YD 374:8.1992a JEwisH RITUAL PRAcTICE FoLLOWING THE DEATH oF AN INFANT WHo LivEs LESS THAN THIRTY-ONE DAYS Rabbi Stephanie Dickstein 7his pnper wns approved by the CJT>S on June 3, 1992, by a vote of' ten infiwm; three opposed, and one abstention {10-3- 1). H:.Jting in favor: Rah7Jis Kossd Ahd:wn, flpn Zion Rrrgman, StanlPy RramnJr:h:, .!rmmr lf. Epstein, Samud Proint, Arnold _M. Goodman, ./an Caryl J((Lufman, Jlayer Rabinowitz, Avrnm lsrnel Reisne1~. and Gordon Tucker. kbti11f3· ngain..,t: Rabbis TJavid M. Peldman, Howard Handlet; and Reuven Kimelman. Abstaining: Rabbi F:zra Pinhel.stein. 1he Committef' 011 )e·H-'ish L(Lw and Standards qf the Rabbinical As:wmbly provides ppidance in matters (!f halakhnh for the Conservative movement. 1he individual rabbi, hoLvever, i.s the aulhorityfor the interpretation and application of all matters of" halaklwh. What are the mourning practices and rituals when an infant dies before the thirty-first day uf life? The laws and customs relating to mourning developed over thousands of years, yet it often seems as if they had been carefully constructed to meet both the responsibilities of n~il 11:::l:l and the complex psychological needs of the mourners. There are specific rules which instruct us how to treat a human body which no longer houses the soul, how to honor the memory of the departed, and how to support the mourners though the various stages of grief, anger, loss and adjustment. Halakhah requires that the community be a part of n~il 11:::l:l and com­ forting the mourners. One group of mourners has traditionally been denied the comfmt of Jewish ritual mourning. These are the parents whose infant lived less than thirty-one days aft.er birth, or whose child is stillborn. In The Jewish Way in Death and Mourning, one of the most widely used books on mourning for laypeople, Rabbi Maurice Lamm states the current custom: "A life duration of more than thirty days establishes a human being as a viable person. If a child dies before that time, he is considered not to have lived at all, and no mourning practices are observed, even though the child may have been normal, but was killed accidentallY:" While 1 Mauriee Lamm, The Jewish Wrq in Death nnd iVIourning (New York: Jonatl1an David Pul,Jishers, 1969), p. s:>. 4'l9 RESPONSA or THE CTLS H)91-2000 the practice described by Rabbi Lamm is not the only halakhic position accepted by the CJLS, nevertheless, it is widely considered by Conservative rabbis and laypeople to be the only halakhic position, and their practice is in accordance with this position (i.e., little or nothing is done). The Death of an Infant Causes Grief Our obligation to our community and to halakhah requires that we reevaluate this practice. ln the past, infant death was much more common than it is today, although no less painful. In what seems to have been an attempt to be sensitive to the grieving parents, the custom which became accepted in our communities was not to require full mourning of the parents. TI1is custom reflected the general attitude towards infant death. Even twenty years ago, it was common for doctors and others to underestimate the distress of parents whose newborn died. Today, it is no longer the accepted medical practice to ignore the death of an infant, whether it was born alive, or died in the womb. Hospitals have developed protocols to help families face the reality of their loss, and to enable them to mourn.' Parents are encouraged to see and touch their child. Pictures may be taken; mementos are preserved. Funerals are recom­ mended, and the parents are encouraged to attend meetings of a support group. All of this is increasingly the established secular, medical procedure. Yet, when the parents approach their rabbi, perhaps to ask him or her to participate in the funeral, the rabbi may not be helpful. At best, lw or slw docs not know what to do or say; at worst, he or she says, "There is no mourning for this 7!:lJ:' Of course, Jewish tradition does not deny parents the right to grieve privately. However, the strength of Jewish mourning practice is the way in which it meet pri­ vate grief with specific required rituals and communal involvement. Any death, especially that of an infant, is a theological crisis. Death is a time when religion and ritual can be mm;t powerful, yet our current custom concerning infant death robs us of that power. The Scope of This Teshuvah TI1is il:J1tvn will begin by discussing some of the sources which support and contradict the cur­ rent custom, as well as other sources on issues related to the discussion. It will then summa­ rize the position of the CJLS on these issues. finally, it will recommend and justify a halakhic position which is different from either custom, or the current position of the CJLS. The sub­ ject of this il:J1tvn will be neo-natal death, the death of an infant born alive. However, it is impmtant to note that stillbirth, the death of a potentially viable fetus in utero, is closely relat­ ed in medical literature, and the parents' experience of that loss is often similar to neo-natal death. The consideration of a Jewish response to stillbi1th will be the topic of a separate il:J1tvn. Past Precedents Our present custom not to mourn a newborn (note: "mourning" here is used to mean the full range of rituals associated with death) is based on two major halakhic statements. The 1irst is the Rambam in the Mishnah Torah Hilkhot Avel 1:6: 2 Some examples of the material w·hieh is available are: ""Bereaved Parents Information Packet" from tl1e Childbirth and l'arcnt l<:ducation Association of Madison (1978); "Grieving: A Way to Heal" The Amnican College oi Ohstelrieians (l9RR); "Coping with Perinatal Deatll'' Saheh Sahu, M.D., .Journal r!f"Reproductive Medicine (Mar. 1981 ). I would like to thank Dr. Harvey Friedman of Englewood, N.l for sharing these and other rnaterials ·with nre. DH:KSTEIN INFANTS LIVING LESS THAN iP DAYS c•7:Jl\!11':) 7'1\ ••• C1' C'W17w i1i1W l\7w 7~1 p•7l' c•7:Jl\!11':) 7'1\ c•7t>)i1 •1'7l' We do not mourn for c•7t>) (fetuses), and a newborn which does not live for thirty days ...we do not mourn for it. The second is the Shulhan Arukh Yoreh De'ah 374:8: .1'7l' c•7:Jl\!11':) 7'1\ 77~:J C'W17W C1'1 C1' C'W17W 7~ j?1)'!1 The infant, for thirty days, even including the full thirtieth day (if it dies), we do not mourn for it. TI1ese opinions, in turn, are based on a statement by Rabbi Shimon ben Gamaliel in B. Shabbat 135b: .7t>) 1)'1\ C11\:J C1' C'W17W i1i1WW 7~ i/':)11\ 71\•71':):A p 11l'I':)W pi 1\')11 It was taught: "Rabbi Shimon ben Gamaliel said: Anyone who lives thirty days is not considered a 7t>) ;• W1wt accounts for the significance of thirty days in considering whether or not an infant is a 7t>), and therefore not mourned? R. Shimon b. Gamaliel uses as his proof text Num. 18:16, i11tl!1 Win pi':) 1'11tl1 "and he shall be redeemed from one month." Since thir­ ty days is the age at which we are commanded to redeem the firstborn, this is a reasonable way to define at what age the infant changes status from 7m to human being. B. Bekhorot 49a has an extended discussion about what happens to the redemption money if a father pays the kohen prior to thirty days, and then the son dies within thirty days of his birth. Tosafot there say that the lwhen must return the money, since the Torah commanded the father to pay only from the thirtieth day onward. However, Rashi offers another reason for why the kohen may not keep the money. This issue is not the father's obligation, but that the child was not considered viable since he was less than thirty days old. Therefore, the kohen was not entitled to the money in the first place. The significance of the viability of the infant is pointed out by both the Kesef Mishnah and the Radbaz on the Rambam referred to above. They comment that up until thirty days, there is doubt (pt>O) about whether or not the child will survive. Obligating someone for the full rituals of m7:Jl\ is considered to be putting a burden on them. It is a principle of halakhah that in case of pt>O in m7:Jl\, we follow the more lenient position. Since up until thirty days is considered to be a pt>O whether or not the child will survive, if it does not sur­ vive, we are lenient, and do not require the parents to mourn. Alternative Halakhic Positions The sources above are the primary statements on which the current custom not to mourn is based. However, this is not the only position found in halakhic literature. TI1ere is an opinion that a child which is horn alive is mourned even if it dies in the first day of life. TI1is position is first stated in Mishnah Niddah 5:3: .c7w 111m 1':J1ij? 7~71 11':)1\71 1':Jl\7 l\1i1 'ii1 1M!\ C1' p j?1)'!1 A one-day-old infant, if he dies, is considered to his father and mother and all relatives like a full bridegroom.