Another war between the High Court of Justice and the High Rabbinical Court over the question of jurisdiction: The High Court of Justice overturned a ruling by the Rabbinical Court that required a mother to circumcise her son, the Haaretz website reports.
The story begins with a couple who wanted a divorce, but the husband made granting the divorce conditional on his wife circumcising their son. In a precedent-setting ruling issued by the Netanya Rabbinical Court, issued last October and confirmed by the Great Rabbinical Court, the judges, Rabbi Michael Amos, Rabbi Shneur Pardes and Rabbi Ariel Yanai, ruled that the mother must circumcise her son and imposed a fine of 500 shekels for each day she does not do so.
In their ruling, the judges wrote: "Circumcision is a standard surgical procedure performed on every Jewish child, and therefore when one of the parents demands it, the other party cannot hold him back, except after it is proven that it is medically dangerous.".
Mother: He is perfect as he is.
The mother, Eleanor, claimed that the baby could not be circumcised at 8 days old, and therefore was rejected. She was rejected at first, then, she said, "I started reading about what exactly happens in the circumcision procedure and realized that I could not do it to my son. He is perfect as he is." According to her, the child's father was a partner in the decision, and only raised it as part of the divorce agreement.
The mother petitioned the High Court of Justice last December through her lawyers Avigdor Feldman and Marcella Wolf. The main claim is that the court exceeded its authority. "The petition raises a question concerning the right of a parent and the right of the circumcised person to freedom from religion, the right of the mother to not consent to her son's circumcision and to act according to her conscience and lifestyle, which oppose the physical act of circumcising her son," the petition states. "If this assumption of authority by the rabbinical courts remains in place, its immediate result will be the forced performance of a surgical procedure, the outcome of which, as stated, is irreversible, on a minor over one year old, not due to any medical need of the minor, but by virtue of a purely religious imperative." The day after the petition was filed, the High Court issued an interim order that froze the court's decision.
The right of children not to have their religion changed
In January of this year, Rabbi Shimon Yaakovi, the legal advisor to the courts, submitted his response to the petition, in which he argued: "On the altar of the petitioner's right to freedom of religion, she proposes to ignore the irreversible psychological damage that may be caused to the minor child due to his being different from the children around him - and this will not be done." The courts' response also stated that "the right of children is that their religion not be changed against their will. Since they are not yet capable of forming an opinion, the state's role is to protect their right not to have their religion changed, and to protect them from attempts of this kind. The state's aforementioned role is heightened when it comes to a family in crisis, that is, when the parents are not united in their opinions... The children did not express any desire to join their mother's sect.".
The High Court judges requested the opinion of Attorney General Yehuda Weinstein, who wrote that "the court exceeded its authority" and "it is doubtful whether its decision was made based on the principle of the best interests of the child." However, Weinstein rejected the mother's claim that no court or court has the authority to order a male circumcision against her will, and noted in his opinion two cases in which the Family Court ordered a minor to be circumcised, despite the objection of one of his parents.
The Family Court will decide
The prosecutor's office addressed the special situation in the case: the child is already over a year old, so circumcision would involve anesthesia or sedation and therefore requires an examination by a doctor. According to the prosecutor's office's position, issues involving the provision of medical care to minors should be discussed in a family court, and the father cannot involve the issue of circumcision in the divorce suit between him and the mother.
As stated this evening, the High Court of Justice decided, by a majority of six out of seven justices, to overturn the ruling of the Rabbinical Court and accept the mother's petition against the decision on the grounds that the court exceeded its authority.
Judge Miriam Naor ruled in the ruling that performing a circumcision cannot be tied to a divorce lawsuit, but ruled that the father is entitled to apply to the Family Court.
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