Shabbat Parashat Ki Tisa | 5768

Autopsies – part IV

Moreshet Shaul

Autopsies – part IV

(condensed from Amud Hay’mimi, siman 34)

[Three issues need to be discussed regarding the possibility of performing autopsies: halanat hamet (delaying a burial); leaving certain body parts out of burial; nivul hamet (disgracing the deceased). We conclude the series with the final issue in the autopsy debate, nivul hamet.]

The gemara (Chulin 11b) cites no Torah source to prohibit nivul hamet, yet it clearly understood that it is a Torah law. The gemara wants to provide a Torah source for the idea that we follow the majority from the fact that beit din executes a murderer even though the victim might have been a tereifa (one with a mortal wound). It suggests that they actually might have had to check the deceased to preclude this possibility but rejects this because of the problem of nivul hamet. Since the discussion relates to Torah-level law, nivul hamet must be a Torah problem. On the other hand, the gemara also provides cases where the problem can be overcome. One is to investigate the body to possibly save the murderer from execution. Rashi says that this is based on the instruction of “the congregation shall save the murderer” (requiring beit din to attempt to exonerate a murderer). The Noda B’yehuda demonstrates that piku’ach nefesh (saving lives) does not apply but that the stated issue does. Although it is unlikely that the check of the corpse will save the defendant, nivul hamet is justified. The gemara also allows investigating the body if that was necessary to facilitate the execution. Bava Batra (154a) even allows those who bought property from the deceased, who was arguably under-aged, to do so in order to not lose their purchase.

Several acharonim reason that the prohibition of nivul hamet stems from the mitzva of burial, which demonstrates that the Torah cares about the deceased’s honor and thus precludes disgracing the body. How can beit din forgo this mitzva, which applies to all Jews, because of the aforementioned relatively weak considerations? Also, since we do not allow one to forgo burial because of a gezeirat hakatuv (a Divine decree that goes beyond normal logic), how can pragmatic considerations override the related nivul hamet?

It seems rather that the source of nivul hamet is “v’ahavta l’rei’acha kamocha” (=valrkm) love your friend as yourself). The gemara (Sanhedrin 45a) disallows stoning a woman when she is naked because it is a nivul and would violate valrkm. Rav Herzog rejected this thesis, arguing that after the person is already dead he cannot be called rei’acha. However, the Ramah implies that this description applies to a person after the punishment is meted out, which, in the gemara’s case, is after death. Indeed, before the punishment was complete, the sinner would not deserve such a distinction. In contrast, Tosafot (Sanhedrin 45, as explained by the Aruch Laner) holds that the matter of picking a proper means of execution is not based on the regular rules of valrkm, which he does not deserve because of his grievous sin, but is a special rule of carrying out the death sentence. If so, there is no indication that this applies after death. However, [skipping over the detailed derivation] it appears that Tosafot agrees conceptually with the Ramah. The Ritva states explicitly that nivul after death is learned from valrkm.

It is understandable that if the issue is valrkm, it could possibly be pushed off for others’ needs. While not everyone’s needs would push it off, the needs of those who could lose due to their interaction with the deceased (his buyer or he who would be killed because of him) do push aside nivul hamet. It also follows that if the needs of those who interacted can push the prohibition of nivul hamet, then certainly the deceased’s own instructions can do so. Therefore, autopsy for one who agreed to it during his lifetime would be permitted even if it means that a small part of the body will not be buried as long as it does not cause a delay in the burial [see previous weeks’ columns].

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