Ask the Rabbi: Preserving honor

What’s the controversy over the building of the new emergency room in Ashkelon’s Barzilai Medical Center?

By SHLOMO BRODY
May 22, 2010 11:41
4 minute read.
Haredi arrested at Barzilai protest.

Haredi protest Barzilai 311. (photo credit: Associated Press)

The planned fortified emergency wing hopes to improve the hospital’s woefully insufficient resources to provide urgent care for the region’s growing population, especially during wartime situations in nearby Gaza. Construction stopped after builders uncovered ancient bones, deemed by archeologists almost definitely those of pagans or Romans. In addition to causing tremendous delays and additional expenses, a proposed alternative site was deemed less fortifiable and inefficient for urgent care, raising the question of burying the bones at a different site.

The Torah asserts that humans were created in the image of God (Deuteronomy 21:23), and therefore places tremendous value on treating corpses and their final resting spots with dignity (kavod hamet). As such, Jewish law prohibits benefiting from a corpse (YD 349:1) and all forms of its disgrace or mutilation (nivul hamet). The Talmud forbids exhuming a corpse for purely financial motivations such as identifying legal heirs for inheritance (Bava Batra 154b). We would never allow the relocation of a known cemetery simply because it was prime real estate.

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Jewish law prohibits exhuming a corpse even if the intent is to immediately move the remains into a grander location (Tur YD 263). One explanation of the prohibition of reinterment invokes a mystical notion that the dead experience pain from the exposure of their remains. Some commentators readily dismiss this concern (Shu’t Rashba 1:369), with others allegorically explain that the soul feels pain from the body’s decomposition (Sefer Hassidim 1163). Many alternatively explain that the soul fears that divine judgment is repeated when its corpse is removed from a grave (Beit Yosef YD 363:1). Some decisors, however, believe that this notion only applies while the body decomposes, but not when mere bones remain (Noda Biyehuda Kama YD 89).

Most confirm, however, that the law’s primary goal is to prevent the corpse’s denigration, a biblical prohibition (Hacham Tzvi 47-50, Igrot Moshe YD 1:242, 2:159). As such, the Talmud and subsequent sources permit reinterment under circumstances that befit the dignity of the deceased. For example, if the deceased requested to be buried in a family plot but circumstances forced an initial burial elsewhere, one may later reinter the remains in the desired spot (YD 363:1).

Similarly, when graves are unprotected from grave robbing or flooding, one may move the remains to a more secure location. This latter case has arisen repeatedly with cemeteries in the Diaspora, especially among hostile neighbors, and many decisors like Rabbis Meshulam Roth (Kol Mevaser 2:9) and Isaac Weiss (Minhat Yitzhak 9:129) allow reinterment in such cases. Rabbi Ovadia Yosef similarly permitted moving cemeteries from Yamit following its evacuation, a process repeated after the Gaza disengagement (Yalkut Yosef Avelut 52:11). Unless the deceased explicitly directed otherwise, Jewish law also allows for reinterment from the Diaspora to Israel, even at the behest of the children alone, since burial in Israel is deemed meritorious (Pit’hei Teshuva 363:2).

The Talmud allows for reinterment when the grave causes public damage (Sanhedrin 47a), such as when it is found next to a public road (YD 364:5). This dispensation might stem from the belief that it is undignified for the deceased to have his grave cause public damage. Alternatively, it might state that the communal needs of the living sometimes override the dignity of the deceased (Hazon Ish, Ohalot 22:26-9). As Rabbi Yisrael Rozen has documented (Tehumin 18), Rabbi Akiva Eiger and others understood this clause to permit reinterment for any important communal need, even if it entails moving an entire cemetery (Psakim 45). Historically, this dispensation was applied to cases of synagogue expansions or for major municipal projects (Havat Binyamin 1:25:5). Furthermore, while alternative plans remain preferred, the halachic tradition dictates that one should not spend excessive money to preserve the dignity of a cemetery (YD 368:1).

Even after the removal of the corpse, questions remain regarding the propriety of using the abandoned area and its continued sanctity (Kesef Mishna I, Tumat Met 8:5). Rabbi Yosef Karo permits using the area once it has been thoroughly cleared of bodily remains and gravestones (364:1). While Rabbi Moshe Isserles contended that one may not benefit from the dust of the area, others retorted that this restriction only includes the dirt that literally covered the corpse, and that in any case, travel over the area does not encompass prohibited benefit. This is the basis for removing bones when discovered during road construction.

In the Barzilai case, prominent haredi decisors initially declared that the life-saving benefits were not instantaneous enough to justify removing the bones. Yet based on the above sources, the Chief Rabbinate reasonably – and correctly, in my opinion – concluded that the fortified emergency room suffices as an urgent public need and warrants the dignified reburial of the ancient bones.

The author, online editor of Tradition and its blog, Text & Texture (text.rcarabbis.org), teaches at Yeshivat Hakotel.
JPostRabbi@yahoo.com


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