Shabbat Parashat Tetzaveh | 5768

Autopsies – part III

Moreshet Shaul

Autopsies – part III

(condensed from Amud Hay’mimi, siman 34)

[There are three issues that need to be discussed in regard to the possibility of performing autopsies: halanat hamet (delaying a burial); leaving certain body parts out of burial; nivul hamet (disgracing the deceased). After concluding that based on the Rambam, we should not accept one’s permission to delay his funeral, we continue with the issue of not burying all parts.]

The Mishneh Lamelech says that there is no mitzva of burial on a k’zayit (olive-size piece) of a body. Rather the mitzva refers to the head and majority of the body. The Ohr Hameir says that this is so only when the body will be buried in parts, but if the body as a whole is being buried, every part of it must be included. The Gesher Hachayim (I, 16:2) also says that if one finds a limb or a k’zayit of flesh of a body that was one buried, he must bury that as well.

This approach is not compatible with the Mishneh Lamelech, as is clear from his context that regarding a small piece of the body that is beyond the head and the majority of the body that was slated for burial, there is no obligation. This is also the Bach’s opinion. The Mishneh Lamelech does acknowledge that according to the Tosafot Yom Tov, one must bury even a k’zayit. However, it appears from the Tosafot Yom Tov’s context that the reason to bury a small part of the deceased is not the mitzva of burial but the prohibition to receive benefit from a deceased’s body along with the rule to bury things from which it is forbidden to benefit.

There is another possible explanation of the Mishneh Lamelech, which we will present after the following introduction. Chazal’s outlook on the standard burial is strange, as if one carries out the body to the public domain on Shabbat it is not considered a full violation of Shabbat but a melacha she’eina tzricha l’gufa (an action that does not produce the classic positive result associated with the form of work). The Meiri wonders why this should be, considering that the mitzva to bury should make the carrying a positive melacha. One possible answer to his question is that the positive mitzva is only on the first day and that the mishna is talking about after that point. It is more likely to answer that the positive mitzva is only for those that were executed or that the mitzva of burial will anyway not be able to be done even for a met mitzva (one with no one to bury him) on Shabbat. The only thing that compels the burial is the negative commandment of bal talin (not to leave the body over) but that is not considered a positive thing but rather the removal of a negative one.

If this is so then we can similarly say that the Tosafot Yom Tov is correct that there is a need to bury even a k’zayit of the body. The Yerushalmi that indicates that the mitzva is only for the head and majority of the body is talking about the positive mitzva, which applies to the person as a whole. Regarding the negative commandment, we lack a limiting phrase to eliminate smaller parts of the body and thus practically these pieces must be buried.

While the above explanation of the Tosafot Yom Tov is plausible, the Tosafot Yom Tov probably does not distinguish between the positive and the negative. In any case, it makes more sense to accept the Mishneh Lamelech’s simple meaning that the mitzva does not exist on small pieces despite the possibility that the Tosafot Yom Tov argues. We will thus assume that there is no mitzva to bury small parts that might be removed during an autopsy. Although they would eventually need to be buried because it is forbidden to benefit from them, as long as the parts are monitored during their use for medical research for a set time, we need not fear that they will be misused. Thus, the status of the individual piece is not the reason to forbid an autopsy.

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