CREMATION ASHES BURIED AT HOME

QUESTION:

A congregant who intends to be cremated, desires that her ashes be buried in an unmarked grave on her own property. What is the judgment of Jewish law (and the secular law) on this matter? (Asked by Rabbi Norman D. Hirsh, Seattle, Washington)

ANSWER:

As FOR the secular law on this matter, it certainly varies from state to state, so the enquirer had better ask the authorities in his own state whether burial of ashes may be permitted in private property. But as for the opinion of Jewish law on this matter, there are a number of basic questions involved. First, is the cemetery the only place permitted to receive the burial of bodies or of ashes; or has one’s private property some religious status in this matter? Secondly, while cremation is generally forbidden by Orthodox law, the question is whether, once a body has been cremated, the ashes may or may not be buried in the communal cemetery.

First, then, as to the status of the communal cemetery in Jewish law: Basically, burials in Palestine in the days of the Bible and Mishnah were all on private property. People bought caves and cut niches into the walls and so buried their dead. So it was with Abraham and his family, and so the custom continued as is evidenced, for example, by the discussion of the niches in a cave in Mishnah Baba Basra, VI, 8. Very likely the use of community cemeteries in place of private burial grounds developed in Babylon where there were no rocky caves to keep the bodies securely protected. At all events, even to this day the cemetery has no fixed status in Jewish law comparable, for example, to the status of the communal synagogue and the communal school. Members of a community can compel each other to build a synagogue or establish a school. But there is no law compelling a community to have a cemetery. In fact, many small communities in Europe did not own cemeteries but transported their dead to the cemetery of a larger neighboring community.

The fact that the communal cemetery has no actual legal status simply means that they exist as an estab-lished custom and are only a legal requirement to the extent that an established custom becomes a legal re-quirement. But, of course, this dubious situation indi cates that a man’s personal property still has a status in this regard which has never been abolished. (For references as to the high status of one’s own property for burial, see Modern Reform Responsa, page 257.) Thus, if a body were to be buried on one’s own estate, the civil law might not permit it, but Jewish law cannot well prohibit it.

This brings us to the question of cremation. When the practice of cremation developed about a century ago in Germany, Rabbi Meyer Lerner of Hamburg, published a whole book, Chaye Olom, marshalling the opinion of many contemporary authorities that cremation is against Jewish religious law and, in fact, when that sin has been permitted, the ashes be not buried in the cemetery. However, other authorities took the opinion that the ashes should be buried, and David Hoffman in Melamed L’Ho-il, Yore Deah 113, has a compromise opinion and says that it is not obligatory to bury the ashes in the cemetery but it is not forbidden to do so.

Thus there is some doubt in the law whether the ashes may be buried in the cemetery and, depending upon the Orthodoxy of the community, it is a question whether the ashes would be permitted to be buried in the cemetery. It might therefore even be deemed preferable to avoid the dispute and bury the ashes on one’s own property. Of course if we are referring to a Reform congregation, which does not object to the burial of ashes, then it is a matter of choice; and in that case, one can merely say that there can be no objection in Jewish law against the burial of ashes on one’s own property.

However, one warning must be given: If the fashion of cremation spreads, and if the burial of the ashes in one’s own property likewise becomes rather prevalent, then the status of the communal cemetery which is an important part of communal life, might thereby be endangered. If that happens it may be wiser to prohibit any such use of private property. But unless that happens, one may sum up the law as follows:

One’s own property as a burial place has never lost its status in Jewish law. The burial of ashes of cremation is to be considered permitted if not obligatory. Therefore (certainly from the liberal point of view) there can be no real objection to the planned interment of the ashes in the family’s own property rather than in the communal cemetery.