Disinterment

See discussion in Crypts, as family burial places

CORR 160-162

DISINTERMENT DUE TO A LABOR STRIKE

QUESTION:

San Francisco has had for some weeks now a strike of the gravediggers. This fact has caused special unhappiness to Orthodox Jewish families because of the impossibility of immediate burial. The bodies must be stored until the strike is finally ended. Now it has been suggested by some Orthodox scholars that the bodies be buried immediately in the neighboring city of Oakland to which the strike does not extend. The only question, then, is whether it will be permissible later when the strike is over to disinter the bodies from the Oakland cemetery to rebury them in the San Francisco cemetery. (From Louis J. Freehof, San Francisco, California)

ANSWER:

THE EFFECTS of a labor strike on Jewish burial practices are multifarious. First, what about the custom or law of immediate burial? What about the practice of embalming, which is frowned upon by Jewish law and custom, but which is inevitable since refrigeration storage space is limited? Third, if the body is not buried in the ground for weeks or months, when is the process of mourning to begin? These and other questions are involved in the situation created by the strike. The question now asked is a special one, namely: Would disinterment from the Oakland cemetery be permitted after the strike is over, for reburial in San Francisco?

There is no question that the answer must be in the affirmative. It is permitted. But first of all one must dispose of an apparent objection stated in the Shulchan Aruch, Yore Deah 363:2, namely, that it is forbidden to take a body from one city to another for burial if there is a Jewish cemetery in the city where the man died. In the first place, because of the strike there is no available cemetery in the city where the man died; and in the second place, the exceptions are given immediately in this same section of the Shulchan Aruch. The exceptions are: to bury the man in the land of Israel, or to bring him to the burial place of his fathers, or if before his death he asked to be taken to his home city (see Isserles).

In the present case we may assume that it would have been the desire of the departed to be buried in San Francisco, the home city, especially if there are other members of the family already buried in the San Francisco cemetery. In fact there is a famous responsum (#369) of Solomon b. Adret from Algiers which has become the classic one in all such cases: A man and his son came from Oran to Algiers for business (this was at the end of the 14th century). He became sick and told his son that should he die, he would like to be buried in his home town (i.e., Oran). He died of that sickness in Algiers but there was a war going on and the son could not take the body to Oran. As soon as the war was over they asked whether they may move the body and whether, now, in order to make it possible to move the body, they may use quicklime to hasten its decay. Solomon b. Adret gave full permission to do so.

The following, then, are the reasons why, after the strike is over, the bodies may be disinterred from the Oakland cemetery: First, due to the strike, there is no available cemetery in San Francisco. Secondly, if the man has family already buried in San Francisco, he is being disinterred to be buried with his family. Thirdly, if the burial in Oakland is a burial al t’nai (a conditional burial), with the understanding that the body is to be transferred later {Yore Deah 331:1). It was on the basis of conditional burial that Isaac Elchanan Spektor (Eyn Yitzchok, Yore Deah 33) gave permission for a temporary burial in a mausoleum (see Ozar Dinim u Minhagim, article “Pinui Mesim”).

RRT 175-178

DISINTERMENT FROM A CHRISTIAN CEMETERY

QUESTION:

A Jewish lad of eighteen, killed in an automobile accident in a small town in Louisiana, was buried in a Catholic cemetery with Catholic rites. The family has now moved to a city (Greenville, Mississippi) where there is a Jewish congregation and a Jewish cemetery. They are desirous of disinterring their son’s body and reburying it in a Jewish cemetery. If they do this, is there any particular ritual which should be observed at the reburial? (Asked by Rabbi Allen Schwartzman, Greenville, Mississippi.)

ANSWER:

FIRST OF ALL, it is necessary to make clear that the Jewish status of this boy is not at all affected by the fact that a Catholic priest officiated with Catholic rites at his funeral. Hundreds of thousands of men and women in Spain, Marranos, were married by Catholic priests and buried by Catholic priests in Catholic cemeteries. Yet when the Marranos escaped to Jewish communities, even centuries after, their Jewish status was unquestioned as long as their mothers were Jewish. The Catholic rituals can have no status in Jewish religious law. The Jew remains a Jew. This is confirmed by scores of responsa. Therefore, in coming to their decision, the parents need not lend any weight to the fact that the boy was buried by Catholic rites in a Catholic cemetery.

Now the question is whether his body should be disturbed by disinterment. There is a large amount of accumulated law on this matter, going back to the opinion of Rabbi Akiba in the Talmud (Baba Bathra 155a), and the laws have reached codal form in the Shulchan Aruch (Yore Deah 363). In general, Jewish tradition is averse to disinterment. The reason for the disinclination to disinter goes back to the Talmud, where Rabbi Akiba forbade the disinterment of the body of a young man in order to settle some financial question. What was involved was whether the deceased boy was adult enough for a certain sale of property in which he had participated to be valid. Rabbi Akiba said that one must not “deface the body” for such purposes. This objection does not apply here as it did in the old days, when they buried without a coffin; the body would certainly have been disfigured when it was taken out of the grave. Here, the whole coffin is removed and the body is not disfigured This argument, that moving the whole coffin does not involve what Rabbi Akiba called “disfiguring the dead,” was used by the great authority, Chacham Zvi Ashkenazi (rabbi of Amsterdam and Hamburg, 18th cent.). There is also another objection to disinterment, but it does not apply here either, and since it is folkloristic, there is no need to go into it.

Now, from the more positive side: Is it right to disinter and rebury the body? The Shulchan Aruch, after giving its general objections to disinterment, immediately gives a series of valid exceptions under which it is proper, and even obligatory, to disinter and transfer the body. A number of these permissions apply quite directly in this case. If, for example, the family intends to have a family plot in the cemetery in Greenville, then we can say that the reburial can be permitted, because a man may be disinterred to be buried with his family. Of course, some strict Orthodox authorities would not consider it a family burying place unless the parents, for example, were already buried there; but we can interpret that liberally and say that he would be in the midst of his family some day. Of course, if there were close relatives of his already buried in the Greenville cemetery, even the strict Orthodox objections would fall away. As a matter of fact, Chacham Zvi Ashkenazi, whom we have cited above, deals precisely with this question (disinterring a Jew buried in a Christian cemetery) in his responsum # 5 0, and chiefly for the reasons mentioned above, considers it a duty to remove the body from a Christian cemetery to a Jewish one.

As for services at the reburial, none are really re quired. In the very last section of the Shulchan Aruch which speaks of these matters ( Yore Deah 403 ), it does not mention any service ritual. There is some requirement of mourning (keriah, etc.) for an hour, at the time when the disinterment takes place; but even with regard to this ceremony, there is no justification for requiring that it be done. The great Hungarian authority, Moses Sofer, had a decision to make with regard to wholesale disinterment from a cemetery which was, I believe, confiscated by the government. He actually forbade anybody to tell the various relatives when the disinterment would take place so that they should not be required to mourn. As for prayers and Kaddish, etc., all these are primarily for the honor of the dead and are not too strictly required. If, for example, a man would ask before his death not to have these prayers, there is considerable ground for omitting them. So they are not indispensable and are not required at reburial. Of course, if you judged that some prayers—a psalm and Kaddish, for example—would be of consolation to the living, there would certainly be no objection to reciting them.

To sum up: The fact that he was buried with Catholic rites in a Catholic cemetery has no bearing on the Jewish status of the deceased. The objections to disinterment based upon the danger of defacing the body (nivvul ha-mayss) do not apply when the body is in a sealed coffin. It is considered by Chacham Zvi, who was a great authority, that to rebury from a Christian to a Jewish cemetery is a righteous act. Finally, since in the Jewish cemetery there is a greater likelihood of his being at rest near the graves of his kin, it is certainly proper to rebury him. As for services, they are not required, but, if helpful, there is no objection to them.

TRR 94-97

MOURNING AT DISINTERMENT

QUESTION:

A family learned that water had seeped in and flooded their mother’s grave. They wish to move the body to another place in the cemetery. They were informed that when they move the body, they will have to follow the ritual of mourning for one day (sit shiva for a day). Is this the law? (Asked by Sonia Syme, Detroit, Michigan.)

ANSWER:

The question of the requirement for a day’s mourning at a disinternment of a person for whom we are in duty bound to mourn, is discussed all the way through the halakhah from the very beginning. The Talmud (Moed Katan 8a) says, “He who gathers up (melaket) the bones of a parent, must mourn for a day.” This law is repeated in the gaonic compendium (Semahot 12:3) which adds that the mourning must be only for one day during the daylight and ends at night.

There are two processes involved and therefore two terms used in this legal question. One is likut which means “gathering the scattered bones” (as may happen, for example, with people slain in battle and lying around for some time unburied). And the second term is pinui which means “clearing out” or “removing.” This refers specifically to disinterment of a body already buried. In the case of these two separate processes (“collecting bones” or “opening a grave”) the law seems to be different. The Shulhan Arukh (Yoreh Deah 403) when he speaks of likut, “the gathering of bones,” mentions the duty of a day of mourning. But in Yoreh Deah 363, where he speaks of disinterment, he does not mention such mourning ritual at all.

Evidently, the grief of disintering a body that already had been buried is less heartbreaking than a gathering of the bones of bodies that had never yet been buried. After all, those which had once been buried had already had mourning ritual fully observed for them at the time. Therefore there seems to be a clear tendency in the law to diminish the requirement for the day of mourning at disinterment. Moses Sofer (Hatam Sofer Yoreh Deah 353) speaks of disinterment in a much more tragic situation, in which one grave happens to be flooded. He discusses the case where a whole Jewish cemetery has been flooded (or one which is about to be confiscated by the Gentile authorities). In such a case of mass disinterment if there were mourning for one day, then the whole community would be mourning. Therefore, he suggests that the Jewish authorities, the Hevra Kadishah, must make a solemn agreement to keep the community from knowing the day when the general disinterment will take place. Thus they will prevent the whole community from observing a day-time of mourning ritual.

If the day of mourning at the disinterment of a body of a close relative were an absolute or a clear-cut commandment, Moses Sofer would certainly not have insisted that an entire community be kept ignorant of its duty. It seems evident that the law tends to diminish the requirement of mourning at disinterment. This is seen also in the fact that the day of mourning, if it is observed, must stop at the evening (Moed Qatan 8a). And, also, that no disinterment shall take place on the day before a holiday.

Another alleviation of a requirement of a day of mourning at disinterment is based upon the Jerusalem Talmud (Moed Qatan 1:5) which says that if a body is moved in a coffin from place to place, then the requirement of mourning no longer applies. This is because there is no shaming of the desd (nivul hamet) if the half-decayed body is not open to view.

A full discussion of this whole question is to be found in the second volume of Greenwald’s compendium Kol Bo, p. 93. We may conclude that nowadays, when disinterment and transferring would always be in a closed coffin, the mood of the law tends not to require the day of mourning. Clearly this tendency is to diminish the requirement of mourning after a disinterment. This tendency harmonizes with the general principle (Eruvin 46a) that in matters of mourning the law follows the lenient decisions (halakhah kemekil be-ovel).

NYP no. 5756.5

CCAR RESPONSA

Disinterment From A Jewish To A Nondenominational Cemetery

5756.5

She’elah

A man was recently buried in the synagogue cemetery. His son, a member of the congregation, now wishes to exhume his father’s body and to rebury it in a small, nondenominational cemetery that is closer to his home. The son is dissatisfied with the synagogue cemetery on grounds of distance (he claims it is too far from his home) and “aesthetics” (not explained). For these reasons, he says that it is “not meaningful” for him to have his father buried there. He believes that were the body to be buried in the smaller, non-denominational cemetery closer to his home, he could render more “honor” to his father. I have raised objections to the disinterment. The son, for his part, has mentioned the possibility of legal action to force the congregation to accede to his wishes. Should we continue to deny the disinterment of his father? (Rabbi Irwin Zeplowitz, Hamilton, Ontario)

Teshuvah

The Reform Movement has published two teshuvot that deal directly with this question.[1] In brief, Jewish tradition prohibits disinterment with a few important exceptions. It has always been permitted to disinter from a grave site in the diaspora in order to reinter in the Land of Israel. It has been permissible to disinter when the grave site is threatened by vandals or nature, and permission has been granted to disinter in order to rebury in a family plot.[2] The decision to disinter must be guided by three primary principles. There are prohibitions against actions that would bring scorn or shame upon the dead (bizayon hamet). We are commanded to protect the honor of the dead (kevod hamet). And we are commanded to find ways to insure the comfort of the mourner (nichum aveilim). As we will see, these principles sometimes come into conflict. For instance, obviously, one would be showing more honor for the dead (kevod hamet) if the deceased were buried in a dignified grave site as opposed to a disgraceful grave site. And yet, Rambam wrote that disinterment is prohibited even from a pitiful grave site to one of honor. His concern was that exposing the decomposing body is a greater shame than being buried in an “unaesthetic” plot. But then again, both Rambam and Karo maintained that disinterment is permitted in order to rebury a person’s remains in a family plot, even if the actual grave site in the family plot is noticeably poorer than the original site. In our case, the overlapping principles become even more entangled. If the son intends to create a “family plot” at another cemetery, his intention would seemingly trigger one of the exceptions to the prohibition against disinterment. Thus, the son’s attempt to “render more honor” (kevod hamet) for his father would seem to override the concern for disgracing the dead (bizayon hamet) by means of the disinterment. In addition, one might argue that the Jewish community should be responsive to the son’s request because the son is one of the primary mourners and it is a mitzvah to comfort him (nichum aveilim). But the Jewish community also has a responsibility to protect the honor of the dead. A sacred trust is made when a Jew arranges to be buried in a Jewish community’s cemetery. The Jew has a right to believe that the community will care for the grave site and preserve the Jewish sanctity and identity of the cemetery. Therefore, the community, by virtue of its position as guarantor of the sacred trust, has a right to object to any attempt to disinter when such an attempt is deemed to violate that trust or is contrary to Jewish tradition. From the communal point of view, disinterment from a Jewish for reburial in a nondenominational cemetery is objectionable. It goes without saying that it is preferable for a Jew to be buried in a Jewish cemetery. The first major action of a new Jewish community has usually been to secure a dignified and exclusive place for us to bury our dead. Historically, land has been purchased for a Jewish cemetery before a synagogue or school is built. There are, however, circumstances that may prevent Jews from being buried in a Jewish cemetery. For example, in times of war Jews have been buried, with the consent and approval of the Jewish community, in “general” cemeteries. Jews in small towns where purchasing a Jewish cemetery is not practical have had to turn to the “general” or nondenominational cemetery. Rabbi Walter Jacob wrote a teshuvah on this subject and concluded that burial in a “general cemetery” is permissible, but encouraged finding a way to designate, within that “general cemetery,” a section that clearly marked it as a Jewish burial ground.[3] But in our case, in which there is no circumstance of emergency and there is obviously no shortage of Jewish burial grounds, the rabbi has done well to voice his objection to disinterment. We agree: the son should not disturb the remains of his father to reinter those remains in a nondenominational cemetery. We recognize, of course, that the threat of legal action requires that the rabbi with prudence, discretion, and good judgment. At times, such judgment requires that the standards of Jewish practice be relaxed so as to preserve communal peace (mipney darkhey shalom; see M. Gitin 5:8-9). The rabbi’s primary duty, however, is to teach and expound those standards to the community. The rabbi has done this well thus far, and we are confident that he will continue to do so. NOTES 1. These teshuvot were written by Rabbi Walter Jacob and published by the C.C.A.R. in Contemporary American Reform Responsa, nos. 110 and 111. 2. Rambam (MT, Hilkhot Avel, 14.15) followed the Yerushalmi in permitting disinterment in order to rebury in an ancestral plot. Yosef Karo (Shulchan Arukh, Yoreh Deah, 363.1) combined the exception given by Rambam with two more from Ramban concerning reburial in HaAretz and reburial to avoid danger to the grave site. 3. Contemporary American Reform Responsa, #105.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5756.5

CCAR RESPONSA

Disinterment From A Jewish To A Nondenominational Cemetery

5756.5

She’elah

Teshuvah

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 172-173

CCAR RESPONSA

Contemporary American Reform Responsa

111. Disinterment and

Reburial

QUESTION: Is it possible to exhume and reinter a member of a

family who is now buried outside of his family plot? The family would like to have all of their deceased in one location. (Rabbi I. Blum, Dayton, OH)

ANSWER: The statements

which you have made based on Shulhan Arukh (Yoreh Deah 363) are perfectly correct. Moses Sofer (Hatam Sofer 6.37) also permitted such reinterment in a place where relatives, who had previously died, had already been buried (Mak. 11a). There is a good deal of discussion about this by various Orthodox authorities, but most of the instances of reinterment deal with problems of temporary burial, the need to move a body from a place which is no longer safe, or which has been condemned by the government for some public use. (See also W. Jacob, American Reform Responsa,# 106, 115).

The classic American legal

case on this question arose in 1900 and involved the burial or reinterment of the wife who had predeceased her husband to the family plot in which her husband had been buried some two years later. The children, in accordance with the wish of the father, sought permission from Congregation Sheerit Yisrael, and the matter went to court (Howard Cohen against Congregation Sheerit Israel, Appellate Division of the Supreme Court, New York.) A large number of authorities presented their opinion on both sides. Those aligned against granting permission were Rabbi Mendes of Congregation Sheerit Yisrael, Rabbi Louis Ginsburg, Rabbi Solomon Schechter, Rabbi Benjamin Drachman, Rabbi De Sola of Montreal, Rabbi Herman Adler and Rabbi Moses Gaster of England. Those who gave testimony in favor of this disinterment and reburial consisted of both Reform and Orthodox rabbis. Among the Reform were Rabbi Kaufmann Kohler; among the Orthodox were Rabbi de Sola of St. Louis, Rabbi Rudolf Plaut, Rabbi Samuel Zeil, and Rabbi Eisenstein. The court decision favored disinterment and reburial.

June 1984

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 171-172

CCAR RESPONSA

Contemporary American Reform Responsa

110. Disinterment for Legal Evidence

QUESTION:May the body of a young person who was murdered be disinterred after a number of years have passed? New evidence has arisen, and it is the contention of the attorney representing the husband of the person who was convicted of murder that this disinterment will provide additional clues about the real killer. (H. B., MA)

ANSWER: This sad inquiry actually contains three separate questions. First, we must ask about criminal procedures, especially in cases which might lead to the death penalty. How far can we go to obtain evidence? Secondly, we must turn to the general question of disinterment, and finally, to that of autopsy.

It is clear from the MIshnah (Makot, Sanhedrin) that every precaution was taken in the case of capital offenses. The accused was provided with all conceivable opportunities to prove his innocence, and all possible evidence must be examined. He had to be specifically warned by two witnesses (M. Makot 9.6), etc. A court of twenty-three had to be used (M. San. 4.1) Akiba and others sought to eliminate the death sentence entirely (M. Makot 10.6); the Talmudic line of reasoning made it very difficult to execute anyone. The crime and sentence were publicly announced with a plea for evidence which might prove the accused’s innocence. Furthermore, an elaborate communications system was arranged between the courtroom and the place of execution so that any new evidence, even at the last minute, could prevent the execution (M.San. 6.1 ff). As our case is a capital offense, the statements and the intent of tradition apply. These indicate that in order to save the life, or to prevent an error in judgment in a capital offense, every effort to gain evidence on behalf of the accused must be undertaken.

Now let us turn to exhumation. Disinterment is not undertaken lightly in Jewish tradition. The prohibition rests upon a Talmudic incident in which disinterment was suggested in order to establish whether the deceased was a child or an adult, and thereby settle a quarrel over property rights. In that instance, it was disallowed (B. B. 155a). Akiba felt that the dead should not be disturbed, but that was not a capital case. It has also been prohibited in almost all instances with the exception of the following:

a. in order to reinter in the land of Israel;

b. in order to reinter in a family plot, especially if the deceased died away from the city in which he normally resided;

c. in those instances in which the grave was threatened by hostile individuals or by an unforeseen natural event (Shulhan ArukhYoreh Deah 363.1 ff).

Whenever burial has taken place in a coffin, rather than merely in shrouds, disinterment has been more readily acceptable as the dead are disturbed less. In our case we are not dealing with the usual cases of disinterment, but with a more serious reason. In view of the intensive search for evidence in all capital cases, disinterment should be permitted in this instance.

Each cemetery has its own regulations, and every effort should be made to abide by them. However, in this instance, as an individual’s freedom is at stake, disinterment should be encouraged.

Autopsy has been thoroughly discussed by J. Z. Lauterbach (W. Jacob, American Reform Responsa, # 82) and S. B. Freehof (Reform Jewish PracticeVol. I, pp. 115 ff). As this autopsy will be of immediate benefit in a criminal case, even the more hesitant traditional authorities would permit it.

June 1982

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 353-355

CCAR RESPONSA

American Reform Responsa

106. Removal of Dead Body to Another Grave

(Vol. XXXII, 1922, pp. 41-42)

QUESTION: A man in my congregation (in a western city) wishes to remove the body of his mother who is buried in our city, to New York, in order to have her rest by the side of his recently deceased father, who had to be buried in New York. Is there any objection on the part of Jewish law or custom to his doing so? And, if so, on what ground does Jewish practice base its objection?

ANSWER: Ordinarily, Jewish practice objects to the removal of a dead body from one grave to another out of consideration and respect for the dead. It was believed that after having been put to rest the dead should not be disturbed by removal. If, however, there is any valid reason for the removal (especially if there is any consideration which would justify the assumption that were the dead alive, he or she would consent to the change in the resting place), Jewish law and practice permit such a removal. Thus, e.g., the Shulchan Aruch, Yoreh De-a 363.1, permits the disinterment and removal of a dead body in order to bury the same in another place together with his or her relatives. This is exactly like the case you state, i.e., the son being desirous of having his mother rest in the same place where his father is buried.

Jacob Z. Lauterbach

NOTE:

Practice permitted such a removal. Thus, the Shulchan Aruch,Yoreh De-a 363.1, states:

We do not move the dead body or human bones, not from an honorable grave to another honorable grave, not from a dishonorable grave to another dishonorable grave, not from a dishonorable grave to an honorable grave, and, it goes without saying, not from an honorable grave to a dishonorable grave. But it must be kept in mind that one may be moved even from an honorable to a dishonorable grave in order that one may rest with ancestors. In addition, one may be moved and buried in the Land of Israel [from outside the land]. If one was buried [temporarily] with the conscious understanding that removal would take place, it is permitted under all circumstances. If one suspects that idolaters may be planning to remove the body [for pagan worship or orgiastic purposes], or that water may seep into the grave, or that it is the wrong grave-site, it is a mitzvahto remove it.

The Shulchan Aruch’s prescription fits not only the case above, but provides a reasonable response to many questions which arise on this subject. We see no basis for altering it.

ResponsaCommittee (1980)

See also:

S.B. Freehof, “Disinterment Due to a Labor Strike,” Contemporary Reform Responsa, pp. 160ff; “Disinterment from a Christian Cemetery,” Reform Responsa for Our Time, pp. 175ff.

If needed, please consult Abbreviations used in CCAR Responsa.