In the traditional circumcision of infants practiced by certain communities, the people who circumcise an infant uses their mouths to draw away the blood from the wound on the infant’s penis.
However, this creates significant probability of fatal herpes infection, and the authorities created a regulation requiring information of the risk being communicated to the parents of the infant and obtaining their parental consent.
Orthodox Jewish communities of New York rallied against the regulation claiming it was interference with their religious freedom.
While the regulation had been voted on in September, and the New York City Board of Health had voted to make it mandatory for mohels, the people who perform the ritual circumcision, to inform parents and obtain their consent, the regulation could not be enforced due to legal opposition.
The Central Rabbinical Congress of the USA and Canada, the International BRIS Association, and some individual rabbis filed a petition for a preliminary injunction, and the regulation was put on hold until the court could rule on the petition.
The opposition to the law had pointed out in their petition that the regulation unfairly singled out an exclusively religious ritual.
However, judge Buchwald refuse to grant temporary injunction to the rabbis observing, “There is ample medical evidence that direct oral suction places infants at a serious risk of herpes infection, as well as evidence that parents are sometimes unaware in advance of a circumcision that MBP will occur, and the regulation plainly addresses these legitimate societal concerns.”
The judge further added that “as enacted, the regulation does no more than ensure that parents can make an informed decision.”
According to city health officials, at least 11 infant boys had contracted a fatal form of herpes in the last several years following circumcision with direct oral suction. Two of the boys had died. However, opponents of the regulation hold that the health department had failed to prove that there was a higher incidence of neonatal herpes among boys who had received direct oral suction compared to those who had not during their circumcision.
The case is Central Rabbinical Congress of the USA and Canada et al v. New York City Department of Health & Mental Hygiene et al, U.S. District Court, Southern District of New York, No. 12-07590.