Responsa

ARR 274-276

CCAR RESPONSA

American Reform Responsa

80. Caeserian on a Dead Mother

(Vol. LXXXII, 1972, pp. 51-53)QUESTION: A mother eight months pregnant has died. Does Jewish law permit a Caesarean to be performed on her body to save the child? Or, perhaps even more: Does Jewish tradition recommend or urge such an operation? (Asked by Dr. Thomas H. Redding through Rabbi Leonard S. Zoll, Cleveland, Ohio)ANSWER: The question of cutting open the body of a mother who has died in order to remove and thus save the child is discussed as far back as the Talmud itself in Arachin 7a (cf. also B.B. 142b and Nidda 44a). The discussion is based upon the Mishnaic law dealing with a pregnant woman who is condemned to death. Do we delay execution of the sentence until she has given birth or not? In the development of that discussion, Rabbi Samuel (in Arachin) extends the discussion from that of a convicted criminal to any woman who dies when she is near to giving birth (“a woman on the mashber, the birth-stool, who dies”). In such circumstances, Rabbi Samuel says that we may bring a knife even on the Sabbath (bringing a knife on the Sabbath is forbidden gen-erally), and we may cut open her body to save the child. The discussion there in the Talmud involves the question of whether the child is alive or not, and the opinion is expressed that generally the child dies immediately (or even before) the mother, and therefore the Sabbath would be violated (by bringing the instruments) in vain, since the child is already dead. But Rashi says: Even in the case of the “doubtful saving of life,” we may violate the Sabbath; and therefore, on the chance that the child may be alive, we bring the knife and perform the operation. It is exactly in this form that the law is recorded by the great legalist and physician, Moses Maimonides, in his Hilchot Shabbat 2.15. He says: We perform the operation even on the Sabbath, for even when there is doubt whether we are saving a life, we may violate the Sabbath (cf. also Tur, ibid., and Ephraim Margolis, Yad Efrayim to Orach Chayim 320). A new ground for doubt arises, however, in the Shulchan Aruch (besides the doubt of violating the Sabbath in vain if the child is already dead). In Orach Chayim 330.4, Joseph Caro gives the law according to the Talmud and Maimonides; but Moses Isserles (Poland, 16th century) says: We do not do this operation nowadays because we are no longer skilled in determining precisely whether the mother is dead or not; perhaps she is alive (that is, in coma) and may give birth to the child naturally. However, Isserles himself in his Responsa does not seem concerned with this doubt (that the mother may still be alive), and in his Responsum #40 he answers in the affirmative–that is, that the operation should be performed. As for the later authorities, they all are practically unanimous in favor of permitting the operation (even on the Sabbath, and certainly on week days). What concerns these later authorities is whether or not the permission to perform this operation after the mother is dead may not imply the larger permission for autopsy in general, which Jewish law forbids, except under special circumstances. Generally speaking, it is not permitted to mutilate (lenavel) the body of the dead. Therefore, in a discussion between Moses Schick of Ofen and Jacob Ettlinger of Hamburg (both in the first half of the 19th century), this matter is debated (see Responsa of Ettlinger, Binyan Tsiyon 1.171). Moses Schick said in this discussion (in his Responsa, Yoreh De-a 347) that we may mutilate the body of a woman to save her child, and Ettlinger says that this permission does not justify general mutilation (as in autopsy) because this operation (that is, the Caesarean) is not really a disfiguring of the body of the woman. Moses Kunitz (of Budapest, d. 1837) gives almost the exact case discussed here in answer to a question asked of him by Abraham Oppenheimer. The woman was eight months pregnant when she died. A skilled doctor said that she is definitely dead, and that the baby is alive. Accepting the opinion of the skilled physician, both doubts mentioned above are canceled. The woman is definitely dead, so the doubt mentioned by Isserles that we have not the skill to be sure when a person is dead is now obviated; and the physician says that the child is definitely alive, so the doubt discussed by Rashi and the Talmud that we may be violating the Sabbath (if this occurred on the Sabbath) for an unnecessary purpose (since the child may be dead) is also obviated. Therefore, Moses Kunitz said that the physician should operate and does not even need to ask permission of the Jewish ecclesiastical court. Moses Kunitz here actually uses the word “Caesarean,” and gives the origin of the term (namely, that Julius Caesar was born by such an operation). Jacob Reischer, Rabbi of Metz two centuries ago, in his Responsa (Shevut Ya-akov 1.13, at the end), not only gives permission for such an operation but ends his responsum by saying that he who performs it must be praised for doing so and his reward will be great. See also Abraham of Buczacz (Eshel Avraham to Orach Chayim 330), who cites an authority who praises the physician for prompt action to save the child. There is, of course, a possible complication somewhat related to this question. Since the child will die unless the operation is performed very quickly, I was asked a number of years ago by a physician whether–if the mother is not quite dead, but is definitely dying (for example, of cancer)–we may not make sure to save the child by performing the operation before the mother is dead, although it is certain that the operation itself will definitely put an end to the mother’s life. See the discussion of this special question in Reform Responsa, pp. 214ff. But this is a special form of the question and does not apply directly here, where the physician assures us that the mother is dead. See further discussion of the matter in Eliezer Spiro (der Muncaczer) in his Minchat Eli-ezer IV.28, and Greenwald in Kol Bo Al Avelut, p. 49, section 18, and pp. 43ff. To sum up: if it is certain that the mother is dead and that the child is alive, there is no question that the Caesarean operation not only may be performed, but must be performed, and is indeed deemed praiseworthy.Solomon B. FreehofSee also:S.B. Freehof, “Caesarean Operation on Dying Woman,” Reform Responsa, pp. 212ff.

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 265-267

CCAR RESPONSA

New American Reform Responsa

160. CPR and the Frail Elderly*

QUESTION: When elderly patients in a nursing home or hospital are in need of CPR is it advisable to initiate it among the frail elderly who are less likely to survive hospitalization subsequent to CPR than a younger person and who may even if they recover, be more frail and debilitated with a poorer quality of life? Should the patient or the official representative of the patient be able to indicate whether CPR should be initiated? What should the policy of long-term care institutions be in connection with Jewish patients? Should we make a distinction between patients who are likely to survive a year or more and those whose life span will be less? (Rabbi Lennard R. Thal, Los Angeles CA)ANSWER: Traditional Judaism has been very careful about judgments of life and death. In earlier times and at the present it remains difficult for the medical profession to predict the length of life. We have all seen cases in which the general prognosis is poor but the spirit or physical condition of the patient enables that individual to survive considerable longer. Furthermore while some diseases rapidly take their toll among the elderly, others move much more slowly among them. It is also virtually impossible to assess such matters as “the quality of life” and so Judaism has refrained from doing so. What might seem a very poor quality of life for some may be acceptable to others. In addition we must reckon with longer or shorter periods of depression which may strike such individuals either in the natural course of events or due to medication. For these reasons and the general respect for life we have made no judgments on “quality of life” and would not consider that as a factor in instituting CPR or any other medical measures. We should make a distinction between the frail elderly and a goses (a dying individual). Nothing needs to be done for someone who is clearly and obviously dying and whose death is close. At that stage we may not remove life support systems, but we also need not institute any procedures. There is a long tradition for allowing individuals not only a return to health but also a peaceful death. Already in Talmudic times the pupil of Rabbi Judah Hanasi stopped his colleagues’ prayers so he could die more comfortably (Ket 104a) and one may pray for death (Nisim Gerondi to Ned 40a). While in another instance a servant stopped the chopping of wood as the rhythmic beat of the axe disturbed the passage of the individual from this world (Sefer Hassidim #723). The chief problem with a goses lies in the final stages when family, medical personnel, and hospitals may not know how to proceed and may fear legal or other consequences. This situation may be helped through some form of a “Living Will” which would describe the condition under which no further direct medical assistance should be provided. There are problems with the “Living Will” too. They have been described and discussed in another responsum in this volume. This is probably the best vehicle we now possess to deal with these issues. The frail elderly should understand that they may amend or totally reject this document at any time. That is particularly important for individuals in an nursing home who may not have relatives nearby. In this way they will feel in control of their future rather than having the nursing home staff control their lives. Under normal circumstance CPR should be given to the frail elderly if it can prolong their life. It should not be given to a goses.April 1989

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 373-374

CCAR RESPONSA

American Reform Responsa

116. Putting Small Sticks in the Hands of the Deceased

When Placing in the Grave

(Vol. XXXIII, 1923, p. 59)

QUESTION: Will you please tell me what is the origin and the significance of the custom to put small sticks of wood into the hands of the dead body when placing it in the grave.

ANSWER: This custom is not universally observed, and is not mentioned in the codes. R. Moses Sofer, in his Responsa (Chatam Sofer, Yoreh De-a, no. 327), mentions the custom and states that when he was in Prossnitz, he heard from the members of the Chevra Kadisha there that the purpose of the custom was to indicate the belief in the resurrection of the dead. The dead are provided with these sticks on which to lean and support themselves when getting up at the time of the resurrection. To this explanation of the Chevra Kadisha men of Prossnitz, R. Moses Sofer remarks that it is rather weak and unsound, just as the thin wooden sticks are weak and not strong enough to lean upon them. With all due respect to R. Moses Sofer, however, I must say that he forgot or overlooked a passage in the Palestinian Talmud (Kilayim IX.4, 32b), where it is related that R. Jeremiah requested, among other things, that a staff be put into his hand when placed into the grave, so that when the Messiah will come, he, R. Jeremiah, should be ready to get up and march.
Jacob Z. Lauterbach and Committee

See also:

S.B. Freehof, “Funeral Folklore,” Reform Responsa, pp. 174ff; “Funeral Folklore,” Recent Reform Responsa, pp. 149ff; “Funeral Folklore,” New Reform Responsa, pp. 262ff.

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 155-156

CCAR RESPONSA

Contemporary American Reform Responsa

95. Burial with First or Second Husband

QUESTION: A Jewish woman in her seventies recently married a non-Jew. She advised me that she asked to be buried next to her first husband, a Jew, in a Jewish cemetery. The rabbi said she could not do so out of respect for her present husband. Is there any basis for this? (Rabbi H. Gelfman, Jacksonville, FL)

ANSWER: The classical discussion of whether a wife should be buried with her first or second husband is based upon the statement in the Talmud which understood husband and wife to “kin” even after the wife’s death, (Lev. 21.2; Yeb. 55b). The general conclusion of rabbinic authorities is that the wife should be buried with her first husband unless she had children by her second husband (Wolf Leiter, Bet David, #134; J. Greenwald, Kol Bo Al Avelut, p. 188 f). However, the Hungarian authority Moses Sofer came to a completely different conclusion. He felt that the death of a woman’s first husband, and her subsequent remarriage, broke those initial bonds entirely. He based his conclusion upon the a fortiori argument that if marriage can break the bond of brother-sister relationship (Lev. 21.3), in the case a priest who may mourn an unmarried but not a married sister, then surely remarriage would break the lesser relationships of husband and wife (Hatam SoferYoreh Deah 355).

In both of these instances, we are dealing with cases in which both husbands are deceased and the wife has survived them. In this case, the second husband is alive and she may predecease him.

A somewhat similar question was asked of Dr. Freehof some years ago. In that instance, the second wife wished to be buried alongside her deceased husband who was buried alongside his first wife. In that responsum he gave permission for such a burial provided that there was sufficient space for the interment (Responsa for Our Time, pp. 172 ff). This question is, of course, somewhat different, as the second husband is alive and as he is a non-Jew and may wish to be buried alongside his second wife.

If it is agreeable with the second husband that the wife be buried alongside her first husband, then there is no problem. Nor does the fact that he is a Christian present a problem if he wishes to be buried in the same cemetery as this woman as in most Reform Jewish cemeteries the burial of a Christian spouse is permitted (W. Jacob, American Reform Responsa, #99). If the second husband wishes to be buried in the Jewish cemetery, would we permit this woman to be buried between her two husbands? We would answer positively as such a burial reflects the reality of their lives.

We may proceed along the lines suggested above if it is agreeable with her present husband, both under the circumstances in which he may wish to be buried with his first wife (in their Christian cemetery) and if he wishes to be buried alongside his present Jewish wife in the Jewish cemetery if the cemetery permits this. Local cemetery rules, must, of course, be observed.

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 284

CCAR RESPONSA

New American Reform Responsa

173. Burial with a Kippah

QUESTION: Is it necessary to provide a kippah for a more traditional deceased? Should this be added to the shrouds? (Esther Leibowitz, Miami FL)ANSWER: Tradition has emphasized simplicity for funerals. Rabban Gamliel, who was wealthy, insisted that he be buried in only a linen shroud in order to set an example (M K 27b). Another scholar R. Hezkiah asked that the shrouds used for his burial be limited in number (J Kelaim 9.4). Linen shrouds, often eight in number came to be used (Shulhan Arukh Yoreh Deah 352; Tekushinsky Gesher Hayim Vol 1 p 102f). The number may have arisen under kabbalistic influence. Nothing was mentioned in these sources about a kippah. It was probably assumed that the entire body was wrapped in the shrouds and so the head was not left uncovered or visible. If the family feels more at ease by providing a kippah it should be done. It is, however, not necessary.February 1989

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 283-284

CCAR RESPONSA

New American Reform Responsa

172. Burial with Candelabra

QUESTION: The children of a woman who has just died are divided over the desire of one of them to bury her mother’s antique silver shabbat candelabra with her. She made no such request. Another child understood that she was to receive the candelabra. Is this appropriate to bury a Jewish ritual item? (Selma Horotwitz, Boston MA)ANSWER: The main emphasis with our funerals has been simplicity and helping the mourners overcome their sorrow. Rabban Gamliel already stressed simplicity by having himself buried in a plain shroud although he was wealthy (Ket 8b; M K 27b). Normally nothing was buried with the deceased with the exception of sacred writings which could no longer be used (W. Jacob Contemporary American Reform Responsa 108). Such books were buried not to honor the deceased, but to guard the name of God from improper use. Here we are dealing with a ritual item of considerable emotional and monetary value. The struggle over this issue undoubtedly covers some deeper hostility and older rivalry. The will may specify the disposal of the candelabra and they should be given in accordance with that document or any understanding reached. As they seem to have been promised to one child, they should not be buried. Often some items normally associated with the deceased such as a ring or glasses have been buried with the individual, but this has usually been limited to items of daily, personal use and would not include candelabra.June 1988

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 282-283

CCAR RESPONSA

New American Reform Responsa

171. Burial with a Baton

QUESTION: The widow of a man very fond of music would like to bury him with his baton. Is this appropriate? (Regina Rosen, Greensburg PA)ANSWER: The main emphasis with our funerals has been simplicity and helping the mourners overcome their sorrow. Rabban Gamliel already stressed simplicity by having himself buried in a plain shroud although he was wealthy (Ket 8b; M K 27b). Normally nothing was buried with the deceased with the exception of sacred writings which could no longer be used (W. Jacob Contemporary American Reform Responsa 108). Such books were buried not to honor the deceased, but to guard the name of God from improper use. Often some items normally associated with the deceased such as a ring or glasses have been buried with the individual, so it would be permissible to bury a baton which meant a lot to him. This should be done especially if it provides some additional comfort to his family.November 1991

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 288-289

CCAR RESPONSA

New American Reform Responsa

177. Vertical Burial

QUESTION: My father has expressed a desire to be burial vertically rather than horizontally. We have discussed this a number of times but he insists and I would like to carry out his wishes if that is in keeping with Jewish practices (Norma Weigel, Berkeley CA).ANSWER: Jewish tradition assumes that burial will be horizontal. This is true both for burial in the ground which is our customary practice and the ancient burial in caves as we find at Bet Shan and in other sites in Israel. My search through the halakhic literature has not come across any statements about vertical burial. It is unlikely that this would have been discussed in an earlier age, as horizontal burial is much easier and requires less digging into the ground. Vertical burial would demand a considerable excavation. That is readily possible for us with our mechanized equipment, but as my cemetery superintendent has told me may cause practical problems as well with neighboring graves which might cave in. Furthermore, the coffin because of its construction may collapse if placed vertically. As long as there is no damage to nearby graves or other technical difficulty, the vertical burial which this individual has requested should be considered appropriate. The grave marker should be placed in the usual position and nothing connected with the grave need indicate that this burial was somewhat different.August 1991

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 349-350

CCAR RESPONSA

American Reform Responsa

102. Preferred Burial Site

(1978)

QUESTION: One parent is buried in New York; the other is about to die in Houston. One son lives in Houston, and the second in California. Should the burial of the mother take place in Houston, where one son can from time to time visit the grave, or should the burial take place by her husband’s side in New York? (Rabbi Samuel E. Karff, Houston, Texas)

ANSWER: In this question, we have a clash of two Mitzvot: one is concerned with burial, the other with visitation of the grave in subsequent years. In the case where a family plot has been established, tradition would clearly state that the wife should be buried alongside her husband, and it is the duty of the husband to provide for the burial of his wife, and not vice versa (Shulchan Aruch, Even Ha-ezer 89; 118.18). Furthermore, our tradition sought to establish family burial sites similar to the Cave of Machpela, in which Abraham, Isaac, and Jacob, as well as most of their wives, were buried. The Talmud, in a legend, speaks of a rabbi who died, and whose friends, upon seeking to bury him, found a snake obstructing the way into the cave. The snake was told to move so that the son could be buried with his father (Talmud, Bava Metsi-a 85a). The only discussions in the halachic literature which dealt with the burial site of husband and wife in two cities treated the question of disinterment for the sake of instituting a family plot. This has been discussed by Isaac Glick (Yad Yitschak, vol. II, #249), as well as by Saul Schwadron (Maharsham, vol. III, #343). Glick decided that the husband may not be disinterred to be buried with his wife unless other members of the family were already buried in the same plot as his wife. In the case of Schwadron, it was a question of whether the wife might be disinterred. He decided positively because a number of other burials had already taken place in the husband’s plot. Both of these decisions are based on Sh.A.,Yoreh De-a #363, which listed reasons for disinterment, and among them is “burial with his fathers.” In the case cited in our question, no family plot has yet been established, and at first glance it would seem preferable to bury her in New York, as the husband is buried there. If, however, the children intend the Houston plot to become a family plot, and will later inter other members of their family there, then–even according to the tradition–this would be permissible.

The other matter which enters the discussion is the future visitation of graves. It is a mitzvah to visit graves on the Yahrzeit (Rashi to Yevamot 122a, who has cited the responsa of the Geonim; Ketav Sofer, Yoreh De-a #178). This custom was established in the days of the Geonim for scholars, but subsequently applied to all Jews: if it was possible to visit the grave it was done; if not, then the family might send someone else to visit the grave as Chatam Sofer stated. Visiting the grave on Yahrzeit is clearly a well-established custom. It does not have the same weight as statements connected with burial which are law, in this case mide-oraita,yet for us this custom may be at least as important as the law. It will be comforting to the family to be able to visit the grave. This reason, and the fact that the family intends the Houston plot to become the family plot, would lead me to decide in favor of burial in Houston.

Walter Jacob

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 161-162

CCAR RESPONSA

Contemporary American Reform Responsa

97. Non-Jewish Burials

QUESTION: The

Congregation owns a cemetery which is managed according to halakhah; no non-Jews

are permitted to be buried in it. Recently the congregation had a number of mixed-married

families join. One of the privileges of membership is the entitlement to two graves in the

cemetery. This now leads to a problem. Is it possible to declare a segment of the cemetery “non-

sectarian?” There is a section on the other side of the road which could be separated by a hedge.

(Rabbi B. Lefkowitz, Taunton, MA)ANSWER: Although there is a great amount of

discussion of burial law, there is very little on the nature of the cemetery itself. It is mandated

that every community should set up its own cemetery in order to honor the dead (Meg. 29a;

Shulhan Arukh Yoreh Deah 34). If it is not possible to establish a separate cemetery, then

a distinctive section is to be set aside in a general cemetery (Dudaeh Hasadeh, #66 and

89.) The cemetery in its entirety has always been considered as holy and deserving the respect

and protection of the Jewish community. So, for example, unused sections may not be rented

out for grazing (Meg. 29a; San 46a; Shulhan Arukh Yoreh Deah 368.1). Anyone who

visits the cemetery, even the unused section, must behave in a dignified fashion (Shulhan

Arukh Yoreh Deah 368.1). Respect given to a cemetery is akin to that extended to a

synagogue (Azariah Fano, Responsa #56). Once the land has been

consecrated as a cemetery, it may not be sold or used for any other purpose. So, Moses Sofer

asked a community to resist the government’s request for a new wall around a cemetery, as the

plans also called for a diminution of its grounds (Hatam Sofer Yoreh Deah #335). A

similar opinion was provided by David Hoffman (Melamed Lehoil Yoreh Deah

#125). The only circumstances under which it is permissible to sell or dispose of a

cemetery are: (1) if it is condemned by the government and the graves are moved; (2) if it is no

longer possible to guard against vandalism. Then the dead may be disinterred and moved to

another cemetery (Mosheh Feinstein, Igrot Mosheh Yoreh Deah 246 and 247; Moses

Sofer, Hatam Sofer, Yoreh Deah #353). According to traditional halakhah, it would

not be possible to simply set aside a portion of the existing cemetery for the burial of non-

Jews. There are two other paths which may be followed. Some adjacent land can be

purchased. There would be no objection to utilizing it for Gentile burials as this ground has not

been dedicated as a cemetery yet. It would also be possible to change the by-laws of the

cemetery to agree with Reform practice. This would permit the burial of non-Jews in accordance

with general Reform Jewish practice, as described in W. Jacob’s American Reform

Responsa (#98 ff). If the interments of Gentiles are permitted only in a separate section, then

those who own plots in the old section have no reason to object.January 1985

If needed, please consult Abbreviations used in CCAR Responsa.