Death by Circumcision—Religious Freedom or Criminally Negligent Homicide?

On March 3, 2012, the New York Daily News reported the death this past September of a two-week-old baby boy, following an ultra-Orthodox Jewish circumcision ritual. The report came after the newspaper pressed Maimonides Medical Center in Brooklyn for information, evidently having heard about the death from other sources. The New York City Medical Examiner’s office is quoted as listing the cause of death as “disseminated herpes simplex virus Type 1, complicating ritual circumcision with oral suction.”

Because some of my readers may not be aware of the ritual, known as metzizah b’peh, I will describe it. Following the “usual” steps involved in a circumcision (i.e., stroking the baby’s penis to make it erect, stripping the foreskin from the head of the penis, and cutting the foreskin off), in metzizah b’peh the mohel (ritual circumciser) then “removes blood from the wound with his mouth” (this is the news media’s description; in other words, the mohel sucks the baby’s bloody penis). It was this final insult added to injury that caused the death of the poor baby boy in question.

Absent the excuse of religion, this entire event would be classified as assault and battery as well as child sexual abuse, and if the baby were to die as a result, the perpetrator could be prosecuted for criminally negligent homicide.

But that never happens. In fact, ritual circumcision, even in this extreme form, is fiercely defended by those who have a vested interest in its continuation. Last year, religious and physician groups in San Francisco succeeded in removing from the ballot a bill that would have banned the medically unnecessary circumcision of minors in that city. In support, the American Civil Liberties Union of Northern California filed an Amicus (“friend of the court”) brief stating, in part, that the proposed bill:

…violate[d] the right of parents to direct their children’s religious upbringing and medical care. Newborn male circumcision is a tenet of the Jewish and Islamic faiths. By criminalizing the circumcision of boys, the proposed ordinance would prevent parents from allowing their children to participate in an essential religious ritual, infringing upon the rights of parents to guide the religious upbringing of their children.…

Yes, the United States Constitution guarantees Americans religious freedom. However, U.S. courts have established that there are limits, and that this guarantee does not extend to practices that violate other individuals’ rights or cause them harm. These limits extend to parents, as elucidated in Prince v. Massachusetts, a famous Supreme Court decision declaring that parental authority is not absolute and may be permissibly restricted in the interest of a child’s welfare. Obviously, it is absurd to characterize the mutilation of an infant’s penis as serving his welfare. Indeed, Federal law already outlaws even the most minor cutting of a minor girl’s genitals, cultural or religious beliefs of her parents notwithstanding.

Further, the notion of an hours- or days-old infant “participating” in an “essential religious ritual” that subjects him to pain, risk and even death is preposterous at best. The baby has no capacity to choose his religion; he has no capacity to consent to having a healthy, normal part of his body removed. And under law and contemporary bioethics, no individual has the right to force either religion or bodily alteration on another.

Alas, to defenders of infant circumcision, none of this seems to matter. According to an interview last month with Douglas Diekema, a spokesman for the American Academy of Pediatrics (AAP) Circumcision Task Force, the AAP is expected to issue its new circumcision statement this Spring, and while it may fall short of recommending infant circumcision, it will more strongly tout the purported medical benefits of the procedure. Nothing about the fact that forced circumcision robs babies and children of their autonomy. And (call it women’s intuition) certainly not a word about the death of this baby from herpes last September, or of Jamaal Coleson, Jr. from a “routine” (i.e., non-religious) circumcision carried out at another New York City hospital last May.

Babies will suffer, and some will die, as long as religious organizations which insist on blind adherence to ancient and outmoded practices, and medical organizations whose members make money from performing procedures with no medical value, continue to endorse the mutilation of male infants and children. How can a civilized society allow this? How can we tolerate even one baby’s death from an utterly unnecessary custom? How many more baby boys will have to die before we stop this insanity?

—Georganne Chapin