OWNERSHIP OF THE BODY OF THE DEAD
The events dealt with in this inquiry occurred a full generation ago. A prominent member of our temple was married to an unconverted Christian woman. He died, and in his will he had specified that he be buried in the lot that he owned in our congregational cemetery. His widow, however, wanted him to be buried in her Christian cemetery. Eugene B. Strassburger, the executor of the will, put the question to a group of judges, and they decided that the deceased has no ownership of his body and that his heir (in this case, his widow) has the full right to dispose of the body as she wishes. Thus the body of this man was buried in the Christian cemetery. Since such a situation may recur, the question is now asked: What is Jewish law on this matter? Who owns and has the right of disposal of a person’s body? (Asked by Eugene B. Strassburger, Pittsburgh, Pennsylvania.)
ON THE FACE of it, at least from the point of view of Jewish law, the decision of the judges seems inconsistent. The American law agrees that the deceased, through his last will and testament, continues to control the disposal of his property and yet has lost all control over his own body. This would mean, also, for example, that if the deceased had provided in his will that his body be buried, and his widow preferred to have his body cremated, her decision would stand against that of the deceased. The question, therefore, is rather an important one, namely, what is the attitude of Jewish law on the general question of the right of deciding on the disposal of the body, as, for example, whether it should be buried in one city or another? In brief, who, according to Jewish law, has the ownership of the body of the deceased?
It must be understood at the outset that there is a basic difference between any canon law and secular law. Canon law, being religious, is guided by the presuppositions of religion which underlie its legal enactments. Jewish law is canon law—religious law—and therefore, underlying all discussion of the legal question involved, there are certain basic religious presuppositions. Primarily, these presuppositions can be summed up in the religious (in this case, the Jewish) concept of the human personality. A human being is more than a body. He is also a spirit, a soul, which survives after the death of the body. Therefore the person continues to be a person and to have certain personal rights even after the body dies. In Jewish lore, the man’s spirit not only persists after death (as most religions maintain) but is also believed to hover about the body for some time after death. This concept tends to give the body more than the status of a piece of clay. A number of examples will indicate how this religious belief leads to the further belief that even after death, and certainly immediately after death, the body and its accompanying spirit remain a person with certain human rights. A number of regulations are based upon this general idea. For example, it is forbidden in the presence of the dead to speak of anything except matters that concern the dead, namely, the burial, the mourning, the tombstone, etc. (YoreDeah 344:10). No idle, irrelevant chatter is permitted in the presence of the dead. Another example is the prohibition of going into a cemetery wearing phylacteries (tefillin) or carrying a scroll of the law (Torah) because the dead no longer have the privilege of observing these rituals and are presumed to be sad at not being able to have the privilege of obeying these commandments (Yore Deah 367:3). This sin of carrying a Torah, etc., into the cemetery, which presumably would sadden the departed, is called the sin of “mocking the poor,” a description based upon the verse in Proverbs 17:5: “He who mocks the poor blasphemes his Creator.” The dead are no longer in duty bound to obey the commandments (Shabbat 30a), and it is presumed that they are sad at that deprivation. Furthermore, it is deemed preferable to hold the seven-day mourning period (shiva) with the accompanying public prayers in the home where the person had lived at the time of his death. This is because of the belief that the spirit, sad at leaving this life, still hovers for a while around the home, and that the public prayers offered there bring him consolation (Chochmas Adam 165:11). In less mystic terms, we might say that the awareness of the presence of the departed is strongest in the home in which he has lived.
All these rather mystical concepts add up to the same attitude held with regard to the recently departed, namely, that the departed is more than lifeless clay but constitutes, to some extent, a personality that must be respected and that still has certain rights. These beliefs, which to some extent may be considered folkloristic, are, nevertheless, revelatory of a basic attitude of the dead as a continuing personality.
Such a basic attitude naturally is carried over into questions of practical law, as is the question which is asked here. One practical question is the following: If the departed is to be considered to some extent still a person, is this shadowy person able to acquire property? On this question, the great legalist Maimonides says flatly that the dead cannot acquire property (eyn kinyon l’mays) (Yad, Hil. Matana 10:12). However, this outright denial by Maimonides of the possibility of the dead acquiring property is controverted by other authorities. See the great Spanish scholar Solomon ben Aderet (12th century), in his Responsa #375, who discusses the following question: A man turned over a sum of money to an agent to be used for tombstones, etc., for a certain deceased. Money turned over to an agent is deemed to have been formally acquired by the person represented by the agent. But the donor changed his mind and wanted the money back from the agent, arguing that since the dead cannot acquire property, the money was still rightfully his and he could take it back. But the agent argued on the other side of the question, as follows: The Mishnah says (Shekalim 2:5) that if money is collected among friends for the dead, grave, tombstone, etc., and some money is left over, the leftover money goes to the dead man’s heirs. Clearly, then, if the dead man’s heirs may have the rest of the collected money, the dead man has indeed acquired it and has bequeathed the rest of it. Solomon ben Aderet agrees with this reasoning, and so he would hold that the dead can indeed acquire property.
Another, more telling example is the following: If the body of a slain man is found buried in a field, and the body must be removed to be buried in a cemetery, the body cannot be taken by itself, but a certain amount of earth must be taken with it on the principle clearly stated in the law that the dead acquires the place where he is put or found (Sanhedrin 47b and Yore Deah 364:3).
Among the other legal rights of the dead, besides the possibility of acquiring money or land, is the right to determine where he shall be buried. This right goes back to the earliest possible source, namely, the Torah. In Genesis 47:29-30, Jacob in Egypt calls his son Joseph and says, “When I die, do not bury me in Egypt, but take my body and bury it with my ancestors in the land of Canaan.” This wish was, of course, obeyed, and such a wish is always obeyed, as is indicated in another case cited and dealt with by the great Spanish Jewish authority cited above, Solomon ben Aderet (responsum #369 and cited by Isserles, Yore Deah 363:2). The case was as follows: A man and his sons were away from home in another city. The man was dying, and he told his sons that when he died he wanted to be buried in their home-city, where their ancestors were buried. But when he died it was impossible to carry out his wish (the roads became unsafe, perhaps because of war), and he was buried in the city in which they were temporarily. Some months later the roads had become safe again, and it became possible to transport the body. But the body by now had so decayed that it was impossible to move it (they did not use complete coffins). Thereupon Solomon ben Aderet permitted the family to put quicklime over the body to complete the decay of the flesh so that the bones could be transported and the father’s wish be carried out. Now if so drastic a step as putting quicklime on the body was permitted by a great authority for the purpose of carrying out the deceased’s desire as to where he should be buried, then it is evident how strongly founded in Jewish law is the right of the deceased to determine his resting-place.
To sum up: In Jewish law, which is a religious law, the deceased retains some personality, especially near the time following death. Therefore the deceased has certain rights of a person—the right to be respected and even, according to some authorities, the right to acquire property. But without question the deceased has the right to determine where his body shall be buried. Of course, this right of the departed to determine the disposal of his body is not an absolute right. It is limited by other requirements of Jewish law. A man has no right to demand that his body be handled in a way that is violative of Jewish law. Jewish law is opposed to cremation. It requires burial. If a man says, “Do not bury my body,” his request is not to be heeded since this request is contrary to Jewish law (Shulchan Aruch, Yore Deah 348:3). But of course, as to where his body should be buried, his right of decision cannot be controverted.