Circumcision of Dead Child

An infant boy died a day after his birth. The rabbi in structed the family that no mourning is required for any child under thirty days of life. This the family accepted, but the grandmother of the infant was told by a friend that it is necessary for the dead child to be circumcised. The young couple, disturbed at this suggestion, wanted to know what to do, and to what extent this custom is an established one in Orthodox law, and to what extent it should be followed by a family belonging to a Reform congregation.

The circumcision of a dead infant at the graveside is mentioned in the Shulchan Aruch (Yore Deah 263 : 5). The statement reads as follows: “A child who dies before it reaches the age of eight days is circumcised with a stone or a reed and we do not recite the blessing over the circumcision; but we give him a name that he may receive mercy from Heaven and revive at the resurrection of the dead.”

This seems like a definite statement of law. Nevertheless, it is noteworthy that no blessing is to be recited over this circumcision, which in itself indicates that this is not a mandatory circumcision. Furthermore, Isserles in his gloss to this passage warns that this circumcision should not be done on the second day of the holidays for this reason: Any Jew who lives longer than thirty days may be buried by Jews on the second day of the holidays. It is highly questionable in the law whether a child who lived less than thirty days is required to be buried, that is, whether burial is a mitzvah with regard to him. There fore the second day of the holidays should not be violated because of such a dubious case. The statement in the Shulchan Aruch comes from the Tur (same reference), where Asher ben Yehiel quotes “a Gaon” who says if a child dies before the age of eight days, we have the custom to circumcise him at the grave. Asher ben Yehiel, the father of the author of the Tur, in his compendium to the Talmud (to Moed Katan, chap. 3, end of sec. 88), quotes the Gaon as Rav Nachshon; and so he is quoted by name in other sources. It is he, therefore, who records this as a custom, and it is probably due to his statement that it has found its way into the literature.

How much status does this custom have in the law? To what extent is it a firmly established custom that has the force of law? In the first place, it is noteworthy that Meir Ha-Kohen (Hagahos Maimonioth) to Yad Hil. Milah (chap. 1) says: “As for the custom to remove the child’s foreskin, this is not a custom firmly founded in the law and, therefore, we do not do so on the second day of holidays.” In fact, Maimonides does not mention the custom at all.

A more directly negative opinion of this custom is given in a responsum of Rashi, who definitely opposes it. The responsum is given in Or Zaruah Hil. Milah #104. The author of Or Zaruah, Isaac of Vienna, says that Rashi received an inquiry from some scholars in the city of Rome, asking whether a child who dies before its eighth day should be circumcised at the grave. Rashi answers: “I know that it is the custom of our women to do so, but this is not a mitzvah.” He gives the following reason for its not being a mitzvah: “It is a principle of Talmudic law that the dead are no longer obligated to fulfill the Commandments” (Mays Chofshi Min Ha-Mitzvos, b. Shabbas 30a). The mitzvah of circumcision is not incumbent until the eighth day of life. The child being dead by the time the mitzvah would be incumbent upon him, there is no mitzvah to circumcise.

After this legal argument Rashi moves on to a more homiletic argument, based on the Midrash. Bereshis Rabba (48 : 8), on the text, “And Abraham was seated at the door of his tent,” says that in the future our father Abraham shall be sitting at the door of Gehenna in order to keep out of it all who are circumcised. But if circumcised men come who have sinned so much that they should enter Gehenna, Father Abraham takes the foreskins from the uncircumcised children and places them upon these sinners, so that thus being made uncircumcised, they enter Gehenna. Now, Rashi argues, if all infants were circumcised at the grave, how could Abraham use their foreskins for the purpose described? Evidently, he says, this circumcision of infants is not to be done. Then Isaac of Vienna contin ues: “And my teacher Simcha gave a similar responsum, namely, that even on weekdays [i.e., to say nothing of holidays] it is not a well-grounded custom to circumcise stillborn children, and this is clear from the account in the Midrash.”

Later development of the question goes into detailed discussion as to whether in case this circumcision has been neglected and the child buried uncircumcised, the grave should be reopened for that purpose (see Kenesses Ezekiel #44), and also whether if the child was bom circumcised, a drop of blood of the covenant should be taken (Vayitzbor Yosef #26).

It is clear that there is only one source for the custom, namely, the Gaon Nachshon, who suggests that this is done for the benefit of the child. The statement of the Gaon makes it clear that this is only a custom, not a law. And the Midrash leads, as it did with Rashi, to the conclusion that the custom should not be followed. The leading halachist of the Spanish school, Maimonides, does not even mention it, and Rashi of the Franco-German school definitely opposes it.

I suggest, therefore, that the rabbi do nothing to encourage this sad and heartbreaking custom.