JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION, Volume 203, Number 12, Pages 257-258,
March 18, 1968.

Law and Medicine

Ritual Circumcision

Ritual circumcision take place for male Jewish children on the eighth day of life, although the procedure may be postponed indefinitely for reasons of health. The circumcision is performed by a mohel in accordance with Jewish religious requirements.

Hospital Need Not Admit All Mohels
to Perform Circumcisions

In Zlotowitz and Agadath Hamohalim of Greater New York, Inc. vs. Jewish Hospital (84 NYS2d 61) decided by the Supreme Court of New York in 1948, Aaron Zlotowitz was a rabbi qualified to act as a mohel, and the corporate plaintiff was a membership corporation composed of mohels. The hospital refused to permit Rabbi Zlotowitz to perform circumcisions at the hospital, despite the fact that Rabbi Zlotowitz and other members of the corporate plaintiff were requested by the parents of male children to circumcise their children.

Rabbi Zlotowitz and the corporate plaintiff alleged that the hospital by its conduct deprived them and the parents of their constitutional rights. They specified the rights as follows: (1) The right to freedom of worship; the right to pursue freely freely their religious beliefs; the right of Jewish parents to designate a mohel of their own choosing; the right to perform religious acts and rites without interference; (2) The First and Fourteenth Amendments to the Constitution of the United States; Article I, section 3, of the Constitution of the State of New York; and (3) The Civil Rights Law, section 40.

The New York Supreme Court held that the constitutional rights sought to be vindicated rested upon provisions limiting the powers of government, both federal and state. The First and Fourteenth Amendments to the Constitution of the United States, insofar as they relate to religion, proscribe governmental action, according to the court. The same is true, the court ruled, as to the relevant provisions of Article I of the Constitution of the State of New York. The court declared, "The said provisions of the constitutions have no application to 'private conduct' of the kind and character here involved."

Acknowledging the necessity for predicating their claim on an act of omission or commission by the government, federal or state, Rabbi Zlotowitz and the corporate plaintiff asserted that the hospital was a government agency "insofar as the performance of ritual circumcision in its premises is concerned." The court stated:

It may be that in certain respects the defendant performs government functions, particularly in respect of free patients. In all other respects, however, the defendant is a private corporation. . . . As a private corporation, the defendant is not within the ambit of the constitutional provisions relied on. In not aspect of the case is the defendant the agency of the State of New York in respect of religious matters.

The court concluded:

Section 40 of the Civil Rights Law does not support this action because the plaintiffs have not been denied admission to the defendant's hospital on account of "race, creed or color." It is clear that the defendant does permit circumcision, in accordance with the Jewish faith to be performed on the premises.

On appeal, the decision was affirmed in 1950 by the Court of Appeals of New York (100 NYS2d 226).

Do Parents have Legally Protected Interest?

In Kalina vs General Hospital of the City of Syracuse and Akyuz (220 NYS2d 733) decided in 1961 by the Supreme Court of New York, a son was born to the plaintiffs, Mr. and Mrs. Joseph Kalina, in the defendant hospital. At the time of birth the parents gave notice to the hospital that the baby was to ritually circumcised on his eight day by a mohel. Instead, the son was unceremoniously circumcised on the fourth day by a physician, the defendat Haluk Engin Akyuz. MD. The parents sued "to recover damages for violation of the plaintiffs' relgious beliefs and rights" and "for mental pain and suffering sustained as a result of an assault and battery upon the plaintiffs' son."

The New York Supreme Court held that the pleadings were insufficient because the plaintiffs, apart from their status as representatives of their son, did not have a legally protected interest under these circumstances. According to the court, the conduct of the hospital and Dr. Akyuz, if a wrong in relation to the son, was not a wrong in relation to the plaintiffs who were remote from the event. The court observed:

Rights are not abstractions but exist only correlatively with duties. Everyone who has been damaged by an interruption in the expected tenor of his life does not have a cause of action. The law demands that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing not a general duty to society, but a specific duty to him.

The court declared:

The defendants here in accepting a relationship with the son assumed the risk of liability for a tortious performance to him. They did not assume any liability that their acts might violate the personal sensibilities of others, be they the son's parents, his coreligionists or the community at large.

In referring to the plaintiffs' quest to obtain damages "for the plaintiffs' mental pain and suffering resulting from the assault on their son," the court stated, "Such damages are recoverable only by him who is assaulted." The parents' rights in a suit for injuries to the child are restricted to a suit for the loss of the child's services and for medica attendance and expenses. Mental suffering caused by the child's illness is not recoverable. The rule (in New York, going back to 1896) that their can be no recovery for injuries caused by fright was expressly overruled in New York in 1961. The court deemed it the intention behind the change to "realistically enlarge the damage claim of one acted against. It did not intend to provide a cause for action for interested bystanders hitherto excluded [italics added].

The parents also argued that the hospital and Dr. Akyuz had duties imposed on them by the Civil Rights Law and by Article I, section 3 of the Constitution of the State of New York. The court concluded that this argument was "without merit" saying: "There is no section of the Civil Rights law germane to this issue. The Constitution expreses limitations on the power of the state and is not applicable here." (A similar argument was advanced by the plaintiffs and rejected by the court in the Zlotowitz case.)

Is Circumcision by a Mohel Practicing Medicine?

The practice of medicine is defined by statute in New York, for example, as follows:

A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method to diagnose, treat, operate or prescribe for any human disease, pain injury deformity or physical condition (NY Education Law, sec 6501).

However, a cognate New York statute provides, "This article shall not be construed to affect or prevent the following: . . .The practice of religious tenets of any church" (NY Education Law, sec 6512).

In a case involving the foregoing exception and not concerning but broad enough to cover, the situation whereby a ritual circumcision is performed by a mohel, People vs Cole (113 NE 790, 794, 795 [1916]), the Court of Appeals of the State of New York said, "The religious tenets of a church must be practices in good faith to come within the exception." Obviously, no one will doubt that mohels in performing ritual circumcisions are practicing their religious tenets in good faith. The court continued:

When a person claims to be practicing the religious tenets of a church, particularly where compensation is taken therefor and the practice is apart from a church edifice or the sanctity of the home of the applicant [in the case of the Mohel the place where the circumcision is usually performed is usually the hospital]. the question of whether such person is within the exception should be left to a jury as a question of fact.

However, it would not be a question of fact in the case of the mohel, as compensation as such is not taken for ritual circumcision. The foregoing language of the New York Court of Appeals was referred to with approval by the New York Attorney General in two informal statements issued by that state official (NY Op Atty Gen, 1934, 51 St Dept 119, 129).

In People vs. Vogelgesang (116 NE 977, 978, [1917]), Judge Benjamin N. Cardozo, speaking for the Court of Appeals of New York, in referring to this exception, said, "The tenets to which it accords freedom, alike of practice and of profession, are not merely the tenets, but the religious tenets, of a church." It is obvious that ritual circumcision represents a religious tenet of the Jewish faith. In People vs Wendel (68 NYS2d 267, 270) the Kings County (New York) Court said in 1946, reiterated:

The religious tenets of a church must be practiced in good faith to come within the exception; that is, the tenets of a church are the beliefs, the doctrines and the creeds of the church. A person should not be allowed to assume to practice the tenets of any church as a shield to cover a business undertaking.

It is equally obvious that mohels do not perform ritual circumcisions "as a shield to cover a business undertaking." The Wendel decision was affirmed on appeal the following year by the Appellate Division of the Supreme Court of New York (75 NYS2d 302). --HOWARD N. MORSE

Prepared for the AMA Law Division
Reprint requests to Law Division, American Medical Association,
535 N Dearborn St. Chicago, 60610.

(File revised 18 September 2006)

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