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143

DEUTERONOMY | 21:23 bury — DEUT1077 The earliest leading responsum on autops...

DEUT1077 The earliest leading responsum on autopsy is authored by 18th century Rabbi Ezekiel Landau (Noda bi-Yehudah, Mahadura Tanina. Yoreh De'ah, No. 210. Paris. Lang Pres, 1947). It is this responsum upon which all subsequent inquiries and rabbinical and legal decisions are based. … Rabbi Landau [ruled] that autopsy constitutes a desecration of the dead, and is only permissible to save the life of another patient who is immediately at hand (lefaneinu). ... "if we would be lenient in this matter, heaven forbid, they would dissect all dead people in order to learn the arrangement of the internal organs and their functions, so as to know what therapy to give to the living." ... The prohibition of desecrating or disgracing the dead is based upon the biblical passage [this and preceding verses]. The Talmud (Sanhedrin 47a) interpret this phrase to mean that just as hanging all night is a disgrace to the human body, so too any other action which constitutes a disgrace to the deceased is prohibited. If the Torah was concerned for the body of a convicted criminal, certainly, a fortiori, the body of a good citizen should be treated with the proper respect, and be properly interred without being subjected to shame or disgrace. ... The next major objection in Jewish law against autopsy is the multi-faceted problem of burial of the dead. Firstly, the Biblical phrase, "Thou shalt surely bury him… "[this verse], tells us that it is a positive commandment to bury the dead (Sanhedrin 46b). Secondly, whoever keeps his dead unburied overnight transgresses a negative commandment. This is deduced from the earlier part of the same Biblical phrase: "his body shall not remain all night…" Thirdly, the body must be interred whole, for if one leaves out even a small portion, it is as if no burial at all took place (Jerusalem Talmud, Nazir 7:1). ... A fourth facet of the burial problem is the question as to whether burial, in addition to averting disgrace (by later putrefaction of the body), also represents atonement for the sins committed during life (Sanhedrin 46b). If one performs an autopsy, one is in fact transgressing the prohibition of delaying burial of the dead. If one fails to return all removed organs to the body for burial, one also prevents atonement since such a burial is incomplete. Another serious objection to autopsy in Jewish law is the prohibition of driving any benefit from the dead as deduced in the Talmud (Avodah Zara 29 and Nedarim 48a). ... The consensus of rabbinic opinion today seems to permit autopsy only in the spirit of the famous responsa of the Noda bi-Yehudah, Rabbi Ezekiel Landau, i.e., if it may directly contribute to the saving of a life of another patient at hand. In the case of hereditary diseases, the family or future offspring of the deceased are considered to represent patients at hand and this autopsies are allowed.

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Source KeyROSNER-BLEICH
Verse21:23
Keyword(s)bury
Source Page(s)333-8

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