Shapiro, an attorney retained by several amici organizations, in support of the NYCDHMH.

The answer is in a brief submitted in opposition to the regulation by the Becket Fund for Religious Liberty, and co-authored by Michael W. McConnell, Professor at Stanford University’s Law School and the Director of its Constitutional Law Center, a former federal appellate judge, and a foremost expert in the area of religious freedom: “The regulation was, the City concedes, specifically targeted at Orthodox Jews and specifically at the religious ritual of MBP. The regulation stands alone; it is not part of a broader or more general effort to protect infants from consensual practices that carry similar risks or even greater risks of disease. Moreover, the regulation was put forward in a context of hostility towards Orthodox Jews.”

Although the government is chartered to promote public health, the Constitution mandates that, any government regulation that burdens religious exercise, such as the anti-MBP form, must be based on strict scrutiny, i.e., rigorous evidence. Along with other arguments based on the legislative history, McConnell concludes: “The regulation triggers strict scrutiny because it targets a particular practice, and only that practice.”

What, then, is the scientific evidence that would justify, let alone meet the supreme standard of strict scrutiny for the above mandated statement in the form?

Shapiro repeats the NYCDHMH’s claim, “confirming 11 cases of herpes acquired by infants in NYC from MBP in recent [i.e, 12] years, resulting in two deaths and two cases of permanent brain damage.” He states, “The evidence is incontrovertible that MBP increases the risk.”

Although, as in any population segment, there are herpes cases among MBP boys, no statistically significant correlation, let alone causal link has been established. The NYCDHMH produced a statistical analysis, claiming greater risk for boys with MBP than others. However, expert statisticians, epidemiologists and mathematicians have concluded in affidavits and publications, that no statistical proof exists whatsoever. (We serve as expert witnesses in the above litigation; however, entirely pro bono. Furthermore, we belong to modern Orthodox communities where MBP is rarely performed and have no ideological commitment to the issue.)

Furthermore, the DNA makeup of a virus from a Mohel has never been compared with that of a baby with herpes.

A prestigious University of Pennsylvania (UofP) Center published, in December 2012, its analysis of the evidence regarding the possibility of herpes transmission through MBP, including all the literature Shapiro presents. It concludes:” this evidence base is significantly limited by a very small number of reported infections, most of which were not identified or documented systematically. Other important limitations include incomplete data about relevant elements of the cases, the presence of confounding factors, and indirect data sources.” As to the single study claiming statistical evidence for an elevated risk among babies exposed to MBP, the report notes, “this finding is limited by methodological challenges in determining the total population at risk, limited information about some of the cases, and the small number of infected infants.”(U. of P. has, previously, taken issue with our quoting this report and our characterization of its findings; however the above quotes are verbatim. The report is in the public domain, e.g., at www.brisnyc.com.)

A 2012 position paper by an Israeli government committee states: “according to halachic authorities who hold that MBP is an essential part of…milah, there is no necessity to cease this procedure unless there will be clear-cut scientific evidence for endangering the baby by MBP in a statistically significant rate. This has yet to be proven.” Its principal author is Rabbi Prof. Steinberg, author of the Encyclopedia of Jewish Medical Ethics, senior pediatric neurologist at Shaarei Tzedek , Director of its Medical Ethics unit, and the only individual to have received the Israel Prize twice.

Since 2005, the NCYDHMH has, relentlessly, attacked MBP. Even before collecting any surveillance data, Commissioner Frieden sent an open letter to the Jewish community, stating: “there is no reasonable doubt that the practice of MBP has infected several infants …, including one child who died and another who has evidence of brain damage.”

In 2006, neonatal herpes became a reportable disease, requiring thorough testing of any case with any clinical suspicion of herpes. When diagnosed, reporting to NYCDHMH became mandatory. Many anticipated the discovery of numerous cases, among MBP babies, with terrible complications. However, rather than increasing, the annual rate declined modestly and only one case resulted in brain injury or death; this is the above tragic case where the baby had intimate contact with his brother with active herpes.

In view of the above decline of the herpes rate among MBP boys, Shapiro presents two claims, both defied by the facts.

He first contemplates: “cultural hurdles compound the problem of underreporting,” implying that there are many unreported cases. This is absurd. It is not up to the family, but the physicians, hospitals and laboratories, who would face extreme penalties for not reporting when mandated.

But then Shapiro suggests: “the reported cases are very likely only a subset of the far larger population of infants who acquire HSV and other infectious diseases through direct oral suction.” This, he speculates, is because “tragically, only a few jurisdictions in the world mandate reporting of neonatal HSV.”

The New York City experience invalidates this argument. Without mandatory reporting, six cases were identified from 2000 until 2006, compared with five cases, a lower annual rate, between 2006 and 2012, under mandatory reporting and a larger MBP population with in excess of 30,000 such circumcisions.

To justify the regulation, Shapiro imagines parents who “never heard of MBP.” Given the abundance of media coverage, nobody in New York’s Jewish community is ignorant about MBP. Moreover, the NYCDHMH distributes, in the city’s hospitals, their brochure “Before the Bris,” with a detailed explanation of MBP and strong advice that “parents not have MBP performed during the bris”.

Shapiro also claims that the “form actually protects the religious liberties of parents by ensuring that they make the decision whether MBP is performed.” Following this logic, there should be a consent form for any bris milah, with or without MBP, stating that it should not be performed because of complications such as bleeding and infection.” In fact, Professor Steinberg in his above paper states: “the incidence of neonatal herpes after MBP is significantly lower than other infections and certainly much lower than other complications related to circumcision. There should be forms for Shabbos and Hanukkah candles, which sometimes lead to tragic fires, and for parents requiring their children to fast six days per year, in view of possible medical risks.”

Furthermore, no recreational activities (bicycling, skiing, swimming, football, baseball) should be permitted for children without a form, stating: “the government recommends that these activities not be performed lest they cause death, paralysis, brain damage, and other injuries.” In all these examples, the causal link to the stated consequences provides at least some justification for a consent form; in contrast, no causal link has ever been established for MBP.

Shapiro states that for “cultural reasons, there is often active resistance to testing and identification from both ritual circumcisers and parents, even after a child has acquired HSV.” Shapiro is well aware of a 2006 testing protocol agreed to between New York State and the Jewish community. This was agreed to by Gedolei Yisrael including Rav Elyashev, Rav Ovadiah Yosef, Rav Lefkowitz, Rav Kanievsky, Rav Steinman and the principal Chasidic leaders. It was NYC that opposed this protocol. One year later, NY State also withdrew. The Jewish community practicing MBP is extremely eager to conduct unbiased testing.

Finally, consider Professor Mc Connell’s statement: “The regulation was… specifically targeted at Orthodox Jews and specifically at …MBP.” Indeed, along with the 5 MBP boys, 79 unrelated cases of neonatal herpes were identified, during the above surveillance period. Fifteen of them died. However, the City made no attempt to publicly identify their underlying causes, let alone to prevent similar occurrences.

In the 3,500 years during which mila has been practiced, MBP or circumcision altogether have been attacked repeatedly. In the eighties for e.g., many pressured major Poskim, like Rav Feinstein, to suspend MBP, convinced it results in increased risk for AIDS. Rav Feinstein found the evidence entirely lacking; as with herpes, the arguments were confined to theoretical plausibilities. We now know that AIDS has never been transmitted through MBP.

The Anti-MBP regulation is as unwarranted as it is an unprecedented first step curtailment of our free exercise of religion, the bedrock on which this country and its Jewish community have flourished since their inception.

Dr. Daniel Berman, Infectious Disease Specialist, Albert Einstein Hospital and Montefiore Medical Center

Professor Brenda Breuer, Director of Epidemiologic Research, Department of Pain Medicine and Palliative Care, Beth Israel Medical Center

Professor Awi Federgruen, Charles E. Exley Professor of Management, Graduate School of Business, Columbia University