Friday, Jul 19, 2024

City Repeals Metzitzah B’Peh Consent Law

Several years ago, under the Bloomberg administration, a regulation was passed requiring written informed consent before any bris with metzitzah b'peh. A coalition was formed by several Orthodox groups to fight the regulation in court. After the initial motion was denied, an appeal was filed with the Second Circuit which agreed with the plaintiffs. The case was remanded to the District Court to apply the proper standard and continue the litigation.

In the interim Rockland County instituted a DNA-based protocol, which resulted in two definitive non-matches, blowing a whole in the underlying contention of the city. This led to the De Blasio administration’s acknowledgment that the assumptions of the previous administration were in error.

New York City administration officials announced during a press teleconference an agreement to have the “consent regulation” relating to Metzitzah B’peh repealed.

“The city has agreed to no longer require that a mohel obtain a signed consent form before he is allowed to perform the ritual,” officials from Mayor de Blasio’s office said. “The city will support a Board of Health consideration to repeal the health code provision regarding written consent.”

City officials will now petition the court to drop the ongoing lawsuit over the provision and accept a settlement agreement with the plaintiffs, the official said.

“This new agreement fulfills the Mayor’s commitment to finding a more effective policy that protects children and religious rights in a way that more actively engages the cooperation of the community. This agreement focuses on two key areas: maximizing awareness of parents and minimizing risk to infants,” the Mayor’s office said in a statement.

Attorney Yerachmiel Simins, who assisted counsel for the plaintiffs and was a leader in the battle for Metzitzah B’peh, called the agreement “an important victory for religious freedom.” Included in the agreement, he said, is a commitment from the City that “that it will not regulate any aspect of the ritual.”

In addition, the city and the community “have tentatively agreed to work collaboratively to engage in a comprehensive DNA-based investigation to determine the source of any neonatal herpes infection,” Simins said.

In place of the regulation, the city will ramp up an educational campaign to warn parents of the so-called “dangers” of MBP.

“Let me say that the whole agreement is premised on the fact that we believe that only with the cooperation of the community can we achieve the best outcome for all children,” an administration spokeswoman explained. “Without a relationship of trust, this just won’t happen.”

“We have basically agreed to disagree,” she said of the long-running controversy with Orthodox Jewish groups over whether Metzitzah B’peh carries serious risks for newborns.

When asked by an AP correspondent whether the city still maintains its position that 17 cases of neonatal herpes diagnosed since 2000 “were linked MBP,” an Administration acknowledged “a policy shift.”

“Previously, we claimed a probable link to the mohel and the ritual of oral suction. Now that has changed. We will not insist on that link to the mohel without the clarity of scientific DNA testing procedures.”

According to the statement by Mayor de Blasio’s office, the agreement provides that:  

In cases where the mohel tests positive for HSV-1, the DOH, with support from and cooperation of the community, will conduct DNA testing to attempt to definitively establish the source of the baby’s infection as part of a comprehensive investigation of any other possible sources.

If the mohel is found, by DNA match, to have infected the infant with herpes, he will be banned for life from performing MBP by DOH, with support from and cooperation of the community.

The rabbinical coalition agreed to engage in campaign to have every mohel who performs a circumcision or MBP take steps to lessen the risk of transmission of HSV-1.

In cases where a mohel is clearly found to be a non-match, or where the testing was inconclusive, the mohel will not be restricted from practicing MBP.

In a sign of how far the city moved from its antagonistic stance toward the Orthodox community, an administration official responded to questions from Daily News and Associated Press as to why the Department of Health trusts the Jewish community to take appropriate measures against one of their own mohalim with an unprecedented endorsement of the Orthodox community.

“Why are we confident they will act? Because the community cares about their own children,” the official said. “They will not knowingly hurt their children. There is no administration that cares more about children than their own parents.”

Simins confirmed that the turning point in the case came when a Rockland County DNA investigation, based on a protocol with the Orthodox community, found that mohalim suspected of transmitting herpes infections to babies they had circumcised were found to be non-matches.

“The anticipation of additional disclosures of non-matches, or proof of direct matches from sources other than mohalim, convinced City officials that it would be futile to continue the lawsuit,” a community activist with knowledge of the case told Yated.

NYS Senator Simcha Felder was one of the first people to fight for this cause. He broke with Mayor Michael Bloomberg, at great peril to his career. He said that, “Boruch Hashem, the battle I began years ago when I was in the city council against the Bloomberg Administration’s edict prohibiting Metzitzah B’peh has finally been won. The Bloomberg Administration acted with such chutzpah, and willfully violated our religious freedom. Mayor de Blasio promised, during his campaign, to correct this appalling violation. As a result of ongoing discussions, concluding with today’s meeting, he is making sure that everyone, regardless of their beliefs, can practice their religion without fear of government interference. I am very thankful to the mayor.”

A grateful Issac Sofer, representing Central UTA of Satmar, told us that “the Mayor’s great leadership was extremely important. He kept his promise and with that he is restoring the community trust in the process.”

NYC Councilman David Greenfield said that he is “thrilled that the de Blasio administration has annulled New York City’s unconstitutional regulations on bris milah. Separation of church and state is a two-way street. It is significant that the administration is agreeing to do away with ineffective measures put in place by Mayor Bloomberg… This is a big win not just for our community but for every New Yorker who values the protections granted by our constitution.”

Rabbi Moshe Dovid Niederman of UJO of Williamsburg, said the achievement was thanks to Mayor de Blasio and his administration, specifically Deputy Mayor Lilliam Barrios-Paoli, and the Mayor’s senior aide Avi Fink.”

“This action is a result of the mayor’s vision and hard work. It’s a victory for religious freedom and a victory for public policy.”

Rabbi Chaim Dovid Zwiebel of Agudas Yisroel said that, “The Bloomberg Administration’s regulation of metzitzah b’peh represented the first time in the history of the United States that any governmental body has sought to regulate an aspect of bris milah. We felt that this was intolerable, and could lead to yet other governmental incursions on bris milah… It is to Mayor de Blasio’s credit that he recognized how offensive the regulation was to our community, and worked with us to undo it.”




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