Rav Avi: Welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times. I'm Rabbi Avi Killip, here with Rabbi Ethan Tucker, Rosh Yeshiva of Mechon Hadar, a center for higher Jewish learning based in New York City. How are you doing today?
Rav Eitan: Good, I'm doing great.
Rav Avi: So this question starts, "I'm seeking advice on a family matter." And I think that's so important, that it's not just a halakhic question in a vacuum, that this question, like so many questions, is really a family matter question, as family and halakhah interface. They ask: "My great uncle is, thank G-d, nearly 96. He's an avowed, lifelong atheist. I hope he lives to 120, but his health has been in serious decline for the last six years. Every time we visit him, his longtime girlfriend brings up the topic of his body after death. He has insisted that his body be donated to science, and that he be cremated regardless. His partner wants to respect his wishes. We've tried multiple times to explain that Judaism prohibits it, and that we could not in good conscience arrange it. She has found a rabbi who does cremations. If we don't offer our own plan for his cremation, she will proceed with that rabbi. We love and respect him, and would be honored to organize a proper funeral and burial. Indeed, we would readily betray his request, were it not for his girlfriend's insistence that we honor it. We are almost certain she will interfere with our hopes to bury him. What should we do?" So there are a lot of different components here to explore.
Rav Eitan: Yeah, it's a very tough question, and I will just say that we'll go into the details of kind of what the sources have said about this over time, but it's a very difficult position to be in, and I think obviously like with any, you know, on a podcast like this, it's very hard to know just from this all the relationship dynamics, who actually holds the power here, and really has the final say on the burial, and all the other things that may play out of this. My instinct is that to the extent the questioner's bringing this, they're feeling somewhat disempowered in terms of the final result here, and there's probably an appropriate kind of lowering of the temperature of, you can't overly stress out about controlling situations that you are not in control of. That said, I think let's try to explore this with the presumption of two things, which you can't always presume. One, that the person does have some degree of control and influence to direct this, and the second, that the various parties are really acting in good faith here.
Rav Avi: Well, I'm curious to hear -- you know, you're right in saying we don't know who has control. I'm curious to hear also who you think should have control here, especially in terms of whether the person whose body it is is the one who should have control versus halakhically observant loved ones who are left behind. Whose observance level should be the determining factor here? You know, whose responsibility is this? Whose decision is this? Even if it's not a matter of between the girlfriend and the family, even if it's a matter of between the individual whose body we're talking about and people who are left behind.
Rav Eitan: That's right. So that's much more, I think, at the heart of what we can talk about in kind of more general terms. And I will say, even though we're gonna kind of move away from this in some of the discussion, you know, the instinct to try to find a way to honor the wishes of the persons who's departing, that is a, not just a reasonable but a hallowed in Jewish tradition instinct, which is the notion that then someone dies and they ask you to do something after their death, that is in general something that you try to honor. That said, when even the living ask us to do something that, you know, contradicts some core Jewish value, core principle of the Torah, that's the limit on which one person can ask someone else to dos something -- the most famous case of that even being texts that talk about that with one's parents, you know, or one's parents directly order one to contravene something in the Torah, you kind of reach the limit between the filial obligation as opposed to the religious integrity.
So, we'll -- let's jump into this, of sort of what the issue is, but I want to say that irrespective of how one understands all the details of this, I think you can read the fact pattern we've been presented with here as something where the different parties are all acting in good faith and trying to figure out what's the right thing to do. So, let's start out with just burial versus cremation. And even burial versus non-burial -- like, why is burial important? Is it so critical, and if it is so critical, why? So, you have a passage in the Torah, in the Book of Devarim, that talks about someone who has been hung for some kind of crime, some kind of offense that they committed that was a capital offense, and the Torah there says you must bring their body down off the tree, off the gallows, do not leave it there overnight, ki kavor titkbarenu bayom hahu, you must bury them, bury them that day.
And that sort of emphatic statement, even in the case of a tried, convicted, and hung criminal, is understood to kind of articulate this general obligation to bury people, that what you're supposed to do when someone dies is to put them in the ground. But what is very unclear about that, aside from its cultural context and all kinds of other anthropological questions we should ask, is is this a protected prerogative of each person, or a universal mandate? Meaning, when the Torah says hey, you have to make sure to bury that person, is that because every person has a right to be buried no matter who they are, no matter how big a criminal they are, or is there some notion there of we should never not bury a human body? You know, it has nothing to do with the rights of that person, but it's something about our culture and our society and a statement about human dignity. And of course, how does one, you know, what would be the practical difference between those two theoretical bases? It would be the case which the Talmud raises of someone who says, don't bury me. Al tikbareni. Right? When the person themself says I don't want to be buried, how do we think about what the normal obligation to bury is?
And the Talmud lays out a very clear dichotomy. It says your answer to that question is going to hinge on whether burial is out of concern for bizayon, for some sort of inappropriate, disrespectful treatment of the body, or whether it is out of concern for kaparah, for giving the person who dies some sort of atonement through being returned to the ground. Now, the Talmud says in a very straightforward way, if it's about disrespect for the body, then it's not up to the person themselves. You know? Then the person can say all they want, don't bury me -- the ritual of burial is not about them; it is about some notion of the dignity of human beings being buried, whereas if it's about kaparah, it's sort of a rite of atonement, a person certainly has the right to say I'm not interested in being atoned through that rite, and therefore you would listen to them and not bury them if they requested that.
Now, the amazing thing about this is the Talmud does not resolve it. It simply leaves the question open, and that then leads the Ramban in the Middle Ages, who's trying to codify this unresolved text, to say, well, therefore since there is a doubtful prohibition here, meaning it's possible that we have a Biblical-level prohibition here -- we're not sure, because it might be a person's right to waive it, but it might not be -- therefore you have to bury everyone out of doubt, because you have to be strict in following the law here, and he says and in particular we define bizayon for these purposes, when we think about the sort of disgrace of the body, we don't think of that as just, well, it'll be disgraceful for his family and relatives, you know, such that they could say, well, our whole family doesn't mind if he's not buried; he reads it as being a kind of disgrace to all humanity when you leave any human body unburied, and he says and therefore you coercively bury people even against their wishes, because of that sort of universal human dignity concern.
Rav Avi: Yeah. So, immediately I want to think of that definition of that word "bizayon" and wonder, is that about being buried in the way that we do burial, or is that about, like, don't leave bodies rotting on the ground, or rotting, you know, hanging somewhere? And, you know, raise a distinction of cremation being not quite the same thing as a total disrespect for or abandonment of a body. Maybe it's worse, but maybe it's less bad.
Rav Eitan: Yeah. So, this is spot-on, because one of the things -- it's hard to know directly, but one of the things that seems to deeply influence the Talmudic passage here, which is in the Babylonian Talmud in the context of Zoroastrian Sasanian Persia is the way the Zoroastrians disposed of their bodies and still do in many areas today is what's called sky burial, where literally what you would do is you would leave bodies exposed on a hilltop and vultures would come and eat the flesh, and they thereby would return -- it's probably the most ecological method of burial -- they would return them to the food chain, they would go back into sort of the cycle of energy of life, but I think there's no question that the kind of Talmudic horror at lack of burial is imagining the alternative being this kind of leaving a corpse out to simply be consumed.
I will say, I can't resist just as long as we're talking about this, one of the tragic elements of kind of the modern ecological imbalance that we are in in many ways is I've read in recent years' articles about the crisis in Zoroastrian burial rites of finding vultures who are able to in fact consume the remains of a human body and stay alive because the human body is now so full of toxins that it is literally poison to actually have birds of prey come and eat the flesh off the bodies. And so you have this sort of, you know, it's almost like fantastical, right, like effort to figure out how could we import, you know, vultures who are healthy enough who can stay alive. But it sort of shows you, in a very graphic way, that I think yes, you are right, what Chazal, what our sages were imagining is the alternative here was not cremation, but a very different form of burial than what we imagine.
Rav Avi: I think also your comment about the toxins brings us to the point of, you know, when you think of something as natural versus unnatural, that in a modern world we have to really ask ourselves a lot of questions about what falls into what category. It's not maybe as obvious as it seems.
Rav Eitan: Good. Okay. So, let's pick up, I think, on where you're pushing us, which is, okay, let's say there's this pretty clear line that you have to not be left out on a hilltop, and in that sense buried. The question is, though, cremation. Right? How do we think about that? And I think here I want to just pause, which is I think people are used to, in the Jewish community, hearing about this topic, to hear a kind of level of outrage about the notion of cremation being completely unacceptable that's not quite commensurate with the Ramban's saying you have to bury someone because it's, like, maybe a Biblical prohibition, and so to be strict you have to bury the person. Right? That sounds more like it's a sort of hedging bets, and being strict, as opposed to some core principle of, oh my G-d, you would never do anything other than put a body straight in the ground. So where does it come from, right? Like, are there other bases for objection to cremation that we can identify from the tradition?
Rav Avi: Yeah, I've even heard people say an idea which feels very extreme to me of if someone is cremated, you shouldn't say kaddish for them.
Rav Eitan: Good. So, we'll get to where that comes from, why I think that is not and should not be applicable certainly in this case, and in most cases today. But let's start just first with -- where does this come from? Like, what's the basis for the objection to cremation? Now, I'll be honest with you, it's a little bit hard to find the sources that are directly spot-on on this point. Let me start counterintuitively with some of the evidence that potentially legitimates cremation, or at least presents it as something neutral.
If you go back to the Bible, you look at Shmuel Aleph, the first book of Samuel, there is a story there told that there seems to be nothing remarkable about, of the people of Yavesh Gilad who live on the eastern side of the Jordan sneaking over to Beit Sha'an, where Shaul, King Saul, has been impaled on a pike on the wall and his body is being held by the Philistines. And they sneak in in the middle of the night and they take his body and they burn it. And then they bury the remains. And just seems like, okay, that seems to be something that people did. You then have the Book of Amos, which has a passage which also seems like it might refer to cremation without any objection. Those are Biblical passages, it's hard to know what to make of them.
But the most provocative passage is one in the Rashba, in the Middle Ages, where he rules that you're allowed to transport a body from where it died to a preferred burial spot if the deceased gave a very specific command during his lifetime that he wanted to be buried in his ancestral plot in another town in order to fulfill his wishes. So even though the normal thing to do so the body doesn't decay is just to bury it, if there was a very specific command given, hey, don't bury me here, I want to be buried there, that's okay. Of course, our Biblical antecedent of that is Yaakov, where he says, right, al natikbareni b'mitzrayim, don't bury me in Egypt, I want to go back with my ancestors. So the Rashba says that's okay.
Rav Avi: And that's something that feels like it comes up a lot today.
Rav Eitan: That's right. People -- we of course now have all sorts of modes of refrigeration and preserving the body that make it much less of an issue than it was in the Rashba's time. Rashba is essentially authorizing going on, you know, a two, three-week journey without refrigeration to a faraway place, and therefore he authorizes something else which is very surprising. He says you can add things to the body to hasten its decay, including a certain kind of acidic substance that essentially burns away the flesh. And he even uses that language of basically burning off the flesh so that it won't rot on the way, and when you get there, you'll bury the bones. Right? Now that actually seems to be like an authorization for at least a certain degree of actively burning the body or having it decay before it is put in the ground.
And question is, how does that sort of play in with our question? You see a continuation of that in Rabbi Yaakov Reisher in the modern period, who was dealing with a health regulation in the wake of an outbreak of the bubonic plague where there was a general government regulation that said when someone dies of the plague, you either need to bury it in the forest, bury the body out in the forest away from where people live, or they required applying a chemical to the corpse that would basically consume the flesh and leave only the bones behind. Similar to what the Rashba was talking about doing electively. And Rav Reisher says better you should put that decay agent that really burns up the flesh on the body in order to be able to bury the bones in the Jewish cemetery in town, rather than force this person to just be dumped in a grave in the middle of the forest.
Rav Avi: There's something else that's parallel between those sources you're describing, and I think what some people, what motivates some people today to want to be cremated, which is that for many people, I think it's like, well that's the practical thing to do, or the fact that these, this chemical is being used not because there's some ritual reason why that chemical's better but because it seems logistically helpful, and I think that there is a certain strain of people who think, well, it would just be more practical to cremate. It would be easier, it would be less complicated.
Rav Eitan: Yeah. I think that there are a lot of motivations here, and I wanted just to start with this to sort of show, yeah, you can see how there might be a number of different sources here that make it quite unclear, right, why this is the worst possible issue in the world. And actually harking back to our language in the Talmud, there's even a passage in the Magen Avraham, who when he's talking about what you do and don't save from a fire that breaks out on shabbat, he says, you know,when you're choosing between, like a sefer Torah and a dead body and all sorts of other choices that you might make, you don't necessarily save, prioritize saving the dead body from the fire on shabbat because the burning of a corpse is not necessarily such a bizayon. Okay? So that language is exactly what we talked about as the reason you're supposed to bury, is that not burying is a bizayon; the Magen Avraham's not talking about burial law here, I'm not in any way suggesting he permits cremation, but just to sort of show you, he doesn't necessarily think that that's the biggest indignity that could happen to the body. So so far we don't have a good handle on why this would be problematic.
Rav Avi: Yeah, it's interesting. So you've given us a lot of sources in the other direction, but where's the problem come from?
Rav Eitan: So let's go the other way. There are some sources in the Tanakh that may point in a problematic direction: Amos the prophet seems to single out the nation of Moav for doing a horrendous act of burning the bones of the king of Edom. And that suggests that there is some barbarity here to burning someone's bones. If you remember, the earlier sources that we just talked about maybe didn't think much of or maybe even legitimated various acts of burning or applying of acid that consumed the flesh, but all those cases left the bones intact.
I want to come back to that. There may be some notion here in Amos of the bone-burning being particularly barbarous. It's interesting that Divrei Hayamim, which retells a lot of the earlier stories in the books of Samuel and Kings, right, the book of Divrei Hayamim, Chronicles, when it tells the story of Shaul and the people of Yavesh Gilad, it removes all reference to the burning; it just says the took his body. It's hard to know, does that reflect a kind of later retelling of feeling like hey, you know, we don't do that? Hard to know. And there's another cryptic source in the Yerushalmi that says if someone on their deathbed says burn me, sarfuni, we ignore them. That sounds like it's a black-on-white source.
The problem is, scholars are very uncertain as to whether "sarfuni" actually means "burn my body," or whether it means something the Yerushalmi thought of as an idolatrous rite that involved fire or, you know, somehow having a certain kind of procession. So it's not a hundred percent clear that that's a precedent either. The real opposition to this comes comes up essentially in modern times. The most passionate and thorough responsum on this is offered by Rav Dovid Tzvi Hoffman in Melamed Lehoyil, who was in the late 19th century, early 20th century Germany. And it comes up when essentially Jews are in an environment where more and more of their gentile neighbors are cremated, which had not been the case in most of earlier history. Right? Like, Christian burial in the Middle Ages was done by putting the body in the ground. It's only with the modern period that you start to get cremation as a significant mode of doing things. And Rav Dovid Tzvi Hoffman essentially doubles down on this angle I said of, are the bones kept alive? Right, he says yeah -- sorry, "alive" is the wrong word there. Are the bones kept intact, are the bones intact so that you can bury them? Right, he deflects the Rashba in the case of the corpse decaying agent, he says, but the bones are buried at the end. And he makes a kind of a compelling case, I think, that it's burning the bones that's perhaps the core problem here beyond the burning of the flesh.
And I think there's two dimensions here. There's clearly one aspect here where there's a very long tradition of burning the bones, Talmudic sources talk about that, it is, you know, burying the bones and the body along with it is just sort of the Jewish way of doing it, and Rav Dovid Tzvi Hoffman, living in modernity, is very concerned about Jews just sort of imitating the gentile practices and losing their own distinctive way of doing it. But I think there's another piece here, that even though he doesn't make explicit, is also animating him, which is there's something about making the body entirely disappear into ash at the hands of people that goes contrary to a culture that is constantly trying to avoid hastening death -- that's one point -- and that is so deeply embodied, Jewish tradition is sort of so focused on the body and the body as a vehicle for mitzvot, the kind of wholesale destruction and elimination of any residue of the body both goes contrary to that notion of the body being something central and again, against this notion that our goal is to try to keep people alive, and there is something about simply taking the dead body, putting it in the ground, and letting nature and G-d, as it were, do its work with it that I think is also part of the deep cultural resistance that Rav Dovid Tzvi Hoffman has to cremation. That's my sense.
Rav Avi: Right. I -- so I think all of that makes a lot of sense to me in terms of, you know, when we say why do people have such strong reactions to thinking, well, cremation, that's the worst possible thing you could do, when from the sources it just doesn't seem that bad, that the visceral response is kind of what you're describing, of, well, it seems counter to everything we're working towards to obliterate a human body when we've just spent an entire lifetime trying to protect and uphold and treat it as holy. And I think in our modern times, or at least in post-Holocaust time, that the Holocaust and the knowledge that bodies were burned, that our ancestors, our family members' bodies were burned, plays a large role in the visceral response of, well I don't care if that's what you want; I won't be doing that. That's not something I would ever do. I'm curious if you've seen things written about that specifically the idea of cremation in a post-Holocaust context.
Rav Eitan: That's for sure. There's no question about that. As the grandchild of survivors, I would say that resonates for me as well, though I will say that I think that's ultimately a shorter-lived instinct, both in terms of how long it's been around and how long it's likely to be around. It's very visceral right now -- to the extent it has staying power, it will be because the Holocaust represented the greatest affront in recent memory to the notion of human dignity and to the notion, on some level, that each and every human being in their body as well as just in their spirit is created in the image of G-d. And this is beyond what Rav Dovid Tzvi Hoffman says, but I think there is a deep truth to this, which is that if you really want to create a culture where you think that every human being with their body as it is -- disabled, whole, challenged in this way or that -- nonetheless represents in a kind of visual way, G-d and the presence of G-d on earth.
Let's go back to that first verse that I started with: why is it that the criminal has to be buried in the ground and not left to hang on a tree? Because when you have a body hanging on the tree, it curses G-d, and the midrash on that says quite powerfully that people will walk by and see that tzelem elohim, see the image of G-d hanging on the tree, and realize that this person is a criminal, and essentially by cursing that person who's hanging up there, they'll be cursing G-d. Because on some level, every human face, every human body is in its physical sense the image of G-d. And I think part of the resistance to active forms of destroying the body in its entirety is also a theological claim, which is that there's something actually deeply sacred about the human body, and we don't, for the most part, take sacred things and burn them into ashes beyond any recognizable remnant, you know, of what they were.
I think to me this is actually a great example of where cultures sometimes speak louder than laws. If you try to approach this question solely from the perspective of, well, where can I find the source that says this is not okay, you may come up short. And you may learn something in the process, which is yeah, it may turn out that actually decaying the flesh without decaying the bones may not be as bad as people think, and that's important to know. But there's an aspect here where actually the culture may have a kind of wisdom diffused through it that is not completely deeply concentrated in one specific source.
Rav Avi: Alright. I think all of that is really helpful in terms of a thought experiment, and maybe even spiritual questions, but I want to pull us back into the practical and say this question is very real, and very practical, and it's not the kind of thing where you can say, well, you can work this practice out over time and see what works for you. There is a moment when this decision needs to be made, you know, many moments for many individuals. But when someone is facing this question, there's a bottom line. This question ends, what should we do? What should they do?
Rav Eitan: Yeah. So, look -- I think most directly, as I started off I said it's difficult -- to disrespect the wishes of someone who is about to die is not a small matter. I don't think we should ever take that as being a small matter. And yet in this kind of case, I would feel very comfortable saying that if someone had full control over the process, the weight of our tradition comes down on the side of saying that people's bodies represent much more than themselves, and therefore are subject to regulations beyond their own preferences. And in the context of burial, where you leave nothing behind to bury, nothing, the bones are not left behind, it's not a wish I would honor. And I would tell someone who has that kind of control that I think that is the right thing to do -- the politics of the individual relationships of how you manage it, that's complicated, but I think again, from the perspective of Jewish sources and Jewish law, that would be the clear directive.
This is a more complicated case where it's not clear the person has full influence; if anything what I hear in the question is the person's influence might be limited to determining whether there will either be a cremation or a donation of the body to science, after which point there might be more leeway as to what happens with the remains, including some kind of lower-key burial. And in that kind of situation, I would say it is unquestionably better for the body to be donated to science than to allow it to be cremated.
That is a larger question which we could probably do in great depth in another episode, but just to kind of cover it very briefly, it comes up already in the early modern period around autopsies -- the Noda b'Yehuda, Rabbi Yechezkel Landau in 18th century Prague, he says you're allowed to do an autopsy when analyzing the mode of death will save future lives. Right? He has very strict criteria that there's gotta be people with this disease that we know about so we can apply it, it shouldn't just be a kind of casting about curiosity, but he says that in those cases, it's allowed. And that builds the beginning of a train of a way of thinking, of thinking about when that is appropriate.
You have a lot of sources, a lot of authorities who are very strongly opposed to donating bodies to science; they have been appropriately critiqued, in my mind, particularly by some latest Zionist, religious Zionist figures in Israel as essentially inappropriately relying on non-Jewish people to donate their bodies to science so that everyone can become a better doctor. And there is, you know, at some point, to the extent that this kind of research is understood still to be standard and necessary as part of medical training -- which my understanding is, for all the advances, it still is -- a Jewish society that wants to take responsibility for itself I think has to take seriously that that may be an important, you know, thing to allow if not to encourage.
You have a really interesting responsum passed by the Va'ad Halakhah, the kind of halakhah committee of the Conservative movement in Israel on this topic, and they say from a really a religious Zionist perspective, it's gotta be permitted to donate your body to science, and then you have to bury it afterwards. And, you know, it's written by Rabbi Gila Dror, and she writes that, you know, really this is an example where Zionism forces us to take responsibility for issues that Jews were able to duck in the diaspora. So, I think like with any question, you have to think very carefully about the emotional effect on the family, you've gotta make sure that any donation of a body to science will really provide a necessary benefit, because otherwise it's a kind of, you know, utilitarian use of a body that's inappropriate, but in this kind of a case where that may be the only viable way to avoid cremation and to potentially allow for discreetly arranging for the burial later on, I would say that is the angle I would push to try to get this person to as close a traditional and life-affirming burial as is possible.
Rav Avi: Yeah. Thanks. I just, I want to conclude by acknowledging how common I think an experience this is, and to wish this person luck in making this decision when unfortunately the time comes, and I hope that they come to an answer that works for them and works for their family, and that they not feel alone in that experience.
Rav Avi: Have a halakhic question you'd like answered on the show? Email us at halakhah@hadar.org. And you can also leave us a phone message at (215) 297-4254. Responsa Radio is a project of the Center for Jewish Law and Values at Mechon Hadar, and is produced by Jewish Public Media, which creates, curates, and promotes excellent Jewish content.