We have received an inquiry from the chaplains in the Far East Command with regard to the attitude of Jewish law to the following proposed regulation of the Surgeon General.
"The Surgeon General of the Far East Command is preparing a regulation concerning the disposition of the remains of stillborn infants. The proposed regulation provides that if the foetus weighs less than 1000 grams the remains should be disposed of as all surgical specimens. The regulation further provides that if the foetus weighs 1000 grams or more it should be disposed of as fully developed human beings would. That means that they would be prepared for burial by the Quartermaster Department and sent to the United States for burial since no bodies are being interred overseas any longer."
The problem of stillborn infants (Nefel) occupies considerable space in Jewish law from the time of the Mishna down to recent responsa. The reason for this full discussion of the question lies in the fact that many other legal matters are involved in this question, as for example the degree of ritual uncleanness of the mother after such a birth, the status of such a woman with regard to Yibbum and Chalitza, the question of the duty of burial and of circumcision of such a child, and other related questions.
The whole subject is complicated by the fact that there is a considerable variety of definitions as to what constitutes a still-born child. The basic discussion of what constitutes a still-born child is in the Tosefta, Shabbas, XV,7, and from there it is quoted a number of times in the Talmud, as,for example, in b. Shabbas 135b (also in Yevamos and Nidda). One opinion is that of Simon Ben Gamliel, namely that if a child does not live more than 30 days after its birth, it is to be considered still-born (Nefel); and Rashi explains this statement as follows: If it does not live that long it is clear that the child was not a viable infant (Ben Kayemo). Another test-- if the child is a normal seven-month baby, or of course a normal nine-month baby, but not an eight-month baby. Other tests are: if its bodily organs are fully developed, especially mentioned are its hair and its nails. All these different criteria are fairly well harmonized by Maimonides in Hilchos Milah I, 13, and more completely analyzed by Joseph Caro in Kesev Mishna (ad loc) and also in his Bes Josef to the Tur, Yore Deah #266.
Of all the questions involved, the one that concerns us at present is whether it is a duty (Mitzvah) to bury the Nefel. On this question the various authorities are divided. The Hago'ot Maimuni (to Hil. Milah I, 15) says that there is no duty to bury the Nefel. Also, it is the opinion of Joseph Caro that there is no duty to bury the Nefel (quoted by Mogen Avrohom to Shulchan Aruch, Orach Chayim 526, #10 and also by Moses Sofer in his responsa Orach Chayim 144). Jacob Ettlinger in Binyan Zion #133, proves that there is no duty to bury the Nefel. However, Mogen Avrohom endeavors to refute the opinion of Joseph Caro and to demonstrate, at least inferentially, that there is a duty to bury a Nefel.
There is, however, no question that the body of a Nefel creates ritual uncleanliness for priests (Hilchos Tumas Hamays II, 1) as do parts of all bodies; and for that reason it has been the practice to bury them.
The Talmud speaks of "women burying their stillborn children and those inflicted with tumors burying amputated limbs" (b. Kesuvos 20b). Thus the situation is identical with that of amputated limbs from a living person. Even though there is no duty to bury such amputations they are generally buried to avoid ritual uncleanliness. This is made quite clear by Wolf Hamburger in his Taam Zekenim Part II, page 110, column 2: "Even if according to the Tosfos there is no duty to bury the stillborn, nevertheless to guard against the defilement of a priest, even a small portion of a body should be buried." Moses Sofer in his responsum, Chassam Sofer, Orach Chayim 144, after quoting Joseph Caro that there is no positive duty to bury the still-born, says that they should be buried nevertheless to avoid shame (Meshum Bizayon). Thus the status of Jewish law may be summed up as follows: that, just as in the case of amputated limbs, while there is no strict duty to bury the still-born, it is the practice so to dispose of them in order to avoid defilement. See the full discussion of this matter in Greenwald's Kolbo Al Avelos, p. 199ff.
The next question that concerns us with regard to the proposed regulation of the Surgeon General is whether the criterion of distinction which the regulation uses is of relevance in Jewish law, namely that a child weighing less than 1000 grams be surgically disposed of and that a child over 1000 grams be given burial.
It is clear from the Mishna Ohelos XVIII, 7, that a foetus less than 40 days old in gestation is not even to be considered a Nefel, a stillborn child, and does not defile. (See the discussion on this by Judah Rosanes, Mishna Lemelech to Hilchos Tumas Hamays II, 1.) It is evident that modern medical criteria are not quite the same as those used in Jewish law, namely whether the foetus is viable (Ben Kayemo) and whether its organs are formed (in Jewish law, specifically, hair and nails). However, medical science today, while using the same general tests, uses measurements other than the Jewish tests of 40 days of foetal life. On consultation with a medical authority, the Committee ascertained that according to modern judgment a child under 28 weeks is not viable, but in addition the following tests are considered: if it is less than 18 centimeters long it is not viable, and also if it weighs less than 2000 grams. In that case the test of the Surgeon General is a very liberal one. Most medical opinion would consider a stillborn infant weighing between a thousand and two thousand grams as not viable. Yet the Surgeon General will give such infants regular burial.
Therefore, it may be said, although the standard is somewhat different, it goes generally with the principle in the Jewish law, that such a foetus is not even a Nefel and does not defile, and therefore there is no duty of burial.
The Committee, therefore, decides that a foetus weighing less than a thousand grams may be disposed of surgically without violating Jewish law. However, since the criterion is not quite the same, permission to bury the foetus should be granted to those parents who request it.