The Rabbinical Court in Netanya has ordered a woman to have her son circumcised at the request of his father. The woman, who was refused a divorce, filed an appeal with the Rabbinical Supreme Court, which decided to dismiss it and thus uphold the decision of the Regional Rabbinical Court as previously mentioned. The Rabbinical Supreme Court explained in its decision that it seems that the refusal of the mother to have a ritual circumcision carried out on her son is not a serious refusal but a means to improve her position as part of the divorce battle that the two parties are waging. Thus the appeal was dismissed. The rabbis in the Rabbinical Supreme Court also think that the father is bound by the commandment of circumcision and that it is for the good of the child. Consequently a daily fine was imposed on the woman for every day that she continues to refuse to have her son circumcised.
In the face of the dismissal of the appeal she submitted, the woman decided to petition the High Court of Justice in order to cancel the precedent-setting decision of the Rabbinical Supreme Court that in her opinion exceeds its authority when it handed down the aforementioned decision. At the heart of the petition was the question of whether the Rabbinical Court has the authority to order the carrying out of a circumcision on their child when one of the parents objects.
The father claims that the source of the mother's objections are to create advantages for herself as part of the divorce proceedings and has nothing to do with what she really wants. The High Court of Justice, which discussed the matter with a seven-judge panel, explained that there was no serious justification in making the dispute over the circumcision part subject to the divorce suit and that this was not a matter requiring a resolution following the end of the marriage. Moreover, a circumcision is not a matter bound as a routine act to divorce suits and proceedings and it should not be carried out to advance anything that is subject to divorce.
Together with this, the High Court of Justice proposed that the father turn to the Court of Family Affairs, which could discuss the matter separately from the divorce suit. The father's attorneys expressed their opinion that they would seek assistance from the Court of Family Affairs, which would take into account the interests of the child.
In a minority opinion, Supreme Court Judge Elyakim Rubinstein explained that it was possible to bind the issue of circumcision with the divorce proceedings. Judge Rubinstein explained that the essence of the child, as a Jewish child, is a subject that can be bound to the divorce suit. Judge Rubinstein also explained that the fact that most Jews in Israel carried out circumcision, whether they are secular or religious, speaks for itself. In this context, Judge Rubinstein even spoke about social exclusion, which can be created in a child who was not circumcised.
There is no doubt that this involves an exceptional dispute and precedent-setting rulings by the various courts. Would it have been possible to thinks of alternative ways to resolve the aforementioned disagreement? Could the sides not have attempted to try and talk as part of a fair mediation procedure outside of the courtrooms? What was being considered was an irreversible physical act on the body of the child and it seems that it was a mistake to leave the decision on the matter in the hands of people who are not the child's parents. Divorce proceedings are dignified and matters might have allowed reaching a solution, which would have been in line with both parties' needs, and was not based on vengeance but viewing the good of the child and his physical integrity.
The author is the Founder of Matat Plesner Law Firm.