Regulating Rites

September 11, 2012

By Yoram Unguru, MD, MS, MA

Adapted from commentary requested by and submitted to the New York City Department of Health and Mental Hygiene (DOHMH) by Yoram Unguru, MD, MS, MA, attending physician, The Herman and Walter Samuelson Children’s Hospital at Sinai, and faculty, Johns Hopkins Berman Institute of Bioethics.

Direct orogenital suction (known as metzizah b’peh) is an ancient practice employed as part of (Jewish) ritual circumcisions (brith milah) wherein the circumciser (mohel, plural: mohelim) sucks blood from the infant’s penis. According to the Babylonian Talmud, , following the brith milah, the practice of metzizah b’peh was instituted as a means of wound care to protect the infant. Today many mohelim no longer perform direct orogential suction due to its associated infectious risks including herpes simplex. However, some traditional ultra-Orthodox Jewish mohelim continue this practice, despite calls from Talmudic scholars as well as pronouncements by both the Rabbinical Council of America and the Israeli Chief Rabbinate calling for alternative methods to metzizah b’peh.

A recent study conducted by the New York City Department of Health and Mental Hygiene (DOHMH) concluded that over an 11-year period, infants who underwent brith milah involving metzizah b’peh were at an increased risk of developing neonatal herpes simplex infection compared to infants where orogenital suction was not performed. Of the 11 infected newborns, 2 died and 2 developed central nervous system infection.


The New York City DOHMH has proposed an amendment of Article 181 of the New York City Health Code requiring mohelim to obtain the written informed consent (permission) of parents prior to performing direct orogenital suction.


This amendment is not an attempt to abolish the practice of metzizah b’peh, which arguably would be virtually impossible.  Rather, by requiring parental permission, the City of New York is seeking as much as possible to protect infants from potential harm.  The proposed amendment is ethically appropriate and in harmony with the American Academy of Pediatrics Task Force on Circumcision Policy Statement. Although circumcision may be viewed as a religious practice, it is also a medical practice subject to state regulation, regardless of who performs it. Accordingly, local government has the authority to require explicit informed consent.


Because infants (and most children) lack the ability to provide valid informed consent, this responsibility falls upon parents or legal guardians who are given wide latitude for decision-making. This is particularly true in the United States where parental decisions for minors may also consider religious, cultural, and ethnic factors. Medical decision-making for minors is primarily based on the best interests standard and unless shown otherwise, parents are assumed to have their child’s best interest at heart and act accordingly.


Evidence from studies conducted in the 1980s, suggests that many parents are not appropriately informed of the risks and benefits of circumcision. This apparent lack of parental appreciation for the risks and benefits of circumcision takes on particular significance for Jewish parents who may desire that metzizah b’peh be included as part of the ritual circumcision. Moreover, even if parents are aware of the infectious risks of metzizah b’peh, they may be unwilling or unable to consider alternative practices (including refusal) due to strong belief in and loyalty to traditions, not to mention the potential for pressure from within the Orthodox community to adhere to ancient customs like metzizah b’peh.


Consistent with the process of informed consent, the amendment would require mohelim intending to perform direct orogenital suction responsible for explaining the specific procedures included in ritual circumcision, the associated risks and benefits (including possible infection with herpes simplex virus and the consequences of infection) and possible alternatives.


For a decision to be valid it must be both voluntary and informed. Ideally, in order to assure that meaningful informed consent has been obtained, the consent process should provide parents with enough time to reflect upon their decision. Consequently, discussions should occur in advance of the actual brith milah and not on the day of the circumcision. Given the potential for serious harm should the infant develop herpes simplex infection, arguably, mohelim should prove that they are not capable of infecting infants by submitting to frequent and regular testing to document negative herpes simplex titers (as well as other transmittable diseases) and informed consent should be solicited from both parents.


Importantly, ongoing discussions between representatives from both sides of the issue should continue and consideration should be given to include stakeholders from the Orthodox community in drafting the actual informed consent document. Acceptance of the informed consent document by the mohelim who will be using it will increase the likelihood that they will abide by the requirement to obtain parental consent prior to performing metzizah b’peh, keeping the practice in the open. While some mohelim might view the consent requirement as trivializing a sacred and long-standing religious tradition, requiring parental consent is one way to protect infants’ rights.


Although obtaining parental consent for ritual circumcision that includes metzizah b’peh is a necessary and appropriate step, some commentators have suggested that it is not sufficient. Specifically, based both on Talmudic law and medical ethics, they contend that because metzizah b’peh increases the risk for potentially life-threatening complications associated with herpes simplex infection, it should not be performed. In fact, in its recently revised Circumcision Policy Statement, the AAP specifically addresses direct orogenital suction, advising against the practice due to the increased risk for harm as a result of transmission of serious infectious diseases. Although banning the practice of metzizah b’peh is not the scope of the proposed amendment, given the risk for a potentially devastating outcome, one wonders if it should not be.


In the United States, religious freedom is an inviolable tenet codified and protected under statute. However, there are limits to the extent of this freedom, especially when it comes to harm. Similarly, although parents are granted wide latitude for decision-making, parental authority is not absolute. Importantly, parents who are committed to their child’s interests may not always make the best decision for them. Therefore, children need to be protected from the consequences of unwise decisions that jeopardize their well-being, irrespective of the decision-maker or his/her motives. When a parent’s decision is not in a child’s best interest, the doctrine of parens patriae, allows the state to interveneand to act as a “surrogate parent” for those who cannot care for or protect themselves. Likewise, when an intervention (or in the case of a necessary treatment, lack of an intervention) places a child at risk of serious harm, parental and religious motivations take a backseat to the well-being of the child and should not be respected.


Thus, while consent for ritual circumcision is appropriate and sufficient, consent for ritual circumcision including metzizah b’peh shouldnot be permitted.


Dr. Unguru
is board certified both in pediatrics and in pediatric hematology/oncology, and he has served as a consultant to the American Academy of Pediatrics Committee on Pediatric Research tasked with revising the AAP Guidelines for the Ethical Conduct of Studies to Evaluate Drugs in Children.  He has also served as a consultant to the American Medical Association Council on Ethical and Judicial Affairs tasked with modernizing pediatric components of the AMA Code of Medical Ethics.  As a pediatric resident, he was a founding member of the Pediatric Committee on End-of-Life at The Children’s Hospital at Sinai, which he now chairs.
Dr. Unguru continues to serve as an ethics committee and IRB member and is a member of both the Children’s Oncology Group and American Society of Clinical Oncology Committee on Bioethics.  Dr. Unguru implemented and directs an ethics curriculum for the pediatric house staff at The Herman and Walter Samuelson Children’s Hospital at Sinai.

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