Contemporary American Reform Responsa
103. Burial in the Garden
QUESTION: A family who lost a child has made the request that the burial take place in their garden rather than a congregational cemetery. Is this permissible? (O. F., Atlanta, GA)ANSWER: Communal cemeteries have been used since Mishnaic times and perhaps even earlier. It seems that our people already used them in the days of Jeremiah (Jer. 26.23; II Kings 23.6). The Talmud, of course, takes such community cemeteries for granted and discusses them as if they had always existed (Hag. 3b; Nid. 17a; Sem. 49b). During the Middle Ages when Jewish communities lived in restricted ghettos, the community cemeteries either were part of the ghetto or just outside the city walls. Often they were small, and so the custom arose of burying individuals in rows as they died rather than in individual family plots or even on top of each other, separated only by six hand breadths (Shulhan Arukh Yoreh Deah 362.4). However, special provisions were made for rabbis and communal leaders who were buried together in a separate location of the cemetery. In our time, we have returned to family plots, and these are now used in virtually all American cemeteries. The Mishnaic and Talmudic periods also knew of interment in such family plots, crypts or mausoleums (M. B. B. 6.8, 100a, b; San. 476; M. Erub. 6; Shek. 2.5). A number of regulations about such family plots appeared. For example, the family was obliged to care for them (B. B. 100b; Bekh. 52b), and upon the death of the individual who originally arranged for them, these lots were not divided among the heirs (M. Sem. 14). It is not clear whether the Talmudic family lots were part of larger burial sites or whether they simply existed on family estates. We do know from earlier Biblical times that the kings of Israel had burial sites of their own (II Kings 10.35, 13.9, 15.5) and, of course, we have the much earlier story of Abraham selecting a grave for Sarah in the cave of Makhpelah in which other members of the family were buried later (Gen. 23, 25.9, 49.31, 50.13). Therefore, it would seem appropriate for a family to establish a private gravesite on part of their own property. If this is done, the family should, however, be aware of the fact that such a gravesite must receive permanent care; it places some perpetual restrictions upon the use of the property. That segment of the property must remain as a family possession into the future. It must also not be used for any joyful purposes. One may not eat, drink or be festive on or near it (Meg. 29a; Shulhan Arukh Yoreh Deah 364.1, 368) . These restrictions, which are difficult in our mobile society, may make it hard to consider such an individual gravesite as practical. In addition, consideration of local and zoning laws will have to be investigated. We should, of course, consider the psychological implications of a family living perpetually near its beloved dead. Jewish custom has tried to limit visitation to the cemetery in order to enable the family to overcome its grief. There is, for example, no visitation among us until the seventh day after the funeral, and again after thirty days (Shulhan Arukh Yoreh Deah 344.20), in addition to penitential days and yahrzeit (Yeb. 122a); among Sephardic Jews more frequent visiting is customary. It would be difficult to fulfill this period of healing under the circumstances described. So, for these reasons, and for the problems associated with perpetual care of this gravesite, such individual burial on the family property near their home should be discouraged, although it is not prohibited.May 1977
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