July 30, 2020

Shabbat 135

Early on in today’s daf (Shabbat 135a) we are taught a Beraita stating that while it was assumed that babies born in the 7th month were viable (i.e. have the physical ability to survive), it was also assumed that babies born in the 8th month would be stillbirths (or would die soon after). Given this, we are taught that if there was a suspicion that a baby had been born early, the first 30 days of its life was a period of uncertainty during which time there was a reluctance to regard a baby as being fully viable.
Along these lines, towards the end of today’s daf (Shabbat 135b) we are taught a further Beraita citing the view of Rabbi Shimon Ben Gamliel that all babies that have yet to reach 30 days should be afforded doubtful viable status, whereas ‘any baby that has survived 30 days should be considered fully viable.
While, on first glance, these Beraitot may simply appear to contain pragmatic discussions about the life-chances of premature babies, they actually have significant practical ramifications, and even in our daf it is clear that the question of expected viability of a baby will determine the extent to which Shabbat should be violated for them or whether a Brit Milah may be performed on them on Shabbat.
However, this discussion reaches beyond the laws of Shabbat and it also has an application within the laws of mourning whereby, basing itself on the position of Rabbi Shimon Ben Gamliel, Jewish legal codes including the Shulchan Aruch (see Yoreh Deah 374:8) do not require parents to mourn a baby that dies within 30 days of birth based on the premise that such a baby was never fully gifted with the possibility of a full life.
Based on this, two questions arise: 1) Given the incredible possibilities of modern technology, is there any basis for retaining the ’30 day’ rule?, and, 2) How should a parent who suffers a stillbirth or whose baby dies within 30 days mourn their loss?
In terms of point 1), normative Jewish law seems to still hold fast to the 30 day rule (unless it is clear that the baby was born after nine full months of gestation). However, there is some disagreement about its application with respect to neonatal care. As Rabbi David Brofsky writes in his Hilkhot Avelut: ‘in recent years, due to advances in technology and neonatal care, infants born prematurely are often placed in incubators and cared for until they are healthy enough to survive on their own. Unfortunately, some of these “preemies” still pass away, despite their parents’ and communities’ prayers and the valiant efforts of doctors and nurses. [Contemporary Rabbis] discuss whether in this case one should begin counting the thirty days from birth, or from when the infant leaves the incubator. While some maintain that avelut (mourning) should be observed, most authorities rule that it is observed only if the infant lived more than third days after being removed from the incubator’. What this tells us is that, even today, there is a lack of consensus about understanding the role of medical interventions which extend the life of a baby in terms of the principle taught by Rabbi Shimon Ben Gamliel.
In terms of point 2), and having assisted a number of parents who have experienced stillbirths and infant loss, it is important to note that while some parents choose not to engage in any formal mourning rituals, others find formal expressions of their loss to be invaluable anchors, and while Jewish law does not require parents to mourn a baby that dies within 30 days of birth, there are many expressions of mourning which are certainly permitted and in some cases encouraged.
Unfortunately, this topic is not often treated with the sufficient depth or sensitivity that is required, and certainly a post this length cannot do justice to all its many dimensions. However, those who wish to think more about this topic are encouraged to read Rabbi Jason Weiner’s ‘Jewish Guidance on the Loss of a Baby or Fetus’ which can be accessed from https://bit.ly/2OAA51C.
Of course, my heart goes out to all those who have suffered stillbirths or infant deaths. Yet, while this topic naturally triggers feelings of pain and loss, a further lesson that I draw from this topic, and one that was very powerfully taught to me through the connection I had with a very special baby whom I was privileged to know for the short period of time that he graced this earth, is the value of time and the importance of using every moment we have been given to the fullest. As Rav Soloveitchik observes, ‘no fraction of time, however infinite, should slip through the fingers, left unexploited; for eternity may depend upon the brief moment’ (Sacred and Profane).
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