Ancient Rites and New Laws: How Should We Regulate Religious Circumcision of Minors?

DenaDavisDr. Dena S Davis is a Professor of Bioethics at Lehigh University, and also has training in law and religion studies. Dr. Davis’ research interests include issues of church & state. Her recent paper, titled “Ancient rites and new laws: how should we regulate religious circumcision of minors?” was published in the  Journal of Medical Ethics.

Background of the paper

Legal and ethical controversies surrounding circumcision engage all my various interests: religion, law, and bioethics. I also have a special interest in the extent to which parents should make irrevocable choices for their children (as explored in my book, “Genetic Dilemmas). So the metzitzah b’peh problem was really “the perfect storm.”

I have been engaged with the circumcision issue for some time. I have written several articles on circumcision of male and female minors, trying to show that neither practice is an open-and-shut case, and questioning, from a 1st amendment perspective, the federal ban on all forms of female circumcision, while allowing male circumcision to continue with no oversight whatsoever.

A delicate balance of ethics and legality

Circumcision of newborn males in the U.S. has no oversight at all. It can be performed by anyone, with no training or licensing. This is in dramatic contrast to the licensing required in every state of people who even manicure your nails or cut your hair! The belief has always been that this procedure carries little risk and that traditional circumcisers (“mohels”), although without conventional medical training, do a good and safe job. Now we know that some mohels, through the oral-genital suction known as “metztitzah b’peh,” are in fact endangering the lives and health of babies, because of the risk of transmitting the herpes virus.

Ethically, I have no doubt that this practice should stop immediately. Most Jews, even the orthodox, eschew this practice. They use a sterile glass pipette between mouth and penis, which is safe.

Legally, however, I have doubts that it should be banned. The establishment clause tells us that the law should not give extra privileges to religion–a religious motivation should not be a reason to allow a dangerous practice. But the free exercise clause tells us that the government may not persecute religion, should not be more restrictive toward religious practices than to other, secular, practices.

In this case, although there are a few documented cases of infant deaths in New York and New Jersey, the risk of death among newborn males subjected to this practice is about 1/4000, according to the Center for Disease Control. So, we need to think about how that risk compares to other risks we allow parents to take, often for trivial reasons. What is the risk to a child of parents owning a pool? Having firearms in the house? Driving with the child on an icy road to go to the mall? We need to think about risk in context, and not single out risks that come from practices that seem bizarre and repulsive to many of us.

Implications

I would like to see a more nuanced and evidence-based discussion of risk, leading to a policy on whether or not to ban metzitzah b’peh. More generally, I would like to see states end their laissez-faire policy toward circumcision and require some sort of certification.

About the department

After 20 years of teaching in a law school, I now teach in a wonderful department of religion studies, at Lehigh University. We are eleven persons and cover many fields, everything from the Jewish renewal movement to religion and the arts, to the religious significance of hiphop, and japanese zen. I am also very involved in Lehigh’s Health, Medicine and Society program, which involves faculty from the humanities, social sciences, and natural sciences.