Wednesday, July 13, 2011

When the Baby Dies Naturally - Stillborn, complications from birth, etc

THIS IS A VERY SENSITIVE SUBJECT.

I was asked recently "what is the practice when a boy is born either stillborn or dies shortly after his birth? Is he to be circumcised?"

The simple answer is that it is up to the parents and what they want to have done. What follows is a more detailed analysis of the sources that address this topic, and what rabbis through the centuries had to say about it.

The Arukh Hashulchan (Y"D 260:3) begins this conversation quoting the Mishnah in Avot 3:11 – "anyone who disregards the covenant of Abraham [either by not circumcising or who attempts to appear uncircumcised through stretching his foreskin "ring,"] even if he is a Torah scholar with many good deeds to his credit, he has no share in the world to come." He proceeds to quote the Talmud (Eruvin 19a)

אלא הא דכתיב עברי בעמק הבכא - ההוא דמחייבי ההיא שעתא בגיהנם, ואתי אברהם אבינו ומסיק להו ומקבל להו, בר מישראל שבא על הגויה דמשכה ערלתו ולא מבשקר ליה.
The Talmud is discussing whether the sinners of Israel are subject to the fires of Gehinnom (purgatory).

"How do you explain that which is written, 'Those who transgress are sentenced to the depths of Gehinnom, where they weep…' (Psalms 84:7) – which indicates that the sinners of Israel are subject to Gehinnom?

"[The Talmud answers] That verse only means they are condemned to be in Gehinnom for that moment, but then Abraham our forefather comes, brings them out of Gehinnom, and receives them. The exception is the Jew who cohabited with the daughter of an idolater, because she draws his foreskin forward [to hide his Jewish identity], and Abraham does not recognize him as a Jew."
[An interesting sociological question faces this Talmudic passage: In America, where intermarriage percentages and circumcision numbers are high, how would the Talmud address an intermarriage where the non-Jewish woman has no preference for a foreskinned-man, and may even be proud of the fact that her man is a Jew and has no designs on his hiding that fact…]

From this the rabbis implied that our forefather Abraham sits at the opening of the Gehinnom and does not allow anyone who is circumcised (with a bris) to enter. In other words, he saves his children from purgatory

The Arukh Hashulchan concludes "This is why we must strengthen purity – not to defile oneself with improper uses [of one's bris.]"

This Midrashic sentiment of Abraham sitting at the gates of Gehinnom (Bereshit Rabba 48:8) is mentioned by many rabbinic authorities (See for example: Sefer Haikkarim 4:45; Tur 260; Menoras HaMaor 6). If it is meant to be taken literally, presumably Abraham can distinguish between a bris and a circumcision (see also here), and presumably girls are never at risk of going to Gehinnom.

Most likely this midrash sevres as the main source for the custom that if a baby dies before his bris, he is circumcised before he is buried.

Before going into a halakhic analysis, let us first consider both sides of the coin – is it appropriate to do this?

Not Appropriate: We generally demonstrate the ultimate respect for bodies that no longer house souls. We do not desecrate them or do anything other than clean them and prepare them for burial. A circumcision would be removing a part of the body that died at this age, as part of God's Master Plan.

Appropriate: For some parents, it would be a comfort to know the child is circumcised. It is quite appropriate for a male Jewish child to be buried looking like a Jewish male would look had he only lived a little longer. As a corpse does not bleed, removing the foreskin would not desecrate the body in any way. He would look like his parents intended, with no noticeable deficiency or lack.

Halakhic Analysis

R. Menachem ben Shlomo Meiri (1249-1315, France) mentions that some Geonim wrote of a custom to remove the child's foreskin in the cemetery. He adds that there is no Talmudic source for this, but it became a widespread custom nonetheless. (Beis HaBchirah Shabbat 137a)


In one of his sermons on Parshat Yayera, R. Joshua ibn Shu'ib (ca. 1280-1340 Spain) spoke negatively of those who defy the bris and the Jewish commitment. Towards the end, he quoted the verse (Devarim 30:12) "מי יעלה לנו השמימה" – who will go up to the heavens for us, to retake the Torah and help us recommit ourselves to God?

This is what he said:

ולזה חתם שמו בסוף המצוה בפסוק "מי "יעלה "לנו "השמימה ראשיתם מילה וסופם [י - ה - ו - ה] שם של ארבע. וכתבו הגאונים ז"ל תינוק שמת תוך שמונה ימים מוהלין בלא ברכה כדי שיוליך עמו החותם.
If you look at the first letters and the last letters of the 4 words, you have "Milah – מילה" and the Tetragrammaton, God's 4-letter name of yud and heh and vov and heh. This supports the Geonic custom to circumcise (without a blessing) a child who died before his bris, so the mark of the covenant will go with him.
The implication, in his understanding, is that the sign of the bris on the body will give the soul a direct pass into heaven. [Considering that a baby who does not survive is as innocent as they come, I like to think that might happen anyway. Once again, though, this may play into the feelings the parents may have as far as what they want or think is best for their child, while they still have a connection before burial.

Rabbenu Asher (Moed Katan Chapter 3) is the earliest source I could find who mentions the Gaon in question by name, Rabbi Nachshon:

לרב נחשון ינוקא דאתיליד והוה בר תרין או בר ג' וד' יומי הכין רגילין וגמירין כי ניחא נפשיה דמהלא לי' על קברו ומסקי' לי' שמא דכד מרחמין מן שמיא והויא תחיית המתים הויא ידיעה בינוקא ומבחין ליה לאבוה:
Essentially his argument focuses on the concept of resurrection, arguing that heaven will have mercy on such a child, and when the dead are resurrected the child who is circumcised will be more recognizable to his father.

There is another Talmudic passage that seems to be a source for this idea as well. The Talmud asks (Sanhedrin 110b), "At what point does a Jewish minor merit to enter the World to Come?"

There are a whole slew of answers, but the relavant one to our conversation is that of Rabbi Nachman bar Yitzchak who said:
רבי נחמן בר יצחק אמר: משעה שנימול, דכתיב +תהלים פ"ח+ עני אני וגוע מנער נשאתי אמיך אפונה
 "From the moment it is circumcised, as it is written 'Afflicted am I and dying since youth, I have borne your dread, which delved upon me (Psalms 88:16).'"

The term used for 'dying' in the verse is a word generally used to describe the death of the righteous.

Rashi (1040-1105, France), the famous Medieval Commentator explains how Rabbi Nachman utilized this verse for his teaching:

"Though I am poor, my death would be described as g'viah (the death of the righteous). When did I merit to be viewed this way? From the moment I have borne Your dread upon myself. That began when I was circumcised as a baby, because the circumcision mark is a sign that I fear God."

The Be'er Sheva (Rabbi Yissachar Dov ben Yisrael Lezer Parnass Eilenburg, ca 1550-1623, Poland and Moravia) learns from here that a baby who dies before his eighth day will be circumcised. He doesn't make up this ruling though, because he gets it from the Tur (Y"D 263), son of Rabbenu Asher mentioned above.

In the context of this discussion, the question of whether this procedure could take place on the second day of a holiday is raised. While this is no longer our practice because we generally do not live close enough to walk to the cemetery, there is much discussion in rabbinic literature as to the laws of burial on the diaspora's extra holy day. The law is that for a burial that must take place all activities specifically necessary in order to bury the person would push aside the holiday. This would apply to the digging of the earth (otherwise forbidden on holidays but obviously necessary to achieve burial), but would not apply to driving, for example, because driving is unnecessary to bury someone.

The question is raised as to what age is the beginning of our obligation to bury someone. We might bury a stillborn anyway, but are we required to, to the degree that Yom Tov II would be pushed aside for the burial. Since the general understanding is that a child under 30 days does not require burial, his graveside circumcision would not take place on Yom Tov, because it is not even required in the first place. (Rabbi Meir of Rothenberg).

Here is a summary of the comments on the Tur's mention of this custom to circumcise in the cemetery.

Beit Yosef (Yosef Karo, 1488-1575, Safed) quotes the Kolbo (unknown authorship), who says the removal of the foreskin is a removal of his disgrace. Rabbenu Yerucham says the child is also given a name at that time, so heaven could have mercy on him and resurrect him at the time of "t'chiyat hamaytim."

The Midrash mentioned earlier (Bereshit Rabba 48:8) claims that the orlahs (foreskins) are removed from the minors who died uncircumcised and are figuratively placed on the wanton sinners of Israel, to help make them look uncircumcised, so Abraham will not save them.

The Shakh (on Shulchan Arukh) adds that all of these rulings would apply to an uncircumcised baby who died even after his eighth day, no matter what reason his bris did not take place.

The Pischei Teshuva reminds us that in the event the circumcision did not take place before the burial, under no circumstances would we allow the grave to be opened to take care of the circumcison.

Finally, the Magen Avraham reminds us that all of this is at best a custom "because it became customary" but not because it comes from the Torah. Obviously the Torah's mitzvah is only on a live baby. Those who are dead are not obligated to fulfill any mitzvahs.

He reounds out his discussion of the matter addressing the question of our requirement to bury these babies in the first place. And while his conclusion is that there is no requirement to bury them, leaving them around would be somewhat of a violation of "do not let it hang" – the mitzvah to bury someone as quickly as possible after he has been given capital punishment by the court. This is not the suggest the baby has been given a capital punishment, but that his body deserves the dignity we give to all dead bodies, to be buried as quickly as possible.

The Kitzur Shulchan Arukh (199:4) adds the answer to the question we've all been wondering about. What about girls? Obviously there is no custom to circumcise girls. However, there is a custom to give her a name at her burial as well – once again so heaven can have mercy on her, and she'll one day recognize her parents at the time of Resurrection.

תינוק שמת מלין אותו אצל קברו וקוראין לו שם, וכן לתינוקת גם כן צריכין לקרוא לה שם
TO SUMMARIZE

Based on two talmudic passages and a midrash, there is a pervading custom to circumcise a child who dies before his bris. Some will do it at the cemetery itself, while others will do it earlier, simply because the way we bury people today will not allow for such an opportunity before interring the child in the grave.

As much merit as this custom may have, it is not by any means a mitzvah, and it is also not obligatory in any fashion. As evidence, a child who is buried uncircumcised will remain buried (and uncircumcised) - there is no permission granted to open a grave to conduct such a practice.

Parents should follow their hearts and do what makes them feel best in these few moments of grief before they say goodbye to the shattered hopes and dreams that accompanied the loss of this baby.

Final Thought

May we never need to address this question in practice. May our learning of this subject remain theoretical, and may all mothers and fathers be blessed with healthy children. May the boys have their brisses at the right time, and may the boys and girls bring light and life to their parents and relatives for a very long time.

1 comment:

  1. This ruling is repeated in Shulchan Arukh Y"D 353:6. תינוק שמת קודם שנימול, ז מוהלין אותו על קברו, בלא ברכה, וקוראין לו שם.

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