민수기 20:1의 Halakhah

Approximately a century later, a related but quite different query was addressed to Binyan Ẓion. That incident involved the miscarriage of a normal, fully-developed fetus. A Jewish doctor wished to preserve the fetus in whiskey in a glass jar for the purpose of scientific study "as is the wont of physicians." Binyan Ẓion, no. 119, cites the earlier responsum of Noda bi-Yehudah in which the latter rules unequivocally that no benefit may be derived from a fetal cadaver.²⁵Remarkably, Binyan Ẓion does not speak of examination of the fetal cadaver for purposes of deriving scientific information as constituting a form of prohibited benefit. Instead, he confines his discussion to the prohibition against retaining in one’s possession an object from which it is forbidden to derive benefit lest some benefit be derived unwittingly. In responsa examining the permissibility of postmortem examinations in general, both Ḥatam Sofer, Yoreh De‘ah, no. 336, and Maharam Shik, Yoreh De‘ah, no. 344, declare that acquiring medical information by means of such procedures constitutes a forbidden benefit. In support of that position Maharam Shik cites the ruling found in the Mishnah, Nedarim 48a, to the effect that a person who, by means of a vow, generates a prohibition against benefiting from a fellow townsman is forbidden to use scrolls or books that constitute property owned by the community. Quite apparently, the knowledge gleaned from such books is regarded as a “benefit” forbidden to such an individual. This argument is rebutted by R. Yitzchak Arieli, Torah she-be-‘al Peh, VI (5724), who argues, inter alia, that examination of a cadaver for scientific purposes constitutes an “unusual” form of benefit and hence is not forbidden under such circumstances. That position is based upon Teshuvot Radbaz, III, no. 548. A permissive view is also espoused by R. Chaim Sofer, Teshuvot Maḥaneh Ḥayyim, II, no. 60. The tenor of Binyan Ẓion’s discussion tends to support this permissive view; see R. Yehudah Leib Graubart, Ḥavalim be-Ne‘imim, III, no. 64. However, R. Akiva Eger, Gilyon ha-Shas, Avodah Zarah 12b, declares that even “unusual” forms of benefit may not be derived from a corpse since the prohibition is not couched as a prohibition against “eating.” That principle is codified by Rambam, Hilkhot Ma’akhalot Asurot 14:10, with regard to basar be-ḥalav and kila’ei ha-kerem. Conflicting views regarding the permissibility of deriving “unusual” forms of benefit from a corpse are recorded by R. Mordecai Winkler, Teshuvot Levushei Mordekhai, III, Oraḥ Ḥayyim, no. 29. See also infra, p. 228. Binyan Ẓion, however, questions that assertion. The prohibition against deriving benefit from a cadaver is formulated by the Gemara, Sanhedrin 47b, on the basis of a gezeirah shaveh, a hermeneutic principle applied to the occurrence of an identical term in different contexts. An identical term is used in describing the ritual of the eglah arufah, breaking the neck of a heifer in expiation of an unsolved homicide, as prescribed in Deuteronomy 21:4, and in the description of the burial of a human corpse, as recorded in Numbers 20:1, in conjunction with the burial of Miriam. The use of an identical term in both instances is understood by the Gemara as signaling the transposition of the already established prohibition against deriving benefit from the heifer to a prohibition against deriving benefit from a human corpse. Binyan Ẓion argues that, since the prohibition is derived from a description of interment, it is forbidden to derive benefit only from a corpse that must be buried in fulfillment of the mizvah of burying the dead. Indeed, Mishneh le-Melekh, Hilkhot Avel 14:21, cites Ramban in support of the position that it is permitted to derive benefit from a non-Jewish cadaver for precisely this reason, viz., the locus of the prohibition against deriving benefit indicates that it is a concomitant of the mizvah of burial. Since there is no biblical requirement commanding the interment of a non-Jewish corpse, reasons Mishneh le-Melekh, there is no prohibition against deriving benefit from such a corpse. Similarly, if the mizvah of burying the dead does not include burial of a nefel—as Binyan Ẓion indeed maintains—it then "perhaps" follows, argues Binyan Ẓion, that there is no prohibition against deriving benefit from the corpse of a nefel. Binyan Ẓion nevertheless refused to grant permission for the contemplated external embalming and preservation of the nefel because, as noted earlier, he maintained that burial of a nefel is mandated, not as a mizvah per se, but in order to prevent priestly defilement.

If one of the deceased persons is a Torah scholar, and the other is an ignorant man, the Torah scholar should be taken out for burial first, even though the ignorant man died first. If there is a man and a woman, the woman should be buried first, even if the man died first, for it is written, "And Miriam died there, and was buried there,"³Numbers 20:1 (which means) the burial was immediately after her death.