FAMILY DISAGREEMENT OVER CREMATION

QUESTION:

A Jew had died and left instruction in his will that his body is to be cremated; but the next of kin, either for religious or other reasons, wish to have a burial instead. Whose wish is to be carried out? (Asked by Rabbi John D. Rayner, Union of Liberal and Progressive Synagogues, London, England.)

ANSWER:

THERE IS a Talmudic maxim which, under ordinary circumstances, should guide the family. The maxim found in Gittin 40a and Taanit 21a is as follows: “It is a Mitzvah to carry out the intentions of the dead.” In the Talmudic discussion and in the Shulchan Aruch {Even Hoezer 54; Chosen Mishpot 252:2) this principle is applied to the disposition of the property left by the deceased. However, the maxim is also used in a more general sense than that. For example, when a man says he does not want a eulogy spoken, or if he says he does not want Kaddish said for him, his wishes are to be fulfilled. See the full discussion in Recent Reform Responsa, p. 110 ff. (If the book is not available to you, let me know and I will send you a photostat of the responsum.)

However, it will be observed in this responsum that there is a definite limitation placed upon the maxim to fulfill the will of the dead. We may grant a man’s wish not to have a eulogy or Kaddish because eulogy and Kaddish are for the honor or the atonement (re spectively) for the dead; and a man has the right to say that he does not want these privileges. But if, for example, he had expressed the wish that his survivors should not mourn for him (Shiva and Sheloshim), this wish must not be carried out, because these periods of mourning are religiously incumbent upon the survivors and he has no right to expect his wish to be fulfilled when his wish contravenes the law.

On this basis the question would seem to be easily answered, namely, since cremation is contrary to Jewish law, the man’s wish contravenes the law and may not be carried out. This would be the instant decision of an Orthodox rabbi.

However, since the question is put by Liberal and Reform rabbis to a Liberal or Reform rabbi, the question and the answer cannot be so clear-cut. While Orthodox opposition to cremation has occasionally gone so far as to refuse the burial of the ashes (though some permit this) and while some authorities have gone even further to prohibit any services for the person who has been cremated, the Central Conference of American Rabbis decided early (CCAR Yearbook 1892, p. 43, cf. Jewish Encyclopedia, Vol. IV, p. 344) that we will not refuse to officiate at a cremation. This decision leads us to look a little more closely into the status of cremation in Jewish law.

The fact of the matter is, there is no clear-cut pro hibition of cremation in the Talmud. Of course, the presumption is that cremation was not practiced very much, if at all, first because earth burial is simpler and, secondly, because in Mishnaic times at least they knew that cremation was a Roman custom and, therefore, to be avoided as idolatrous.

The Orthodox agitation against cremation actually began about a century ago, when cremation became an ideal that was agitated for through many societies in the western lands. When one studies the arguments adduced (in the last century) against cremation, one can see that they are forced. For example, burning the body would be tantamount to a denial of bodily resurrection. The patriarchs all made arrangements for their burial. So, clearly, that was the only proper way of disposing of the body. (The best statements of the Orthodox case against cremation are in Lerner’s Chaye Olom and Greenwald’s Kol Bo, p. 53 ff.) A good article giving the permissibility of cremation is to be found in the Central Conference Yearbook for 1891-2, by Schlesinger, p. 33 ff. However, it is to be noticed that Solomon Ben Adret in his Responsum #369 permitted the putting of quicklime on the body, which would burn up the flesh so that the bones could be transported to another city in fulfillment of the wishes of the dead. In fact, Isserles gives this as a law, that we may put quicklime on the body if the deceased had left a request that his body was to be buried in another city (see Yore Deah 363:2). Of course, it must also be noted that Joseph Caro in Yore Deah 362:1 does speak of burial in the earth as a Mitzvah.

The situation, therefore, is as follows: While cremation is not well-established as a classic prohibition, nevertheless in the last century it has become an established decision and mood of Orthodoxy that cremation is forbidden. If we are dealing with Orthodox people, we should take this mood as a fact and respect it. If, then, the family is chiefly Orthodox, we would be inclined not to fulfill the wish of the dead. But if the family is chiefly Liberal, then we consider the fact that the prohibition against cremation is not a firmly rooted one and that Reform rabbis have long since decided to officiate at cremations. Surely if we officiate at a cremation, we cannot refrain from fulfilling or encouraging the fulfillment of a man’s wish for this type of disposal of his body.

The decision then in this case must depend upon the mood prevailing in the family. If the family is not definite about it and asks our advice, we should urge them to carry out the Talmudic maxim: It is a Mitzvah to fulfill the wishes of the dead.