By REBECCA WALD
Jewish mother Elinor holds up a sign of protest against the
rabbinical court ruling that she must circumcise her son.An Israeli mother ordered to circumcise her eleven-month-old son, or face a daily accruing fine, has today taken her case to the High Court of Justice, the court of last resort in that country.
The strange case stems from a divorce proceeding. When it comes to matters of divorce, the Israeli judicial system is very different from the American system, as this case illustrates. In Israel there is no civil marriage and rabbinical courts have jurisdiction over Jewish divorce. So when the father in this case demanded that his son undergo brit milah—religious circumcision—during a divorce-related hearing, the court cited the importance of upholding the biblical covenant.
Elinor, the mother, was ordered to pay what amounts in U.S. currency to a $140-per-day fine until the boy undergoes brit milah. Elinor (who is among the approximately 40 percent of Israeli Jews that aren’t religious) says she doesn’t want to circumcise her son at all, that he is fine just the way he is. She says medical reasons prevented him from being circumcised at eight days old in keeping with the Jewish tradition, and that as time went on and she learned more about the procedure she decided against it. The boy’s father originally agreed but then made a surprising about-face in court, she says.
I wanted to get the scoop on what kind of chance Elinor’s plea would have on appeal—as well as some of the ethical issues involved, so I spoke to a prominent Israeli lawyer and ethicist, a bioethicist in the U.S., and a political scientist in London with an expertise in circumcision.
“The is a really bizarre case, the first of its kind,” said Carmel Shalev, an Israeli ethicist and human rights lawyer who teaches at Haifa University Faculty of Law. She told me she thinks the High Court of Justice will likely rule that the rabbinical court doesn’t have the authority to force anybody to perform circumcision.
In Israel, where there is no civil marriage, Orthodox rabbis, applying Orthodox religious law, are the only ones who may grant a divorce. It certainly seems like an odd system for those of us in the U.S. where church and state are separate. “They aren’t lawyers, they aren’t professional judges,” Shalev pointed out to me, adding that their powers are limited. She said in this case they are exceeding their authority. “There is no duty under Israeli law to perform male circumcision,” she said.
The rabbinical court system, where women don’t have the same right as men to obtain a divorce, was inherited from the time of the Ottoman Empire and is part of the early politics of the State of Israel. “People mostly accept the tradition and don’t make a big fuss about it,” said Shalev.
According to U.S. ethicist Ruth Macklin, the main issue for her is one of religious freedom. “Fining people for failing to adhere to a religious law is not religious freedom. This should not be the case in a democracy,” she told me.
Macklin is a professor in the Department of Epidemiology & Population Health at Albert Einstein College of Medicine of Yeshiva University and a Dr. Shoshanah Trachtenberg Frackman Faculty Scholar in Biomedical Ethics.
“It’s patently unfair to women—straightforward sexism—that a woman does not have an equal right to a divorce,” Macklin added. However, Macklin said she doesn’t feel that a parental decision about whether to circumcise is an ethical issue. She pointed out that parents make all kinds of decisions for their kids, including ones that have lasting consequences, including whether to even bring their children up in a particular religion.
Rebecca Steinfeld, a political scientist at SOAS, University of London, who has written and broadcast on the history and ethics of circumcision, told me she sees it another way. “If the rabbinical judges coerce Elinor into circumcising her son, her right to freedom of conscience would be violated,” she said. “By compelling her to irreversibly remove a healthy part of her son’s genitals without his consent, the rabbinical judges would also undermine her son’s rights to bodily integrity—a cornerstone of post-Holocaust human rights law—and an open future, since he would have to live forever with his father’s and the judges’ choice.”
Steinfeld points out that “most criticisms of the rabbinical judgment focus solely on the violation of the mother’s rights, but it is important to remember that the child’s rights would also be undermined if Israel’s High Court of Justice fails to overturn this unprecedented ruling.”