Mayor Bill de Blasio’s new, tougher policy on mohels linked to herpes cases was met with outrage from the charedi community, which supports the controversial circumcision ritual, and qualified praise from critics of the practice.
“Moving forward … Every time there is a mohel who performed MbP [metzitzah b’peh] on an infant who has contracted HSV-1, the Health Department will serve them with Commissioner’s orders banning them from performing the ritual,” the new policy guidelines say.
The ban will remain in effect unless the mohel is tested for the herpes virus and it comes back negative, a city spokeswoman said.
The plan is in sharp contrast to the 2015 deal reached with charedi leaders, which only banned the mohel if both he and the infant tested positive for the same strain of the virus through DNA testing.
What remains unchanged is that the city is relying on the mohels to self-enforce the ban. A city spokeswoman said health officials can’t release the names of banned mohels for privacy reasons, but that they expect the mohels to comply. If the city discovers a mohel who doesn’t, he will be hit with a $2,000 fine.
While MbP critics called the change a good first step, charedi community leaders characterized it as blatant persecution on par with McCarthyism.
“Do we just blame people by means of association?” asked Rabbi Levi Y. Heber, a prominent Crown Heights mohel. “This is what some would call a witch hunt or a modern-day blood libel, where you blame the mohel for something without looking into facts or evidence.”
Metzitzah b’peh is practiced by more than 200,000 chasidic and black hat Jews, who see it as a religious mandate. … Nearly half of all Jewish boys in NYC have a bris that includes MbP, one researcher estimated.
In metzitzah b’peh, the mohel sucks on a newborn’s penis to cleanse and draw blood away from the incision. The ancient practice can lead to brain damage or death if the mohel transmits herpes to the newborn in the process. Since 2000, there have been 24 such cases reported. Two of the infants died, and at least two others suffered brain damage.
Metzitzah b’peh is practiced by more than 200,000 chasidic and black hat Jews, who see it as a religious mandate. About 5,200 circumcisions with MbP are performed each year in New York City, according to Awi Federgruen, a professor of quantitative methodology at Columbia Business School. While the percentage of Jews that practice metzitzah b’peh is usually reported in the media as quite small, Federgruen estimates that 48 percent of all Jewish baby boys in New York City have had a bris that includes metzitzah b’peh. (Federgruen bases his estimate on the following: According to the UJA-Federation of New York’s 2012 Jewish population study, 60 percent of Jewish children in the New York area live in Orthodox homes. By looking at kindergarten enrollment in New York City yeshivas, which are each affiliated with individual sects of the charedi community, Federgruen determined that 80 percent of Orthodox boys had undergone MbP. Eighty percent of 60 percent is 48 percent.)
Charedi mohels say they would gladly cooperate if the city would do DNA testing of the virus strains to confirm that a mohel, and not a family member or caretaker, infected the baby. And in fact, that is the plan de Blasio adopted in 2015 when his administration scrapped the much-hated consent forms instituted by Mayor Bloomberg. Charedi leaders say city officials reneged on the deal by not doing the DNA testing. The de Blasio administration says the charedi community reneged by not identifying all the mohels and that the mohels identified did not cooperate with the testing.
In 2014, a Rockland County health official said that DNA testing exonerated two mohels who were believed to have transmitted herpes to infants they circumcised. Other medical officials have disputed the validity of the findings.
Asked how the health department can be sure the mohel is the source of the infection if no testing is done to match the strains, a de Blasio spokeswoman said that other factors give enough information.
“They say timing and location of lesions and the fact that it’s HSV-1, which is not a sexually transmitted disease, as opposed to HSV-2, which is, so therefore it must be the mohel,” said an attorney who is familiar with the charedi community’s views on the topic. “Epidemiologically, it suggests that this is the source. We certainly say it could be a source, the mode of transmission, but it’s not necessarily.”
Rabbi Heber argues that confirming that the mohel has HSV-1 is not enough to peg him as the source of the infection because 70 percent of the population has the cold sore-causing virus. Most cases of neonatal herpes come from the mother during birth. Some come from parents and other caregivers after birth, for example, Rabbi Heber said, by touching a cold sore then rubbing cream on a baby with a bad case of diaper rash. Health officials say the chance of this type of transmission is extremely low.
Either way, Heber says there’s no reason not to do DNA testing. “There is the means of testing whether the mohel is the cause or not, and the city is just not interested,” he added. “If a mohel is linked, he should be banned from the practice.
“What is the logic of not doing DNA testing?” he said.
According to Politico New York, the city won’t use DNA testing “because [flare-ups of] viruses come and go and by the time a mohel is identified and tested, he may no longer have that particular virus [active and detectable], even if he did, in fact, infect the infant.” (The city did not respond to emails asking for confirmation of the stance.)
“Deference to a religious organization at the expense of infant health betrays its very reason for existence.”
Ester Fuchs, who advised Mayor Michael Bloomberg on his metzitzah b’peh policy, called the de Blasio administration’s guidelines a start. “The policy change is moving in the right direction and it’s positive,” said Fuchs, who teaches political science at Columbia University. “But we continue to need oversight by the New York City Department of Health.”
Marci A. Hamilton, a legal expert on church-state issues and head of the advocacy organization CHILD USA, agreed, calling the new plan “an important and welcome step forward for infant safety.”
“Deference to a religious organization at the expense of infant health betrays its very reason for existence. The next needed step is enforcement of such a ban,” she wrote in an email.
Mitchell Moss, a professor of urban policy and planning at NYU who has been a vocal critic of the city’s MbP policy, took a similar stance.
“The health department is certainly pursuing the right strategy in banning these mohels,” he said, “but the first challenge is to … prevent the infants from ever getting it.”
Without any testing, it’s unclear whether the new plan will stand up in court, said Marc Stern, general counsel at the American Jewish Committee and an expert in church-state law.
“It clearly marks a hardening in attitude on the part of the health department, but the immediate question that comes to mind is, frankly, the due process clause,” he said.
“The question is going to be: How do you challenge the commissioner’s order and who has the burden of proof, particularly because it’s at least not impossible that people will catch HSV in other ways?” he continued.
“I imagine what the commissioner is saying is since HSV in infants is unlikely … if a kid comes down with HSV so soon after circumcision with metzitzah b’peh, the presumption is that it passes from the mohel, because the other sources are unlikely. And therefore an immediate ban is necessary,” he said. “We’ll see what the courts say about it.”
Under the new plan, the health department will also: send out a health alert every time there is a post-metzitzah case of neonatal herpes, make their epidemiologic investigations more culturally sensitive and distribute educational materials on the risks of MbP more widely. The materials will still advise parents to avoid MbP, and says that if they do plan to do metzitzah, they should make sure the mohel doesn’t have HSV-1.