Wednesday, September 12, 2012

MBP: IDSA Letter to Mayor Bloomberg

23 comments :

  1. DT, do you know how widespread this practice is when performing Bris? I was under the impression that a minority of Mohelim use it, but it could be that in fact it is much more than that?

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    1. my understanding is that in the Litvishe world is is viewed differently than the chassidic world. For example in the old days when a woman would be in the hospital 2 weeks after giving birth with her baby - the hospitals did not allow MBP. Rav Moshe and others said that it is better to have the bris on the eight without MBP then to have it after the 8th day with MBP. The Chassidic world disagrees and asserts that there is no mila without MBP and thus they pushed off mila until after the 8th day so that there would be MBP.

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    2. Both the Litvish ("Yeshivish") and Chasidish communities do MBP in the vast majority of their Bris Milah's.

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  2. The NYC DOH regulation will be widely ignored, in any event. It is utterly uneforceable, as the DOH doesn't have the legal ability to station inspectors in shuls to witness Bris Milah's. And no one from the Chasidic and Chareidi community will maaser anyone. So the DOH won't even know 1) who the mohel was 2) whether or not MBP was performed.

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  3. 1. The DOH regulation isn't even a law. It is just a regulation passed by the local directors of the city health board. Even if it is violated, it is not breaking the law. It will result in getting a "ticket" with a monetary fine. (Like a parking ticket.)

    2. It is illegal as it is unconstitutional. The government is constitutionally prohibited from regulating a religious ritual.

    3. It is unenforceable. The government cannot place department of health inspectors in synagogues to observe if the mohel performs MBP or not. At most, they need to ask the parents or mohel. And they probably won't even know who the mohel was. And even if they ask, neither the parent nor the mohel have to answer or even talk to the DOH or any government officials. It is called the Fifth Amendment.

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    1. With respect to your claim that the regulation is illegal, you are misunderstand the regulation and the law. The DOH is not outlawing MbP. It is simply requiring that the parent be informed of the health risks. It does not outlaw the practice. Furthermore, it is not true that the government is constitutionally prohibited from regulating a religious ritual. It is just that the courts would subject the law to a higher level of scrutiny.

      The government regulates slaughterhouses. You do not have a right to say that since shechita is a religious ritual you are free to slaughter animals on your front yard free of any regulation.

      The fifth amendment protects against self incrimination. You can be compelled to testify against a mohel.

      This regulation seems reasonable to me. The DOH believes MbP is dangerous (and really, there is not one recognized expert who thinks otherwise). They recognize that some parents wish to employ the practice and therefore, have decided not to ban it but to require that parents be informed of the medical risks. If you wish to ignore the DOH opinion, simply sign the waiver and proceed with the MbP. There is no conflict between dina demalchuta and this regulation, thus, there is no reason to flout the government regulation.

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    2. The rule is going to be wholly ignored by mohelim and parents. No one will know whether metzitza was done b'peh or with a tube. The Health Department won't be posting inspectors to witness any bris.

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  4. since when has blood been something that is kosher?

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  5. Here is the proposed rule. The Board of Health meets tomorrow morning, at 10 a.m., to vote:

    "§ 181.21 Consent for direct oral suction as part of a circumcision.

    (a) Direct oral suction means contact between the mouth of a person performing a circumcision and the infant’s circumcised penis.

    (b) Written informed consent required. A person may not perform a circumcision that involves direct oral suction on a child under one year of age without obtaining, prior to the circumcision, the written informed consent of a parent or legal guardian of the child who is being circumcised in a form approved or provided by the Department. The written informed consent must include notice that direct oral suction exposes the infant to the risk of transmission of herpes simplex virus infection and other infectious diseases.

    (c) Retention of consent forms. The person performing the circumcision must give the parent or legal guardian a copy of the signed consent form and retain the original for one year from the date of the circumcision, making it available for inspection if requested by the Department."

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  6. Violating this new regulation, should it go into effect, will result in (at most) a fine. Even if a mohel was found in violation 100 times, the only statutory authority the city has is to issue a monetary fine to the mohel. (They don't even have easy ways to enforce payment of the fine. That is, if they ever could even find a mohel in violation.) He can be found in violation 1,000 times, and even with so many violations the department can only keep issuing a fine.

    It is akin to violating a parking regulation (i.e. parking in a "No Parking" zone.)

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  7. Can anyone answer these questions:

    1. How can anyone argue that the bris is not a bris without MBP?

    2. The Torah requires the bris to be done on the 8th day, so how can MBP justify delaying the bris, causing a violation of Torah law?

    3. If MBP is actually a sakanah (danger), how can anyone argue it must be done, if the bris is still valid without it?

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  8. Emes@Yaakov

    The 4th question, that requires an answer, is how can MBP override the issur of eating blood?

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    1. First of all there is no Torah prohibition of eating human blood. Secondly he is not eating the blood but spits it out - so what is the prohibition?

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    2. Presumably, then, you could go on to argue that the rabbinic prohibition also doesn't apply, since maarit ayin is not taking place? (i.e. everyone knows what he is allowing into hsi outh).

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  9. The maximum penalty for not having consent form signed is $2,000.

    I do not expect enough compliance to extract the fine form episodes involving chasidish babies. But where the parent is not haredi and the MBP has not been explained and accepted beforehand I think there will be complainants.

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    1. It's a joke. There will be no way for the Board of Health to prove whether metitza was done b'peh and thus technically needed a form or whether the metzitza was done with a tube and thus did not need a form.

      And if they do issue a $75 ticket to a mohel fining him for not for not having the form, the mohel can simply mail it back pleading not guilty to the regulatory issue claiming there was no b'peh.

      So they will almost never be able to even issue a simple fine in the first place.

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    2. Additionally, even if the $75 fine is upheld (fines start at $75), the Mohel can simply discard and ignore it. The only way for the NYC DOH to even collect the fines if they are ignored, is to go to civil court and file a judgement every time every mohel discards a ticket.

      Aside from the fact, that even if they DO have to pay, the mohelim will simply still not comply with the new regulation.

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  10. Question for all of you: I am told that even chasidim do not MBP by adult circumcisions. I can understand why.

    My questions are:
    1. Do any of you have further information on that
    2. If this is true, than how can people insist it is necessary for valid milah, especially for geirus.

    Incidentally, re geirus I was told by one rov involved that while in the past it almost always hatafas dam, nowadays the issue is more common because more and more non-Jews are uncircumcised. I would guess that in Israel, most of the older Russians are uncircumcised, so this issue may very well have come up more often.

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  11. I once asked Dayan Berkovits ztl of London about his opinion on smoking, and he gave a good kal v'chomer. He said the restriction on eating fish and meat together was for health reasons, i.e. sakanat nefashot. He then pointed out that we don't have any cases of people dying from consuming fish and meat together, but there are thousands or millions who die each year from smoking.

    Now apply the same logic to MBP. Viruses can kill, and a virus carried by some mohel such as HSV, HCV, HIV etc into the blood of a baby can and does kill.

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    1. Sorry Eddie - don't see the relevance or validity of your logic.

      The argument is that MBP is an integral part of mila itself. That Jewish have been doing in for many years - and that with proper precaution it is very rare. While it is true there is a risk - but there are risks for many things that we do - such as crossing the street or driving a car. People die from dental procedures - but we don't ban them.

      In sum - if MBP wasn't viewed as essential then you are right - why take the chance. But when something is essential or considered important then we do take chances.

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    2. Sorry DT, I believe you are being irrational and showing disregard for the Torah in this specific case.

      The origin of MBP is a separate discussion, and since it can does put lives at risk, and there are documented cases of death directly attributed to it, then there is no justification whatsoever to play with people's lives.

      "there are risks for many things that we do - such as crossing the street or driving a car."

      If there is a safer way of doing something, then you should do it. There is a risk to changing a lightbulb, but if you do it whilst standing in a bath full of water the risk is much higher.

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  12. As I have said on a number of other issues, the genius of the Hatam Sofer never fails us. This article shows some discussion on the problems we are now debating:
    http://www.ou.org/index.php/jewish_action/article/8976/P1/

    I ask mechila for any insults I have thrown in the past year, and wish everyone Hatima Tova!

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    1. Eddie the Chasam Sofer is not your man. He did not observe publicly any kabbalistic practices.

      Thanks for your contributions to the discussions - to be continued kesiva v'chasima tova

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