5. Keeping Aveilus for a child/Nefel who died:[1]

The relatives are required to mourn [observe Shiva and Shloshim] after the passing of a child, so long as the child is not defined as a Nefel, which is a premature child who passed away shortly after birth. The following is the exact definition of a Nefel and when the relatives are exempt from observing Shiva and Shloshim:

Factually undetermined if child was born after nine months: If a child passed away r”l, and it has not been factually determined when the date of conception was, and consequently whether the child was born after the completion of the 9th month[2] [approximately after week 38[3]] or before the end the 9th month[4], then if the child is 31 days old or more, the relatives are to mourn his/her passing.[5] If, however, the child was less than 31 days of age when he passed away, then even if the child’s development looks as if he was carried to term[6] [he is defined as a Nefel, and] the relatives are not to mourn his passing.[7] This applies even if the child passed away on the 30th day.[8]

Factually determined that the child was born after or before nine months: If however it was factually determined that the child was carried to term and born after nine full months [approximately 38 weeks], [then he is not defined as a Nefel and] the relatives must mourn the child even if he passed away within 30 days of being born, and even if he dies on the day he was born.[9] On the other hand, if it was factually determined that the child was born before the end of the ninth month, [then he is defined as a Nefel and] the relatives are not required to mourn the child even if he passed away after 31 days of being born.[10] [If, however, he only passed away after several months of living, then he is not considered a Nefel in this regard.[11]]

How to factually determine if child was born after nine months: It can only be factually determined that the child was carried for a full nine months, if a full nine months [approximately 38 weeks] passed since the last time the mother had marital intercourse, in which case one knows the latest possible date of conception.[12] [For example: If she had relations with her husband on the 1st of Elul and he left town that day [and did not return and have relations with her until the pregnancy was already determined[13]] then if she gives birth 9 full months [approximately 38 weeks] after the 1st of Elul [i.e. the 3rd of Iyar[14]], it is factually determined that the child was born after a full 9 months. However, in a normal scenario that marital relations never ceased, since it is not possible to determine the actual date of conception, it is not certain whether she has given birth within or after the 9th month, and the Doctors estimation is worthless in this regard. Thus, even if a woman has given birth past her Doctors due date, the child may still be a Halachic 8th month child of which we rule that within 30 days mourning is not observed.]

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[1] Michaber 374:8; See also 340:30 regarding Keriah; See Nitei Gavriel 59; 135:1; Pnei Baruch 1:26

[2] This is called a Ben Tesha.

[3] 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 ibid] We follow the Hebrew months in this regard, and not an amount 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] Shach 374:8

[5] Is the 31^st day calculated in days or hours? Some Poskim rule that there must pass 30 days of 24 hours to enter into the 31^st day. [Hagahos Yad Shaul; Shoel Umeishiv Tinyana 3:18; Rav Poalim 1:51; Nitei Gavriel 126:4] Other Poskim however rule that the day of birth is considered the first full day even if the child was born minutes before sunset. [Chasam Sofer 343 and Haflah, brought in Pischeiy Teshuvah 374:8; Poskim in Pnei Baruch 9 footnote 17]

[6] Meaning he grew hair and nails. [Michaber ibid] See Michaber ibid; M”A 526:19

Other opinions: Some Poskim rule that if the child’s development was complete, then one does mourn his passing if he passed away on the 30^th day. [Bach 374 in explanation of Hagahos Ashri, brought in Shach 374:8; See Michaber 330:7 and Admur 330:8 regarding desecrating Shabbos; Michaber 526:9 and Admur 526:19 regarding burial on Yom Tov]

Background: Regarding some Halachic matters, a questionable Nefel who dies within thirty days receives the full status of a Nefel, while in other Halacha’s 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. Vetzaruh 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.]

[7] Michaber ibid; Shabbos 135b regarding within thirty days

The reason: Although this is a case of doubt, as perhaps he was born after nine complete months, nevertheless since Aveilus is Rabbinical we are lenient. [See Taz 340:17 regarding Keriah; See Ramban Moed Katan 20a]

[8] Michaber ibid; Shach 374:8; Ramban; Tur; Bechoros 49a regarding the 30^th day; See opinion of Bach in previous footnotes

[9] Michaber ibid; Shabbos 136a; Nidda 54b

[10] Michaber ibid; Rambam; Gilyon Maharsha 374

Incubator: If a child was definitively born early, prior to nine complete months, and was placed in an incubator, then since the incubator tremendously increases his chances of survival, some Poskim rule that if he passes away after 30 days, the relatives are obligated to mourn his passing. [Daas Sofer 114; Yad Yitzchak 2:67; Minchas Yitzchak 4:123; 9:120; Kinyan Torah 3:42; Pnei Baruch 9 footnote 16] Other Poskim however rule the relatives are not obligated to mourn his passing. [Levushei Mordechai Telisa 14; Kol Bo p. 313; Shevet Halevi 3:143; Tzitz Eliezer 9:28; Yalkut Yosef Aveilus p. 97; Nitei Gavriel 126:5] Practically, the directive of Rabbanim is to be lenient. [Nitei Gavriel ibid]

Child had complete nails and hair: Even if the child’s hair and nails were fully developed, the relatives do not mourn his passing if he was definitively born prior to the completion of 9 months. [Levushei Mordechai Telisa 14] Other Poskim, however, are stringent in such a case if he passed away after 30 days. [Beir Moshe 1:64; See Admur 330:8; Michaber Y.D. 266:11]

[11] Shoel Umeishiv Mahadura Gimel 1:15; Mishmeres Shalom Kuf 13; Nitei Gavriel 135:32

[12] Michaber ibid; Shach 340:43; Hagahos Maimanis in name of Rashi; Or Zarua 428; Admur 330:8

[13] See Or Zarua ibid that if intercourse resumed in the second month and the pregnancy began showing two month after the second intercourse, then one knows for certain that the pregnancy is from the single intercourse that took place in the first month. So is also evident from Meil Tzedaka 5, brought in Pischeiy Teshuvah 374:9; However, see Or Zarua that the Rashba writes the case refers to one who separated completely for all nine months. See Pnei Baruch 9 footnote 12

[14] As it is possible that the conception occurred anywhere between the 1^st and 3^rd of Elul

[15] See Yad Avraham 345 in name of Birkeiy Yosef