Essays	Print

by Rabbi Tsvi Blanchard
Volume 3 , Issue 1 (Sept, 1989 | Tishrei, 5750)

Reading ?A Community of One? I felt a desire to comfort its author and validate her feelings. How painful and anger‑producing for her to find herself without community support when it was most needed. How is it possible that we were not there to stand with her? Or worse, discouraged her from mourning so profound a loss? We need to recognize that we have not learned how to respond to infant death.

Within Jewish tradition, what are the basic parameters of the issue? For the first forty days after conception, the fetus is treated as unformed flesh. The ?fully viable? child is termed a bar kayama, i.e., ?one that will endure.? This status is attained thirty days after birth. (Shabbat 135b). If the child dies between the fortieth day from conception and the thirtieth day after birth, it is termed a nefal (Nazir 50b).

The formal obligation to mourn a child, i.e., aninut and avelut, exists only when the child is a bar kayama, i.e., lives for thirty days. Nonetheless, in halakhically important ways, the nefal is treated as a human person. Although there is not unanimity of opinion, the discussion in the Kol Bo on avelut (Chapter 3, Section 3, Notes 3‑6) makes clear that the majority position requires burial for the nefal. More importantly, this is connected to the view that the nefal is expected to return at t'hiyat ha‑Metim, the ultimate redemption of human history marked by the Resurrection of the Dead.

When the nefal is a child who is actually born, its status as a person is expressed in more detail. For example, although brit milah is not a mitzva until the eighth day, a boy who dies before the eighth day is still circumcised (Shulkhan Aruch, Yoreh De'ah, 263:5). Jews both created and insisted on this practice despite some rabbinic protest (Kol Bo on avelut. Chapter 3, Section 3, Note 6). The correct procedure seems to be to do this even after the child has been buried and must be disinterred, so long as viewing the remains will not be inappropriate due to decomposition. (Pithei T'shuvah on Shulkhan Aruch, loc. cit).

Halakha, too, understands the importance of remembrance and responds as did our author: by naming the child. An infant who has died is ?given a name as a remembrance in order that Heaven should have mercy on him [or her] and that he [or she] should be restored to life at the Resurrection.? (Shulkhan Arukh, loc. cit.) As with the child that dies before birth, the aggadah uses eligibility for return at the Resurrection of the Dead as a powerful image for having full status as a human person. The Talmudic discussion in Sanhedrin 110b presents views placing the beginning of personhood at conception, or at birth, or at circumcision. Only one rabbi placed it later, at the time when speech develops, a view which, as we see, is not accepted in halakhic contexts. The connection between naming, remembrance, and presence at the Resurrection of the Dead suggests that any nefal, not just those who are born alive, might be given a name.

We should, however, recognize that the nefal who dies never having been born presents a more difficult problem requiring further discussion. As I indicated, this child, too, is expected to find a place in the ultimate human community. Certainly, as the example of the author's friend reminds us, attachment, love and expectations begin long before birth. We can surely understand the need for some response to such a death.

A painful contradiction arises, however, when we remember the Judaism does not uniformly prohibit abortion. The fetus acquires full personal status at birth. For most authorities, aborting the fetus prior to birth is not treated as murder (Rabbi M. Feinstein, Z?L is an important exception to this view). What can we say about mourning the death of a fetus before birth? On the one hand, it seems difficult to imagine doing so in the case of a deliberate abortion. And, on the other hand, when the loss of the fetus was unwanted, it seems likely that grieving could be supported by some mourning ritual. I simply do not know what to say. There are times when the contradictions of human life rob us of easy answers. There are times when support, encouragement, just ?being there,? are all that we have to offer.

The death of a child after birth, but before thirty days is, at least for me, a clearer situation. Some concrete response needs to be made. Although we have not yet developed full mourning rituals for infant death, we have their beginning in the requirement of naming and circumcision. Can we not proceed further into the realm of the traditional mourning process itself? Surely the fact that there is no requirement of shiva and the other mourning practices does not exclude appropriate mourning rituals on a voluntary basis.

The case of the convert might serve as a precedent. Although converts are not required to follow the detailed mourning process for their parents, they are not prevented from adapting them as they find meaningful. Indeed, this is a common practice. How could it be otherwise given the pain of the loss and the comfort to be had from traditional Jewish practice.

To return to the author's situation. Her own responses were, it seems to me, more intuitively in tune with Judaism than those of the experts with whom she spoke. Her child, Oscar, has a legitimate place not only in the existing Jewish community, but in the most complete community of all, the fully restored community of techiat ha'matim <197> the Resurrection of the Dead.

The author found part of the Jewish way of responding to infant death. I am convinced that the profound feeling underlying her response does find its echo in Judaism; and yet, as her experience makes painfully obvious, responding to infant death has not found its place in the life of the Jewish community. We must join her in asking ?If Jewish tradition values the infant as a person, why should there not be room for developing a more complete ritual expression of the real human feelings of having lost a beloved person?? To do so could only express our faith in the power of halakha to meet human needs.

Rabbi Tsvi Blanchard holds doctorates in philosophy clinical psychology. He did his rabbinical studies at the Mir Yeshiva in Jerusalem and the St. Louis Rabbinical College.? He is currently the Director of B'nai Brith Hillel at New York University and maintains a private practice in counseling.