Chapter 21: Mourning Aveilus – Chinuch Katan Laws [1]

 

Introduction

The laws of Aveilus as they relate to children are unique and often differ significantly from the laws applicable to adults. This chapter discusses the halachic status of minors in mourning, the obligations of parents to educate children in matters related to mourning, the laws concerning the passing of children and infants, and various practical questions that arise regarding cemeteries, funerals, Kaddish, Nichum Aveilim, and related topics. While children are generally exempt from the obligations of mourning, there remain numerous laws and customs that pertain specifically to them and to those responsible for their upbringing.

Many of the laws in this area are complex and depend on the child’s age, level of understanding, and the particular circumstances involved. The purpose of this chapter is to provide a practical overview of the primary halachos relevant to chinuch and children in the area of Aveilus. The reader should consult the footnotes and sources for a fuller treatment of the subject.

 

For Further Study

The subject of mourning and the laws and customs of Aveilus is vast and extends far beyond the basic concepts discussed in this chapter. It encompasses the detailed laws of illness, death, burial, Aninus, Shiva, Shloshim, the twelve-month mourning period, Kaddish, Nichum Aveilim, cemetery laws, the mourning customs associated with children and infants, and many contemporary questions that arise in modern circumstances.

For a comprehensive analysis of these important laws and customs, including their halachic foundations, practical applications, sources in Chazal and the Poskim, and extensive contemporary guidance, the reader is referred to our corresponding work, The Laws and Customs of Mourning (Aveilus), Volumes I-II, where these topics are discussed in detail.

 

https://amzn.to/3Svblg0

 

 

1. Visiting Sick Children (Bikur Cholim)
2. The mitzvah of visiting an ill child:

Every person is encouraged to visit an ill person. Even an adult should visit a child who is ill.^[2] Even one who shares the same Mazal as the ill person^[3] is to visit him [even though that by doing so, he contracts 1/60^th of the illness^[4]].^[5]

1. Teaching children to visit the sick^[6]

Part of a child’s Jewish education is training him to fulfill the mitzvah of Bikur Cholim. Just as children are educated to perform other acts of kindness, they should also be taught to show concern for those who are ill. Accordingly, when appropriate, parents may bring their children along when visiting a sick person so that they learn firsthand the values of compassion, empathy, and communal responsibility. By participating in visits to the sick, children learn that a Jew cares for the wellbeing of others and seeks to offer comfort, encouragement, and support during times of illness. At the same time, care should be taken that the visit is appropriate for the child’s age and that the child’s presence will not disturb or burden the patient. Through such experiences, children develop sensitivity to the needs of others and become accustomed to fulfilling this important mitzvah from a young age.

 

2. Speaking About Death in the Presence of Children

Not to say the Viduiy in the presence of children:^[7]

One is not to say Viduy in the presence of ignoramuses, or women and children, as this may lead them to cry [and cause hysteria, and they will cause the ill person to panic]. [It goes without saying that those who cannot control their crying are to leave the area while Viduy is recited.]

 

3. Children and Cemeteries
4. May one bring children to a cemetery?

There is no Halachic prohibition against bringing children to a grave or cemetery if the child is not a Kohen. This applies even if the child is of a very young age, such as a newborn.^[8] Nevertheless, some are careful to avoid doing so.^[9] Practically, one may do so if he so chooses, or in a time of need.

 

1. Wearing Revealed Tzitzis or Tefillin Near the Grave of a Child^[10]

Just as one may not wear revealed tzitzis or tefillin in the vicinity of an adult’s grave, so too one may not do so near the grave or body of a Jewish child.^[11] The Poskim rule that the prohibition applies equally in this case, out of respect for the deceased and to avoid the appearance of performing mitzvos in the presence of one who can no longer do so. Accordingly, one should ensure that tzitzis are covered and tefillin are not worn openly in the vicinity of a child’s grave or body. The Poskim explain that this stringency applies because the soul of a child is accorded the same respect and dignity as that of an adult.

 

1. Kohen Children and Cemeteries

See Chapter 20 Last Halacha!

 

4. Attending Funerals
5. Children at Funerals

Must they attend? Children [and their teacher^[12]] who are learning are not to nullify their learning in order to participate in a funeral at all [irrelevant of stature of the deceased].^[13] [Nonetheless, many are customary to have children attend the funeral of a very great Sage who passed away.^[14]]

Should they attend: There is no general halachic prohibition against children attending funerals. On the contrary, the Poskim discuss children attending funerals and even note that children who are learning Torah are ordinarily not taken away from their studies to attend a funeral, implying that attendance itself is not inherently problematic.

Practically, the decision of whether a child should attend a funeral depends less on halachic restrictions and more on the child’s age, maturity, emotional makeup, relationship to the deceased, and ability to process the experience in a healthy manner. Children vary greatly in their understanding of death, and an experience that may be meaningful and educational for one child may be confusing or distressing for another.

From a child-development perspective, attendance at a funeral can sometimes provide important lessons about the reality of life and death, respect for the deceased, the mitzvah of chesed shel emes, and how the Jewish people support one another during times of loss. At the same time, exposing children to emotionally intense scenes for which they are not prepared can create unnecessary fear, anxiety, or confusion. Accordingly, parents should exercise discretion and consider the individual needs of each child rather than applying a blanket rule in either direction.

In general, if a child is mature enough to understand what is taking place and can benefit from the experience in a constructive manner, attendance may be appropriate. If, however, the funeral is likely to be emotionally overwhelming or potentially harmful to the child’s wellbeing, it may be preferable not to bring the child. Like many areas of chinuch, this decision is best made based on the particular child and circumstances rather than by a universal policy.

 

1. Descendants Attending the Funeral of a Parent or Grandparent^[15]

From the letter of the law, children and grandchildren may attend the funeral and burial of a parent or grandparent, and doing so is even considered a mitzvah and an expression of honor for the deceased. However, many communities adopted a custom that direct descendants do not participate in the funeral procession itself.

According to Chabad custom, children and grandchildren do not accompany the funeral procession. Rather, they leave before the procession begins and travel separately to the cemetery. They remain at a distance from the grave during the burial and approach only afterward to recite Kaddish.

This custom applies equally to sons, daughters, grandsons, and granddaughters, whether the deceased is a father, mother, grandfather, or grandmother. Son-in-laws and daughter-in-laws, however, may generally attend the funeral and burial as usual.

While communities should follow their established customs, those who attend the funeral have halachic authorities upon whom to rely, as attending and escorting the deceased is fundamentally permitted and considered an act of honor to the departed.

 

5. Nichum Aveilim
6. Educating Children In Nichum Aveilim:^[16]

One is to educate his children [who have reached the age of Chinuch] to fulfill the Mitzvah of Nichum Aveilim and thus take them with him upon visiting an Avel.

 

1. Comforting Parents Who Lost a Small Child r”l^[17]

When a child passes away the relatives are mourned and comforted in the same manner as other mourners. This includes the customary Shurah after the funeral and the observance of Nichum Aveilim during Shiva

A Nefel Within 30 Days: The Mitzvah of Nichum Aveilim does not apply to a Nefel. Thus, one is not [required^[18]] 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^[19]] 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.^[20]] 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.^[21]

 

6. Kaddish and Children
7. Kaddish for minors – Children Saying Kaddish for a Parent^[22]

If a child’s father or mother passes away, the child should recite Kaddish on behalf of the parent even if he has not yet reached Bar Mitzvah age. In fact, the custom of a mourner reciting Kaddish was originally established specifically on behalf of young orphans who were not yet obligated in mitzvos. Accordingly, a boy below Bar Mitzvah should be encouraged to participate in the recitation of Kaddish according to his ability.

Very Young Children: If the child is too young to recite Kaddish independently, an adult should stand beside him and help him recite the words, either by prompting him phrase by phrase or having him repeat after the adult. Through this, the child fulfills his role in honoring his parent and elevating the parent’s soul.

 

1. Kaddish after the passing of a child below Bar Mitzvah^[23]

Some Poskim^[24] rule the Kaddish is not to be recited for a deceased child until he reaches the age of mitzvah’s which is 12 years old her girl and 13 years old for a boy, and so is the custom of some communities. Other Poskim^[25] however rule that Kaddish is to be recited even on behalf of a child below the age of mitzvah’s, and so is the main ruling and so was the directive of the Rebbe in negation of the previous practice.

From what age? Some Poskim^[26] rule that Kaddish is only said from the time the child reaches the age of Chinuch. Other Poskim^[27] hold that it is said from the age of one years old. Other Poskim^[28] rule that Kaddish is to be said if the deceased child was over 30 days old and so is the Rebbe’s opinion^[29], and so is the final ruling and widespread practice to recite Kaddish on behalf of a child of any age who passed away r”l, as long as the child was over 30 days old.^[30]

Who is to say the Kaddish?^[31] It is best for the father of the child to recite Kaddish for his son or daughter if the father’s parents are not alive. If his parents are alive, then he is not to say Kaddish and rather another person is to be hired to do so, unless his parents are Mochel. [Nevertheless, some are accustomed that a father never says Kaddish on behalf of his child.^[32] Practically, the son is not to say Kaddish if both of his parents are alive, even if they are Mochel.^[33]]

 

The number of months to say Kaddish for a child who passed away r”l

Question:

My four-year-old child recently passed away r”l from a prolonged medical condition. I am hearing conflicting things from different Rabbis who came to me during Shiva regarding how long the Kaddish is to be recited for. Some told me not to say Kaddish at all, another one told me that it is to be said for three months, and another one told me 11 months like everyone else. Can you please clarify this for me?

 

Answer:

The accepted practice based on the simple understanding of the Halacha, is for the Kaddish to be recited for the full 11 months from the passing, just as is done after anyone else who passes away. This applies whether the Kaddish is being said by a hired individual, or is being said by the father [in those cases permitted according to Halacha and in those communities that direct one to do so].

 

Explanation:

It is ruled in the Poskim, as recorded in the Rishonim, and as accepted amongst all Israel, to recite Kaddish after the passing of an individual for at least 11 months. There is no known custom, or source in the Poskim, to recite Kaddish for less than this amount of time. Nonetheless, the Poskim discussed the question as to whether it is at all necessary to recite Kaddish on behalf of a child who passed away, as one who is under Bar/Bas mitzvah. You see, the reason for the 11^th month recital is because the maximum amount of months that a Rasha remains in purgatory is 12 months and we hence want to ease their judgment by the reciting the Kaddish on their behalf. However we do not say for a full 12 months in order not to deem the person a Rasha who is deserving of a full 12 months of purgatory above. Accordingly, there is room to argue that there is no need to say Kaddish on behalf of a deceased child who was below the age of mitzvah’s, being that he does not have any sins for which purgatory is necessary, and indeed there are some authorities who write that Kaddish is not recited for a child who passed away until he reaches the age of mitzvah’s. Nonetheless, the main opinion and practice is to recite Kaddish even on behalf of a child who passed away so long as he is not a Nefel, which is 30 days after birth. The reason for this is because although a child is not held responsible for wronging, nevertheless, there are many benefits of Kaddish asides for removing him from Gehinnom. Following this approach the Kaddish should be recited for 11 months as is done with anyone else, and so is explicitly ruled in the Poskim, and so is the accepted practice and ruling of all Rabbanim that I spoke with when researching the matter. There does not seem to be any source or reason to saying the Kaddish for less than this amount of time. As far as the opinion of saying it for only three months, I spoke to the Rav who made the statement and he bases it on a story with his father who he claims to have given a similar ruling and says that Rav Ovadyah Yosef who was also present at the time agreed with it. However, aside for this not being the accepted practice, he has yet to verify the details of the story and the circumstances in which the acclaimed ruling was given. I have also been unable to ascertain this to be the opinion of Rav Ovdyah Yosef, and in fact it does not seem to be the case as can be understood from his responsas in Yabia Omer regarding this issue in which he makes no such mention of this three-month custom, and it is likewise not recorded in the writings of his sons. Without establishing the details of the story it is not possible to base a Pesak on it, as the Talmud teaches us that one may not base a ruling on a story with a Posek, until the Posek tells you to rule this way as there may be mitigating circumstances which were involved in the above ruling. Indeed, Rav Eli Landa Shlita responded to me that he believes that this is an error, as there is no reason or source or custom for saying it only three months, and that it is to be said for 11 months like everyone else. Likewise, regarding an adult child who passed away the Rebbe instructed that the Kaddish should be said for 11 months and not just for 30 days and explained that the saying of the Kaddish for 11 months is very important according to Kabbalah, and seemingly the same would apply regarding a child below the age of mitzvah’s.

 

Sources:

See regarding saying Kaddish for 11 months: Rama 376:4; Maharil Semachos; Levush 133; Beir Heiytiv 132:5 in name of Kneses Yechezkal; See Taz 340:12 and 376:5; Sefer Haminhagim p. 180 [English]; Igros Kodesh 4:106; Sefer Hasichos 1989 1:175 [printed in Shulchan Menachem 5:290-298] Sichas 9th Teves 1951; Nitei Gavriel chapter 51; See regarding saying Kaddish for 11 months even for a very young child who passed away: Sdei Chemed Aveilus 151 in name of Beis Yisrael; Hakaddish [Asaf] p. 181; Toras Menachem Tziyon 2:344; See regarding the general discussion of saying Kaddish on behalf of a child who passed away r”l: Opinion to say after 30 days old: Michaber 344:4 and Shach 344:3 regarding Kaddish of Tziduk Hadin; Vayitzbar Yosef 21; Hillel Omer 231; Gesher Hachaim 2:12 that so is Minhag Yerushalayim; Sefer Hakkadish p. 181 as second opinion; Pnei Baruch 34:30 as second opinion; Tzitz Eliezer 7:86-7; Nitei Gavriel ibid and footnote 10 that so is the custom and that so is the custom of Chabad and Ashkenaz; Igros Kodesh 19:44 [published in Shulchan Menachem 5:306] Opinion to say after 12 months old: Rama 344:4 regarding Kaddish and Tziduk Hadin by funeral that it is not said for under 12 months; See Maaseh Avraham Y.D. 59 regarding custom in Tzefas Opinion to say from age of Chinuch: Sdei Chemed Aveilus 151, 162, 212; Gesher Hachaim 1:118; Sefer Hakkadish p. 181 as main opinion; Pnei Baruch 34:30 as main opinion; Opinion to say after Bar and Bas Mitzvah: Maaseh Avraham Y.D. 59; See regarding not to give a Halachic ruling based on a story with a Rav until you hear the Rav say that this is the Halacha Lemaaseh: Bava Basra 130b; Nidda 7b

 

A father reciting Kaddish for a child who passed away r”l

Question

One of our older children unfortunately passed away r”l? Should/May I be saying Kaddish for him, for my child?

 

Answer:

If the child did not leave any male offspring, then this matter depends on the status of your parents [i.e. if alive, or Mochel], and even then is under debate amongst the Poskim and Rabbanim, and contains a possible contradiction in the Rebbe’s directives on the subject. Practically, following the tradition of Hora’ah amongst Ziknei Rabbanei Anash, you [i.e. the father] should not say the Kaddish. Rather, another one of your relatives who does not have parents is to recite the Kaddish, and if not available, then you should hire someone to say Kaddish on behalf of your son. This applies even if your parents do not mind you saying Kaddish or your parents are no longer alive. If your child has left male offspring who can say Kaddish [i.e. a son or grandson] then they are the one’s who should say it. In the event that you feel that the saying of Kaddish on behalf of your son will be therapeutic for you to deal with the loss, then you may choose to do so [despite the above traditional ruling, hence relying on other Poskim and sources who even encourage the father to do so] if your parents are no longer alive.

 

Explanation: From the letter of the law, if the deceased did not leave a son or grandson to say Kaddish for him, then the father may say Kaddish on his behalf if he does not have any parents, or his parents are Mochel and allow him to say Kaddish for their grandchild. Furthermore, some Poskim rule that it is even best for the father to say Kaddish on his behalf [in the above case], more than other relatives. So is likewise the advice of the Rebbe in one of his letters, to defend the practice of a father saying Kaddish for his son r”l if the parents are Mochel [or no longer alive]. Nevertheless, the traditional ruling of the venerate Chabad Rabbanim of the previous generation is for a father to never says Kaddish on behalf of his child even if his parents are no longer alive. This follows the seeming ruling of the Rebbe in a different letter in which he directs the father to have someone else say Kaddish on behalf of his son. Practically, in my opinion, the son is not to say Kaddish as is the traditional ruling of the Chabad Rabbanim. However, if he desires to do so anyways, such as if doing so will be therapeutic for him, then he may do so if his parents are no longer alive. However, if both of his parents are alive, even if they are Mochel, it is best not to do so even in such a case and rather he is to hire someone else.

 

Sources: See Nitei Gavriel 40:6; 49:2; Hiskashrus 644:16 and 649 and 682; See regarding the letter of the law that a father may and even should say Kaddish for son if he does not have parents or they are Mochel: Rav Poalim 4:7; Chelek Halevi 133; Igros Kodesh 19:44 [published in Shulchan Menachem 5:306. Unlike Igros Kodesh 15:330]; See Shvus Yaakov 2:93; Elya Zuta, brought in Beis Lechem Yehuda 376; Mateh Ephraim 4:7; Pnei Baruch 34 footnote 47; See Hiskashrus 644:16 and 649; See Nitei Gavriel 49:1 Opinions who rule a father never says Kaddish for son: See Igros Kodesh 15:330 [unlike Igros Kodesh 19:44] that it is best to hire another person to say it rather than the father, [although it is unclear from the letter if the person had parents and if the parents were Makpid]; Ruling of Rav Yaakov Landa heard from his son, Rav Eli Landa; Ruling of Rav Zalman Shimon Dworkin, as related by Rav Groner; Maaseh of Rav Avraham Tzvi Hakohen, who did not say Kaddish for his 18 month old son who passed away; See Noda Beyehuda Tinyana O.C. 8 based on Sotah 10b who implies there is no advantage over having a father say it; See regarding not saying Kaddish if parents are alive even if Mochel: See Toras Menachem Tziyon 2:381, printed in Shulchan Menachem 5:296; Nitei Gavriel 2:43 footnote 6 in name of Rebbe; See Hiskashrus 644

 

7. Children Mourning a Relative who Passed Away
8. Aninus – Children becoming an Onen:^[34]

Children who are below the age of Bar and Bas Mitzvah do not keep any laws of Aninus, as is the law regarding Aveilus. If the child is a son of the deceased, he is to go to Shul and recite Kaddish even before the burial.

May an Onen feed his children meat or chicken?^[35] It is permitted for an Onen to feed meat to his children and we do not suspect that he may come to eat it.

 

 

 

 

 

 

 

 

 

 

1. Keriah – Children Performing Keria^[36]

A child [even below Chinuch^[37]] whose relative passed away [for whom a person has to sit Shiva] is to have his garment torn by others.^[38]

How much to tear:^[39] When tearing for a child that has not yet reached the age of Chinuch then one is to tear only a small amount [not a Tefach], however if the child has reached the age of Chinuch, then one is to tear a full Tefach.

 

1. Shiva and Shloshim:^[40]

A child [below Bar/Bas Mitzvah] who has lost a relative for whom he/she is obligated to mourn, is not obligated to observe any laws of Aveilus [Shiva; Shloshim; 12 Months] with exception to Keriah as stated above.^[41] This applies even if the child has reached the age of Chinuch.^[42]

A child who became Bar Mitzvah during Shiva/Shloshim: Some Poskim^[43] rule that a child who became Bar/Bas Mitzvah during the Shiva [or Shloshim] of a relative, is not obligated to keep Shiva or any laws of Aveilus even after he becomes Bar Mitzvah.^[44] Other Poskim^[45] rule a child who became Bar/Bas Mitzvah within the Shloshim from the burial, then he is to keep Shiva and Shloshim from that day and onwards. Practically, we rule like the former opinion that the child remains exempt from all mourning.^[46] [This applies even if he only discovered the death after he became Bar/Bas Mitzvah. If, however, he became Bar/Bas Mitzvah between the death and burial, he is obligated in Aveilus.^[47]]

 

Q&A If a child became Bar/Bas Mitzvah during the year of Aveilus for a parent, is he to follow the mourning laws applicable for the 12 months? Some Poskim[48] suggest that perhaps, although the child is exempt from Shiva and Shloshim, nevertheless he/she is obligated to keep the mourning laws applicable for the first 12 months.[49] Some[50] however conclude that one who is lenient has upon whom to rely.   Should children continue going to Cheder during the Shiva?[51] Ideally, they are to go to Cheder and continue their learning[52], as this is one of the reasons for why children are exempt from Aveilus.

8. A child who passed away r”l
9. Practical Matters Following the Passing of a Child

Blessing of Dayan Haemes:^[53] Upon the passing of a child, the blessing Baruch Dayan HaEmes is generally recited by the relatives, just as it is recited upon the passing of any close relative. [In practice, it is often recited at the funeral or burial rather than immediately upon hearing the news, when the full reality of the loss is most keenly felt.] However, when the child passed away before reaching thirty days of age and is halachically classified as a Nefel, the accepted practice is not to recite the blessing. Nevertheless, some authorities write that even in the case of a child who passed away within thirty days, the relatives may choose to recite Dayan HaEmes with Hashem’s Name if they so desire.

Spilling out all drawn water in the vicinity when a child passes away:^[54] It is customary to spill out all the drawn water in the neighborhood in which the person passed away.^[55] [Water of the neighborhood should be spilled even if a child, who is less than thirty days old, passes away, and even if a gentile passes away.^[56] On Shabbos, one is not to spill the water.^[57] However, on Yom Tov one is required to do so.^[58] One is not required to spill out water that was frozen at the time of death.^[59] One is only required to spill out plain water and not other water based liquids.^[60] One is not required to spill undrinkable water.^[61] Some Poskim^[62] rule one is not required to spill out water that was covered tightly. However, others^[63] rule that even sealed water is required to be spilled, and so is implied from Admur.^[64]]

Must the water be spilled after a Nefel [i.e. still born, or baby who died within thirty days] passes away?^[65] One is to spill the water in the home after a Nefel passes away. However, if the child was born dead, water is not needed to be spilled.

 

1. Aninus Following the Passing of a Child

When a child passes away and the relatives are obligated in the child’s burial and mourning, the regular laws of Aninus apply until the burial takes place. During this time, the relatives are exempt from positive mitzvos and are subject to the various laws governing an Onen. A question arises, however, regarding a child who passed away before thirty days of age and is halachically classified as a Nefel.

The Law  by a Nefel: Some Poskim^[66] rule that the relatives do not enter a state of Aninus at all.^[67] They explain that since a Kohen may not become impure even for a related Nefel, this demonstrates that the ordinary obligations associated with the burial of relatives do not fully apply. Other Poskim^[68] however leave the matter unresolved. Practically, the relatives do not receive the full status of an Onen and remain obligated in mitzvos. Nevertheless, out of deference to the opinions that recognize a partial status of Aninus, they should refrain from eating meat, drinking wine, and marital relations until after the burial.^[69]

 

1. Hesped – Eulogy for Child who passed away:^[70]

Children who have passed away r”l are to be eulogized if they are above age 5-6.^[71] [Practically, the custom today is not to eulogize a child.^[72]] Nevertheless, Tziduk Hadin and Kaddish are recited on any child who passed way after thirty days old.^[73] However, the [widespread] custom is not to recite Tziduk Hadin and Kaddish until the child is 12 months old.^[74] However, in some communities, the custom is like the former opinion, to say Tziduk Hadin and Kaddish if the child is thirty days old.^[75]

 

 

 

 

 

1. Funeral

For Nefel infant: There is no obligation to participate in the funeral of a Nefel [i.e. still born, or baby who died within thirty days].^[76] Nevertheless, some Poskim^[77] rule that a child who passed away within 30 days of birth, is to have at least three people escort him to the burial. The custom however is for the infant to be brought to the burial alone, only in the presence of the Chevra Kadisha.^[78]

Funeral of a child:^[79] There is no obligation to nullify Torah study to participate in the funeral of a child [even if one sees the funeral taking place^[80]].

 

1. Keriah – Performing Keria For A Child Who Passed Away:^[81]

Relatives are to perform Keriah upon the passing of a child that is 31 days old or more. If however the child was possibly born prematurely [i.e. before the end of the 9^th month, which is approximately before week 38^[82]] and was less than 31 days of age, then Keriah is not to be performed.^[83] If it was factually determined that the child was carried to term and born after a full nine months^[84] [approximately 38 weeks], the relatives must perform Keriah even if the child passed away within 30 days of being born.^[85]

 

1. Burial of a Child

Circumcision and Naming After Death:^[86] A Nefel [i.e. still born, or baby who died within thirty days], or any child who died prior to circumcision, is to be circumcised [by a Jew^[87]] prior to the burial.^[88] A blessing is not recited over the circumcision. He is also to be named at that time.^[89] [Some are accustomed to performing the circumcision during the Taharah process, and not by the burial.^[90] He is circumcised with any sharp material, such as a rock, glass, or knife.^[91] The circumcision may be done even at night.^[92] Peria is not performed.^[93] If the child was buried without a circumcision, it is permitted for the child to be unearthed and circumcised.^[94]]

The Tallis:^[95] The custom of all Jewry is to garb a [male^[96]] corpse in a Tallis Gadol at the time of his funeral and burial, as his form of Tachrichim.^[97] [The custom is to wrap him in the Tallis Gadol that he wore while alive.^[98] This applies even if his Tallis is elegant and expensive.^[99] If the deceased had a Shabbos and weekday Tallis, the Shabbos Tallis is to be used.^[100] If this is not available, then a new Tallis may be used.^[101] The deceased is not garbed with a Tallis Katan.^[102] However, there is a difference of opinion and custom as to whether a child or Bochur who did not yet begin wearing a Tallis Gadol should be wrapped in a Tallis Gadol or Tallis Katan.^[103] If a child below age three passed away, some do not wrap him in a Tallis at all.^[104] In Eretz Yisrael, the custom is to bury the corpse without a Tallis, although he is garbed in a Tallis throughout the funeral, until the burial.^[105] In Eretz Yisrael, one may not swerve from this custom.^[106]]

Burying parent with child or grandchild:^[107] It is permitted to bury a father together with his small daughter [or granddaughter^[108], and certainly his small son or grandson^[109]], and a mother with her small son or small grandson [and certainly with her small daughter or granddaughter^[110]]. The rule is that so long as the child is small enough to still sleep with the parent, they may be buried together. [This refers to the age in which a child of the opposite gender is still Halachically allowed to sleep with the parent. However, once the child is old enough to not be allowed to sleep with the parent of opposite gender, then they may not be buried together with a parent even of the same gender.^[111] All the above refers to burying the two individuals simultaneously, however when burying one after the other, the custom is to have a 6 fingers, 12 centimeters, distance between the graves.^[112]]

Temporarily unearthing without intent to rebury elsewhere:^[113] It is forbidden to dig open a grave once it is closed even if one plans to re-bury it right away. This applies even if the heirs desire to open the grave for monetary related purposes. [It is disputed amongst Poskim^[114] as to whether the body may be unearthed for identification purposes for the sake of releasing his wife from Aguna status, or for the sake of having the children say Kaddish. It is likewise disputed amongst Poskim^[115] as to whether one may unearth the body if one of the Tachrichin garments were not placed on him. If a child was buried without a circumcision, it is permitted for the child to be unearthed and circumcised.^[116]]

Wearing Revealed Tzitzis or Tefillin Near the Grave or Body of a Child:^[117] One may not wear revealed tzitzis or tefillin in the presence of the grave or body of a Jewish child, just as one may not do so near the grave or body of an adult Jew. This prohibition applies even when the deceased child was below Bar or Bas Mitzvah.^[118]

 

1. Keeping Aveilus for a child/Nefel who died:^[119]

The relatives are required to observe the laws of Shiva and Shloshim following the passing of a child, just as they do for any other close relative, provided that the child is not halachically defined as a Nefel. A Nefel generally refers to a child whose status is considered that of a premature birth that did not establish a full halachic presumption of life. 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 9^th month^[120] [approximately after week 38^[121]] or before the end the 9^th month^[122], then if the child is 31 days old or more, the relatives are to mourn his/her passing.^[123] 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^[124] [he is defined as a Nefel, and] the relatives are not to mourn his passing.^[125] This applies even if the child passed away on the 30^th day.^[126]

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.^[127] 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.^[128] [If, however, he only passed away after several months of living, then he is not considered a Nefel in this regard.^[129]]

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.^[130] [For example: If she had relations with her husband on the 1^st of Elul and he left town that day [and did not return and have relations with her until the pregnancy was already determined^[131]] then if she gives birth 9 full months [approximately 38 weeks] after the 1^st of Elul [i.e. the 3rd of Iyar^[132]], 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 9^th 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 8^th month child of which we rule that within 30 days mourning is not observed.]

Summary: If a child that passed away is 31 days old or more, the relatives are to mourn his/her passing. If the child is less than 31 days of age when he passed away, the relatives are not to mourn his passing. If, however, it was factually determined that the child was born after nine full months [approximately 38 weeks], the relatives must mourn the child even if he passed away within 30 days of being born. On the other hand, if it was factually determined that the child was born before the end of the ninth month, the relatives are not required to mourn the child even if he passed away after 31 days of being born. 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.

 

1. Seudas Havraah?^[133]

When a child passes away and the relatives are obligated in the laws of mourning, the customary Seudas Havra’ah is served to the mourners following the burial, just as in the case of any other relative. An exception exists in the case of a child who is halachically classified as a Nefel, meaning that the child passed away before thirty-one days of age and it is not definitively known that the child was carried to a full nine-month term. In such a case, since the relatives do not observe the regular laws of mourning, a Seudas Havra’ah is not served. Accordingly, if the child was older than thirty days, or it is otherwise established that the child is not considered a Nefel, then the relatives are mourned in the regular manner and are to be served a Seudas Havra’ah following the burial

 

1. Minyan in the Home Following the Passing of a Child

When a child passes away, a question arises as to whether a minyan should be arranged in the home of the mourners, as is commonly done during Shiva. Some authorities write that if the child was less than one year old, a minyan should not be established in the home on account of the child’s passing.^[134] Nevertheless, the widespread custom today is that if there are male mourners in the home who are sitting Shiva, a minyan is arranged for them so that they may daven with a minyan and recite Kaddish.^[135] Accordingly, while the passing of an infant alone may not warrant establishing a house minyan, where there are mourners who require communal prayer services, the accepted practice is to arrange a minyan in the home as usual.

 

1. Kaddish after the passing of a child below Bar Mitzvah

See Halacha 6B!

 

9. The passing of an infant, fetus/Nefel, stillborn & miscarriage^[136]

This chapter will deal with all the laws and customs of mourning and burial applicable to a child Halachically defined as a stillborn, known in Hebrew as a Nefel. While the general populace defines a stillborn only as a child who was born without life, in Halacha, this concept is extended even to a child who was born alive but prematurely, or who died prematurely. Certain laws of mourning and burial were only instituted after the passing of a living person and not after the passing of a Halachic stillborn/Nefel. This chapter will sift through all the detailed laws of mourning and burial as they are applied to a Nefel. 

 

 

1. The definition of a Nefel:^[137]

A Nefel refers to a child who was born dead [i.e. stillborn], or who was born prematurely and then died.^[138] 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.^[139] If he was born after this time, he is not defined as a Nefel even if he died within thirty days after birth.^[140] 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].^[141] [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.^[142] 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.^[143] 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.

 

1. After death:

Bracha of Dayan Haemes:^[144] Some write that the relatives of a Nefel may say the blessing of Baruch Dayan Haemes with Hashem’s name if they so choose.

Placing on floor:^[145] A Nefel does not need to be placed on the floor, as is commonly done to the bodies of others who have deceased.

Lighting candles:^[146] There is no need to light candles around the Nefel.

Pouring water:^[147] One is to spill the water in the home after a Nefel passes away. However, if the child was born dead, water is not needed to be spilled. See Chapter 2 Halacha 5!

Kissing:^[148] One may not kiss a Nefel, just as by any other deceased. See Chapter 2 Halacha 4C!

Looking at face:^[149] One is to avoid looking at the face of a Nefel, just as by any other deceased. See Chapter 2 Halacha 4C!

Shemirah:^[150] A Nefel does not require Shemirah to be done to the body if he is in a safe area, protected from rodents and the like, such as in the fridge of the morgue.

Autopsy:^[151] It is forbidden to perform an autopsy on a Nefel. In a case of need, a Rav is to be contacted.

Aninus: Some Poskim^[152] rule the relatives of a Nefel do not have the status of an Onen.^[153] Other Poskim^[154] however leave this matter in question.^[155] Practically, the relatives are obligated to fulfill the Mitzvos, but are not to eat meat, drink wine, or have marital relations until the burial.^[156] See Chapter 3!

 

 

 

1. Taharah:^[157]

A Nefel receives a regular Taharah, including the placing of earth on the eyes.^[158] However, some communities are accustomed not to perform Taharah on a Nefel.

Tachrichin:^[159] The burial garments, known as Tachrichin, are not garbed on a Nefel. He is simply wrapped in a white sheet.

 

1. Circumcising the Nefel:^[160]

Any child who died prior to circumcision [including a Nefel], is to be circumcised [by a Jew^[161]] prior to the burial.^[162] A blessing is not recited over the circumcision. [Some are accustomed to performing the circumcision during the Taharah process, and not by the burial.^[163] He is to be circumcised with any sharp material, such as a rock, glass, or knife.^[164] The circumcision may be done even at night.^[165] Peria is not performed.^[166] If the child was buried without a circumcision, it is permitted for the child to be unearthed and circumcised.^[167]]

 

1. Naming the child:^[168]

A Nefel, or any child who died prior to circumcision, is to be named at the time of the circumcision.^[169] [This applies likewise for a female Nefel, that if she died prior to being named, then she is to be named prior to burial.^[170] This applies whether the child was born dead or alive.^[171] The custom is to give the child an uncommon name.^[172]]

 

1. Pidyon Haben:^[173]

Dies prior to 31^st day:^[174] If a firstborn child who is obligated in Pidyon Haben died prior to the 31^st day from birth then he does not need to be redeemed.

Dies after 30 days:^[175] If the firstborn child who is obligated in Pidyon Haben died past the 30^th day from birth then he must be redeemed. He is to be with a blessing, however without the blessing of Shehechiyanu.^[176] He is to be redeemed prior to the burial. [In the event that he was not redeemed prior to the burial, then he needs to be redeemed after the burial.^[177]]

 

 

 

1. The funeral/burial of a Nefel:

Does a Nefel require burial? Some Poskim^[178] rule that a stillborn and Nefel^[179] is not obligated to be buried, and from the letter of the law may be discarded. Other Poskim^[180], however, rule it is an obligation to bury a stillborn or Nefel. Practically, the custom is to bury it.^[181] [The custom is to bury Nefalim in a designated area of the cemetery.^[182] 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.^[183] A Nefel^[184] who passed away after the age of five months is required to be buried from the letter of the law.^[185]]

When to bury the Nefel: Some Poskim^[186] 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.^[187] [However, some Poskim^[188] 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^[189], however, completely negate this and rule that the Nefel is to be buried right away.]

Burying on Yom Tov:^[190] 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.^[191] 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.^[192]

Funeral: There is no obligation to participate in the funeral of a Nefel.^[193] This applies even if one knows for certain that the child was carried to term.^[194] Nevertheless, some Poskim^[195] 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.^[196]

Eulogy:^[197] A Nefel is not to be given a eulogy.

Keriah:^[198] 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 9^th month, which is approximately before week 38^[199]] and was less than 31 days of age.^[200] 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^[201] [approximately 38 weeks^[202]], the relatives must perform Keriah even if the child passed away within 30 days of being born.^[203]

Kohen attending: It is forbidden for a male^[204] Kohen^[205] to defile himself to a corpse^[206] 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.^[207] This applies even if the Nefel is a relative of the Kohen [i.e. the Kohen’s son r”l].^[208]

How to carry the child:^[209] 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^[210]]. 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.^[211]

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.^[212] If the child who passed away was past a full thirty days old, then he is buried in a small coffin.^[213] [Practically, the custom is to place the child in a small coffin.^[214]]

How to bury:^[215] 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.^[216] The custom in Jerusalem is for the Nefel is to be buried a short distance from another grave.^[217] 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.^[218]]

Tziduk Hadin and Kaddish:^[219] 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].^[220] However, the [widespread] custom is not to recite Tziduk Hadin and Kaddish until the child is 12 months old.^[221] However, in some communities, the custom is like the former opinion, to say Tziduk Hadin and Kaddish if the child is thirty days old.^[222]

Washing hands:^[223] 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:^[224] The Mitzvah of Nichum Aveilim does not apply to a Nefel. Thus, one is not [required^[225]] 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^[226]] 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.^[227]] 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.^[228]

Bemoaning the death:^[229] 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:^[230] 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: ^[231] 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.

 

Burial of a Miscarried Fetus: Guidance

Question:
Is it permitted for someone to bury a fetus after a miscarriage in their own backyard?

 

Answer:
One should not do so. It is forbidden for a kohen to become ritually impure through contact with the dead, which includes a fetus. Therefore, out of precaution for the Kohanim, such cases are typically entrusted to the chevra kadisha to handle, or the remains are buried in a designated area of a local cemetery.

 

Sources

Regarding burial: Michaber and Rama Y.D. 263:5; O.C. 526:10; Admur 526:19-20; M”A 526:20; Avnei Nezer 472; Pischeiy Teshuvah 357:1; Regarding Tumas Kohanim: Rambam Tumas Meis 2:1; 9:2; 11:7; Bach Y.D. 369; Taz 369:1; Noda Beyehuda Y.D. Kama 97; Chidushei Hagirshoni; Pischeiy Teshuvah 369:2; Kitzur SHU”A 202:1; Nitei Gavriel 130:12; 135:9; Heichal Horah 3:120; 5 p. 113; Encyclopedia Hilchatit Refuit Vol. 3 Erech Yilud p. 928

 

1. Aveilus [Shiva/Shloshim] for a Nefel who died:^[232]

The relatives do not sit Shiva or Shloshim after the passing of a Nefel. A Nefel in this regard is defined as any child who passed away within thirty days of birth, and it has not been factually determined that he was born after a full nine months. This applies even if the child was fully developed upon being born. See Chapter 12 Halacha 5 for the full details of this subject!

 

 

 

 

[1] See Encyclopedia Talmudit Vol. 16 p. 193

[2] Michaber 335:2

[3] This is called “Ben Gilo” in the Gemara and Shulchan Aruch, and is interpreted to mean one who shares the same Mazal, which means they were born the same time, by the same constellations. [Taz 335:2; Ran Nedarim 39b]

[4] Shach 335:1; Taz 335:2; Bava Metzia 30b

[5] Michaber ibid; Bava Metzia ibid

[6] See Toras Hakatan [Rubinovitch] Chapter 2:30-32; Likkutei Sichos 16:625; Shaareiy Chinuch p. 153

[7] Michaber 338:1

[8] No such prohibition or warning is mentioned in any of the Poskim

[9] So is accustomed by some families. There is no known source for this adherence, and it is seemingly similar to the adherence of some to not enter a cemetery while pregnant, due to the impurity.

[10] Elya Raba 23:3 in name of Maharit Tzehlin; Peri Megadim 23 A”A 2; M”B 23:5; Kaf Hachaim 23:3

[11] The reason: As perhaps the soul of a child is considered a Gadol. [Poskim ibid]

[12] Aruch Hashulchan 361:3

[13] Michaber ibid; See Tzitz Eliezer 7:49-3 who suggests that until age 20 one has a status of Tinokes Shel Beis Raban

The reason: As we do not nullify children from learning even in order to build a Shul. [Shach 361:6]

[14] Salmas Chaim Y.D. 418; Gesher Hachaim p. 129; Nitei Gavriel 66:7

[15] See Pnei Baruch 4:14; Nitei Gavriel chapter 69 for a full analysis on this subject

[16] Mavor Yabok Sefas Emes 37; Reishis Chochmah Mamar Gidul Banim; Nitei Gavriel 85:15

[17] Michaber 353:4; Nitei Gavriel 135:37

[18] Shach 374:4; Levush

[19] Shach 374:5

[20] See Shach ibid

[21] Michaber 353:5

[22] Rama 376:4; Ashel Avraham 132; See Igros Kodesh 18:266 regarding Mishnayos and Kaddish Derabanan; Pnei Baruch 34:22; Nitei Gavriel 40:7; Piskeiy Teshuvos 132:21

[23] See Tzitz Eliezer 7:86-7; Nitei Gavriel 40:6; Igros Kodesh 19:44 [published in Shulchan Menachem 5:306]

Other opinions: Some write that the custom is not to say Kaddish on behalf of a child below 13 years of age. [Sefarim brought in Igros Kodesh ibid] On a related issue, see Rav Akiva Eiger 384 in name of Chidushei Gershoni that if a child who was less than one year of age passed away, one is not to make a Minyan in his house during the Shiva.

[24] Maaseh Avraham Y.D. 59 regarding custom in Izmir; Letter of Rav Pesach Tzevi Frank in Sefer Hakaddish and Yalkut Das Vadin of Rav Asaf p. 70; See Noda Beyehuda Tinyana 8, brought in Pischeiy Teshuvah 376:3; Sdei Chemed 212 in name of Ikarei Hadat Y.D. 36:11 that some places don’t say Hashkava on child less than Bar and Bas Mitzvah

[25] Michaber 344:4 and Shach 344:3 regarding Kaddish of Tziduk Hadin that is said from 30 days; Rama 344:4 regarding Kaddish and Tziduk Hadin by funeral that it is said for child over 12 months; Sdei Chemed Aveilus 151, 162, 212; Mishmeres Shalom Kuf Samech; Kol Bo Grennwald 5:1-20; Igros Kodesh 19:44 [published in Shulchan Menachem 5:306] that the same applies throughout the year; Tzitz Eliezer 7:86-7; Gesher Hachaim 1:118; Pnei Baruch 34:30; Yabia Omer 9 Y.D. 36

[26] Sdei Chemed Aveilus 151, 162, 212; Gesher Hachaim 1:118; Sefer Hakkadish p. 181 as main opinion; Pnei Baruch 34:30 as main opinion

[27] See Rama 344:4 regarding Kaddish and Tziduk Hadin by funeral that it is not said for under 12 months; See Maaseh Avraham Y.D. 59 regarding custom in Tzefas

[28] Michaber 344:4 and Shach 344:3 regarding Kaddish of Tziduk Hadin; Vayitzbar Yosef 21; Hillel Omer 231; Gesher Hachaim 2:12 that so is Minhag Yerushalayim; Sefer Hakkadish p. 181 as second opinion; Pnei Baruch 34:30 as second opinion; Tzitz Eliezer 7:86-7; Nitei Gavriel ibid and footnote 10 that so is the custom and that so is the custom of Chabad and Ashkenaz; Yabia Omer 9 Y.D. 36

[29] Igros Kodesh 19:44 [published in Shulchan Menachem 5:306]

[30] The reason: As although a child is not held responsible for wronging, nevertheless, there are many benefits of Kaddish asides for removing him from Gehinnom. See also Noda Beyehuda ibid that a child is punished for wrongdoing.

[31] See next Q&A

[32] Ruling of Rav Yaakov Landa heard from his son, Rav Eli Landa; Rav Zalman Shimon Dworkin, as related by Rav Groner; Maaseh of Rav Avraham Tzvi Hakohen, who did not say Kaddish for his 18 month old son who passed away; See Hiskashrus 644:16 and 649 and 682

[33] Nitei Gavriel 2:43 footnote 6 in name of Rebbe; 49:2

[34] Nitei Gavriel 13:1

[35] Sdei Chemed Aninus 13

[36] Michaber 340:27; Moed Katan 14b; 26b; See Nitei Gavriel 59:1-5; Pnei Baruch 1:27

Other opinions: Some Poskim rule it is not necessary to do Keriah to a Katan, as a Katan is not obligated to keep Aveilus. [See Chochmas Shlomo 340 in explanation of Shach 340:41; Nitei Gavriel 47:1] Some Poskim rule it is only necessary to do Keriah for a Katan if his parent passed away. [Derisha 340:2; Zera Emes 3:155-11; See Nitei Gavriel 47:4] Other Poskim rule that only if the father is alive must Keriah be done, as the Mitzvah of Chinuch is on the father. [Chochmas Adam152:17; Minchas Chinuch 464:9; See Nitei Gavriel 47:5]

Shemua Kerova: If a child heard a Shemua Kerova, it is disputed in Poskim as to whether he must perform Keriah. [Taz 340:15-Yes; Masas Binyamin 79-No]

[37] Derisha, brought in Rav Akiva Eiger 340:27; Bach 340

[38] The reason: Although a child is not obligated in Mitzvos, one is nevertheless to perform Keriah to his garment that he is wearing in order to express sorrow [Moed Katan ibid; Shach 340:41] and have those around him cry [Rashi Moed Katan 14b] or have them increase in eulogy. [Tur, brought in Taz 340:15] This reason suffices for even a child who has not yet reached the age of Chinuch. If however the child has reached the age of Chinuch then some Poskim rule he is obligated to do Keriah just as he is obligated in all laws of Aveilus. [Derisha, brought in Taz 340:15] Other Poskim however rule a child is never obligated in any laws of Aveilus, and Keriah is an exception due to the above-mentioned reason. [Shach in Nekudos Hakesef 340:15 based on Rosh and Tur and Michaber 396; Degul Merivava 340; Pischeiy Teshuvah 340:10]

[39] Derisha 340, brought in Rav Akiva Eiger 340:27; Bach 340

[40] Michaber 396:3; Tur in name of Rosh; See Pnei Baruch 25; Nitei Gavriel 127

[41] The reason: As this would cause him to stop learning Torah for the Shiva, and we do not nullify Torah learning simply for the sake of Chinuch. [Degul Merivava ibid] Alternatively, as children below Bar and Bas Mitzvah are not obligated in the laws of Aveilus, as the entire reason behind keeping Aveilus customs is to arouse repentance from the relatives, however Katan is not required to repent as he is not of age to be punished. [Beis Hillel ibid]

[42] Shach in Nekudos Hakesef 340:15 based on Rosh and Tur and Michaber 396; M”A 551:38; Rokeiach Aveilus 314; Degul Merivava 340; Yad Avraham 381; Beis Hillel 381 based on Rashi Taanis 12b; Levushei Serud 340:15; Chochmas Adam 152:17; Pischeiy Teshuvah 340:10; Igros Moshe 1:124; Nitei Gavriel 105:25; and many Poskim in 127 footnote 1; See Pnei Baruch 25 footnote 9

Other opinions: Some Poskim rule that children who have reached the age of Chinuch are obligated to mourn for a relative who passed away and hence must keep all the laws of Aveilus, [unless stated otherwise]. [Derisha, brought in Taz 340:15; All Poskim ibid negate this opinion] Thus, according to this opinion, if the child has a father and is not in a Talmud Torah, he is to be educated by his father to mourn. However, if the child does not have a father, or he is in a Talmud Torah, then he is exempt from Aveilus, as explained in the next footnote. [Shivas Tziyon 61, brought in Pischeiy Teshuvah 396:2; See Pnei Baruch 25 footnote 9]

[43] Michaber 396:3; Beis Yosef 396; Tur in name of Rosh; Rosh [student of Maharam] in end of Moed Katan; Taz 396:1 [Regarding the contradictory ruling of the Taz 340:15 in name of the Derisha, that even if a child has reached the age of Chinuch he is to be educated to mourn, see Shivas Tziyon 61, brought in Pischeiy Teshuvah 396:2, that this only applies if the child has a father and is not in a Talmud Torah, in which case he is to be educated by his father to mourn. However if the child does not have a father, or he is in a Talmud Torah, then he is exempt from Aveilus, as explained in the next footnote.];

[44] The reason: As once one is exempt at the time of the obligation, he remains exempt also for the Tashlumin. [Rosh ibid] Alternatively, the reason is because the Chiyuv of Aveilus is specifically at the moment of burial, when the bitterness is greatest, and hence since the child was exempt at that time, there is no obligation for him to keep mourning laws later on. [Taz 396:1 in explanation of ruling of Michaber ibid, and answer of contradiction in Michaber ibid to his ruling in 341 where he rules like the Maharam regarding Havdalah.]

[45] Maharam Merothenberg [teacher of Rosh ,brought in Rosh in end of Moed Katan], brought in Shach 396:1 and Taz 396:1; Rabbeinu Yerucham and Bach 396 conclude to follow the Maharam, as he was the teacher of the Rosh, as well as that the ruling of the Michaber ibid is contradicted earlier in 341 where he rules like the Maharam regarding Havdalah; The Taz ibid negates his opinion; The Shach in Nekudos Hakesef defends the ruling of the Maharam against the proofs of the Taz; Yad Eliyahu 93 also negates the ruling of the Taz ibid, brought in Gilyon Maharsha 396

Within the Shiva: Some Poskim rule [unlike Michaber ibid] that if a child became Bar/Bas Mitzvah within the Shiva then he must keep Shiva for the remaining days that are left of Shiva even according to the Rosh, as every day of Shiva is a separate obligation and is not Tashlumin, and it is only in a case that he became of age after Shiva that there is a dispute. [Yad Eliyahu ibid; Poskim brought in Pnei Baruch 25:5 footnote 12 and Nitei Gavriel 127:3 footnote 5-6; Gesher Hachaim 19:3-3 that so is custom] However according to the Michaber and Tur and Taz ibid the Katan is exempt even in such a case.

After Shloshim: If he became Bar/Bas Mitzvah after the Shloshim, then according to this opinion, he is to keep Aveilus for one hour, just as is the law regarding a Shemua Rechoka. [Maharam; Pnei Baruch 25:5]

[46] Taz 396:1 “Therefore it appears Halacha Lemaaseh to rule like the Rosh, not for his reason, but for the reason I mentioned.”; Chochmas Adam 168:6; Aruch Hashulchan 396:5; Kitzur SHU”A 216:2; Ikarei Hadat 36:48

[47] Nitei Gavriel 127:4 and 8; See Taz ibid

[48] Chochmas Adam 168:6, brought in Pischeiy Teshuvah 396:4; Aruch Hashulchan 396:5; Kitzur SHU”A 217:2; Pnei Baruch 25:5; Nitei Gavriel Vol. 2 62:2

[49] The reason: Although it is implied from Michaber ibid that the child is exempt from all Aveilus, nevertheless, perhaps there is a difference between Shiva and Shloshim, which are Rabbinical obligations of mourning, and the 12 months which is done for Kibbud Av Vaem. [ibid]

[50] Gesher Hachaim 19:3-3

[51] Nitei Gavriel 127:2 footnote 2

[52] See Michaber 384:5; Shoel Umeishiv 3:213

[53] Nitei Gavriel 63:6 in name of Rav Moshe Feinstein; 135:6

[54] Michaber Y.D. 339:5; Rama O.C. 455:1; Admur O.C. 206:14; 455:15; Kol Bo; Mordechai Remez 593; Kitzur SHU”A 194:9; See Gesher Hachaim 3; Sefer Shemiras Haguf Vihanefesh [Lerner] 186:1

Other opinions: In many communities, it is no longer customary to spill the water after the death of someone in the neighborhood. [See Sefer Shemiras Haguf Vihanefesh [Lerner] 186:1 footnote 2; See Lechem Hapanim 194 in name of Teshuvah Meahava that “Kol Dekapid, Kapid Bahadei” and implies that there is no need to suspect for this if one does not want] Some Poskim rule that one may be lenient in a case of loss. [Beis Yitzchak Y.D. 2:103; Divrei Malkiel 4:94; Har Tzevi Y.D. 261; Sdei Chemed; Yabia Omer 1 Y.D. 23; Sefer Shemiras Haguf Vihanefesh [Lerner] 186:5]

[55] The reason: Several reasons are given behind this custom: a) There is danger involved if one does not spill the water. [Admur ibid and ibid] as the angel of death places a drop of poisonous blood into the water, and one who drinks from it endangers his life. [Admur 206:14; Taz 339:4-only reason; 2^nd reason in Shach 339:9; Tashbatz 444; Kol Bo 114; Mordechai Remez 593; Olas Tamid 206:5 that so is main reason; Levush 455:6; Kaf Hachaim 206:45] The Tashbatz writes that a person once drank this water and died shortly afterwards. [Shach ibid; See Beir Heiytiv 339:5 for full story] b) This is done to publicize that there is a death and prevent the need of verbally informing people, as one who informs another of a death is considered to be “spreading evil tongue.” [1^st reason in Shach ibid; Maharil] See Mavor Yabok Sefas Emes 23; Damesek Eliezer 49

[56] Birkeiy Yosef 339:8, brought in Pischeiy Teshuvah 339:4, Rav Akiva Eiger 339; Yad Avraham 339; Poskim in Nitei Gavriel 8:7-8 footnote 11 and 15; See Sefer Shemiras Haguf Vihanefesh [Lerner] 186:9-10

Other opinions: Some Poskim rule it is not necessary to spill the water. [See Poskim in Nitei Gavriel 8:7-8 footnote 12 and 16]

[57] Shemesh Tzedakah Y.D. 36; Tosfos Shabbos 211:1, brought in Rav Akiva Eiger 339; Poskim ibid, brought in Pischeiy Teshuvah 339:4; Kitzur SHU”A 194:9; Aruch Hashulchan; Mishmeres Shalom Mem-34 in name of Tuv Taam Vadas; Sefer Shemiras Haguf Vihanefesh [Lerner] 186:7 footnote 7

The reason: As we do not publicize a death on Shabbos, as well as that the angel of death does not enter his sword in the water on Shabbos. [ibid]

Other opinions: Some Poskim rule one is to spill the water even on Shabbos. [Birkeiy Yosef 339:9, brought in Kitzur SHU”A ibid; Pischeiy Teshuvah 339:4 concludes to spill after Shabbos; Mishmeres Shalom Mem-34 in name of Tuv Taam Vadas concludes it suffices to spill a slight amount of water on Moztei Shabbos; Sefer Shemiras Haguf Vihanefesh [Lerner] 186:7]

[58] P”M 455 M”Z 3; Poskim in Nitei Gavriel 8:6 footnote 9; See Sefer Shemiras Haguf Vihanefesh [Lerner] 186:8

Other opinions: Some Poskim rule it is not necessary to spill the water on Yom Tov. [See Poskim in Nitei Gavriel 8:6 footnote 9-10]

[59] Chamudei Daniel, brought in Pischeiy Teshuvah 339:5

[60] Beis Yitzchak Y.D. 50; Maharsham 3:375; Poskim in Nitei Gavriel 8:3 footnote 4; Sefer Shemiras Haguf Vihanefesh [Lerner] 186:4

[61] Tuv Taam Vadaas Tinyana 279; Halef Lecha Shlomo Y.D. 316; Sefer Shemiras Haguf Vihanefesh [Lerner] 186:3

[62] See M”A 455:9; Darkei Moshe 455:7; Beis David 181; Nitei Gavriel 8:16

[63] See Nachamu Ami p. 17

[64] Admur 455:16 omits ruling of Darkei Moshe and M”A ibid regarding covered, and even in the case of placing metal Admur explicitly writes it regarding the Tekufa; Likewise, see Admur in Shemiras Hanefesh Vehaguf Halacha 7 regarding food under the bed that it is problematic even if covered.

[65] Nitei Gavriel 8:7; 135:7

[66] Dvar Moshe 83 based on Yerushalmi, brought in Birkeiy Yosef 341:1, Rav Akiva Eiger 341, Pischeiy Teshuvah 341:1; Gilyon Maharsha 341; Poskim in Nitei Gavriel 13 footnote 4; See Bach 353

[67] The reason: As a Kohen may not impurify himself to a Nefel, even if he is a relative, hence proving there is no true obligation of burial. Alternatively, even according to the Poskim who rule there is an obligation to bury a Nefel, nevertheless the laws of Aninus do not apply. [Poskim ibid]

[68] Tiferes Lemoshe, brought in Rav Akiva Eiger 341, Pischeiy Teshuvah 341:1

[69] Nitei Gavriel 135:8

[70] Michaber 344:4; Moed Katan 24b; Brasia in Miseches Semachos

[71] Poor children are eulogized from age five; Children of wealthy families are eulogized from age six, unless their parents are old, in which case they are eulogized from age five, as are the children of paupers. [Michaber ibid] This is because the parents of the children of the poor are more greatly saddened as they have no other joy. However, the wealthy have their money to enjoy. [Shach 344:2; Taz 344:2] The children of the wise and wealthy are to be eulogized with increased praise for their actions. [Michaber 344:5; Miseches Semachos; Rosh] This is done out of respect for their parents. [Shach 344:4] In general, a child is eulogized with praise of his own achievements, if relevant. If he has no achievements, then he is eulogized with praise of his parents, and if they have no praise, then he is praised with the actions of his relatives. [Michaber 344:6; Miseches Semachos]

[72] Beis Hillel 344

[73] Michaber ibid

[74] Rama ibid

[75] Shach 344:3 that so is custom in Lublin, and “apparently so is the custom in other communities and so is the proper custom”

[76] Aruch Hashulchan 344:8; Gesher Hachaim p. 119; Nitei Gavriel 67:6; 135:15

[77] See Michaber 353:4 “Two men and a woman”; Beis Meir 353; Mishmeres Shalom Lamed 8; Poskim in Nitei Gavriel 65:26 footnote 33

[78] Erech Shaiy Y.D.; Even Yaakov 11; Nitei Gavriel ibid

[79] Michaber 361:1

[80] See Halacha C in Q&A that the obligation only applies if one sees the funeral procession, and not simply if one hears of it.

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

[82] 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 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.]

[83] The reason: Although this may be a mere doubt, nevertheless since Keriah is Rabbinical we are lenient. [Taz 340:17]

[84] Such as the mother did not have relations the last nine months [Shach 340:43]

[85] Shach 340:43

[86] Michaber Y.D. 353:6; 263:5; O.C. 526:10; Admur 526:19-20; Rav David Abudarham; Rosh Moed Katan

[87] Kitzur SHU”A 199:4; Aruch Hashulchan 526:19; Admur 526:19

[88] The reason: This is done to arouse mercy from heaven, and so the child merit resurrection in the future.  [Michaber 263:5]

[89] Michaber 353:6

[90] Ruach Chaim 353; Gesher Hachaim 147 that so is the custom; Nitei Gavriel 135:26

[91] See Michaber 263:5; Admur 526:19; Nitei Gavriel 135:25

[92] Nitei Gavriel; 135:27

[93] Nitei Gavriel 135:24

[94] Bechor Shur Sanhedrin 47; Kneses Yechezkal 44, brought in Gilyon Maharsha 353; See Poskim in Rav Akiva Eiger 353

[95] See Gesher Hachaim 2:14 for a lengthy treatise on this subject, with all the reasons and opinions mentioned; Nitei Gavriel Chapter 47

Deceased was garbed in another persons Tallis: See Igros Kodesh 18:374, printed in Shulchan Menachem 5:262 that one should pay them for the Tallis

[96] A woman is not wrapped in a Tallis, but rather in a white cloth. [Gesher Hachaim 10:4]

[97] Michaber Y.D. 351:2 “One may not bury a corpse in a Tallis without Tzitzis” and Rama ibid “Other Poskim rule it does not require Tzitzis, although the custom is to bury him with Tzitzis”; Nemukei Yosef Tzitzis; Shesileiy Zeisim 23:6; Aruch Hashulchan 351:3 “The custom of all Jewry is to bury the corpse in a Tallis with Tzitzis”; Kaf Hachaim 23:7

The reason: Some say this is because a corpse is obligated in Tzitzis, and it is for this reason that the Parsha of Tzitzis in Shelach was taught immediately after the Parsha of the death of the Mikosheish Eitzim. [Nimueki Yosef ibid] Alternatively, the reason is to show that we believe that the corpse will be resurrected with its clothing, and hence will immediately begin to perform its Mitzvah of Tzitzis. [Soles Belula, brought in Kaf Hachaim ibid]

[98] Sefer Chassidim 733; Beis Lechem Yehuda 349; Kitzur SHU”A 197:1; Mishmeres Shalom 9:22; See Sheilas Yaavetz 1:166; Pischeiy Teshuvah 351:3

[99] Kitzur SHU”A 197:1; Teshuvah Meahava 3:349

[100] Mishmeres Shalom Tes 23; Ishkavta Derebbe p. 105 that so was done to the Rebbe Rashab; Darkei Chesed p. 183; See Nitei Gavriel 47:10

[101] Sheilas Yaavetz 1:166; Pischeiy Teshuvah 351:3; Darkei Chesed 12:11

[102] See Nitei Gavriel 47:11; A murder victim, however, is wrapped in a Tallis Gadol while the Tallis Katan is not removed. [Daas Kedoshim 352:1; Mishmeres Shalom Tes 26; Nitei Gavriel 47:15]

[103] See Nitei Gavriel 47:12; 14; Maharam Shick Y.D. 350 that if he was not Frum [but married] he is to be garbed in a Tallis Gadol even if he did not wear one.

[104] See Darkei Chesed; Nitei Gavriel 47:13

[105] Gesher Hachaim Vol. 1 10:4; Vol. 2:14 [See there for a very lengthy discussion on this topic and that the Tallis remains permitted in benefit]; Mishpitei Uziel Y.D. 2:109; Nitei Gavriel 47:7

[106] See Gesher Hachaim ibid

[107] Michaber ibid

[108] Shach 362:3; Perisha 362

[109] See Shach 362:3

[110] See Shach 362:3

[111] Shach 362:3

The age for sleeping together: Parents and grandparents may co-sleep with children of any age or gender if both are properly clothed. If not properly clothed, the parent/grandparent may not co-sleep with a child of opposite gender once the child: a) reaches age 11 for a girl, 12 for a boy; b) has grown signs of puberty; c) Is embarrassed to be undressed in front of the other. [See Michaber Even Haezer 21:7; Michaber O.C. 73:3-4 and Admur 73:3 regarding Shema; Mishneh Kiddushin 80b]

[112] Gesher Hachaim 27:6

[113] Michaber 363:7; See Chochmas Adam 158:11; Kitzur SHU”A 199:12; Nitei Gavriel 76:20-23

[114] See Shivas Tziyion 64-66; Poskim in Pischeiy Teshuvah 363:7; Nitei Gavriel 76:23 footnote 42

[115] See Chacham Tzvi 47; Pischeiy Teshuvah 363:7; Shut Rav Akiva Eiger Tinyana 17; Nitei Gavriel 76:22

[116] Bechor Shur Sanhedrin 47; See Poskim in Rav Akiva Eiger 353

[117] Elya Raba 23:3 in name of Maharit Tzehlin; Peri Megadim 23 A”A 2; M”B 23:5; Kaf Hachaim 23:3

[118] The reason: As perhaps the soul of a child is considered a Gadol. [ibid]

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

[120] This is called a Ben Tesha.

[121] 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.]

[122] Shach 374:8

[123] 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]

[124] 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.]

[125] 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]

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

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

[128] 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]

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

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

[131] 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

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

[133] Michaber 378:6; Shabbos 136a; ; Nitei Gavriel 135:35

[134] Rav Akiva Eiger 384 in name of Chidushei Gershoni

[135] Gesher Hachaim 20:3-3; Nitei Gavriel 91:6; Pnei Baruch 10 footnote 30

[136] See Nitei Gavriel Chapter 135

[137] 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

[138] 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.

[139] 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.]

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

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

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

[143] 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.]

[144] Nitei Gavriel 63:6 in name of Rav Moshe Feinstein; 135:6

[145] Nitei Gavriel 135:3

[146] Nitei Gavriel 135:3

[147] Nitei Gavriel 8:7; 135:7

[148] Nitei Gavriel 135:4

[149] Nitei Gavriel 135:5

[150] Gesher Hachaim p. 118; Darkei Chesed p. 70; Nitei Gavriel 8:10; 132:2

[151] See Maharam Shick Y.D. 323; Binyan Tziyon 119; Nishmas Avraham Volume 2 p. 522; Nitei Gavriel 132:38; 41 footnote 55

[152] Dvar Moshe 83 based on Yerushalmi, brought in Birkeiy Yosef 341:1, Rav Akiva Eiger 341, Pischeiy Teshuvah 341:1; Gilyon Maharsha 341; Poskim in Nitei Gavriel 13 footnote 4; See Bach 353

[153] The reason: As a Kohen may not defile himself to a Nefel, even if he is a relative, hence proving there is no true obligation of burial. Alternatively, even according to the Poskim who rule there is an obligation to bury a Nefel, nevertheless the laws of Aninus do not apply. [Poskim ibid]

[154] Tiferes Lemoshe, brought in Rav Akiva Eiger 341, Pischeiy Teshuvah 341:1

[155] The reason: As on the one hand the relatives do not have to mourn the child’s passing or sit Shiva. On the other hand, they are obligated to bury the child, and hence perhaps are prohibited in eating meat and wine, and exempt from all Mitzvos. [ibid]

[156] Nitei Gavriel 135:8

[157] Nitei Gavriel 135:11

[158] Gesher Hachaim p. 117

[159] Nitei Gavriel 135:12

[160] Michaber Y.D. 353:6; 263:5 [if any child died before day 8]; O.C. 526:10; Admur 526:19-20; Rav David Abudarham; Rosh Moed Katan; See Nitei Gavriel 135:24-30

Where to bury the foreskin: Some bury it with the child while others bury it outside the cemetery, as normally done. See Nitei Gavriel 135:30

If the child was born circumcised: See Nitei Gavriel 135:28

[161] Kitzur SHU”A 199:4; Aruch Hashulchan 526:19; See Admur 526:19

[162] The reason: This is done to arouse mercy from heaven, and so the child merit to the resurrection.  [Michaber 263:5]

[163] Ruach Chaim 353; Gesher Hachaim 147 that so is the custom; Nitei Gavriel 135:26

[164] See Michaber 263:5; Admur 526:19; Nitei Gavriel 135:25

[165] Nitei Gavriel; 135:27

[166] Nitei Gavriel 135:24

[167] Bechor Shur Sanhedrin 47; Kneses Yechezkal 44, brought in Gilyon Maharsha 353; See Poskim in Rav Akiva Eiger 353

[168] Michaber Y.D. 263:5; 353:6

[169] The reason: This is done to arouse mercy from heaven, and so the child merit the resurrection.  [Michaber 263:5; See Tur]

[170] Kitzur SHU”A 199:4; Heishiv Moshe 13; Nitei Gavriel 135:29

[171] Nitei Gavriel 135 footnote 43

[172] Nitei Gavriel 135:29

[173] See Michaber and Rama 305:12; Pidyon Haben Kehilchaso 1:31; 9:34-36

^[174] Michaber 305:12; Mishneh Bechors 49a

^[175] Rama 305:12; Mishneh Bechors 49a; Bechoros 51b

[176] Rama ibid; See Pidyon Haben Kehilchaso 9:35-36 for the full order of such a Pidyon

[177] Radbaz 187

[178] 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

[179] 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.]

[180] M”A 526:20; Pischeiy Teshuvah 357:1; See Gesher Hachaim 1:16-3; Tzitz Eliezer 10:25

[181] 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!

[182] Nitei Gavriel 75:17 and 135:18; See 75:22 that they should not be buried near Reshaim

[183] Maharsham 4:146; Nitei Gavriel 75:19; 135:33

[184] 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.

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

[186] 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]

[187] Kaf Hachaim 526:92; Ashel Avraham Butchach 342; Nitei Gavriel 129:5; 135:19

[188] Shulchan Gavoa 526:22; See Ruach Chaim 526 and Y.D. 116:10; Sefer Shemiras Haguf Vihanefesh [Lerner] 194:1

[189] Darkei Teshuvah 116:43

[190] See Admur 526:19-20; Pnei Baruch 6:10; Nitei Gavriel 135:23

[191] 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!

[192] Admur ibid

[193] Aruch Hashulchan 344:8; Gesher Hachaim p. 119; Nitei Gavriel 67:6; 135:15

[194] See Michaber 374:4

[195] 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

[196] Erech Shaiy Y.D.; Even Yaakov 11; Nitei Gavriel ibid

[197] Michaber 344:8; Aruch Hashulchan 344:8; Nitei Gavriel 135:14

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

[199] 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 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.]

[200] The reason: Although this may be a mere doubt, nevertheless since Keriah is Rabbinical we are lenient. [Taz 340:17]

[201] Such as the mother did not have relations the last nine months [Shach 340:43]

[202] See Halacha 1 in footnotes!

[203] Shach 340:43

[204] Kohenes: A female Kohen is not prohibited from defiling himself to Tumas Meis. [Michaber 373:2]

[205] 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]

[206] See Michaber 370:1 for the definition of dead

[207] 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]

[208] Michaber 373:4

[209] Michaber 353:4

[210] Shach 374:2

[211] Michaber 353:5

[212] Michaber 353:4

[213] Michaber 353:5

[214] Nitei Gavriel 135:17

[215] Daas Kedoshim 345:4; Mishmeres Shalom Lamed 8; Nitei Gavriel 135:31

[216] Nitei Gavriel 75:17 and 135:18; See 75:22 that they should not be buried near Reshaim

[217] Letter of Rav SZ”A printed in Nitei Gavriel page 749

[218] 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.

[219] Michaber 344:4; Moed Katan 24b; Brasia in Miseches Semachos

[220] Michaber ibid

[221] Rama ibid

[222] Shach 344:3 that so is custom in Lublin, and “apparently so is the custom in other communities and so is the proper custom”

[223] Nitei Gavriel 132:40

[224] Michaber 353:4; Nitei Gavriel 135:37

[225] Shach 374:4; Levush

[226] Shach 374:5

[227] See Shach ibid

[228] Michaber 353:5

[229] Michaber 374:5

[230] Michaber 378:6; Shabbos 136a; Nitei Gavriel 135:35

[231] Michaber 344:4; Nitei Gavriel 135:34

[232] Michaber 374:8; See Nitei Gavriel 59; 135:1 and 36; Pnei Baruch 1:26