In Parashas Vayechi we are told of the deaths of Yaakov and of Yosef, with which the book of Bereishis concludes. The Torah tells us that following Egyptian custom, both Yaakov and Yosef were embalmed after their deaths. By using special processes, the Egyptians removed all moisture from the body, leaving only dry remains that did not easily decay.
In ancient Egypt, it seems that the dead were a part of the society of the living, and had a central role in the religious and ritual culture. Certainly, this is not the case in the Jewish tradition, which makes a clear separation between the graveyard and the Shul, the dead and the living. However, even in the Jewish tradition, respect for the dead is very important, and many halachos relate to this issue.
In the present article we will discuss halachic mandated respect for the dead. What does the mitzvah of respect for the dead entail? Is it permitted to relocate a grave, and under which circumstances? Is organ donation permitted? These questions, among others, are discussed below.
Sanctity of the Body
A basic belief in the Jewish tradition is that the body itself has a measure of sanctity. As the Chasam Sofer explains (Vol. 6, no. 10), it is not merely a vessel for the soul that would lose all worth after the soul departs, but rather it has inherent value that is retained even after death. The Gemara compares the body to a Sefer Torah, and one is required to tear his garments upon witnessing a death just like one must tear his clothes if he sees a Sefer Torah being burned (see Megillah 26b).
Based on this principle, any mutilation or damage to a dead body involves an offense to the sanctity of the body (see Shut Daas Cohen no. 199). Others write that injury of the body rejects the eternal soul, which experiences pain when the body is defiled (see Derashos Haran 7; Gesher Chaim Vol. 3, Chap. 5). The Minchas Yitzchak (Vol. 5, no. 9) writes that mutilation of the dead expresses disbelief in techiyas hameisim.
In case of disinterment of the dead corpse there is a different reason, because doing so causes the souls of the deceased to be filled with terror and trepidation (charada), since they believe they are being summoned to Divine judgment (see Taz and Shach 363:1).
Based on this explanation, Rav Dovid Oppenheimer (responsum printed at the end of Shut Chavas Yair) writes that the prohibition is of rabbinic nature. However, many authorities write that defilement of the dead is a Torah prohibition (as noted by the Beis Yosef, Yoreh De’ah 365; Raavad, Mo’ed Katan 8a; Noda Biyhuda, Yoreh De’ah 210; Chasam Sofer, Yoreh De’ah 336; among others).
The prohibition of nivul hames, mutilation of the dead, is mentioned by the Gemara (Bava Basra 154a), and is derived from several possible sources. One, already mentioned by the Midrash (Sifri, Ki Teitzei 221), is the mitzvah of burial, which will be discussed shortly. Based on the Ritvah (Makkos 7a), others note that the prohibition has its source in the mitzvah of loving one’s fellow.
The Mitzvah of Burial
A basic mitzvah that concerns respect for the deceased is the obligation to bury the dead. The source of this mitzvah is found in Parashas Ki-Setztei, and relates explicitly to respect for the dead: “Do not let his corpse remain on the stake overnight, but you must surely bury him the same day” (Devarim 21:23). A body must not be left out overnight, but must be buried as soon as possible.
Commenting on the verse, the Sifri thus writes that burying the dead constitutes a positive mitzvah. Even though the passage refers to harugei beis din, somebody put to death by a Torah court, the Mishnah extends the obligation to all people, stating: “They untie him [from the tree] immediately, and if they fail to do so a prohibition is violated…. Moreover, they said that whoever leaves his deceased [relative] overnight [without burial] violates a prohibition” (Sanhedrin 46a).
The Gemara derives the prohibition against leaving one’s relative unburied overnight from the clause in the verse mentioned above, “but you must surely bury him.” Later (46b), the Gemara writes that there is also a positive mitzvah involved: “Rabbi Yochanan said in the name of Rabbi Shimon Ben Yochai: Where is there an allusion to burial in the Torah? The verse says, ‘But you must surely bury him’—here is the allusion to burial in the Torah.”
The nature of this “allusion” is not entirely clear: Does it mean a mere allusion in the text (asmachta), rather than an actual Biblical source, or is there is a Biblical obligation of burial (see Ramban in his glosses to Sefer Ha-Mitzvos, shoresh 3)?
Although Rabbenu Chananel (Sanhedrin, loc. cit.) understands that the mitzvah of burial is rabbinic in nature, many maintain that burial is a Torah obligation, and different opinions of later authorities in this matter are cited by the Sedei Chemed (Kelalim, Kuf, no. 39).
The Rambam thus rules: “There is a positive mitzvah to bury all those executed by Beis Din on the day of execution… and not only those executed by Beis Din, but whoever leaves his deceased [relative] overnight violates a prohibition” (Sanhedrin 15:8).
Interment of Corpses
One of the basic halachic expressions of defiling the dead is the matter of disinterment—excavating and removing corpses from their graves, even for reburial elsewhere.
The Shulchan Aruch (Yoreh De’ah 363:1) rules that disinterment of remains is forbidden, stressing that the prohibition applies even if the corpse is being relocated to a grave that affords him greater honor. Added honor does not offset the damage of relocation itself. Rav Moshe Feinstein (Iggros Moshe, Yoreh De’ah 2:162) thus prohibited the relocation of a corpse to a local graveyard, even though this would enable family to visit (although some Poskim cite this consideration as grounds for leniency; see Shut Seridei Eish, Vol. 2, no. 100, for a lengthy discussion of the matter).
It is noteworthy that according to the Noda Biyhuda (Yoreh Deah Kama 89) the prohibition of disinterring from a grave applies only to remains that include flesh but not to bones alone (see also Gesher Hachaim Chap. 26, 1:10).
Most authorities, however, do not accept this distinction, as the Yerushalmi (Mo’ed Katan 2:4) states, “one may not exhume the dead and the bones.” Moreover, as Rabbi Waldenberg notes (Shut Tzitz Eliezer), even the Noda Biyhuda does not give a general permit to disinter bones, and only permits doing so under extenuating circumstances, and under threat of severe desecration.
Exceptions to the Rule
Several exceptions to the prohibition are mentioned by the Shulchan Aruch (Yoreh De’ah 363:1). It is permitted to excavate and remove remains for the following reasons:
- If they were buried there without the permission of the landowner. Under such circumstances, it is a mitzvah to do so (see also Birkei Yosef 363).
- If the grave and remains are likely to be damaged by water or sewage backups, by vandalism, and so on, and there are no alternatives to removal that could solve the problem. This was the reason given by Rav Ovadyah Yosef (Yalkut Yosef, Aveilus 32:9) concerning relocating graves in territories that were returned to Egypt under the Camp David accords.
- If the person was buried in one place with the specific intention of later removing his remains to a different site.
- If the remains are being relocated to the Land of Israel, or to the family burial plot (kever avos). See Iggros Moshe (Yoreh De’ah 3, no. 153), who writes that decisions on relocation of a grave can only be taken by the children of the deceased, and not by the general Jewish community.
Another reason for permitting the relocation of a grave is when the current position causes damage to other graves (see Eretz Chaim, Yoreh De’ah 364).
The Shulchan Aruch (Yoreh De’ah 364:5) further rules that a grave that causes damage to the public may be removed, even if the burial took place with the consent of the owner of the property.
We learn from this halachah that the imperatives of kevod hameis yield when they unduly impact the rights of the public to access and use of the property. Rav Moshe Feinstein (Shut Iggros Moshe, Yoreh De’ah 3, no. 151) writes that there is room to distinguish between a single grave and an entire cemetery. However, most authorities specify that the law permitting relocation applies not only to a single grave, but even to an entire cemetery (Rav David Oppenheim, cited in end of Shut Chavos Yeir; Shut Rabbi Akiva Eiger, no. 45).
The application of this halachah will depend on how we define damage to the public, and this depends on the particular circumstances and the approach of the specific Posek involved.
Organ Donations from the Dead
Based on the principles of defilement of the dead, it is generally forbidden to dissect corpses or perform autopsies, which are considered a desecration of the dead. Yet, like other Torah prohibitions, these will also yield when their violation can save a life. (See Noda Biyhuda, Tinyana, Yoreh De’ah 210; Chatam Sofer, Yoreh De’ah no. 336; Chazon Ish, Ohalos 22:32; Shut Iggerot Moshe, Yoreh De’ah Vol. 2, no. 174; Shut Yabia Omer, Vol. 3, Yoreh De’ah 23. A minority opinion states that one may not use the dead to save lives, since a dead person is not obligated in mitzvos.)
One question is what falls under the category of saving a life.
Anatomical experimentation, or “leaving one’s body to science,” does not qualify as pikuach nefesh. Research might eventually save lives, but this is not immediate or direct enough to have any halachic effect. The Noda Biyehuda rules that we require a choleh lefaneinu—that the person in danger be in front of us, and at the very least there needs to be a strong probability that the organ will be used for a specific ill person who requires it, and not for research or other general use (see Avraham Steinberg, Encyclopedia Hilchatit Refuit 2 (5751) 191-243).
Does the permission to use organs for the sake of pikuach nefesh obligate a person to authorize the removal of his organs after his death? Does the family have an obligation to use organs without the decedent’s consent, or even over his objection? And which conditions are considered pikuach nefesh? These are great questions, that we cannot expand upon here. Please G-d we will discuss them in the future.