
7. The funeral/burial of a Nefel:
Does a Nefel require burial? Some Poskim[1] rule that a stillborn and Nefel[2] is not obligated to be buried, and from the letter of the law may be discarded. Other Poskim[3], however, rule it is an obligation to bury a stillborn or Nefel. Practically, the custom is to bury it.[4] [The custom is to bury Nefalim in a designated area of the cemetery.[5] The above only applies if the birth or miscarriage occurred after 90 days from conception, however within 90 days of conception, all agree that burial is not required.[6] A Nefel[7] who passed away after the age of five months is required to be buried from the letter of the law.[8]]
When to bury the Nefel: Some Poskim[9] rule that the Biblical prohibition to delay the burial of the deceased applies even to a stillborn or Nefel. Practically, Lechatchila one is to suspect for this opinion.[10] [However, some Poskim[11] rule that there is a danger to the mother to bury the stillborn prior to her recovering from the birth, and hence they delay the burial until she is fully recovered. Other Poskim[12], however, completely negate this and rule that the Nefel is to be buried right away.]
Burying on Yom Tov:[13] A Nefel may not be buried on Yom Tov, whether the first or second day, even through the help of a gentile. The definition of a Nefel in this regard is a child who died within thirty days of birth and was born prior to the completion of nine months, or is in question as to after how many months he was born, and has not yet fully developed nails and hair. If, however, the child had fully developed hair and nails, then we assume that it is not a Nefel even if he died within thirty days after birth.[14] Nonetheless, a child who needs to be circumcised is not buried on Yom Tov, whether the first or second day, even if he is not a Nefel.[15]
Funeral: There is no obligation to participate in the funeral of a Nefel.[16] This applies even if one knows for certain that the child was carried to term.[17] Nevertheless, some Poskim[18] rule that a child who passed away within 30 days of birth is to have at least three people escort him to the burial, one woman and two men, but not two men and one woman due to Yichud. The custom however is for the infant to be brought to the burial alone, only in the presence of the Chevra Kadisha.[19]
Eulogy:[20] A Nefel is not to be given a eulogy.
Keriah:[21] Keriah is not performed upon the passing of a Nefel. This refers to any child who was possibly born prematurely [i.e. before the end of the 9th month, which is approximately before week 38[22]] and was less than 31 days of age.[23] If the child was 31 days old or more, then Keriah is performed. If it was factually determined that the child was carried to term and born after a full nine months[24] [approximately 38 weeks[25]], the relatives must perform Keriah even if the child passed away within 30 days of being born.[26]
Kohen attending: It is forbidden for a male[27] Kohen[28] to defile himself to a corpse[29] or to any of the impurities which come from a corpse [i.e. Tumas Meis]. This applies even against the Kohen defiling himself to a Nefel.[30] This applies even if the Nefel is a relative of the Kohen [i.e. the Kohen’s son r”l].[31]
How to carry the child:[32] A child who lived less than a full thirty days may be carried to the burial in the arms of a person [and is not required to be carried on the accustomed bed, although one may do so if he chooses[33]]. This applies even if one knows for certain that the child was carried to term. If the child was over 12 months old, he is to be carried on a bed.[34]
Coffin: A child who lived for less than thirty days is not buried in a coffin. This applies even if one knows for certain that the child was carried to term.[35] If the child who passed away was past a full thirty days old, then he is buried in a small coffin.[36] [Practically, the custom is to place the child in a small coffin.[37]]
How to bury:[38] The Nefel is to be buried in a Halachically valid manner, by having at least three Tefachim of earth placed on him. [The custom is to bury Nefalim in a designated area of the cemetery.[39] The custom in Jerusalem is for the Nefel is to be buried a short distance from another grave.[40] Although the custom in New York is to bury a Nefel together with another Meis, the Poskim have protested against this custom, and stated that there must be some distance between the deceased and the Nefel.[41]]
Tziduk Hadin and Kaddish:[42] The prayer of Tziduk Hadin and Kaddish is not recited by the burial of a Nefel. It, however, may be recited on the burial of a child who passed way after thirty days old [and is no longer a Nefel].[43] However, the [widespread] custom is not to recite Tziduk Hadin and Kaddish until the child is 12 months old.[44] However, in some communities, the custom is like the former opinion, to say Tziduk Hadin and Kaddish if the child is thirty days old.[45]
Washing hands:[46] One is to wash hands after attending the funeral or burial of a Nefel, or after leaving the room that he is in.
Nichum Aveilim:[47] The Mitzvah of Nichum Aveilim does not apply to a Nefel. Thus, one is not [required[48]] to comfort the relatives of a Nefel who passed away neither by the burial [i.e. making a Shura/row after the burial and wishing him comfort[49]] or afterwards during the Shiva period that is usually kept [i.e. Tanchumei Aveilim]. This applies to any child who passed away below the age of thirty days, even if one is sure that the child was carried to term, of nine full months. [Nonetheless, if one wishes to comfort the relatives, he may.[50]] If the child who passed away was past a full thirty days old, then his relatives are to be comforted with both a Shura and Birchas Aveilim during the Shiva.[51]
Bemoaning the death:[52] A child who passed away after 12 months of age, and is thus old enough to be taken out in a bed to the burial, the public is to be emotionally distressed over his passing. If he is younger than 12 months, the public is not required to be distressed over it.
Seudas Havraah:[53] A Seudas Havraah is not needed to be served after the passing of a child [for whom one does not mourn, such as a child] that passed away prior to being 30 days old and one is not certain that he was born after nine months. [If, however the child was older than 30 full days, then a Seudas Havraah is required to be served to his relatives.]
Kaddish: [54] One does not recite Kaddish on behalf of a child who passed away younger than a full thirty days of age. See Chapter 26 Halacha 2 in Q&A for the details of saying Kaddish for a child older than thirty days.
__________________________________________[1] Implication of Michaber/Rama 526:10 and Admur 526:20; Hagahos Maimanis, brought in M”A 526:20; Chavos Yair 68, brought in Gilyon Maharsha; Noda Beyehuda Kama O.C. 16
[2] Definition of Nefel in this regard: The definition of a Nefel in this regard is a child who died within thirty days of birth and was born prior to the completion of nine months. If it is unknown as to after how long he was born, and he was not born with fully developed nails and hair, then seemingly he is defined as a Safek Nefel [and he must be buried]. [See Admur 330:8] If the child was born with fully developed hair and nails, then we assume that it is not a Nefel even if he died within thirty days after birth, and he certainly must be buried. [See Michaber 526:9 and Admur 526:19 and Michaber 330:7 and Admur 330:8; However see M”A 526:19 who considers him a Safek Nefel even in such a case.]
[3] M”A 526:20; Pischeiy Teshuvah 357:1; See Gesher Hachaim 1:16-3; Tzitz Eliezer 10:25
[4] See Michaber and Rama Y.D. 263:5; O.C. 526:10; Admur 526:19-20; Avnei Nezer 472; Nitei Gavriel 135:18
The law by a child who was born alive: Seemingly, by a child who was born alive and later died within thirty days, burying him is an obligation according to all, as today all Nefalim are considered a Safek Nefel, as we do not know as to after how many months they were born, and are hence obligated to be buried due to the doubt. This especially applies if they were born with fully developed hair and nails. See previous footnote!
[5] Nitei Gavriel 75:17 and 135:18; See 75:22 that they should not be buried near Reshaim
[6] Maharsham 4:146; Nitei Gavriel 75:19; 135:33
[7] In this case, this means that even if we know for certain that the child was born prior to the completion of nine months, once he reaches five months of age, he leaves the status of a Nefel and is treated like any other person.
[8] Shoel Umeishiv Mahadura Gimel 1:15; Mishmeres Shalom Kuf 13; Nitei Gavriel 135:32
[9] M”A 526:20, brought in Pischeiy Teshuvah 357:1; See Gesher Hachaim 1:16-3; Tzitz Eliezer 10:25
Other opinions: Most Poskim rule that a stillborn and Nefel is not obligated to be buried, and from the letter of the law may be discarded. [Implication of Michaber:Rama 526:10; Admur 526:20 “As so long as the child is a still born, there is no belittlement to delay his burial until the evening”; Hagahos Maimanis, brought in M”A 526:20; Chavos Yair 68, brought in Gilyon Maharsha; Noda Beyehuda Kama O.C. 16; Yeshuos Yaakov 526:5; Binyan Tziyon 1:113; See Mishmeres Shalom Lamed 32] Some communities are accustomed to not bury a Nefel until its mother recovers from birth, due to it being a danger for the mother. [Shulchan Gavoa 526:22; Kaf Hachaim 526:94] Practically, we do not follow this approach. [Erez Chaim 357; Darkei Teshuvah 116:43; Nitei Gavriel 135 footnote 27]
[10] Kaf Hachaim 526:92; Ashel Avraham Butchach 342; Nitei Gavriel 129:5; 135:19
[11] Shulchan Gavoa 526:22; See Ruach Chaim 526 and Y.D. 116:10; Sefer Shemiras Haguf Vihanefesh [Lerner] 194:1
[12] Darkei Teshuvah 116:43
[13] See Admur 526:19-20; Pnei Baruch 6:10; Nitei Gavriel 135:23
[14] See Michaber 526:9 and Admur 526:19 that if the child’s nails and hair are complete, and he does not need to be circumcised, then even if we do not know for certain that he is a full term baby, he is to be buried on Yom Tov; However, see M”A 526:19 who argues that the child is a Safek Nefel even in such a case that he was born with developed hairs and nails; See Halacha 1 in footnotes!
[15] Admur ibid
[16] Aruch Hashulchan 344:8; Gesher Hachaim p. 119; Nitei Gavriel 67:6; 135:15
[17] See Michaber 374:4
[18] See Michaber 353:4 “Two men and a woman”; Beis Meir 353; Mishmeres Shalom Lamed 8; Poskim in Nitei Gavriel 65:26 footnote 33; 135:20
[19] Erech Shaiy Y.D.; Even Yaakov 11; Nitei Gavriel ibid
[20] Michaber 344:8; Aruch Hashulchan 344:8; Nitei Gavriel 135:14
[21] Michaber 340:30; See also Michaber 374:8; Nitei Gavriel 59; 135:1; Pnei Baruch 1:26
[22] The child is only considered a Ben Tesha Chodesh after a full 9 months have passed, and has now entered into the 10th month. [See 374:8] 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.]
[23] The reason: Although this may be a mere doubt, nevertheless since Keriah is Rabbinical we are lenient. [Taz 340:17]
[24] Such as the mother did not have relations the last nine months [Shach 340:43]
[25] See Halacha 1 in footnotes!
[26] Shach 340:43
[27] Kohenes: A female Kohen is not prohibited from defiling himself to Tumas Meis. [Michaber 373:2]
[28] Baal Mum: This prohibition applies even to a Kohen who is a Baal Mum. [Michaber 373:2]
Chalal: A Kohen who is a [Biblical] Chalal is not prohibited from defiling himself to Tumas Meis. [Michaber 373:2] However, a Rabbinical Chalal is Biblically prohibited from defiling himself to Tumas Meis. [Shach 373:2 in name of Bach]
[29] See Michaber 370:1 for the definition of dead
[30] Taz 369:1; Chidushei Hagirshoni; Pischeiy Teshuvah 369:2; Kitzur SHU”A 202:1; Nitei Gavriel 130:12; 135:9
Miscarriage within 40 days of conception: Does not give off Tumas Meis. [Pischeiy Teshuvah 369:2; Kitzur SHU”A 202:1; Nitei Gavriel ibid]
Nefel who is still alive: Does not impurify a Kohen. [Divrei Malkiel 4:93; Nitei Gavriel 135:10]
[31] Michaber 373:4
[32] Michaber 353:4
[33] Shach 374:2
[34] Michaber 353:5
[35] Michaber 353:4
[36] Michaber 353:5
[37] Nitei Gavriel 135:17
[38] Daas Kedoshim 345:4; Mishmeres Shalom Lamed 8; Nitei Gavriel 135:31
[39] Nitei Gavriel 75:17 and 135:18; See 75:22 that they should not be buried near Reshaim
[40] Letter of Rav SZ”A printed in Nitei Gavriel page 749
[41] See Letter of Rav Gavriel Tzinner to Rav SZ”A and Rav Neiman of Montreal, printed in Nitei Gavriel page 749, that the custom in New York is to bury a Nefel together with another Meis, and he told the Chevra Kadisha in New York to have at least a three Tefach distance between the Nefel and Meis. Rav SZ”A and Rav Neiman replied as above that the burial is to be done a distance from the grave and one is not to bury them together.
[42] Michaber 344:4; Moed Katan 24b; Brasia in Miseches Semachos
[43] Michaber ibid
[44] Rama ibid
[45] Shach 344:3 that so is custom in Lublin, and “apparently so is the custom in other communities and so is the proper custom”
[46] Nitei Gavriel 132:40
[47] Michaber 353:4; Nitei Gavriel 135:37
[48] Shach 374:4; Levush
[49] Shach 374:5
[50] See Shach ibid
[51] Michaber 353:5
[52] Michaber 374:5
[53] Michaber 378:6; Shabbos 136a; Nitei Gavriel 135:35
[54] Michaber 344:4; Nitei Gavriel 135:34
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