Attorney-General Yehuda Weinstein on Thursday wrote to the High Court of Justice that the family courts, and not the rabbinical courts, should decide whether a baby gets a circumcision where the parents disagree on the issue and are in divorce proceedings.
He explained that the issue of circumcision did not fall under the heading of "divorce issues" in the rabbinical courts' jurisdiction since it was not directly related to severing relations between a couple – the legal test for that jurisdiction.
Despite his view that the family courts should decide, Weinstein added that the family court certainly could, and in some cases likely would, order a circumcision if it found that to be in the best interest of the child.
On February 26, a seven justice panel of the High Court heard the dispute in which the Rabbinical High Court had ordered the mother of a one-year-old boy to circumcise her son in keeping with the wishes of the boy's father.
At the end of the hearing, the High Court had requested Weinstein's opinion on the broader issue of whether family courts or rabbinical courts should decide the issue in general.
On February 11, Weinstein had already written the High Court that he believed that in this particular case, the rabbinical courts had exceeded its authority in intervening on the circumcision issue, noting that anesthesia and a special surgical procedure would be required which removed the issue from the rabbinical courts' authority.
Weinstein reiterated this position about the specific case at hand in his response to the High Court's question about what the general rule should be if no special medical issues were involved.
The mother and the father are in divorce proceedings before the Netanya Rabbinical Court which intervened in the parents' dispute over whether to circumcise their son, ruling that it was in the boy's best interests to be circumcised.
The Netanya Rabbinical Court even went a step further, fining the mother NIS 500 per day until she had her son circumcised.
Next, the Rabbinical High Court confirmed the Netanya Rabbinical Court's order.
The identity of all of the family members is under a court gag-order.
Following the Netanya Rabbinical Court's order, the mother on December 18, 2013, petitioned through the Justice Ministry's Legal Assistance Division to the High Court of Justice to intervene on the grounds that the Netanya Rabbinical Court did not have authority over whether parents circumcise their children.
Justice Yoram Danziger froze the Rabbinical Court's ruling the same day the petition was filed.
The High Court began the February 26 hearing saying that it centered around three questions: does any judicial body have authority to intervene on the issue, do the rabbinical courts specifically have authority and if the rabbinical courts have some degree of authority, is there a basis for the High Court to give the rabbinical courts directives in using that authority?
The mother's lawyer Avigdor Feldman told the High Court that she opposed the practice of circumcision and rejected the rabbinical courts' claim of authority based on the best interests of the boy.
Feldman said that the rabbinical courts' claim was based on an incorrect interpretation that circumcision was a medical procedure in the boy's best interests, whereas Feldman said that there was no medical necessity, and that the issue was merely an ideological dispute between the parents.
He added that the question of whether to do a circumcision was between an individual and god, and was beyond any human court's right to interfere.
The justices questions varied widely with some appearing to agree that stepping into this issue could lead to family courts deciding between parents whether their children eat Matza on Passover, while others implied that failing to intervene and order the circumcising of the boy now could hurt him socially later in life.
Lawyer Shimon Yakobi, representing the rabbinical courts said that it was crucial to uphold their authority in recognizing them as equal and valid courts within the judicial system.
Following the hearing, the mother said, "'Social pressure is no reason to force cutting my son's body as nature, the universe naturally created him."
All of the parties involved now have seven days to respond to Weinstein's position before the court reconvenes on the issue.
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