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In a case that pitted traditional Jewish sensibilities against the right of the deceased to dispose of his body the way he sees fit, the Jerusalem District Court permitted this week the cremation of Shmuel Rosen, 80, a Holocaust survivor, despite the opposition of a distant relative on moral and religious grounds.
Rosen was cremated on Sunday and his ashes were transferred to his family on Tuesday.
Judge Moshe Sobol rejected the demand by a haredi woman named Miriam Freed, whose grandmother was Rosen's mother's sister, to stop the cremation.
Sobol based his decision on a terse statement from Attorney-General Menahem Mazuz's office that effectively recognized the lack of legislation governing cremation in Israel.
"The issue that arises from the request [of Freed] is complex and involves profound ethical and societal questions," wrote the Attorney-General's Office. "In principle, the issue [of cremation] should be governed by legislation."
Mazuz went on to say that he saw no reason to express his opinion on the issue since it was a dispute between two individuals, and he did not have the time needed to make an in-depth analysis.
Sobol saw Mazuz's letter as official recognition that there was no legal prohibition against cremation, and therefore could not uphold Freed's request.
Instead, he honored the request of Rosen's wife and two sons to have Rosen cremated in accordance with his wish. The wife and sons argued that as long as there was no law preventing it, they had the right to perform Rosen's cremation request.
Publication of Mazuz's opinion on the need for legislation might set in motion pressure from Shas, United Torah Judaism and National Religious Party-National Union MKs to anchor in law prohibition of the practice that is anathema to traditional Jewish sensibilities and outlawed by Halacha.
In July 2005, Trade and Industry Minister Eli Yishai (Shas) presented to the Knesset a bill that would obligate every Israeli Jew to be buried, and prohibit any other practice that caused damage to the body. But so far the bill has not been discussed.
In the meantime, Alon Nativ, CEO of Aley Shalechet, a funeral home that runs Israel's only crematorium, has cremated dozens of customers for about NIS 10,000, as he has been doing for the last year-and-a-half.
"Haredim have no right coercing a man who has lived his entire life as an atheist to be buried instead of cremated," said Nativ. "Cremation is just as legitimate an option as burial. Besides, it should be a personal decision."
But attorney Dror Schussheim, a member of ZAKA who represented Freed pro bono, disagrees. He said he planned to petition the Supreme Court against the practice of cremation.
"The law recognizes no other way of disposing of a body other than burial," said Schussheim, who claimed he was contacted by representatives of Yad Vashem who, he said, voiced interest in joining his petition against cremations. He said he did not remember the names of these Yad Vashem representatives.
Many Israeli Jews conflate cremation - a common practice in Europe, the US and Canada - with the Holocaust. The crematoriums used to dispose of the bodies of millions of concentration camp victims are still hideously vivid symbols of Nazi horrors for many Israelis.
This negative imagery of crematoriums and concentration camps was used by Chief Ashkenazi Rabbi Yona Metzger to bolster the Chief Rabbinate's official opposition to cremation.
According to Halacha, a Jew's request to be cremated, even if anchored in a last will and testament, must be rejected. If the request is honored, the ashes cannot be buried in a Jewish cemetery.
In Jewish mystical sources, the gradual decomposition of the body is seen as an expiating process. Cremation is also seen as a rejection of the Jewish belief in resurrection of the dead and a desecration of the body.
Rosen's ashes were presented to his family Tuesday and will be scattered in a private ceremony in coming days.
In August 2005, in a similar case that had a different ending, Eitan Kyubatero, a Breslav hassid from Safed, managed to convince his aunt, Chava Ortman, not to honor the wish of Victoria Ortman, Chava's 92-year-old mother (also a Holocaust survivor), to be cremated.
At the time, Chava Ortman told The Jerusalem Post that she regretted caving in to pressure from Kyubatero and the ZAKA officials who were involved.
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