Comment to the College of Physicians and Surgeons on the Proposed Practice Standard with respect to conducting certain procedures only in clinics

It was brought to  my attention several days ago that the College is proposing a practice standard on performing office-based procedures.   It would include circumcision as among the procedures that can only be done in a medical clinic.

The Jewish brit milah  ceremony is an essential part of the faith and tradition and conducted on the eighth day after a boy is born.  Manitoba legislation has  determined  if done for a religious or traditional purpose, it is not an act that  can only be lawfully done by a physician.   That provision remains in force.  Accordingly,  if I understand correctly, under  the proposed practice standard a non-physician  mohel – an expert in conducting the brit milah  ceremony -would still be able to carry out the procedure in a baby’s home or in  a synagogue.  But if the mohel is also a physician the proposed practice standard would require that the procedure be carried out only in a medical clinic.

The consequence of the proposed practice standard would be to impair or effectively deny the ability of Jewish parents to practice an essential tenet of their faith and tradition.  

To begin with, it may be difficult or impossible to obtain the services of a non-physician mohel for a home brit milah.   It is not a profession with many practitioners in Manitoba.  My understanding is that  in Manitoba currently almost all brit milot are done by a physician mohel.  Excluding physician mohels from conducting a  home brit milah has the potential to have a devastating impact of the ability of  Jewish families in Manitoba  to live in accordance with a bedrock element of their beliefs, tradition and collective identity.

A physician mohel might not be available or willing to conduct the brit milah in a clinic. The family might, reasonably find the alternative unacceptable even if offered.    Among other considerations:

• There might not be room available for parents or other family and friends in the waiting area where the procedure is done.   A brit milah is an event that, by faith and tradition, is supposed to involve family and the faith  community; https://www.myjewishlearning.com/article/why-the-minyan-community-and-brit-milah/

• The brit milah  participants might wish, out of concern for privacy or even safety given the rising level of antisemitism in our society,  to have the ceremony in a space where the attendees are known and trusted;

• From the point of view of overall medical safety,  including preventing the spread of infections,  conducting a brit milah  at a clinic might be unacceptable to the physician, the brit milah  participants or other patients.   It would bring people to the clinic who are not in need of medical diagnosis or treatment.  It would expose the brit milah  participants to an environment  that are attended by many persons who are seeking help with infectious diseases, increasing the net risk of carrying out a brit milah.   It would involve  transporting a newborn – sometimes in dangerously cold weather or bad driving conditions- to a clinic.   The newborn might have to wait there  for hours with disruption to the child’s feeding and comfort – if the physician is backed up or called away on an emergency.  

As  the College no doubt appreciates, it is not necessarily safer to conduct a procedure in a clinic or hospital.   Much depends on the nature of the procedure and  the different kinds of expert support available in different environments.  Extensive studies of deliveries have found that in low-risk pregnancies, for example, it is just as safe to have a midwife assist in the delivery at the family home.

If the clinic brit milah  alternative is unavailable or, with good reason, unacceptable to Jewish parents,  a family might find there is simply no non physician mohel available to carry out the procedure and ceremony at home. 

Even if a non-physician mohel is available, that  might not be the preferred choice for a family from a medical safety  point of view. Non-physicians mohels, as I understand it, have an excellent record of  safety; indeed, some non-Jewish parents  in some jurisdictions prefer to have them conduct circumcisions on their newborns.  But a physician mohel has an extra dimension of training.  Furthermore, in a place like Manitoba, a physician mohel is likely to  be the most experienced person available to conduct  the procedure, and with respect to medical procedures generally,  studies have found that extensive experience is strongly correlated with efficacy and safety.

Given the potential impact on the viability of Jewish families to maintain their faith and way of life,  the College is required by overriding human rights law to consider the specifics of the brit milah and calibrate carefully any limitations that might affect how it is performed.   This means there is a need to consult with the Jewish community,  gather evidence,  consider the benefit and risks of various alternative regulatory approaches, and fine-tune any regulations in a way that minimizes or removes the harm to freedom of religion in the course of addressing safety concerns.

The consultation documents I can find on the College’s website do not provide the specifics of whatever information or analysis the College has done so far in developing the proposed standard generally.  The proposed standard is broad in its sweep, and it might be the case that the College has not yet conducted a focused analysis on the particular legal and medical dimensions of the brit milah tradition.   In any event, this consultation provides the College an opportunity to now do so, or to do so in greater depth and with the benefit of extensive community consultation.

Human rights law requires the reasonable accommodation of religious belief and practice. 

In this case, from the information of which I am aware so far, there does not appear to  actually be any trade-off required  between religious freedom and legitimate goals such as patient safety. 

When I look at the disciplinary records of the College at its online site, the only issues that have arisen with physician-conducted  circumcisions in modern times appear to have been in respect of procedures that took place in a hospital or clinic  The kinds of errors involved there might actually be avoided where the procedure is conducted at home. The home brit milah is a context in which there is ample opportunity for the physician mohel to consult with the family and be assured that the choice to proceed is entirely free and informed. 

As already mentioned, the clinic or hospital alternative may have its own distinct risks in addition to confusion or limited consultation that can take place in a busy, multiclient and multitasking  institutional environment. With respect to the baby they include potentially transporting it in uncomfortable or dangerous conditions,  protracting the time frame in which the baby is removed from its routine, and exposing it to an environment where strangers may be seeking or obtaining treatment for contagious diseases.    

Again, denying the ability of physician mohels to conduct a home brit milot may mean that the most experienced and medically expert individual is not available to a family.

The Manitoba government has already, in its regulations, recognized the distinctive nature of the brit milah.   Whatever the broader merits of the proposed standard,   there appears to be a clear case for providing that the “only in a clinic” requirement should not be extended to physician mohels.    As noted at the outset of this comment, Manitoba legislation already recognizes the distinct nature of male circumcisions carried out “in the course of a religious ceremony or tradition”;  please see  The Regulated Health Professions General Regulation, s. 4.  The proposed practice standard could incorporate that statutory language in defining the exemption from the proposed practice standard.

Sincerely,

Bryan Schwartz

Professor of Law

University of Manitoba