REFUSING TO HANDLE AN INFECTIOUS BODY

QUESTION:

A person died of hepatitis. It was deemed dangerous for the undertaker’s men to handle the body, to wash or embalm it. Finally, at some risk, the necessary work was done to the body. But the question arose whether a Chevra Kadisha, which after all is not a profit-making business but a communal servant, may refuse to handle a body which is dangerous to handle. (By Louis J. Freehof, San Francisco)

ANSWER:

I HAVE MADE enquiry from Dr. Cyril Wecht, the coroner of our district (he is a member of the Temple and a friend). I wanted to know whether the authorities, the coroner’s office or the hospitals, do not forewarn an undertaker if the body is dangerous to handle and whether, indeed, they do not deliver the body already sealed up in a casket and forbid the casket to be opened. If the latter is the case, then the question really never will arise. Dr. Wecht told me that there is no clear practice on the matter in our county, but he promised to write to the medical officers out west to find out whether dangerous bodies are not delivered with the warning that they are not to be handled at all. But assuming that there is no such legal warning or prohibition, then the question which is asked is a real one and must be considered.

One would have expected that there would be many such situations discussed in the law. After all, Jews lived in Europe during the great plagues which decimated the population. Among the Gentiles the bodies were just dragged away in carts, from house to house, and buried in mass graves. What did the Jews do with those Jews who died of the plague? Disappointingly enough, I have not found any reference in the legal literature to this specific situation. However, in general we have certain guide-lines.

First, it must be stated that burial is both a positive and a negative commandment (negative in the sense that it is forbidden to neglect to do so) and the duty of burial is incumbent upon all, not only the community but also the individual. If, for example, a man finds a body lying on the road, he must bury it then and there. Such a body is appropriately called Mayss Mitzvah. Even a priest, a Cohen, who may not defile himself with the dead, must defile himself to bury a Mayss Mitzvah. So, therefore, in general no communal burial society has the right to refuse to obey this Mitzvah; and in fact it would be correct to say that no Jewish undertaker, even though he is in a private business, has the right to sidestep the Mitzvah of burying the dead.

There are, however, some apparent exceptions to this general principle. The post-Talmudic compendium, Semachos, begins the second chapter by listing those with whose burial “we do not deal” (En Misaskin Bo) such as suicides, apostates, etc. But very early it was decided by Solomon ben Aderet, the great rabbi of Spain in his Responsum # 7 6 3, that the phrase, “we do not deal with them” means that we do not give them special honors or dignities, but we are still in duty bound to provide shrouds and to bury them. This principle becomes the adopted law, and all bodies, even of apostates and suicides, are buried. They may be buried without special honor; they may, as in some communities, be buried by the fence, away from the other dead, but the commandment is fulfilled and they are buried.

These dangerous bodies therefore must be buried, but need they be handled, say, for Tahara, the washing, or for embalming (which is, of course, against traditional law). As I have said, there is no clear statement about handling dangerous bodies (as in the time of the great plagues). There are plenty of precedents giving circumstances under which bodies need not be washed or handled. If a man is found murdered and blood is on his clothes, he is buried as he is, in his clothes. If a woman dies in childbirth and her body is bleeding, or blood-covered, she is not washed (see Responsa Maharil #65 and Yore Deah 364:4, Isserles). In other words, it is quite possible by these precedents to say that if it is dangerous to handle the body, it may be buried without the usual washing rites.

If some of the relatives would object and say that it is not to the honor of the dead if these usual rites are omitted, I call attention to an interesting responsum by Eliezer Deutsch of Bonyhad in his Dudoay Hasodeh, #26, in which an honored body was not given the usual treatment and he reassured the survivors. A body was to be transported from one town to another. The law in Hungary required that it be in a double coffin (perhaps this was a plague-body) and so in this double coffin the body was buried. The surviving son complained to Eliezer Deutsch that his father was thus deprived of the usual Jewish ritual of being buried in contact with the earth. Eliezer Deutsch answered him that the purpose of direct contact with the earth was to hasten the forgiveness of sin; and a righteous man such as his father was can be sure that his sin will be forgiven even without direct contact with the earth.

To sum up, the duty to bury the dead is a basic commandment and cannot be evaded. However, not to handle the dead, not to wash the body, etc., has many precedents in Jewish law; and even the burial in a completely closed coffin may under special circumstances be justified.