1. The definition of a Nefel:[1]

A Nefel refers to a child who was born dead [i.e. stillborn], or who was born prematurely and then died.[2] Practically, any child who died within thirty days of birth, is suspected to have been born prematurely, as explained in the background below. Throughout this chapter, whenever the term Nefel is used, it refers both to a stillborn and a child who died within thirty days after birth, unless explicitly qualified to another definition.

Background: In general, in order for a child who was born alive to receive the Halachic status of a Nefel he must be born prematurely [as defined by Halacha]. According to Halacha, a premature birth is defined as anyone who was born before the end of the 9^th month from conception, which is approximately before week 38 from conception.[3] If he was born after this time, he is not defined as a Nefel even if he died within thirty days after birth.[4] Now, it is not possible to factually determine whether the child was born after a full nine months of pregnancy, unless the mother did not have relations for nine full months prior to the birth, [which is a highly unlikely occurrence].[5] [The due date given by the doctor is a mere estimation, based on the last period, and/or Mikveh night and is not accurate to be relied upon regarding this matter.] Thus, in essence, every child born today is a possible premature birth according to Halacha, as it is possible that he was born prior to 38 weeks passing from conception. How then do we determine his true status as to whether he is a Nefel? This is dependent on him living past thirty days. If the child lives past thirty days, then he leaves the questionable status of a Nefel.[6] If, however, the child dies within thirty days, then he is considered a questionable Nefel, of which there are various ramifications of laws, at times depending on the level of development in which the child was born, as will be explained by each Halacha.[7] Thus, at times we are lenient not to apply a certain law or custom to a child who passed away within thirty days due to his possible Nefel status, while at other times, we are stringent to apply the law, due to his possible non-Nefel status. Nonetheless, for the most part, we are lenient not to apply the classical laws or customs to a child who passed away within thirty days, and thus whenever the term Nefel is used in this chapter it refers to any child who passes away within thirty days unless explicitly stated otherwise.

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[1] See Noda Beyehuda Tinayna 164; Tuv Taam Vadaas 2:98; Kneses Yechezkal Y.D. 42; Heishiv Moshe 13; Beir Moshe 2:108; Nitei Gavriel 135:1

[2] In truth, the Halachic definition of a Nefel extends to a premature child even while he is still alive, so long as he is within thirty days of birth. [See Admur 330:8] However, in regards to the subject of mourning and burial, obviously the definition of a Nefel is only relevant after the child has passed away.

[3] See Michaber 374:8 “Born after nine full months”; Admur 330:8 “Ben Tesha”

Background: The child is only considered a Ben Tesha Chodesh after a full 9 months have passed, and has now entered into the 10^th month. [See Michaber 374:8] We follow the Hebrew months in this regard, and not a number of weeks or days. Thus, since the months vary between 29 and 30 days, determining how many weeks/days need to pass depends on how many days were in each of the nine months of her pregnancy. If, for example, there were five 30-day months and four 29 day months, then it is exactly 38 weeks, which is 266 days. If, however, there were more or less than five 30-day months, then it would be more or less than 38 weeks. Thus, we determine the completion of nine months based on the passing of Hebrew months, and not based on weeks or days. [See Meil Tzedaka 5, brought in Pischeiy Teshuvah 374:9]

Other opinions: Some Poskim rule that she must pass 273 days from her last intercourse. [Tevuos Shur 15:15, brought in Pnei Baruch 9 footnote 13; 270 days is 30 days per month for each other 9 months, and three days is for the possibility of conception occurring within three days from intercourse.]

[4] See Michaber 374:8; Admur 330:8

[5] Admur 330:8; Shach 340:43

[6] See Michaber 374:8; Admur 526:19; Shach 374:8

[7] Regarding some Halachic matters, a questionable Nefel who dies within thirty days receives the full status of a Nefel, while in other Halachas he may be viewed as a living person, depending on whether he was born with a fully developed body. See Michaber 330:7 and Admur 330:8 regarding desecrating Shabbos on behalf of saving his life while he is still alive, that if the hairs and nails are developed, one may desecrate Shabbos; See also Michaber 526:9 and Admur 526:19 regarding burying the child on Yom Tov that if the hairs and nails are developed, one is to bury the child even if it passed away within thirty days, as we give the child a Chazaka that majority of children are not Nefalim. However, see Michaber 374:8 that regarding Shiva and Shloshim, we are lenient to consider the child a Nefel even if he was fully developed, if he died within thirty days and it was not factually determined that he was born after a full nine months. [This ruling seems like a contradiction to the earlier ruling that a fully developed child is not a Nefel even if he dies within 30 days. In truth, the M”A 526:19 argues on the Michaber and Admur ibid in 526 and rules that whenever a child dies within 30 days, he is considered a Nefel, irrelevant of whether he was fully developed or not, and it is only while he is alive that he is not considered a Nefel regarding Mila and Pikuach Nefesh on Shabbos, if he was born fully developed. However, the moment he dies, he receives the Nefel status. However, one can possibly answer the contradiction with the Taz 340:17 who states that by Aveilus, which is Rabbinical, we are lenient. Accordingly, one can answer that a fully developed child who died within thirty days is considered a Nefel for all Rabbinical matters [i.e. Shiva and Shloshim], and is considered a non-Nefel for all Biblical matters, such as burial. Vetzaruch Iyun, as if he has a Chazaka to be considered a non-Nefel even regarding transgressing Yom Tov, then certainly regarding Aveilus? However, in truth the desecration of Yom Tov is only Rabbinical, as it is being done through a gentile, or on Yom Tov Sheiyni, and hence the Sages have the right to uphold the Biblical requirement of burial due to the Chazaka, and push away the Rabbinical prohibition of Melacha.]