TRANSFER OF JEW TO CHRISTIAN CEMETERY

A Jewish man was married to a Catholic woman, who remained a Catholic. They have a child who has been raised as a Catholic and is a Catholic. The man died a number of years ago and he was buried in the Jewish cemetery in the plot of his family. His Catholic widow lives in a suburb. She is considering asking permission to have the body of her Jewish husband disinterred from his family plot in the Jewish cemetery, in order to have him buried in a Catholic cemetery in the neighborhood in which she lives. Is such disinterment permissible in Jewish law or custom? (From Vigdor W. Kavaler, Pittsburgh, Pennsylvania.)

THE laws of the Commonwealth of Pennsylvania (and possibly of other states also) give to a widow the right to determine in which cemetery her husband should be buried. This widow, four years ago, had decided that her husband, being Jewish, should be buried as a Jew in the Jewish cemetery and in the plot of his family in that cemetery. Now she has changed her mind and is thinking of having his body disinterred and reburied in a Catholic cemetery. Upon inquiry from a prominent lawyer, I have ascertained that the law is as yet not quite clear as to whether this legal right of a widow to determine the cemetery in which her husband should be buried is her lifelong right and that, therefore, she may decide to disinter him and move him as often as she pleases; or whether, on the other hand, having once exercised her right at the time of his death and having buried him in one place, her authority over the body has now ceased. Whichever way the law is, or will be decided at some later time, it is certain that the courts will take into consideration the regulations and laws of the cemetery in which he is now buried. The following recent court decision in Pennsylvania makes clear the necessity for a statement of Jewish law and tradition in the matter:

1. The rights of the surviving spouse and next of kin to control the disposition of the remains of the members of their family have been recognized in this Commonwealth. The paramount right is in the surviving husband or widow.

2. The reinterment involving the removal of the body to another locality is based upon a different rule of law, wherein the presumption is against a change or removal and will be permitted only in rare circumstances. It is a privilege to be accorded by a Court of Equity in the exercise of a sound and wise discretion.

The interest of the public is expressed in its public policy and the presumption is against removal.

3. Where restrictions are present, the court will give them due weight when not violative of the civil law.

It is therefore with regard to the regulations and laws of the Jewish cemetery that the following answer is directed. As a general principle, Jewish law and custom strongly object to any disinterment at all. The body, once buried, must be left undisturbed. This is clear in the Shulchan Aruch, Yore Deah 363, which is headed: “The prohibition of removing the dead or his bones from their place.” The first paragraph states the law as follows: “We may not move the dead or the bones, neither from one honored grave to another, nor even from a less honored grave to a more honored grave, and certainly not from an honored grave to a less honored grave.” The basic objection is, however, modified by certain special exceptions. If, for example, the body has been buried in one cemetery with the clearly announced intention of later removing it to another cemetery, such disinterment would be permitted. Or it is permitted to move the body to a grave in the plot where his family is buried if the body had been buried in a separate grave, as the Shulchan Aruch says, “It is pleasing to a man to rest with his ancestors.” It is also permitted to move a body if it is now in some neglected place where the body might carelessly be disturbed. Such a body may be disinterred in order to be moved to a cemetery which is protected. It is always permitted to disinter a body in order to rebury it in the sacred soil of Palestine. Likewise, the great authority, Z’vi Ashkenazi, cited in the Pis-che Teshuva to this passage, declares that it is to the honor of the dead to be disinterred from a Gentile cemetery to a Jewish cemetery.

All these are specific exceptions to the firm general principle forbidding disinterment. Certainly, since it is deemed an honor for a Jew to be buried in a Jewish cemetery, it would not be permissible to remove him from a Jewish cemetery in order to be buried in a Gentile cemetery. Furthermore, since it is particularly “honorable” in a Jewish cemetery for a man “to rest with his fathers,” and since this man is already buried in the family plot “with his fathers,” it is certainly prohibited to disinter him, even to rebury him in some other Jewish cemetery. Therefore the request of the widow to move her husband from the family plot to a Christian cemetery is contrary both to the spirit and the letter of Jewish law and custom and cannot be permitted.