Q&A: Autopsy After Death and the Prohibition of Delaying Burial
Autopsy After Death and the Prohibition of Delaying Burial
Question
Hello Rabbi,
Recently I heard about the case of the girl Miriam Peretz, who was induced to use heroin by an adult and apparently died of an overdose. The state requested to perform an autopsy on her body in order to prove the connection between the drug use and her death, and thus convict the one who led her astray of the crime of causing death. The family, who if I remember correctly are religious, refused to allow the autopsy—possibly out of concern for desecration of the dead or delaying burial. I am asking a general question about cases like these, where it is necessary to perform an autopsy in order to clarify the cause of death, but doing so involves the halakhic prohibition of delaying burial or desecrating the dead. Are there grounds to permit an autopsy in such cases?
At first thought I would say that anywhere there is a legal need to perform an autopsy, that constitutes a sufficiently important need, somewhat akin to saving life, to override the prohibition of delaying burial. A proper society must prosecute criminals and deter other potential criminals, and without this harm will be caused to society that may also lead to danger to life in the future.
Even when we are dealing with medical rather than legal needs, such as statistical tracking of causes of death, it is hard to say that there is an immediate and direct issue of saving life here. But even so, if the state collects a great deal of data about the causes of people’s deaths, it will be possible to use that information to save lives.
In addition, I saw that Maimonides writes as follows:
It is a positive commandment to bury all those executed by the court on the day of execution, as it says, “you shall surely bury him on that day.” And not only those executed by the court, but anyone who leaves his dead unburied overnight transgresses a prohibition. If he leaves him overnight for his honor, in order to bring him a coffin and shrouds, he does not transgress.
If it is permitted to delay burial for the honor of the deceased, that implies that the reason behind the prohibition of delaying burial is injury to the honor of the deceased. If so, in a place where there is a reasonable presumption that an ordinary person would waive his honor for some medical or legal purpose, is that sufficient grounds to perform an autopsy in such a case?
Best regards,
Answer
It is hard for me to give a clear-cut answer. I agree that there is room for such a consideration. Especially in matters of the public, even a remote concern is considered danger to life (see my article on “Do Not Be Afraid”; that is the main discussion regarding autopsies for medical study and research in general). If there is real benefit from the autopsy—for example, in an investigation involving drug dealers—I think it can be permitted. After all, the law of a pursuer applies here, and if one may kill a pursuer and violate the prohibition of murder, then apparently one may also violate delaying burial and desecration of the dead in order to save the one being pursued. Of course, if the deceased would not agree, then that a fortiori argument does not exist, but as you wrote, I see no reason to assume that she would not have agreed.
Discussion on Answer
Indeed.
Following up on this question: today I heard about a case of a 14-year-old boy who collapsed and died during a soccer game. The family refused an autopsy for the purpose of determining the cause of death. In your opinion, is it permissible for the family to have an autopsy done in order to understand what happened to the boy?
[This probably won’t add anything for anyone, but I once saw on the Otzar HaHochma forum that someone brought some sort of proof, from a halakhic standpoint, that desecration done for a beneficial purpose is not considered desecration at all (meaning, it’s not just overridden where there is need), from Babylonian Talmud Pesachim 65a, which says it was praise for the priests that they would walk in blood up to their knees.]
[*Correction: Pesachim 65b]
If this is only for intellectual understanding, with no practical consequences—I don’t think it should be permitted.
However, if in our assessment the deceased himself would have agreed to it, perhaps there is room to permit it.
Melo, I didn’t understand the proof from Pesachim.
I’ll try to formulate it so I can hear the refutation (I couldn’t find it now on that forum to see more and give proper credit). The question is whether a state of honor is measured by the image alone or also by the interpretation. In an autopsy, in terms of the act itself, it seems disrespectful, but if there is a purpose then maybe it is considered, on the contrary, honorable. Is it obvious to you that honor is judged by interpretation, or regardless of your view on the actual issue, is there simply no connection to the proof from Pesachim?
This is the wording in Pesachim: It was taught: Rabbi Yehuda said to the Sages, according to your view, why do they stop up the Temple courtyard? (Rashi: the opening in the wall of the courtyard through which the mixed blood would flow out into the channel outside; they would stop it up on every Passover eve. According to me, this is understandable, so that all the blood spilled would not flow out, and then when he filled the cup from the mixture it would contain blood from all of them; and if one of them had spilled without sprinkling, he would thereby be sprinkling from it.) They said to him: It is praise for the sons of Aaron that they walk in blood up to their knees.
Meaning, according to the Sages, they deliberately wanted the priests to wade in blood even though there is no halakhic benefit in it—and according to our line of thought we learn that although superficially this is filth, and ordinarily if this were just a slaughterhouse it would be considered degrading, and the priests would wash down the courtyard even on the Sabbath not with the approval of the Sages, as it says there in the Mishnah—here it is actually praise because it comes from the commandment and because they were so occupied with it. Meaning, honor is judged by interpretation. If so, the same should apply to desecration of the dead, and the purpose makes the act honorable. And now I would appreciate it if you would explain why the proof is not valid.
[And just for the fun of pilpul, I’ll suggest in passing that this may explain the dispute between Michal and David: “When King David was leaping and dancing before the Lord… she despised him in her heart.” And Michal daughter of Saul went out to meet David and said, “How honored today was the king of Israel, who uncovered himself today before the eyes of the maidservants of his servants, as one of the vulgar fellows shamelessly uncovers himself!” And David said to Michal, “Before the Lord…” and “I will dance before the Lord.”
And another proof (I’m not fully immersed in this and hope I haven’t blundered in seeing criminality where there is none) from Tosafot on Kiddushin 3a, s.v. “And if you would say.” “And if you would say, let us derive it from shame and depreciation”—that kiddushin effected by the girl herself should belong to the father, from shame and depreciation—for certainly it cannot be derived from kiddushin by the father, since those are entirely through him; but initially (that is, in the Talmud in Ketubot, where they derive that a rapist pays shame to the father) one can derive something not through her from kiddushin by the father, and afterward (that is, in the Talmud here in Kiddushin, where they try to derive that the kiddushin belong to the father even if she betroths herself while a נערה) one can derive what is through her from what is not through the father. End quote. Then the Talmud rejects this: shame and depreciation belong to her father, since they pertain to him (for if he wished, he could give her to a repulsive man or one afflicted with boils, and that would constitute shame and depreciation for her). Seemingly this is difficult: why do they pertain only to her father and not also to her, since she too could likewise give herself, while a נערה, to a man afflicted with boils? It would seem that if she gives herself willingly, then it is not shame, and her will is her honor.]
I suspected that was what you meant, and I don’t see the slightest proof here. There the issue is not the honor of the dead, but just the general concept of honor. The general reasoning that honor depends on circumstances is straightforward and doesn’t require proof. The honor due a Torah scholar is not the same as the honor due an ordinary person, etc. Payments for humiliation are also not the same for every person.
By the way, what you wrote really is not just for the fun of pilpul. It’s no worse a proof than the proof you brought (that is, a proof for the general reasoning that honor depends on circumstances, which in itself doesn’t require proof). And the same applies to the Kiddushin passage.
[To me the general reasoning doesn’t seem simple, and I don’t think the honor of a Torah scholar and humiliation are sufficiently similar, but I won’t insist.] Why should there be a difference between the honor of the dead and ordinary honor?
In Tosafot on Kiddushin I thought it was very weak, because the fact that she is willing to give herself to a man afflicted with boils doesn’t mean there is no shame; it may just mean that she absorbs the shame in exchange for what she wants to get from that man.
The reasoning that honor depends on circumstances is as plain as day. The question is about the parameters of the honor of the dead and its desecration: does what was prohibited depend on his will and the circumstances, or was the prohibition fixed in a set definition (both because of the framework of rabbinic enactments and their halakhic definitions, and also because the honor of the dead may perhaps not depend on circumstances, but is an evaluative matter that the Sages determined to be his honor and not otherwise)? For that, all these proofs are of no help. The question is also whether the obligation to honor the dead is toward the deceased (in which case it depends on his will), or whether it is an obligation toward Heaven (that people should honor the dead).
I thought the proof worked even if the obligation is toward Heaven, because the act itself simply isn’t considered disgraceful but praiseworthy. Does the honor of the priests and the Temple depend on their will? Why specifically there should there not be a fixed definition based on what is considered dishonorable among other slaughterers?
[What can I do—this “plain as day” still scares me, despite “do not make yourselves detestable,” etc. But in the end I hear and will think about it. Honor that is a matter of feeling, like the honor of a Torah scholar and the measure of humiliation according to the humiliator and the humiliated, certainly depends on feeling, which is shaped by circumstances. But when feelings are not the issue (as with the priests and the deceased), and we are discussing definitions of situations, then at least to me it is not clear that the picture as such has no significance. The fact that David himself did not feel shame needs no proof, and it is also not relevant. The proof is that a king who waives the honor of kingship does not thereby waive it, and yet here in his view it was not dishonorable at all, but the opposite. Likewise with humiliation: she presumably feels similar feelings in the case where her father gives her over, but as a matter of definition, if there is consent then it is not “considered” shame.]
As a matter of reasoning I agree, as I wrote. The question is the practical halakhic ruling, as I explained in the last comment.
[It makes no practical difference, but I found who said it. It’s a screenshot of text, so it’s slippery. The one who said it is Rabbi Avraham Aharon Yudlevitch (and on that forum there is discussion about him and mountains hanging by the hairs of his storms). After a long responsum in which he permits dissecting a dead body in order to train in medicine when there is another sick person before us, on the grounds that even a doubtful danger to life overrides desecration and the prohibition of deriving benefit from the dead,
comes this passage in which he replies to his colleague’s claim that the soul suffers when it sees the body being dissected.
http://forum.otzar.org/viewtopic.php?f=19&t=40530&hilit=%D7%9E%D7%9C%D7%90+%D7%A2%D7%99%D7%A0%D7%99%D7%9D#p55810
Hope this comment was sent only once.]
Now I was thinking that even without resorting to the law of a pursuer or laws relating to the public, the deceased has an interest in justice being done to the person who caused her death. And a person’s will is his honor. And if one may delay burial for the sake of shrouds, then all the more so for the sake of bringing the killer to justice. Another reason: perhaps carrying out justice against the one who killed him is itself a protection of the deceased’s honor, for if no justice were done to him, it would look as though the blood of the slain were permissible.