The Brooklyn District Attorney is looking into the death of a baby who passed away after contracting herpes from an Orthodox Jewish ritual. The ritual involves removing blood from the circumcision wound with the rabbi’s mouth. The practice, known as metzizah b’peh, continues to be widespread in Orthodox communities in New York, despite previous cases of babies contracting or dying from herpes after the ritual.
In 2003 and 2004, three cases of Type I herpes were tied to rituals performed by Rabbi Yitzchok Fischer. He has since been prohibited from performing the ritual in New York City.
It is unknown who the rabbi was in the present case.
In addition to the possible criminal charges being considered by the District Attorney, there might be grounds for a personal injury lawsuit here. People have sued under a battery theory over getting an STD from a partner who knew he/she had a disease but did not disclose it.
Though it can be presumed that the parents gave permission for the circumcision and religious ritual, there is no way to know if they would have given permission for the ritual to proceed if the rabbi had disclosed his disease. If it can be shown that the rabbi knew of his disease and remained silent, then there might be grounds for a lawsuit.
In addition to battery grounds, there would also be a possible claim for wrongful death. The parents of the child would have to argue that the rabbi was negligent in how he performed the ritual. This would be possible if the rabbi knew that he had herpes and did not use preventative measures to protect the child.
Rabbis in other major cities besides New York have banned the direct practice, and instead use an intermediary device, like a straw, for indirect suction. The New York community has refused to abandon the original practice. Perhaps a solution might be widespread testing.