תשובות לקציני דת (אנגלית), שימוש בשברי עצם עבור ניתוח אורתופדיCollected Responsa to Chaplains, Circumcisions Overseas in the Absence of a Mohel
א׳
1Question:
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2Two years ago we received an inquiry from the army in Alaska with regard to the permissibility of having a surgeon circumcise the child of a Jewish officer, since there were no mohelim in Alaska. We did not answer the question then because it involved more problems than it seemed advisable to settle at the time. Now, however, we are compelled to investigate the question thoroughly because the situation with regard to circumcision in the families of army personnel overseas has changed radically. Hitherto in Japan and in Germany, there were large numbers of refugees, and mohelim were available from among them. These mohelim also served army personnel. But now there are virtually no refugees in Japan or in Germany and, therefore, no regular mohelim available. What shall be done about non-mohelim officiating at Jewish circumcisions?
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3Answer:
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4The problem is many-sided. First, there is the problem of who may circumcise; secondly there is the problem of the method of circumcision used by surgeons as compared with the method used by mohelim. The first problem,as to who may circumcise, involves the question whether a Jewish surgeon who is not a regular mohel may circumcise and the further question whether, in the absence of a Jewish surgeon, a Gentile surgeon may circumcise. The problem as to the method of circumcision also involves a number of questions: what differences of procedure are there between that followed by the mohel and that followed by the surgeon; is it possible, if we provide a complete description of traditional circumcision, that a surgeon would be willing to follow the precise procedures followed by a mohel; and if he is unwilling to do so can surgical procedures, as for example the use of scissors instead of the thumbnail for "periah," be modified so as to satisfy the requirements of Jewish law?
ה׳
5First, then, as to who may circumcise. May a Gentile surgeon perform Jewish ritual circumcision? This question is discussed all through the literature and is first mentioned as early as the Tosefta (Avodah Zara III, 12). There Rabbi Meir says that an akum may not circumcise. The sages say, however, that he may circumcise a Jew if others stand by at the operation. The reason for this proviso made by the rabbis is Rabbi Meir's fear that the akum is suspected of wanting to destroy the life of the Jewish child. And therefore, the rabbis say, if others stand by his side to watch him, an akum may circumcise. One could then conclude that in the case of a Gentile surgeon, who is not to be suspected of wanting to destroy life but is dedicated to the saving of life, even Rabbi Meir's objection does not apply, and especially if we have the family and the chaplain present at an army circumcision, there would be no basic objection to having a Christian surgeon perform the operation. This subject is taken up in the Talmud, both in B. Avodah Zara 26b and B. Menachos 42a. This rather lengthy discussion in the Talmud (especially in Menachos) is analyzed by Joseph Caro in his Kesev Mishnah to Yad Milah 2:1; and, as Jehiel M. Epstein in the Aruch Hashulchan says, it is clear that Joseph Caro understands that the conclusion of the Talmudic debate is that a Gentile may circumcise. That is why Maimonides, in Yad Milah 2:1, while he says at first that a Gentile should not circumcise, adds that if a Gentile has circumcised no further operation is necessary. Joseph Caro repeats, in Shulchan Aruch Yore Deah 264 #1, Maimonides' decision that if a Gentile does circumcise, we do not need to recircumcise. To which Isserles adds that we must, however, take the drop of blood, the sign of the covenant (dam bris). The Aruch Hashulchan says we follow Isserles and would require the drop of blood of the convenant, thus emphasizing the fact that milah is not merely surgery but a ceremony of the covenant. It is, therefore, of course preferable that a non-Jewish surgeon not be used, since this is a Jewish religious ceremony but, under the special conditions of army life overseas, wherever it is impossible to get a Jewish surgeon, it would seem, in the light of the facts mentioned above, that a Christian surgeon could be used, provided the chaplain and others are present, and provided also, as we shall discuss further, the proper procedures required by Jewish law are followed. See also Chassam Sofer, Yore Deah #132 and Haggahot Asheri to A.Z. 27a. These emergency circumstances under which we might use a Christian surgeon may, as a matter of practical fact, never occur. We have been informed that a Jewish surgeon is almost always available in the Armed Forces and hence the above discussion is relevant only in a rare emergency. We can, therefore, restate our opinion as follows: While according to the strict letter of the law even a Gentile surgeon may circumcise (though some would require the taking of the drop of blood of the covenant), nevertheless since this is a Jewish religious ceremony, and since we are informed that a Jewish surgeon is always available, a Gentile surgeon should not be used except in the most unusual circumstance that a Jewish surgeon is absolutely not available.
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6The next consideration is whether a Jewish surgeon is acceptable without question. There is a question involved even with regard to a Jewish surgeon. Isserles 264 #1, quoting the Or Zerua, says that a man must look for the best and most righteous mohel and sandik. Since circumcision is no mere operation but a sacred sign of the covenant, a righteous man is necessary - first because of the propriety of the situation, and secondly so that we can trust him to fulfill the requirements of the law. If, therefore, the Jewish surgeon is a pious man, there could be no question that he is absolutely suitable to perform the circumcision.
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7If, however, as may be the case, the surgeon is not a piously observant Jew, how acceptable is he as a performer of circumcision? In the first place, being in the army and under army laws, he cannot always obey, even if he wanted to, many of the laws, such as those relating to kashrus and the Sabbath. He is, therefore, an onnus, and is to be forgiven. In the second place, being a physician, he is permitted to violate the Sabbath in his profession since even the doubt of the danger of life sets aside the Sabbath. In the third place, even if he were consciously sinful, a mumar, there is considerable opinion that he is nevertheless considered enough a Jew to permit him to circumcise. Isserles, l.c., says that a man who is a mumar as to the whole Torah, or a mumar who does not believe in circumcision, is to be considered just like an idolator. Rabbi Akiba Eger, in his "Chiddushim" ad.loc., agrees but immediately cites the opinion of Chaim Chiskiya deSilva, who says that only a mumar who means to be provocative (lahachis) is ineligible, but if he is a mumar for his own convenience (l'teovon) he may circumcise. (This opinion is found not in deSilva's famous work, P'ri Chodosh, but in his small book, Mayim Chayim, the third responsum at the end of the book.) We can hardly accuse a Jewish doctor in the army of being a mumar lahachis, an impudent, provocative apostate, and it is clear that particularly under the difficult circumstances which now exist in the army, we may permit a Jewish surgeon to circumcise. Cf. also Chaim Mordecai Sofer, Machaney Chayim II #20, who says, "If there is no mohel available except a Sabbath violator bepharhesia, I would not take the responsibility to void the mitzva of milah bizmano (i.e. by delay) in order to get a Sabbath observer."
ח׳
8However, it is our duty to see to it that the circumcision as performed by the surgeon strictly follows the requirements of Jewish law. The Jewish law speaks of three elements in the circumcision, the cutting of the foreskin (the chaticha), the moving back of the under-membrane (periah), and finally the sucking out of the blood (metziza). There is no problem with regard to the cutting of the foreskin. Surgeons all do it as mohelim do. Nor is there any serious question any longer about the third element, the sucking of the blood, because even mohelim do not do it as it was done a hundred years ago. Almost all mohelim nowadays use a pad of cotton to draw the extra blood. (It might be well to pause for a moment to justify the modern practice of mohelim who no longer suck the blood by mouth. Up to a hundred years ago, this was the universal practice. Then tubes were invented, one in England and one in Germany, so that the sucking could be done without danger of infection. And now finally it has become the universal custom merely to use pads of absorbent cotton. The reason that this has been permitted is basically due to the fact that metziza, the sucking of the blood, is not an essential part of the operation. It is only meant to be a means of avoiding danger to the child's health by removing the surplus blood. It is noteworthy that the Mishnah (Shabbas XX, 6), enumerating the indispensable elements in the operation, says that if the cut was made but the periah was not made, it is no circumcision. But metziza is not even mentioned there as an essential part of the operation. As a matter of fact, Moses Sofer himself declared that since metziza is for the sake of the health of a child, it is quite permissible to use a sponge. This responsum created considerable excitement and concern in the following generation and the responsum was omitted from the printed editions of Moses Sofer's works.
ט׳
9Maharam Schick, Orach Chayyim 152, while advocating metziza by mouth, nevertheless admits that Moses Sofer permitted it by a sponge and says that the responsum was omitted from his book. Elazar Horowitz, the great rabbi of Vienna at the time of Moses Sofer, was evidently the one who asked the question of Moses Sofer and he says, Yad Elazar #551, that it is the custom in Vienna to use the sponge and in this they rely upon the concurrence of Moses Sofer. So too Zvi Hirsh Chaves, in his responsum #60, comes to the same conclusion. (Hence modern mohelim have adequate justification in modifying the old method of metziza by mouth and using cotton pads to draw out the blood.)
י׳
10There is, therefore, no problem with regard to adapting metziza to modern surgical methods. The real problem is periah. Surgeons do perform the periah, but it is impossible to persuade them to do it as the mohelim do, namely, to tear the membrane with the thumbnail before rolling it back. Surgeons cut it with scissors and we can be sure that they will not consent to use any other method.
י״א
11Our question, therefore, amounts to this: Is the use of the fingernail a requirement of law? The fact of the matter is that the use of the fingernail to tear the membrane is not required in the older law, and is not even mentioned. There is no mention of it in the Mishnah or in either Talmud. The first mention of it is in Maimonides (Hil. Milah II, 2), who merely says that periah is done with the fingernail (b'ziporon). Not one of the commentators and particularly not Joseph Caro in his Kesev Mishnah, who is careful about such things, mentions a single earlier source from which Maimonides may have drawn the fact that the fingernail is to be used. The only fairly early source is not an halachic one but a midrashic one. In the Yalkut to Psalm 35:10, "All my bones proclaim, etc." there is an enumeration how the head, the mouth and the eyes, etc., participate in the worship of God; and in this listing is included, "and the fingernail, also, to perform the periah." The Shulchan Aruch, Yore Deah 264 #3, copies Maimonides' statement that periah is done with the fingernail. But neither of these says that if it is done otherwise it is not a valid periah. As a matter of fact, there is a responsum of Hai Gaon to the effect that periah was generally done with a knife. The responsum is cited in Ozer Ha'-Gaonim, Shabbos, #407. There Hai Gaon says that in Babylon it was a custom to draw taut both the foreskin and the undermembrane simultaneously and to cut them both with one cut of the knife. Hence, under army conditions, we may consider it permissible if the surgeon does not use his fingernail to tear the membrane but uses the scissors. Of course, it does not follow that this is the preferable method. Good mohelim are very skillful. Their tearing of the membrane and their folding it back is often done much more quickly than the surgeon can do it with his instruments. It may well be that the old-fashioned method is better, but certainly the surgical method is permissible according to the law,provided, of course, that after the slitting of the membrane, it is completely retracted.
י״ב
12The Committee suggests that a description be printed of the exact procedure required by the law, particularly of periah, so that surgeons may know that the entire membrane must be retracted.
י״ג
13The Committee concludes that under the present exceptional conditions existing in the army overseas (and only for those circumstances) we will, in the absence of a Jewish physician, permit the use of a Gentile surgeon, provided he does the periah and provided that the chaplain, the father, and preferably others, are present to conduct the ritual as required by law. Preferably a Jewish surgeon should be found to perform the operation. He too should be provided with a description of the requirements of the Jewish law and here too it will be advisable for the chaplain and the parent and others, if possible, to be present. For the sake of emphasis, we conclude with the warning that these decisions are only emergency decisions, and are not meant to apply either permanently to the army or in any way to civilian life.
