That’s because the erroneous diagnosis involved a Jewish baby boy who had undergone bris milah with metzitzah b’peh and was brought to a NYC hospital with a respiratory infection. He was immediately tested for neonatal herpes, although no symptoms of the virus were present. To the parents’ surprise, the test was positive.
Weeks later, to the family’s relief, those findings were discredited in a most unusual way – through a landmark DNA testing program in existence for only two years. The baby’s long hospitalization and treatment for herpes turned out to be totally unnecessary.
This strange turn of events has raised questions about other City-reported cases of herpes. In view of the DOH’s relentless efforts to cast mbp as deadly to babies, the discovery that the “positive” was a false-positive has fueled suspicions that other reported cases of HSV-1 infections following bris milah might have also been false-positive.
DNA TESTING FOR NEONATAL HERPES: THE FIRST OF ITS KIND
Perhaps even more newsworthy, the findings of a misdiagnosis also revealed the existence of the trailblazing DNA testing program quietly launched in Rockland County in 2013 to track the source of herpes infection in infants.
This extraordinary program was formed by the Rockland County Department of Health working in close cooperation with the Orthodox Jewish community.
The DNA program – the very first of its kind anywhere – can track the source of HSV-1 by comparing samples of the virus in the afflicted infant with samples of DNA from the mohel, the baby’s parents and the main caregivers. The testing is done in the State’s Wadsworth Laboratory in Albany, the one facility in New York – and perhaps in the country – that performs DNA testing of this nature.
The model program was the brainchild of Dr. Oscar Alleyne, chief epidemiologist in the Rockland County Department of Health. Dr. Alleyne’s quest to nail down whether the practice of mbp is in fact dangerous to babies led him to reach out to Orthodox Jewish leaders in Rockland County.
He invited them to participate in a ground-breaking medically-based protocol, which required DNA testing of virus samples taken over a period of 8 weeks at minimum, from the mohel, the baby’s parents and associated caregivers. These samples would then be matched with a sample of the virus taken from the baby.
The investigation would be conducted under Dr. Alleyne’s personal supervision, and would remain completely classified.
Dr. Alleyne’s offer was carefully weighed at an asifas rabbonim in Monsey in 2013, attorney Yerachmiel Simins, who was present, recalled in an interview with Yated. The risks involved were obvious to all. It required mohalim to go out on a limb by coming forward and identifying themselves, potentially opening themselves up to media attacks and possibly criminal investigation by agenda-driven NYC health officials opposed to mbp.
If Dr. Alleyne’s offer was not genuine, or if the doctor proved unable to withstand pressure from his colleagues in NYC DOH to disclose the long-sought names of mohalim who practice mbp, the Jewish community’s cooperation in the project might be courting disaster.
It is no secret that former Mayor Bloomberg’s campaign to wipe out mbp stooped to relentless defamation and harassment of respected mohalim, entirely without grounds. To the disappointment of many who thought things would change under the de Blasio administration, the witchhunt against mbp shows little sign of abating.
To counter these attacks, Jewish leaders, for years, had petitioned the City to employ a fair and equitable method of testing all parties who might have transmitted the virus in a neonatal herpes case – not merely the mohel – to pin down the source with precision.
The City consistently declined to employ DNA testing, the universally recognized gold standard in determining the source of an infection. Senior health officials insisted such testing was too difficult/ expensive/inconvenient/ unnecessary.
Now, here was the head epidemiologist in Rockland County’s DOH offering this very vehicle for establishing the truth about mbp. Should the Jewish community trust him?
In the end, the decision was made to give the project the Orthodox community’s full cooperation, Mr. Simins told Yated. Dr. Alleyne set up the program and began the arduous process of collecting samples by swabbing dozens of people, twice a day, for a period of weeks and even months, until enough quality specimens had been collected to obtain reliable results.
ROCKLAND COUNTY TAKES OVER THE INVESTIGATION
One of the first cases investigated by Dr. Alleyne’s team involved the above-mentioned case in which a newborn baby boy was admitted to a NYC hospital with a respiratory infection and found via a rapid-detection test to be afflicted with herpes.
“The rush to suspect herpes infection in Jewish babies who have been ritually circumcised has been a long-standing practice in NYC hospitals,” said Simins, who for many years has worked with mohalim accused of transmitting the herpes virus to infants.
“When an Orthodox couple brings their infant to a City hospital after a circumcision to be treated for anything, even a respiratory infection, the standing order is to suspect HSV-1, try to identify the mohel and ban him.”
In the current case, the diagnosis immediately triggered a “health alert” by the Department of Health as the City sprang into action, sending officials to pump the baby’s parents for personal information: Was your son circumcised? Did the mohel perform mbp? What is the mohel’s name?
Parents who refused to identify the mohel and disclose information about the bris and the mohel have in the past been subjected to intimidation aimed at forcing their cooperation. This has included attempts to open a criminal investigation against the parents for parental “neglect,” and at in at least one case, threats by health officials to place the baby in “protective custody.”
The current case was on its way to following a familiar script, with the City trumpeting announcements to the media about yet another case of neonatal herpes caused by Jewish ritual circumcision, but an unexpected twist reversed this course.
When it became known that the family residence was not in New York City but upstate, the case was transferred to the Rockland County Department of Health for investigation. That put it under Dr. Alleyne’s jurisdiction.
Members of the community approached the mohel and the infant’s parents privately, securing their permission to be tested and their agreement to the terms of the Rockland DNA protocol. The mohel agreed that if he matched the infant, he would refrain from further performing mbp.
When Rockland attempted to confirm that the State lab had virus samples from the infant to compare against, the State responded that it could not produce any virus from the specimens sent from the City.
Furthermore, lab authorities were unable to confirm the earlier positive result. To the contrary, all tests of the specimens by the State lab came out negative. That caused the original rapid-detection result to be reclassified from positive to false-positive.
How did such a mistake occur? “Lab officials said the rapid-detection test is liable to misinterpretation and produces false positives, which is what happened here,” said a community liaison closely involved in the case.
“The wonderful cooperation between the community and Rockland’s Department of Health brought the truth to light, though unfortunately, not before weeks of needless hospitalization and medication to which the baby was subjected.”
The collaboration and goodwill on display in the current case “is a testament to Dr. Alleyne’s dedication to the public good and his professional and personal integrity,” noted Simins, who has worked closely with all parties to the protocol. “It also underscores the morality and courage of the mohalim who set aside all personal considerations for the benefit of the klal.”
In the meantime, Rockland County’s DOH continues its DNA testing and investigations into other recently reported cases of neonatal herpes, while a captivated public awaits results.
BRIS MILAH LAWSUIT:
HIGHLIGHTS AND CURRENT STATUS
Begun under Mayor Bloomberg, the campaign against mbp sharply escalated in 2012 with the promulgation of a new regulation requiring a mohel to obtain “parental consent” before performing mbp on a newborn.
The “consent” law marked the first time in the history of this country that bris milah was placed under government regulation. The move sparked a lawsuit by a coalition of Jewish groups with support from activists advocating for religious liberty, who regarded the “informed consent” law as unprecedented government encroachment upon religious freedom.
A district court in January 2013 had denied the plaintiffs’ motion for a preliminary injunction against the consent law. That decision, by Judge Naomi Reice Buchwald, was then appealed to the Second Circuit Court of Appeals.
The appeal, argued by Jones Day attorneys Shay Dvoretzky and Yaakov Roth, assisted by attorney Yerachmiel Simins, argued that the Department of Health had unconstitutionally targeted a religious practice, without credible evidence to support its allegations that mbp is in any way dangerous to babies.
The City’s persistent refusal to undertake conclusive DNA testing fatally undermines its claims, the brief argued. With only the shabbiest of research to back up its charges, the government’s intrusion on religious observance was unjustified and unlawful.
In a decision hailed by Orthodox Jewish groups across the spectrum, the Second Circuit agreed with the plaintiffs. It ruled in 2014 that New York City’s regulation of bris milah is unconstitutional in its present form in that in infringes on religious rights.
The panel of three judges ruled unanimously that the regulation requires “strict scrutiny.”
“While the interests at stake in this litigation are serious on both sides, requiring the most careful calibration, the method for this calibration cannot be a mere rational basis. Strict scrutiny must be applied,” Circuit Judge Debra Livingston wrote.
That means the consent law must pass the very highest legal bar. It must be demonstrated to be so vital and crucial to the public health that it can be allowed to supersede First Amendment rights such as freedom of worship and freedom of speech.
The case was sent back to the Circuit Court for reevaluation and is now about to enter the discovery phase, where witness depositions, evidence and relevant documents will be produced to bolster each side’s arguments.
In this stage, the current and future findings of Rockland County’s DNA protocol will no doubt play a critical role.