After a baby’s death we must be able to mourn

PLEASE join us in an effort to clean the children’s section at West Park Cemetery on August 23 at 10.00.

R Margolis 1Since ancient times, it has been the custom to mark the grave with a stone or monument. After Rachel died, “Jacob erected a monument on Rachel’s grave” (Genesis 35:20). The predominant position of Jewish law was that if a baby did not survive for 30 days, it was as if the baby had not lived. The two major Jewish legal statements on which this custom is based are these: “We do not mourn for fetuses, and anything which does not live for 30 days, we do not mourn for it.” -Maimonides Mishne Torah Laws of Mourning 1:6.  “The infant, for 30 days, even including the full 30th day (if it dies), we do not mourn for it.” Yoreh De’ah 374:8. The reason for the limit of 30 days appears to derive from the fact that 30 days is the age at which we are commanded to redeem the firstborn. For the rabbis, this marked the point at which a baby became fully viable.

The result of this ruling was that none of the practices of mourning was to take place if the infant was born dead or did not survive to the 31st day. Although the child was buried, there was no funeral per se, the grave was left unmarked, and the parents might never know where the grave was located. It was undoubtedly considered an act of kindness to the parents and the community, for without the restriction, families would have been in mourning almost continuously. Today the opposite is true. The tremendous sense of loss and the overwhelming need to grieve felt by the parents of an infant who dies before the 30-day benchmark does not go away just because halakah prevents the mourning rituals from taking place. The medical profession has now recognized that parents experiencing a baby’s death must face the loss, and be able to mourn. Parents are encouraged to see and touch the baby. It is recommended that the parents name the baby.

Yet, most rabbis and most Jewish laypeople presented with this type of loss would be hard-pressed to know what to say, except to repeat the painful words, “There is no mourning for this child.” Jewish law has remained viable and relevant because each generation of interpreters applied the halakhah to its own time. Rabbi Stephanie Dickstein asks very important question, “What should be Jewish practice following the death of an infant who lives less than 31 days?” Rabbi Dickstein points out that the commonly held belief that there is no mourning for a child who does not survive to 31 days is not the only position found in Jewish legal literature. In Mishnah Niddah 5:3, we find this statement: “A one-day-old infant, if he dies, is considered to his father and mother like a full bridegroom,” and therefore the child would be mourned. In the Babylonian Talmud, Tractate Shabbat 136a, we read that the sons of Rav Dimi and Rav Kahana mourned for their newborns who died. (A Time to Mourn, A Time to Comfort)   

Rabbi Julia Margolis

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