THE STILL-BORN CHILD
The baby girl lived for only twenty hours. What are the laws of burial and the laws of mourning applicable under these circumstances? What sort of service could be conducted at the graveside? (Asked by Rabbi Earl Kaplan, Los Angeles, California.)
The law is clear that if a child does not live thirty days, formal burial is not required. The source of the law is Niddah 44b and Shabbat 135b, where it is stated that the child that does not live for thirty days requires no burial and no formal mourning. As the law developed there was some few opinions that burial was required but these opinions were based mostly upon the fact that a portion of a body ought to be buried even if it is as little as the size of an olive. That clearly applies to a portion of a body that we are in duty bound to bury. To mention a few of the leading authorities who state the law that such a child is considered still-born, nefel, and there is no duty to bury, Ezekiel Landau in his first volume, Noda Biyehudah Yoreh Deah 90, Jacob Ettlinger, Binyan Zion #119, also Orah Hayyim 526:9,10. Although in the case of a nefel according to the majority of opinion burial is not a mitzvah, nevertheless, of course, it should be buried for practical reasons. So the Talmud tells us (Ketubot 20b) speaking of a place outside of the city ” there women buried their stillborn and amputees buried their limbs.” So just as it may be sensible or even customary to bury amputated limbs, it is not a mitzvah.
As for mourning for the dead, there are of course two stages in mourning, aninut and avelut. The aninut applies before the burial and the avelut (seven days, etc.) after the burial. The reason for strict aninut is that the mitzvah of burial is incumbent upon a person and he may not do anything else until that mitzvah is fulfilled. Since, however, in the case of a nefel there is no mitzvah of burial, the strict aninut does not apply, but it is proper to observe some avelut We learn in the Talmud (Shabbat 136a) that the son of Dima had a child who died within thirty days and he practiced avelut, the regular mourning, for him. So while there are varying opinions, the majority of authorities declare that avelut is required.
Since the burial itself is not a mitzvah, the requirement of immediate burial clearly does not apply, and if there is a good reason to delay the burial, there can be no halakhic objection to it. I have seen a reference to a custom that the burial of the nefel is delayed until the mother is healed (as is mentioned in this letter) but the author who refers to it deprecates the custom. Nevertheless, such a custom exists.
Now as to the proper prayers at a burial service, the family involved is free to choose. Since there is no mitzvah involved, there is no tradition on the matter. Perhaps Psalm 23 and Psalm 121 and such may well be read.