The controversial circumcision ritual known as metzitzah b’peh made headlines again last week after the city’s health department released a memo noting that six newborns have been infected with herpes following the use of the bris technique since 2015.

That was the year Mayor Bill de Blasio instituted a new policy regarding metzitzah b’peh that relied, in part, on leaders of the Orthodox community informing the health department about mohels who needed to be tested for the herpes virus.

The controversy deepened this week when health officials admitted that none of the mohels tied to those infections have been tested for herpes, despite the new policy requiring it.

All of it puts the mayor in a tricky spot on a sensitive issue at the intersection of church and state and public health.

In metzitzah b’peh, also known as MbP, the mohel sucks on a newborn’s penis to cleanse and draw blood away from the incision. It is practiced by more than 100,000 charedi Jews, who believe it to be a religious mandate. However, the practice can lead to brain damage or death if the mohel transmits the herpes virus 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.

In February 2015, the de Blasio administration made good on a campaign promise by repealing a Bloomberg-era requirement that parents sign a consent form alerting them to MbP’s risks before allowing their children to undergo the procedure. 

However, because it appears that charedi leaders are not keeping their end of the bargain by enforcing the new policy, city health officials announced Sunday that they might have to “go back to the drawing board” and revise the regulations.

When the health department got rid of the consent forms (which, in any case were rarely used), it instituted a new policy. Healthcare providers and hospitals in charedi neighborhoods were required to distribute pamphlets about metzitzah b’peh’s risks. The new policy also stipulates that if an infant begins showing symptoms of herpes after metzitzah b’peh, rabbinical leaders will help the health department identify which mohel performed the bris and ask him to be tested for the virus. If the mohel tests positive for the same strain of the virus as the baby, the city’s Department of Health is supposed to ban him for life from performing metzitzah b’peh; charedi leaders said they would help enforce this policy.

However, it appears that the new policy is not being enforced. In the most recent case of herpes transmission, which came to light last week when the Department of Health alerted health practitioners to be on the lookout for new cases, Mayor de Blasio said the city was still “in the process of identifying the mohel” although the virus was discovered in the infant more than two weeks earlier. The health department did not respond to The Jewish Week’s question as to whether the mohels in the previous five cases have been tested. The New York Post reported that of the six cases, only two of the mohels were identified and neither was tested for the virus. Rather, they were “advised” not to continue performing metzitzah b’peh.

While de Blasio’s policy has not prevented new cases of neonatal herpes, neither did Bloomberg’s consent forms.

While the mayor said last Wednesday that he and the DOH “expect full cooperation from the community” in identifying the mohel, it appears that hope was growing dim by Sunday, when the health department released a statement saying that while the “better option” is “working with families and the community when there is a new case of neonatal herpes,” because their “main priority is to protect the health of babies, if the community is not living up to the deal announced in 2015, we’ll go back to the drawing board and start over.”

Neither the de Blasio administration nor the DOH responded to questions about what a new policy might look like or why they haven’t been enforcing the one they already have.

Several Jewish political observers said that while it might not be clear what policy would be most effective in reducing the incidence of neonatal herpes, they agreed that whatever policy is put in place, the most important element is to enforce it.

“This is a public health hazard that the city government has an obligation to respond to,” said Ester Fuchs, a Columbia University political science professor and a former special adviser to former Mayor Michael Bloomberg during the period when his metzitzah b’peh policy was being formulated.

However, she added, it’s important that along with any regulations that are passed, “sufficient resources are put in so that it’s enforced and effective.”

“You can put regulations in place, but if you have no oversight and no enforcement it’s worthless,” said Fuchs, who directs the Urban and Social Policy Program at Columbia’s School of International and Public Affairs. “Often a policy is passed and there’s an assumption that it will be implemented and no one goes back and checks until there’s a crisis.”

“The solution is very simple,” agreed NYU urban planning professor Mitchell Moss. “Enforce whatever penalties can be had against these mohels.”

He said that while the de Blasio administration has been “terrific” on addressing such areas as mental health, sexually transmitted infections and opiate addiction, “in terms of the practice of metzitzah b’peh … they have allowed this ultra-chasidic community to work without any public oversight or any regulation, which is particularly shocking given the risk to the newborn.”

David Pollock, associate executive director and director of public policy and security at the Jewish Community Relations Council of New York, suggests that the city concentrate on enforcing the distribution of the pamphlets.

“I think that the most important thing that he [de Blasio] can do — that’s totally under his control — is to make sure that the Department of Health and Mental Hygiene reaches out to hospitals and make sure they’re distributing the pamphlets,” he said.

That’s not to say that he doesn’t think the city should try to identify the mohels as well.

“Someone knows who the practitioners were,” Pollock said. “What we don’t want is a practitioner to do this to any other infant. We want to make sure the practitioners are doing everything possible, even if they are engaging in metzitzah b’peh, they should be doing everything possible to protect the infant.”

Many in the charedi community hope the new policy will be hands off.

“Whatever incident may or may not have occurred recently should not drive new policy. Headlines rarely make for good laws,” said Michael Tobman, a Brooklyn-based political consultant and former aide to Sen. Chuck Schumer, who often works with the Satmar community.

“Metzitzah b’peh is for many a foundational religious practice in which government has no appropriate role,” he added.

In terms of the mayor’s re-election bid, Fuchs, the Columbia professor, said any new regulations against the metzitzah practice would likely not hurt him.

“From a political perspective he’s no longer risking their [charedi] support. He has a strong record in the ultra-Orthodox community.”

In fact, Fuchs added, if he takes steps to enforce his metzitzah b’peh policy, it might even benefit politically. “I think he would get some points in the broader Jewish community, including the Orthodox,” the vast majority of whom don’t practice the ritual. “People would look at him as doing the right thing.”