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Israel: Precedent-Setting Decision on Rabbinical Court

(July 16, 2014) Israel’s High Court of Justice, with an extended bench of seven justices, recently voided a decision by the Supreme Rabbinical Court instructing a mother to enable the circumcision of her infant son against her will. (HCJ 8533/13 Anonymous v. Supreme Rabbinical Court [in Hebrew], State of Israel: The Judicial Authority website (June 29, 2014).)

Facts of the Case

The mother argued that she and her son’s father had previously agreed not to circumcise their son, and that the father introduced the demand to circumcise their son only at the first hearing of their divorce proceedings. The Netanya regional rabbinical court, where the proceedings took place, accepted the father’s request. The court ordered the mother to enable her son’s circumcision within seven days following its decision or face a significant fine that would be increased for every day of delay. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 3, id.)

The mother had appealed the regional court’s decision to the Supreme Rabbinical Court, which rejected her arguments and determined that because the origin of the circumcision ceremony is in Halacha (Jewish law), “it is inconceivable… that this subject will be given to the discretion of a civilian court, which is not familiar with the substance of Halacha.” (Id. ¶ 6.) The mother petitioned the Supreme Court, sitting as a High Court of Justice, to quash the rabbinical courts’ decisions based on their allegedly being rendered without authority (For information on the High Court’s jurisdiction to void rabbinical court decisions, see Basic Law: The Judiciary, § 15(d)(4), Knesset website.)


Circumcision as a Matter Relating to Guardianship

Accepting the mother’s petition, Justice Naor, in a majority opinion, determined that under the Capacity and Guardianship Law 5722-1962, both parents are the natural guardians of their minor children. Accordingly, they have “the duty and the right to take care of the needs of the minor … .” (Capacity and Guardianship Law 5722-1962, §§ 14-15, 16 LAWS OF THE STATE OF ISRAEL [LSI] 106 (5722-1961/62, as amended.)

Previous Supreme Court precedent decisions interpreted the term “needs of the minor” as including material, emotional, and medical needs. Circumcision, according to Justice Naor, is included in the “needs of a minor” because

[i]t is well known that the vast majority of the Jewish population, and especially in Israel, views circumcision as an important and meaningful ceremony, which symbolizes the national-Jewish affiliation of an individual, with no necessary connection to religious beliefs. This is one of the most important commandments in Judaism, for the existence of which many fought throughout Jewish history and also died. … The majority of the Jewish public in Israel, both religious and secular, circumcise their sons; this does not need proof In view of this background, it appears that circumcision is acceptable to the public in Israel and may respond to various needs of the minor, including social needs. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 17, supra.)

As such, according to Naor, circumcision is a matter that should be decided by the parents based on the presumption that they act for the benefit of the minor. In the absence of mutual consent, a parent may seek judicial determination of the issue in accordance with section 25 of the Capacity and Guardianship Law, which applies to matters related to guardianship when the parents do not reach consensus. In determining matters related to needs of a minor, the court concerned must reach decisions based on the best interest of the child. (Id. ¶ 18.)

Jurisdiction over Judicial Determination of Circumcision of Minors

According to Naor, as a matter that relates to the “needs of the minor,” circumcisionis within the jurisdiction of the family court and not the rabbinical court. In accordance with section 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (7 LSI 139 (5713-1952/53)), the rabbinical court has the authority to adjudicate matters of marriage and divorce of Jews in Israel who are nationals or residents of the state. Under section 3, however, “where a suit for divorce between Jews has been filed in a rabbinical court… [it] shall have exclusive jurisdiction in any matter connected with such suit, including maintenance for the wife and for the children of the couple.” (Id.)

According to Naor, unlike in matters related to custody of children, child support, and division of marital property, determination of which is required by the changing circumstances created by the divorce, the circumcision of a child is not a matter that arises because of the dissolution of marriage and therefore is not connected to a suit for divorce. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 29, supra.)

Other Considerations Related to the Circumcision Decision

Additionally, Naor held, the right to consent to a child’s circumcision is connected to the parent’s general right to guardianship and not to the child’s physical custody. Moreover, both parents have a right to express their opinions on the subject of circumcision, regardless of whether or not they are married, divorced, or cohabiting. This reasoning also supported the view that the determination of whether or not to circumcise a child is not required for an effective dissolution of a marriage or for resolution of matters that need to be resolved because of the divorce. (Id. ¶ 30.)

Naor added that a decision on circumcision is a complex and sensitive one. It involves a physical irreversible act on the body of a child who is not a party to the divorce proceedings. It also involves “questions related to basic rights such as freedom of religion or freedom from religion as well as social and cultural considerations.” (Id.) She concluded,

… in a conflict between parents on this issue, which is subject to [application of] the principle of the benefit of the child, the determination [of whether to circumcise the child] should not be made in connection with the divorce proceedings between the child’s parents. This is especially true in this case, where [due to delay] the circumcision would require an unusual medical procedure of anesthesia or sedation. (Id.)

The Final Determination of the High Court of Justice

Accordingly, the High Court of Justice determined that the rabbinical court did not have jurisdiction to adjudicate the matter; all decisions to force the mother to comply with the requirement to circumcise her son were therefore voided. The High Court held, however, that the father had a right to file a suit on this matter at the family court. (HCJ 8533/13, p. 50.)