The Sages ordained the prayer for healing as the eighth blessing [of the Eighteen Benedictions] in recognition of circumcision which is performed on the eighth day.
SHIR HA-SHIRIM RABBAH VII, 5
Jaundice and Circumcision
Jaundice quite commonly appears in newborn infants between the second and fifth day following birth. Jaundice, a yellow discoloration of tissue and body fluids, is caused by the presence of bilirubin, a pigment produced primarily by the breakdown of hemoglobin. Normally, hemoglobin released from senescent red blood cells is converted into bilirubin which is then conjugated, i.e., transformed, by liver enzymes into a water soluble form and excreted in the urine. During the first days of life conjugation of bilirubin is limited because of hepatic immaturity causing delayed development of the enzyme system required for conversion of bilirubin. The result is physiologic jaundice of the newborn which is clinically evidenced by marked yellowness of the skin and eyes. Subsequent to the first week of life, the liver is usually able to conjugate larger amounts of bilirubin and the jaundice disappears without ill effect.
The degree of jaundice can be accurately determined by measuring the amount of bilirubin in the blood. Normal bilirubin levels range between 0.25 and 0.75 mg. per 100 ml. of blood serum. The serum bilirubin of a full-term infant seldom exceeds 10 mgs. per 100 ml. at its height on the second and third days of life and usually does not exceed 7 mg. per 100 ml., although levels of serum bilirubin in a newborn infant even somewhat higher than 10 mg. per 100 ml. are not deleterious to the infant provided that the cause is normal or physiologic hepatic immaturity.1See Carl H. Smith, Blood Diseases of Infancy and Childhood, 3rd edition (St. Louis, 1972), p. 107. Otherwise, bilirubin levels in excess of 5 mg. per 100 ml. are almost always indicative of concomitant hepatic dysfunction or other disorder of serious concern.2See Smith’s Blood Diseases of Infancy and Childhood, 4th edition (St. Louis, 1978), p. 253. Apart from normal physiologic jaundice, elevated serum bilirubin and accompanying jaundice may be caused by sepsis or infection, hemolytic disease, intrinsic red cell defects, oxidant drugs, enclosed hemorrhage or various metabolic disorders. However, in the absence of other indication of a liver disorder or other cause, jaundice may be assumed to be physiologic in nature provided that the serum bilirubin has not reached an inordinately high level and that it begins to decrease toward the end of the first week of life.
Since, at present, medical science recognizes little or no hazard in physiologic jaundice, physicians routinely advise their patients that circumcision may be performed on the eighth day without fear of endangering the infant even though the child manifests clinical signs of physiologic jaundice. Parents thus reassured are anxious to fulfill the mizvah of milah in its proper time and are reluctant to delay circumcision until after the jaundice has disappeared. Support for this practice has also been expressed recently by Dr. Michael Amit in a contribution to the first volume of Halakhah u-Refu'ah, edited by Rabbi Moshe Hershler (Jerusalem, 5740).
Medical opinion notwithstanding, Shulḥan Arukh, Yoreh De'ah 263:1, rules quite clearly that a child should not be circumcised when signs of jaundice are present. This provision of Jewish law is, to be sure, predicated upon considerations of health. Nevertheless, it is well established that matters which in rabbinic sources are regarded as posing danger to life must be considered in that light even if contemporary science fails to recognize a potential danger. Thus, Shabbat restrictions must be ignored in order to treat a patient deemed by Jewish law to be afflicted with a dangerous condition even if physicians deny that any danger exists. Baḥ, Oraḥ Hayyim 328:4, states unequivocally that physicians, in espousing such opinions, are in error. Language which is even more emphatic in nature is employed by Pri Megadim, Eshel Avraham, Oraḥ Hayyim 328:2. The matter can perhaps be put into a more felicitous perspective by recognizing that a talmudic statement expressing that a certain malady is dangerous in nature engenders, at the very minimum, a state of doubt. Although it is indeed possible that "nature has changed" (nishtaneh ha-teva) and that a given danger no longer exists, or that such a pronouncement was based upon inaccurate medical assumptions which were current at the time, it is also possible that the Sages may indeed have been privy to information not available to physicians of subsequent ages and that at some future time medical science may again perceive the hazard as veridical.3Cf., R. Yonatan Steif, Teshuvot Mahari Shteif, no. 52. Certainly, absence of evidence of known danger does not exclude the possibility that danger may occur in even a single instance.4See Teshuvot Maharam Schick, Yoreh De‘ah, no. 24. See also R. Moshe Sternbuch, Mo‘adim u-Zemanim, VII, no. 205, who cites an observation attributed to the late Brisker Rav to the effect that untoward effects of circumcision of an infant suffering from physiologic jaundice may not become manifest until “many years have elapsed”; hence, in the absence of proximate temporal succession, medicine has understandably failed to discover a causal connection between circumcision in the presence of physiologic jaundice and the much delayed onset of a life-threatening condition. With regard to neonatal jaundice in particular, while it may readily be granted that physiologic jaundice poses no known danger to the child, there does exist a distinct possibility that the jaundice is, in fact, the effect of a liver or other disorder and is misdiagnosed as physiologic jaundice. This consideration itself might well have been sufficient cause for the Sages to prohibit circumcision in all cases of jaundice.
The halakhic rule is that even the possibility of hazard must be treated as a danger. Accordingly, any matter considered by the Sages as posing a threat to life must be regarded as constituting a possible hazard for all purposes of Halakhah. Indeed the attitude of Jewish law with regard to possible threat to life is succinctly stated in the final sentence of the statement codifying the prohibition against circumcizing a child who exhibits signs of jaundice. Rambam, Hilkhot Milah 1:18 and Shulḥan Arukh, Yoreh De'ah 263:1, declare, "It is necessary to be extremely careful with regard to these matters. It is forbidden to circumcise a child in whom there is a suspicion of illness since danger to life takes precedence over all else, for it is possible to perform circumcision at a subsequent time, but it is never possible to restore a single Jewish life." It is therefore little wonder that authorities such as R. Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, Yoreh De'ah, no. 222;R. Yehudah Leib Zirelson, Azei ha-Levanon, no. 62; R. Yonatan Steif, Teshuvot Mahari Shteif, no. 62; R. Yitzchak Weisz, Minḥat Yizḥak, III, no. 145; R. Eliezer Waldenberg, Ẓiz Eli'ezer, XIII, no. 81; and R. Moshe Sternbuch, Mo'adim u-Zemanim, VII, no. 205, strongly admonish that physicians who advise circumcision of infants showing signs of jaundice should not be heeded.
Nevertheless, not all forms of jaundice are regarded by Jewish law in a uniform manner. Jewish law pertaining to circumcision distinguishes between minor and serious illnesses. A child may not be circumcised while suffering even a minor illness or when afflicted by pain even though such conditions present no danger whatsoever. A fortiori, a child afflicted with an illness which does present a danger to life or an illness which affects "his entire body," may not be circumcised while afflicted in this manner. Moreover, a child thus afflicted may not be circumcised until the expiration of seven full days subsequent to having been fully restored to a state of complete health. Jaundice which is physiologic in nature is deemed by Jewish law to be non-life-threatening in nature. Hence circumcision is forbidden only until "his blood falls" (Shabbat 134a), i.e., hepatic function has matured and the liver is capable of conjugating the bilirubin in order for it to be excreted by the body. However, when serum bilirubin is excessively high, or when even moderate levels are diagnosed as being the result of a liver or other disorder, the principle which pertains to affliction with a hazardous illness applies, viz., the child may not be circumcised, not only while actually endangered by the illness, but until all symptoms of the illness have disappeared and an additional period of seven full days has elapsed.5See Arukh ha-Shulḥan, Yoreh De‘ah 263:2; R. Shalom Mordecai Schwadron, Da‘at Torah, Yoreh De‘ah 38:8; R. Shlomoh Kluger, Teshuvot Tuv Ta‘am va-Da‘at, Yoreh De‘ah, I, nos. 220 and 222; R. Mordecai Winkler, Teshuvot Levushei Mordekhai, Yoreh De‘ah, no. 180; Teshuvot Shevet Sofer, Oraḥ Ḥayyim, no. 38; Mishmeret Shalom, no. 17; and Oẓar Yad ha-Ḥayyim, sec. 363. Cf., however, the conflicting opinions of Ḥokhmat Adam 149:4, who maintains that only the circumcision of a child who is “excessively yellow” must be postponed but that such a child is to be circumcised immediately upon his color returning to that of “other children,” and of Teshuvot Maharam Rothenberg, II, no. 152; Yad Ketanah, Hilkhot Milah, no. 8, sec. 18; R. Menachem Mendel Schneersohn, Ẓemaḥ Ẓedek, Piskei Dinim, Yoreh De‘ah 263; and Teshuvot Tuv Ta‘am va-Da‘at, Yoreh De‘ah, I, no. 220, who maintain that a subsequent seven-day waiting period is required in all cases of perceivable jaundice. (Ẓemaḥ Ẓedek is inaccurately cited by Koret ha-Brit, Naḥal ha-Brit 263:2 as requiring a seven-day waiting period only when the entire body is yellow.) See also Teshuvot Bet Yiẓḥak, Yoreh De‘ah, II, no. 91, sec. 6, who requires a seven-day period if the jaundice has not receded by the eighth day and the baby is “excessively yellow over the entire body,” and R. Chaim Eleazar Shapiro, Ot Ḥayyim ve-Shalom 263:1. These authorities both rule against circumcision on Shabbat in all cases in which jaundice has been perceived. They also require a seven-day waiting period if circumcision, in the absence of jaundice, would have occurred on Shabbat and in all instances in which the jaundice was evident over the entire body. When jaundice is evident over the entire body a seven-day waiting period is required by Teshuvot Mahari Shteif, no. 63, as well. Cf., also R. Eliyahu Posek, Koret ha-Brit, Naḥal ha-Brit, 263:2.
Accordingly, it is certain that a baby who manifests yellowness should not be circumcised until all symptoms of physiologic jaundice have disappeared. When jaundice is excessive, or is the result of a condition other than normal hepatic immaturity, the baby may not be circumcised until the jaundice has totally disappeared and seven additional days have elapsed thereafter. According to some authorities violation of these prescriptions not only endangers the child but has wider ramifications as well. Rabbi Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 87, rules that, since Jewish law forbids circumcision of an infant who shows signs of jaundice, one who circumcises a child on Shabbat under such circumstances is a Sabbath violator. It also follows that the mizvah of circumcision has not been fulfilled. The appointed time for the circumcision of a child who is "yellow" does not arrive until his color has returned to normal. Hence, argues Binyan Ẓion, circumcision while the child is yet yellow is tantamount to circumcision prior to the eighth day. Circumcision prior to the prescribed time does not constitute fulfillment of the mizvah of milah. Accordingly, R. Jacob Ettlinger, both in Binyan Ẓion, no. 87 and in Arukh la-Ner, Yevamot 71b, declares that if circumcision is performed while a child is afflicted with an illness, or within the subsequent seven-day period if the child has been afflicted with a serious illness, symbolic letting of blood is required following complete recovery of the infant.6This is also the position of Yashresh Ya‘akov, Yevamot 64b, and of Ot Ḥayyim ve-Shalom 262:5. An opposing view is espoused by Teshuvot Bet Yiẓḥak, Yoreh De‘ah, II, no. 91 and Avnei Nezer, Yoreh De‘ah, no. 326. See also Teshuvot Oneg Yom Tov, no. 22. Cf., Mo‘adim u-Zemanim, VII, no. 205.
In light of the lamentable disregard of these provisions of Jewish law on the part of many parents and mohelim, a number of rabbinical figures associated with the Central Rabbinical Congress of the United States and Canada (Hitaḥdut ha-Rabbanim) issued a "Notice and Warning to Mohelim" dated 25 Nisan 5737. This document has received wide circulation and is included in the prefatory section of a new offset edition of Zokher ha-Brit, a valuable compendium devoted to the laws of milah, authored by Rabbi Asher Anshel Gruenwald.
The signators, however, do not content themselves simply with a restatement of the pertinent halakhah. Since perception of yellowness is subjective in nature and since ignorance or disregard of Jewish law in this matter is deemed by Halakhah to constitute a possible threat to the life of the child, these authorities advance a clinical criterion for the determination of the presence of a level of jaundice which requires postponement of circumcision. In a ruling which they candidly describe as being issued "for the purposes of containing the matter" (le-migdar milta) they forbid circumcision of any child either if yellowness is visually perceivable or if the child's bilirubin count is five or higher. They further rule that any child whose serum bilirubin has reached or has exceeded ten mg. per 100 ml. must be considered to be afflicted with a serious illness. As noted earlier, a child who has been afflicted with a serious illness may not be circumcised until seven complete days have elapsed subsequent to his complete cure. Accordingly, if the serum bilirubin reaches ten they require that seven full days elapse subsequent both to disappearance of all visible traces of yellowness and to the time at which the bilirubin count has fallen to five.
Insofar as the provisions of Jewish law are concerned it is difficult to correlate the visual criteria of Halakhah with the measurement of serum bilirubin. A child with a pale complexion manifests signs of yellowness at a much lower level of serum bilirubin than does a child with a ruddy complexion (although a trained physician may detect jaundice much sooner in a ruddy infant than in a pale baby). In many infants yellowness may not be perceived until the bilirubin level exceeds seven mg. per 100 ml. of serum, although, other than in newborn infants, clinical jaundice can usually be perceived when the serum bilirubin level exceeds 2.5 mg. per ml.7See Smith’s Blood Diseases of Infancy and Childhood, 4th edition, p. 253. Even more questionable is the ruling of these authorities in requiring a seven-day waiting period for a child whose bilirubin has reached a level of 10 mg. per ml. Although a child who is inordinately yellow may not be circumcised until seven days have elapsed subsequent to a return of normal coloring, it is doubtful that many children are perceived as being "inordinately yellow" unless the bilirubin level is significantly higher than ten.
It should also be noted that there is some disagreement with regard to the extent of yellowness which necessitates postponement of circumcision. R. Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, Yoreh De'ah, I, no. 222, and R. Shalom Mordecai Schwadron, Da'at Torah, Yoreh De'ah 38:8 and Arukh ha-Shulḥan 263:3 maintain that circumcision must be postponed even if the yellowness is perceived only in the face. R. Shmuel Dov Ingelberg (known as "the mohel of Warsaw"), Brit Avraham, sec. 12, reports that this was also the position of R. Joseph Dov Soloveitchik and of R. Bunim of Varkow. However, R. Eliyahu Posek, Koret ha-Brit, Naḥal ha-Brit 263:1; R. Malki'el Zevi Tennenbaum, Divrei Malki'el, II, no. 132; and R. Yehudah Leib Zirelson, Azei ha-Levanon, no. 62, maintain that circumcision must be delayed only if jaundice is manifest over the surface of the entire body. Koret ha-Brit adds the observation that jaundice over the surface of the major portion of the body must be considered as tantamount to jaundice over the entire body. This point is disputed by Divrei Malki'el, II, no. 132. Ot Hayyim ve-Shalom 263:2; Teshuvot Mahari Shteif, no. 62; and Teshuvot Minḥat Yizḥak, III, no. 145, rule in accordance with the former opinion. Ot Hayyim ve-Shalom, citing Koret ha-Brit, agrees that circumcision may be performed if the parents are yellow in complexion provided that yellowness is perceived only on the face of the infant.8Minḥat Yiẓḥak also rules quite cogently that circumcision may not be performed when contraindicated by Jewish law even if as a result of such a ruling the parents will seek out a mohel or physician who will not only perform the circumcision while the baby is jaundiced but will also fail to remove the foreskin in the prescribed manner.
The practice of some mohelim to circumcise an infant showing some signs of jaundice, although not in conformity with normative Halakhah, is not entirely without precedent. One source which is adduced by some in support of this practice is a somewhat cryptic statement of R. Judah Asad, Teshuvot Yehudah Ya'aleh, Yoreh De'ah, no. 240. In concluding a discussion of the prohibition against circumcising a baby who manifests clinical signs of jaundice, this authority states, "Nevertheless it is best to consult a physician with regard to similar matters (u-ke-yoze ba-zeh) and one may rely upon him with regard to [determining whether] to circumcize or not to circumcize." This statement readily lends itself to the interpretation that, since the consideration is entirely one of danger to the infant, the provisions recorded in Shulḥan Arukh are subject to modification on the basis of competent medical advice. If this was indeed Mahari Asad's contention, his position is contradicted by the previously cited statements of Baḥ and Pri Megadim whose view was adopted by all subsequent authorities. However, Rabbi Weisz interprets Mahari Asad's statements in an entirely different manner. Rabbi Weisz understands Mahari Asad as simply elucidating the provisions of Jewish law with regard to yellow, green and red skin color and then adding the comment that since there are no statutory provisions with regard to other types of unusual skin coloring (as indicated by use of the phrase u-ke-yoze ba-zeh) in the event that any other discoloration is present medical advice should be sought with regard to any possibility of danger.
A somewhat firmer basis for sanctioning circumcision despite the presence of mild jaundice is the ruling of Hokhmat Adam 149:4. Citing phraseology employed by Rambam, Hilkhot Milah 1:17, Hokhmat Adam declares that a child who is "inordinately yellow" (yarok be-yoter) may not be circumcised despite the fact that other authorities, including Shulḥan Arukh, omit the word "inordinately" (be-yoter) and clearly declare that any perceivable degree of jaundice necessitates postponement of circumcision. Dr. Jacob Levy, No'am, X (5729), 178, indicates that the practice of contemporary mohelim—decried in the statement cited earlier—is based upon the position of Hokhmat Adam. It should be noted that Arukh ha-Shulḥan 263:3 and Rosh Efrayim 38:52 both maintain that there is no disagreement between Rambam and other authorities. They understand the term "be-yoter," which is employed by Rambam, as excluding only "natural"yellowness of complexion which is not attributed to jaundice. It should be noted that Rambam concludes his statement with the words, "It is necessary to be extremely careful with regard to these matters."9Cf., however, Aẓei ha-Levanon, no. 62, who on the basis of Rambam’s language distinguishes between “yellow” and “weak yellow” (kalush) or “tendency” (netiyah) toward yellowness. This appears to be the position of Avnei Nezer, Yoreh De‘ah, no. 320, as well. Moreover, Nimukei ha-Riv, Yoreh De'ah 263:1, emphasizes that Shulḥan Arukh consciously omits the word "be-yoter" and states that he emphasizes this point "because the [author of the] work Hokhmat Adam copied the phraseology of Rambam, and the [former] work is found in every person's possession and [hence] mohelim may come to rely upon their judgment with regard to this and from this there may arise danger to life. Therefore, I found it necessary to warn mohelim with regard to this."9aIn a responsum published in a recent issue of Moriah, Nisan 5743, and in Sefer ha-Zikaron published in memory of R. Shneur Kotler, edited by R. Joseph Buchsbaum (Jerusalem, 5743), R. Jacob Kamenecki similarly takes issue with Ḥokhmat Adam and rules that a child who manifests any perceivable degree of jaundice should not be circumcised.
Parenthetically, jaundice prior to the second day of life is never physiologic in nature.10See Blood Diseases of Infancy and Childhood, 3rd edition, p. 108. Jaundice at or within the first twenty-four hours of birth is a symptom of dysfunction rather than of normal hepatic immaturity. Hence, when jaundice does occur on the first day, seven full days must elapse following total disappearance of all signs of jaundice before circumcision may be performed. Of interest is an opinion expressed by R. Shlomoh Kluger in his Teshuvot Tuv Ta'am va-Da'at, Yoreh De'ah, I, no. 220. Contrary to the position of most other rabbinic decisors, R. Shlomoh Kluger rules that a child who develops a yellow skin color subsequent to birth may not be circumcised until seven days have elapsed after the jaundice is no longer visible. Surprisingly, he posits an exception waiving the seven-day waiting period in one situation which, in light of contemporary medical knowledge, must be recognized as constituting a serious illness. Rabbi Kluger rules that a child who manifests yellowness at birth may be circumcised as soon as the yellowness is no longer evident. Rabbi Kluger asserts that in the latter case the jaundice may be assumed to be "natural" and not the result of sickness. Quite obviously, this opinion was predicated upon an erroneous medical assumption. Since jaundice within the first twenty-four hours following birth is now recognized as a sign of a malady it is quite clear that a seven-day period is required subsequent to disappearance of jaundice present at birth.11See Dr. Jacob Levy, No‘am, X (5727), 176.
Hypospadias and Circumcision
In a normal male the urethra, i.e., the canal or passage through which urine is discharged, extends through the entire length of the male organ and opens at the tip of the glans. Hypospadias is a congenital defect of the urethra representing a developmental anomaly characterized by a defect in the wall of the urethra as a result of which the canal does not terminate in an orifice at the tip of the organ but opens instead on the under surface, either at a point close to the glans or elsewhere along the length of the organ or, at times, close to or, infrequently, in the scrotum itself. This is frequently accompanied by either an abbreviated or displaced foreskin which may at times leave the underside of the glans completely exposed and often gives the child the appearance of being partially circumcised. Indeed, Avnei Nezer, Yoreh De'ah, II, no. 322, states that at times the tissue which is present may be a mere "flap of skin" rather than a foreskin. If such is the case the tissue need not be removed and indeed removal would constitute a forbidden act of "ḥavalah" unless undertaken for therapeutic purposes.12See also R. Moshe Bunim Pirutinsky, Sefer ha-Brit (New York, 5732), Likutei Halakhot 263:48; Cf., R. Ya‘akov Breisch, Ḥelkat Ya‘akov, II, no. 20, sec. 3. Hypospadias is an anomaly which occurs in approximately one out of every 300 male births. If left untreated, depending upon the location of the orifice, the male may not be able to experience ejaculation in the usual manner in conjunction with sexual intercourse and hence will not be able to sire children. This condition is frequently accompanied by a downward curvature of the penile shaft known as chordee.13A description of what is apparently a case of chordee appears in an entirely different context in Teshuvot Rav Pe‘alim, III, Even ha-Ezer, no. 2. A similar, but rarer, congenital anomaly known as epispadias involves termination of the canal in an orifice on the upper surface of the organ.
The earliest description of hypospadias in halakhic literature occurs in Teshuvot ha-Rosh, cited by Bet Yosef, Even ha-Ezer 5, and Avnei Nezer, Yoreh De'ah, II, no. 322. The earliest mention in responsa literature of a remedy for this condition appears in Teshuvot Hatam Sofer, VI, no. 64.14The condition described in Teshuvot Ḥatam Sofer, Even ha-Ezer, I, no. 12, also appears to be a case of hypospadias. The remedy described by Hatam Sofer as being current in medical practice in his time involved closure of the abnormal congenital opening and surgical construction of an orifice together with extension of the urethra by means of inserting a silver tube.15Cf., Teshuvot Maharam Schick, Yoreh De‘ah, no. 243, regarding circumcision of such a child on Shabbat. The procedure was apparently performed soon after birth. Hatam Sofer reports that some rabbinic authorities of his day were led to believe that the anomaly was fatal and would lead to the demise of the child no later than three months subsequent to birth. On the basis of this information those authorities ruled that circumcision should not be performed.
Hatam Sofer takes sharp issue with this position, declaring it to be both medically and halakhically erroneous. Hatam Sofer correctly observes that the condition is not fatal. He also adds that even if the anomaly were fatal, circumcision must nevertheless be performed even though the child is afflicted with a fatal defect (as distinct from a child suffering from an illness)16A similar remedy is described also by R. Shneur Zalman Ashkenazi of Lublin, Teshuvot Torat Ḥesed, Even ha-Ezer, no. 38. Cf., R. David Menachem Babad, Teshuvot Ḥavaẓelet ha-Sharon, II, Even ha-Ezer, no. 12. provided that the circumcision itself does not increase the degree of danger or foreshorten life. Hatam Sofer reports that he has been informed by a number of physicians that hypospadias presents no medical problem which would contraindicate performance of circumcision in the usual manner.
Contemporary medical practice is to delay repair of hypospadias until the child is approximately three years of age. At that time an epithelial tube is constructed in place of the missing segment of the urethra and the congenital anomalous orifice is closed. Physicians advise against circumcision prior to the time of surgery so that the foreskin will be available for use as a skin flap for transfer in conjunction with the reconstructive plastic surgery necessary for correction of hypospadias. The question of the permissibility of delaying circumcision for this purpose is the subject of an article by a mohel, Rabbi Joseph David Weisberg, which appears in a pamphlet entitled Brit Milah, published in 5733 by the Falk-Schlesinger Institute of Shaare-Zedek Hospital in Jerusalem under the editorship of Dr. Abraham Steinberg. No'am, XVIII (5735-36), 52-60, contains a responsum on the same topic by R. Yitzchak Glickman. Earlier discussions of this question include those of R. Aryeh Leib Grossnass, Lev Aryeh, I, no. 41; R. Aaron Burak, Pirḥei Aharon, I, 182-185; R. Pinchas Mordecai Teitz, Ha-Pardes, Nisan 5714; and R. Chaim U. Lipschitz, Sinai, LXIII, no. 5-6 (Av-Elul 5728). The most comprehensive treatment of this topic yet to appear is that of R. Ya'akov Breisch, Helkat Ya'akov II, nos. 20 and 21, and III, nos. 36 and 37.
This question, in terms of its halakhic ramifications, is virtually identical with another question which received extensive treatment in rabbinic responsa.17One additional factor present in the case of Avnei Nezer is that in the situation brought to his attention the procedure was to be performed within the first neonatal week. Although it would preclude circumcision on the eighth day, the procedure, if performed prior to that time, is undertaken at a time when, arguably, there is as yet no obligation with regard to the miẓvah of circumcision; see also Minḥat Ḥinnukh, no. 4, p. 8, and no. 97, and a responsum of R. Abraham Nathan Elberg, son-in-law of the author of Teshuvot Tirosh ve-Yiẓhar published in Tirosh ve-Yiẓhar, no. 127. Cf., below, note 19. The latter question involved the circumcision of a child born in 5664 in Poland in the city of Plonsk where R. Zevi Yechezkel Michelson served as rabbi. The problem presented to this authority became the subject of two responsa published in his Teshuvot Tirosh ve-Yizhar, nos. 97 and 127. Rabbi Michelson writes that he referred the question to R. Abraham Bornstein of Sochaczew, one of the outstanding rabbinic decisors of the day. The latter's response, which is the best known and most widely cited treatment of the question, appears in Avnei Nezer, Yoreh De'ah II, no. 321. Rabbi Michelson apparently also submitted the identical question to a number of other colleagues for their consideration. A number of responsa discussing the selfsame problem appear in the responsa collections of other halakhic authorities.18See R. Malkiel Zevi Tennenbaum, Teshuvot Divrei Malki’el, V, no. 148; R. Yehudah Leib Zirelson, Aẓei ha-Levanon, no. 61; and R. Moshe Perlmutter, Teshuvot Even Shoham, Yoreh De‘ah, no. 38. Tirosh ve-Yiẓhar, no. 127, reports that this question is also discussed by R. Eliyahu Klatzkin in a brief work entitled Dvar Eliyahu. See also Sefer ha-Brit, Likutei Halakhot 261:47-48 and Sefer ha-Brit, Mekor u-Bi’ur Halakhah 261:5. These responsa are addressed to Rabbi Michelson and those which are dated bear dates in the years 5664 and 5665. The case in question involved a child who was born with a "crooked foot." In order to correct that orthopedic problem the physicians advised placing the foot in a cast. For medical reasons which are not at all clear the physicians insisted that it would be impossible to correct the orthopedic condition if circumcision were to be performed on the eighth day. Failure to institute corrective measures promptly would have left the child a cripple. In his response Avnei Nezer, basing himself upon Rema, Oraḥ Hayyim 656:1, unqualifiedly permits postponement of circumcision.19R. Malkiel Zevi Tennenbaum, Divrei Malki’el, V, no. 148, addressing himself to the identical query, denies that the orthopedic problem constitutes “even danger to a limb,” but nevertheless permits the cast to be applied. He further adds that this may be done only prior to the eighth day while there is, as yet, no immediate obligation with regard to circumcision even though fulfillment of the miẓvah will subsequently be delayed. He rules, however, that the procedure may not be performed on the eighth day or thereafter since at that time there already exists an obligation to perform circumcision; see also Teshuvot Tirosh ve-Yiẓhar, no. 127. Avnei Nezer notes the same consideration and advises against performing the procedure on the eighth day if it is possible to do so earlier. Citing Tosafot Rid, Kiddushin 29a, Avnei Nezer declares that the obligation concerning circumcision devolves upon the father on the evening of the eighth day even though the act of circumcision cannot be performed until daybreak. Accordingly, he advises that the cast be applied prior to the evening of the eighth day. Rema rules that a person need expend no more than twenty percent of his net worth in fulfillment of any given mizvah.20See also Teshuvot Even Shoham, Yoreh De‘ah, no. 38. Cf., Teshuvot Ḥelkat Yo’av, hashmatot, sec. 89, who states that a person is exempt from fulfillment of any miẓvah which would entail either sickness or great pain; Ḥelkat Ya‘akov, however, sanctions only passive non-fulfillment and expressly prohibits an action which renders a miẓvah nugatory. See also R. Abraham Pietarkovsky, Piskei Teshuvah, I, no. 120, who suggests that this exemption may not pertain to fulfillment of the miẓvah of circumcision since by its very nature circumcision, as distinct from other miẓvot, entails pain. The onus of remaining a cripple for life, declares Avnei Nezer, is tantamount to expenditure of far more than a fifth of one's possessions and need not be accepted for the sake of a mizvah.21Piskei Teshuvah also cites Rashba, Baba Kamma 9b, who explains that the rationale underlying the twenty percent limitation is the consideration that expenditure of a greater amount might lead to impoverishment and to the individual becoming a burden upon the community. Although this consideration does not apply in the case at hand, Rabbi Pietarkovsky opines that Rashba’s comments should not be understood in a literal manner. Rabbi Breisch, Helkat Ya'akov, II, no. 20, cites Nedarim 64b, which speaks of a person who does not have children as being comparable, not merely to a cripple, but to one who has died. Since one need not become a cripple for the sake of a mizvah, it follows, a fortiori, argues Rabbi Breisch, that for the sake of fulfilling a mizvah, one need not accept the prospect of not being able to father children. It may also be noted that in the case of a child born with hypospadias the question is not of an individual crippling himself for the sake of his own fulfillment of a mizvah but of one person causing another to bear a life-long defect for the sake of the first person's mizvah. Citing Parashat Derakhim, drush sheni, who makes a similar point with regard to endangering the life of another, Rabbi Lipschitz points out that the mizvah of circumcision is incumbent upon the father, not upon the eight-day-old child. The father clearly has no right to cause the child to be infertile in order for the father to fulfill his own mizvah.22Cf., however, both Teshuvot Rivash, no. 131, as analyzed by R. Baruch Ber Leibowitz, Birkat Shmu’el, Kiddushin, no. 18, and Avnei Nezer, Yoreh De‘ah, II, no. 330, who maintain that fulfillment of the miẓvah accrues to the child. This also appears to be the position of Rabbenu Ḥananel, Yoma 85a; see R. Ephraim Oshry, Divrei Efrayim, Kuntres me-Emek ha-Bakha, no. 5. See also Koret ha-Brit, Mekor u-Bi’ur Halakhah 260:3. A similar argument is advanced by R. Aryeh Leib Grossnass, Lev Aryeh, I, no. 41. Although neither author cites an earlier source, the identical distinction is made by R. Yechezkel Lipschitz, cited in Teshuvot Tirosh ve-Yizhar, no. 127.23See also Ḥatam Sofer, commentary on Shabbat 133b, who makes the identical point with regard to endangerment of the child for the sake of fulfilling the father’s miẓvah with regard to circumcision.
Other authorities require that medical treatment be provided and circumcision delayed for entirely different reasons. R. Yehudah Leib Zirelson, Teshuvot Azei ha-Levanon, no. 61, argues that correcting the orthopedic problem in order that the child may have use of the limb constitutes the fulfillment of a positive commandment. Sanhedrin 73a declares that the verse "and you shall return it to him" (Deut. 22:2) mandates not only the return of lost property but, a fortiori, preservation of life as well. Azei ha-Levanon cogently argues that restoration of use of a limb similarly constitutes fulfillment of this mizvah. Citing Ritva, Sukkah 25a,24A similar, but not identical, question arises with regard to whether it is permissible to delay fulfillment of a miẓvah in order to perform it in a more optimal manner. Terumat ha-Deshen, no. 35, analyzes this question in the context of delaying kiddush levanah until the conclusion of Shabbat in order to pronounce the blessing while attired in Sabbath garments; see Shulḥan Arukh, Oraḥ Ḥayyim 426:2. Teshuvot Shevut Ya‘akov, I, no. 34, discusses the same question in the context of whether one should perform the miẓvah of arba minim at the earliest possible hour or should postpone its fulfillment until a more beautiful etrog is available. Cf., also the comments of Magen Avraham, Oraḥ Ḥayyim 25:2, in explanation of the ruling of Rema that one need not delay the donning of phylacteries until a tallit is also available. Sefer Ḥasidim (Berlin, 5651), no. 454, implies that an individual may delay prayer in order to pray with a minyan provided that there is no danger that in so doing he will delay beyond the appointed time for prayer. See also Teshuvot Yad Eliyahu, no. 42, and Magen Avraham, Oraḥ Ḥayyim 90:15. he further argues that it is permissible to undertake the performance of a mizvah even if, as a result, it may be impossible to fulfill an even greater mizvah at a subsequent time.25See also Teshuvot Radbaz, IV, no. 1087; Cf., however, Teshuvot Ḥakam Ẓevi, no. 106; Teshuvot Tirosh ve-Yiẓhar, no. 127; Ḥokhmat Adam 68:1 and Nishmat Adam, ad locum; and R. Israel Meir ha-Kohen, (Ḥafeẓ Ḥayyim), Maḥaneh Yisra’el, ma’amarim, chap. 15. The situation addressed by Radbaz involved an incarcerated person granted freedom for one day of his choice each year. The question presented was whether he should avail himself of this privilege at the earliest opportunity in order to engage in communal prayer or whether he should delay exercising his prerogative until a time of particular significance such as Purim or the Day of Atonement. Radbaz ruled that the prisoner should not postpone the opportunity for performing a miẓvah even though delay would afford him the opportunity of performing a miẓvah of greater significance; see also Sefer Ḥasidim, no. 874. However, Ḥokhmat Adam and Ḥafeẓ Ḥayyim adopt the opposite position and rule that a soldier given the option of leave on a weekday or on Saturday should choose Saturday, provided that such choice does not involve excessive delay, in order that he may be able to pray on the Sabbath in the proper manner. This ruling applies even in situations in which the soldier’s duties do not involve violation of Sabbath laws and is based entirely upon the consideration that the prayer on the Sabbath constitutes a miẓvah of greater sanctity than prayer on a weekday. Thus this ruling reflects the position that a miẓvah of lesser sanctity may be left unfulfilled in order to fulfill a miẓvah of enhanced sanctity at a later time. Accordingly, he rules that it is permissible to apply the cast, even if circumcision is delayed thereby, because correction of the orthopedic condition itself constitutes the fulfillment of a mizvah.
Azei ha-Levanon further argues that failure to provide an available medical remedy entails a violation both of the commandment "you may not hide yourself" (Deut. 22:3) and the admonition "nor shall you stand idly by the blood of your fellow" (Lev. 19:16). Rambam, Hilkhot Rozeaḥ, 1:13, Sefer ha-Hinnukh, no. 237; and Shulḥan Arukh, Hoshen Mishpat 426:1, basing themselves upon Sifra, Kedoshim 41, view those commandments as encompassing an obligation to prevent not only loss of life but also to prevent financial loss from befalling one's fellow.26See also Ḥafeẓ Ḥayyim, Be’er Mayim Ḥayyim, Hilkhot Issurei Rekhilut 9:1. If so, argues Azei ha-Levanon, it is similarly forbidden to allow a person to suffer loss of the use of a limb. Circumcision under such circumstances, concludes Azei ha-Levanon, would constitute a violation of these two negative commandments. This latter argument is applicable with regard to the circumcision of a child suffering from hypospadias. Although, chronologically, the mizvah of circumcision on the eighth day following the birth of a child presents itself prior to the opportunity for therapeutic remedy of this anomaly, performance of milah effectively makes it impossible to correct the condition at a subsequent time. Thus the act of circumcision entails a violation of both "you may not hide yourself" and of "nor shall you stand idly by the blood of your fellow." Although a single negative commandment is suspended under certain conditions in order to permit the discharge of a positive obligation, multiple negative commandments are not suspended for this purpose.
Rabbi Breisch further argues that circumcision is a mizvah which may be fulfilled at a later time and hence may be delayed for the sake of a mizvah overet, i.e., a mizvah which, if delayed, will be totally abrogated. The Gemara, Nedarim 31b, explains that Moses delayed the circumcision of his sons because God commanded him to return to Egypt. Fulfillment of that command, which constituted a mizvah overet, could not be delayed, argues Rabbi Breisch, and, therefore, took precedence over fulfillment of the mizvah of circumcision which could be performed at a later time. Similarly, concludes Rabbi Breisch, since failure to perform surgery in a proper manner for the correction of hypospadias will result in the abrogation of the mizvah of procreation on the part of the child, circumcision may be delayed in order to make it possible for him to sire children.
This latter argument is predicated on the assumption that since circumcision can be performed subsequent to the eighth day it is not deemed to be a mizvah overet. Support for Rabbi Breisch's view with regard to this point may be found in Magen Avraham, Oraḥ Hayyim 687:5, who explains a ruling of an earlier authority on the basis of this thesis. It is, however, at variance with the opinion of R. Zevi Benjamin Auerbach, Naḥal Eshkol, II, 40:12 (Halberstadt, 5628), p. 135. A question was posed to Naḥal Eshkol by a mohel who lived in a hamlet in which there was no minyan on Rosh ha-Shanah. Each year this individual was wont to journey to a distant town in order to pray and to hear the blowing of the shofar. One year a birth occurred a week before Rosh ha-Shanah. The mohel was placed in a quandary. Should he forego the opportunity to hear the blowing of the shofar in order to perform the circumcision or should the circumcision be delayed in order that he might hear the blowing of the shofar? Naḥal Eshkol rules that the mohel should remain at home in order to perform the circumcision. This ruling is cited and endorsed by R. Shalom Mordecai Schwadron, Da'at Torah 584:4. Naḥal Eshkol considers the possibility that milah might not be considered a mizvah overet because it may be performed subsequently while the blowing of the shofar is clearly a mizvah overet. He dismisses this contention as "something strange" because the commandment to perform circumcision on the eighth day cannot be delayed. This position is based upon the recognition that Leviticus 12:3 establishes an additional obligation beyond the mizvah of circumcision; viz., an obligation to perform circumcision on the eighth day specifically. Delay of circumcision beyond the eighth day constitutes abrogation of this latter mizvah. Accordingly, argues Naḥal Eshkol, although circumcision itself is not a mizvah overet, circumcision on the eighth day does constitute a mizvah overet.
Although there exists some disagreement with regard to the precise nature of the halakhic grounds for the ruling, all rabbinic authorities agree that circumcision may be delayed, if necessary, in order to permit surgical correction of hypospadias. Rabbi Glickman correctly notes that when circumcision is delayed there is no reason to perform symbolic "letting of blood" or even partial circumcision on the eighth day. Moreover, such a procedure is forbidden on the grounds that since no mizvah is fulfilled the procedure constitutes an illicit act of "wounding." Furthermore, the father is likely to be misled into believing that proper circumcision has already been performed and may then fail to have circumcision performed in the proper ritual manner in conjunction with reconstructive surgery at a later date.
Of particular moment is a later responsum authored by Rabbi Breisch, Helkat Ya'akov, III, no. 36, in which Rabbi Breisch suggests that circumcision may be performed on the eighth day in a manner which will leave sufficient foreskin for subsequent plastic surgery. The mizvah of milah requires that circumcision be performed in a manner which exposes the entire glans including the corona or crown. Hokhmat Adam, Binat Adam, klal 149, and Hamudei Daniel, cited by Pitḥei Teshuvah, Yoreh De'ah 264:13, rule that the foreskin covering this area must be entirely removed by excision. This is also the opinion of R. Judah Asad, Teshuvot Maharya, no. 250; Teshuvot Yeshu'ot Malko, Yoreh De'ah, no. 42; and R. Abraham Dov Kahana-Shapiro, Dvar Avraham, I, no. 27, sec. 2. Other authorities including Divrei Hayyim, II, nos. 114-118; R. Menachem Mendel Schneerson, Ẓemaḥ Ẓedek, nos. 101-102; Hatam Sofer, Yoreh De'ah, no. 249; Maharam Schick, Yoreh De'ah, no. 245 and Maharsham, I, no. 27, disagree and maintain that the essence of milah is simply exposure of the glans which may be accomplished by retracting the foreskin in a manner which leaves the glans exposed. R. Mordecai Jaffe, Teshuvot Maharam Yafo, no. 12, discusses both possibilities and states that he is unable to resolve the question definitively. The question hinges primarily upon the meaning of the Hebrew word "yimol—he shall circumcise" (Lev. 12:3), i.e., whether the word means "he shall cut" or whether its connotation is "he shall remove" as is the apparent meaning of the term in Deut. 10:16 and Deut. 30:6.
Citing the commentary of Tevu'at Shor on Shabbat 137a and Teshuvot Nefesh Hayah, Yoreh De'ah, no. 73, Rabbi Breisch opines that even according to the position of the authorities who rule that retraction of the foreskin is sufficient for fulfillment of the mizvah, the major portion of the foreskin must nevertheless be severed by cutting, while the remainder may be retracted by pushing it toward the body so that the entire glans is exposed.27Cf., R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah, II, no. 120.
Thus there exists a possible method of performing milah on the eighth day without compromising the success of future corrective surgery. It may be possible for the mohel to cut off a major part of the foreskin and to slit the remainder lengthwise and then to fold it back over the corona thereby exposing the entire glans. The portion of the foreskin remaining on the membrum could then be utilized subsequently for purposes of plastic surgery. Rabbi Breisch rules that the opinion of the authorities who maintain that the entire foreskin need not be removed by excision may be relied upon in order not to delay fulfillment of the mizvah of circumcision. Of course, this procedure may be undertaken only if, in the opinion of competent medical specialists, the remaining foreskin is sufficient for subsequent reconstructive surgery. The procedure recommended by Rabbi Weisberg is identical to that described by Rabbi Breisch. Rabbi Weisberg reports that this procedure received the approbation of the late Rabbi Pinchas Epstein, former head of the Bet Din of the Edah ha-Haredit, and of the present incumbent of that position, R. Yitzchak Weisz, as well as the approval of two other prominent Israeli halakhic authorities, Rabbi Shlomoh Zalman Auerbach and Rabbi Joseph Eliashiv.
Medical specialists consulted by this writer advise that the procedure described by Rabbi Weisberg may or may not be contraindicated medically depending upon the size of the foreskin, the location of the congenital orifice, and the amount of tissue required for corrective surgery. In their opinion, this procedure would be medically acceptable in only a small percent of cases. They are particularly skeptical with regard to the efficacy of this procedure in situations involving chordee as well as hypospadias. Correction of chordee requires removal of all contracted connective tissue from the ventral surface and covering the straightened but now longer and hence partially denuded shaft with tissue. The mobile, hair-free preputial tissue of the foreskin is required for this purpose. It is unlikely that the tissue remaining subsequent to a partial circumcision would be sufficient for proper performance of the reconstructive surgery. This is particularly true if, as is often the case, the baby is born with a foreskin which is smaller than usual.
Upon perusal of the halakhic and medical literature on the subject of hypospadias this writer was disturbed by the realization that with the single exception of Rabbi Moshe Bunim Pirutinsky's treatment of this subject in his excellent and comprehensive work, Sefer ha-Brit, Likutei Halakhot 261:47-48, and Mekor u-Bi'ur Halakhah 261:5, the halakhic responsa devoted to this topic are uniformly based upon misinformation regarding the nature of the reconstructive surgery necessary for correction of this condition. It is implicitly assumed in the learned rabbinic discussions of this subject that the sole issue is delay of circumcision, the assumption being that milah is to be performed at the time of surgery. In point of fact most techniques employed to correct this anomaly do not at all provide for excision of the foreskin. The foreskin and mucosa are separated from the glans and retracted over the corona, then slit horizontally and folded along the underside of the penile shaft to create a new urethral tube. Often a buttonhole incision is made in the foreskin in order to allow passage of the glans through the opening and folding of the tissue along the underside. Although excess tissue may be cut away, this procedure does not involve excision of more than a minimal portion of the foreskin.28See, for example, John H. Hand, “Surgery of the Penis and Urethra,” Urology, third edition, edited by Meredith F. Campbell and J. Hartwell Harrison (Philadelphia, London, Toronto, 1970), III, 2547-2569; Norman B. Hodgson, “Hypospadias and Urethral Duplications,” Campbell’s Urology, fourth edition (Philadelphia, London, Toronto, 1979), II, 1571-1895; and Charles E. Horton and Charles J. Devine, “Hypospadias and Epispadias,” Cibo Clinical Symposia, Vol. 24, no. 3 (1972), pp. 2-27. Some procedures which would permit excision of the foreskin have been attempted recently. Chief among these is a technique involving the carrying of a new urethra through a tunnel created in the glans, a process similar to that described by Hatam Sofer. This latter procedure is, however, considered medically inadvisable at the present time pending reports of more cases in which successful results have been achieved as well as the passage of sufficient time to evaluate the end results.29See Hand, p. 2562.
Although the accepted techniques employed in correcting hypospadias are different from those described in the published responsa, the halakhic issues involved in such procedures are identical to those discussed by Rabbi Breisch in vol. III of his Helkat Ya'akov. The principle applied by Rabbi Breisch to partial circumcision on the eighth day, namely, that retraction of the foreskin constitutes an acceptable form of fulfillment of the ritual requirement, may be applied to retraction of the foreskin in conjunction with reconstructive surgery.30See Sefer ha-Brit, Likutei Halakhot 261:48.
Depending upon the degree of chordee and the location of the congenital orifice it may, in some cases, be possible to excise a major portion of the foreskin at the time that reconstructive surgery is performed. If not medically contraindicated, this is halakhically the preferred procedure. The act of severing the foreskin should be performed by a qualified mohel or by an observant Jewish physician. Indeed, in all cases, since retraction of the foreskin constitutes circumcision according to the authorities upon whom Rabbi Breisch relies, the retraction should be performed by a mohel or by an observant physician. The procedure should also be performed during daylight hours rather than at night and care should be taken that there is no adhesion of tissue to any part of the corona.31See Sefer ha-Brit, Likutei Halakhot 261:48, as well as Sefer ha-Brit, second edition, addenda, p. 415.
In some few cases of hypospadias in which no accompanying chordee is present and in which the congenital orifice is located at the base of the glans it may be possible to perform whatever corrective surgery is necessary without utilization of the foreskin and hence in such situations there is no medical reason for delaying circumcision. Indeed, some urologists question the medical need for any corrective surgery in such cases.32Cf., R. Chaim Zevulun Charlop, No‘am, V (5722), 306. Since in some cases the possibility of circumcision will depend upon the surgical technique used this is a factor to be considered when alternate surgical approaches are feasible. For this reason, it is advisable that a competent rabbinic authority confer with the physician in each such instance before a determination is made.
This writer, following consultation with a number of urologists, would recommend for the consideration of physicians performing such reconstructive surgery and of halakhic scholars a modification of the techniques currently employed. The purpose of the proposed modification is to perform circumcision in a manner compatible with the opinion of those authorities who require excision of the foreskin rather than simply uncovering of the glans.
At present, the surgeon does not completely sever the foreskin after it is stretched over the exposed portion of the underside of the penile shaft. The reason for leaving a portion of the foreskin attached is to assure an uninterrupted flow of blood. This, in turn, serves to heighten greatly the likelihood that the transfer of the flap will be successful.33Such a procedure is termed the transfer of a flap, as opposed to a skin graft, because a portion of the tissue remains attached throughout the transfer. A skin graft involves total detachment of a skin segment for implantation at a different site. The attachment of the foreskin to a portion of the body other than the glans which it covers in the natural state does not appear to constitute a halakhic defect with regard to circumcision even according to the authorities who require excision of the foreskin. Hence grafting of the foreskin elsewhere along the penile shaft poses no problem with regard to fulfillment of the mizvah of circumcision. The sole problem is the failure to excise the base of the flap which has been transferred in this manner.
It is this writer's suggestion that such excision be performed at a time subsequent to completion of the reconstructive surgery after the surgical wound has completely healed. At the time the skin at the base of the flap, which is the sole remaining site of original attachment, may be incised with a scalpel. Since during the healing process alternate blood supply is established, this excision may be accomplished without compromising the success of reconstructive surgery, provided that this procedure is undertaken subsequent to completion of the healing process. Following incision and complete severance of the original attachment of the foreskin the wound may be reapproximated with sutures. Such reattachment of the foreskin does not appear to present any halakhic problem, particularly since despite reattachment the glans remains totally exposed. Such reattachment is no more than the implantation of the foreskin at a site of the body which the foreskin does not cover in its natural state. This procedure thus provides for circumcision in the optimal manner, i.e., excision of the foreskin rather than merely exposure of the glans, but does not compromise correction of hypospadias since it is performed only after reconstructive surgery has been completed.
In performing this procedure the epithelial tube constructed on the dorsal side of the penile shaft in place of the missing segment of the urethra should terminate at a point just short of the corona since fulfillment of the mizvah of milah requires that the foreskin be removed from the entire glans including the corona.34Cf., Sefer ha-Brit, Likutei Halakhot 261:48 as well as Sefer ha-Brit, second edition, addenda, p. 415. Among the various techniques described in the medical literature some involve bringing the urethra to the base of the glans while others provide for bringing the urethra to the tip of the glans. Termination of the urethra at the base of the glans in no way impedes intercourse or procreation. If, in the opinion of a urologist, it is deemed necessary to extend the urethra beyond the base of the glans—a procedure which, as has been noted, poses an additional halakhic problem—it is imperative that a competent rabbinic authority be consulted before corrective surgery is performed.
A curious report regarding the frequency of hypospadias is found in Teshuvot Rav Pe'alim, Even ha-Ezer, no. 12. Rav Pe'alim reports that "close to one hundred and fifty" cases of hypospadias occurred in Baghdad each year. In all instances the opening of the urethra was found to be at the base of the corona. This anomaly is described as occurring repeatedly in certain families and as presenting no problem with regard to procreation.
Teshuvot Even Shoham, Yoreh De'ah, no. 38, posits an obligation devolving upon the father from the moment of birth to make preparations for circumcision on the eighth day. Tirosh ve-Yizhar, no. 97, forbids a procedure even before the eighth day which would result in postponement of circumcision unless the child suffers at least "some pain" as a result of the orthopedic anomaly.
Avnei Nezer's argument as it pertains to the mizvah of circumcision, is, however, subject to question on other grounds. Minḥat Hinnukh, no. 5, in his concluding remarks, suggests that a person may be obligated to expend his entire fortune in order to fulfill a mizvah when non-fulfillment entails the penalty of karet. This position is espoused unequivocally by Ma'aseh Bezalel, cited by Sedei Hemed, kellalim, ma'arekhet ha-lamed, no. 107, s.v. ve-katav od sham. Moreover, Minḥat Hinnukh, no. 9, sec. 3, and no. 423, suggests that a person is not obligated to expend his entire fortune in order to fulfill a mizvah if non-fulfillment entails but a single transgression, e.g., mazah or lulav; however, should non-fulfillment involve constant transgression, e.g., mezuzah or, as in our case, circumcision, he may be obligated to expend his entire fortune in order to avoid continual transgression each moment. Both considerations are present with regard to the mizvah concerning circumcision of oneself, but not with regard to circumcision of one's son; see R. Asher Anshel Katz, Naḥal ha-Brit, II, no. 32, p. 161. However, Tirosh ve-Yizhar, no. 127, apparently maintains that a person is obligated to expend his entire fortune in order to circumcise his son as well; see also Sefer ha-Brit; Likutei Halakhot 261:24. In contradistinction, Teshuvot Marḥeshet, I, no. 43, maintains that no greater financial expenditure need be assumed in order to fulfill the mizvah of circumcision than is required for the fulfillment of any other precept.
See also Sefer ha-Brit, second edition (New York, 5738) addenda, p. 415, who cites a comment of Rashi, Yevamot 78a, stating that an individual is exempt from fulfillment of a mizvah when such fulfillment entails the possible loss of an organ. Rashi's comment is directed specifically to fulfillment of the mizvah of circumcision.
Delay for the purpose of performing a mizvah in the company of a greater number of people (be-rov am hadrat melekh) is discussed by R. Yekutiel Aryeh Kamelhar, Boker Yizraḥ (Cracow, 5656), Sha'arei Mizraḥ, chapter 3; R. Joshua Horowitz of Djikiv, letter of approbation to Boker Yizraḥ; and R. Yechiel Michal Tucatzinsky, Tekufat ha-Hammah u-Birkhatah (Jerusalem, 5713), pp. 52-60. These discussions focus upon the question of whether birkat ha-ḥammah should be recited at the earliest opportunity or delayed until the entire congregation leaves the synagogue after morning prayers. The latter procedure was favored by Teshuvot Mas'et Binyamin, no. 101, and became the accepted practice. Cf., however, R. Chaim Yosef David Azulai, Maḥazik Berakhah 229:7, and R. Abraham Danzig, Hayyei Adam 63:5, who rule that the blessing should not be delayed.