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Shabbat Parashat Mishaptim | 5768

Autopsies – part I

Moreshet Shaul (from the works of Hagaon Harav Shaul Yisraeli zt”l)

Autopsies – part I

(condensed from Amud Hay’mimi, siman 34)

[There are three issues that need to be discussed in regard to the permissibility of autopsies: halanat hamet (delaying a burial); leaving certain body parts out of burial; nivul hamet (disgracing the deceased). We will start with halanat hamet.]

The gemara (Sanhedrin 46b) was unsure if we should follow one’s instructions not to bury him after his death. The Rambam (Avel 12:1) rules not to listen because of the mitzva of “you shall certainly bury him.” Therefore, one’s agreement to “donate his body to science” in a manner that he will never be buried is invalid unless there was a need of pikuach nefesh (to save a life), a topic we will not discuss in this treatment. We just note that it is rare for there to be a real need to use the body for pikuach nefesh on an ongoing manner that precludes eventual burial.

The question is whether one can give his permission to delay his burial for a few days, thereby impinging on the prohibition of halanat hamet (see Sanhedrin 46b; Rambam, Sanhedrin 15:8; Shulchan Aruch, Yoreh Deah 357:1). We have not found explicitly in the Talmud that the deceased’s permission does not work in regard to delay. To the contrary, one may delay burial for the deceased’s honor (gemara and Rambam, ibid.). However, that is not a proof, because since halanat hamet is a problem of disgrace, there is no issue when it is for his honor, but it is likely to apply when there is disgrace that the deceased agreed to allow. Even regarding burial, Tosafot (Sanhedrin 46b) says that if it were only a matter of his own disgrace, we would follow the deceased’s request, and the problem is the disgrace of the family.

At first glance, the gemara equates between no burial and halanat hamet. [While skipping much of the textual analysis], the Rambam seems to distinguish between the two. Regarding halanat hamet, the main prohibition applies to one who was executed and is hanging from a tree, whereas the mitzva to bury him applies in any case. Regarding regular people, halanat hamet applies in any case. It is likely that regarding the executed, only the problem of disgracing Hashem exists, whereas regarding other people there is also a problem of any type of disgrace, including to the deceased himself. Actually the fact that the gemara discusses regarding burial disgrace to the family implies that non-burial is not a problem of disgracing Hashem.

It seems [again, omitting the textual analysis] that Tosafot holds that the disgrace involved in non-burial is predicated on the fact that there is a mitzva to bury, in which case to refrain from doing so is a disgraceful change from protocol. It is indeed not clear to the gemara whether the general law of burial is because of atonement or because of disgrace, but after it exists, unusual halanat hamet is certainly a matter of disgracing the deceased. If so, while one may not refuse to forgo burial, he can allow halanat hamet, which applies to him.

Based on an inference made by the Ohr Sameiach, we should distinguish between two levels of urgency to bury. The Torah talks about burying “on that day” (Devarim 21:23), apparently both in regard to the mitzva to bury and the aveira to leave unburied. However, when the burial was already delayed for the deceased’s honor, the explicit mitzva no longer applies, but he still must be buried when appropriate. We may claim that the inability to refuse burial applies only to long-term non-burial, which is a general matter. In contrast, the mitzva that normally mandates burial to be done immediately would be governed by the same rule as the prohibition to delay, which is up to the honor of the deceased and may be waived. However, the language of the Rambam does not seem to indicate this to be the case. Rather, he says that all elements of improperly refraining from burial are governed by the rule that the deceased’s instructions do not remove the obligations.

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Hemdat Yamim Mishpatim 5768
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Hemdat Yamim Mishpatim 5768