Laws of Mourning for Stillborns or Deceased Infants and Exemptions from Mourning

Tearing Garments. Aninut [Acute Mourning]. Condolence Meal. Mourning.

For a "stillborn," meaning a fetus that exited the mother's womb dead or an infant who died less than thirty complete days after birth, one does not tear garments, observe the laws of aninut, conduct a condolence meal, or observe mourning practices. (Siman 340:30. Siman 378:6. A 220, 500. D 293)

Thirty Complete Days - For an infant who died on the 31st day after birth, but did not complete thirty full days [24 hours per day] from the time of birth, one does not observe mourning. For example: If an infant was born on Thursday at 4 PM, and died [on the 31st day] four weeks later on Shabbat at 12 noon, since only 29 complete days and 20 hours passed, he is considered a stillborn for whom mourning is not observed. (A 123. Responsa Yabia Omer Part 8 Yoreh Deah Siman 33)

Born with a Defect - An infant born with a defect, even when it was known he would not live more than 12 months, if he died after thirty days from birth, mourning is observed. (A 123)

Incubator

A premature infant placed in an incubator who remained there for over thirty days and died, or who was removed from the incubator and died within thirty days, mourning is not observed. This is because the time of removal from the incubator is considered the time of birth, so he died within thirty days. However, if he died after thirty days from removal, mourning is observed. The reason: according to doctors, the incubator, with its air and heat, completes what would have happened in the mother's womb to complete the infant's development: breathing ability, warmth of life, completion of hair and nails. Often, if removed from there, the infant would not survive even one hour. Therefore, as long as the infant hasn't left the incubator to enter the world, it's considered as if the pregnancy is continuing in the mother's womb. Thus, even if the infant stayed there more than thirty days and died there, no mourning is observed, as it becomes clear that the device failed to complete the pregnancy, and it's as if the infant died in the mother's womb. (Levushei Mordechai, Mikveh HaMayim, Minchat Shlomo, Shevet HaLevi, Rabbi Y.S. Elyashiv, Beit Avi, Mishneh Halachot, Teshuvot V'Hanhagot, Nishmat Avraham. A 545)

Circumcision and Naming

A stillborn is circumcised without a blessing. [This is due to the regulation regarding transgressors, as the Midrash states: In the future, Abraham our father will sit at the entrance to Gehenna and will not allow any circumcised person from Israel to descend into it. For those who sinned excessively, what does he do? He removes the foreskin from infants who died before being circumcised and places it on the transgressors, then sends them to Gehenna. Therefore, we remove the foreskin from infants so it won't be found to be placed on transgressors]. And we give him a name, in memory that they will have mercy on him in heaven and he will rise in the resurrection of the dead. (Rav Nachshon Gaon wrote that this is a tradition passed down from person to person, and it's not just a custom but almost a law. So wrote: Rabbi Yitzchak Ibn Giat, the Geonim, the Itur, the Eshkol, Tamim De'im, Torat HaAdam, Orchot Chaim, Kol Bo, HaTanya, the Rosh, Avudraham, the Tur and others, and Maran in Shulchan Aruch Siman 263:5. A 387)

Burial

There is no commandment or obligation to bury a stillborn. And even if one buries it as is customary, there is no prohibition against leaving the body overnight. (A 121, 387) Nevertheless, according to what is explained in Tractate Semachot (Chibut HaKever Ch. 1:8, mentioned above page 154) that the judgment of chibut hakever [beating in the grave] is so severe that even stillborns are judged by it, it seems that if the infant died close to Shabbat, one should hurry to bury him and not delay until after Shabbat, to exempt him from chibut hakever. Conversely, if he died on Thursday, since there is no prohibition against leaving the body overnight, one should delay and bury him on Friday after noon, to exempt him from the judgment of chibut hakever.

It is forbidden to bury a stillborn on the second day of a festival, even through non-Jews, and we don't circumcise him until after the festival. (A 385)

Opening the Grave for Circumcision

If they forgot and buried a stillborn without circumcising him, the grave should be opened to circumcise him, because it is a disgrace for him to be buried with the despised foreskin which the wicked were disgraced by, and it is better for him to remove this disgrace. For a child, there is no concern about opening his grave due to the fear of judgment, since he has not yet sinned. However, this only applies if they remembered shortly after burial, when the body has not yet decomposed, but after several days, the grave should not be opened to avoid seeing the decomposition. It is clear that in cold weather, decomposition doesn't happen as quickly. Only if a long time has passed should the grave not be opened. (A 388)

Tziduk HaDin, Kaddish, and Hashkavah

We do not say Tziduk HaDin [Justification of the Divine Judgment], Kaddish, or Hashkavah [memorial prayer] for a stillborn, but only for an infant who lived at least thirty days from birth. As our Sages said, the day of judgment is so severe that even nursing infants are judged by it. And the judgment of Gehenna is severe that even a child is judged according to his understanding and years. Additionally, through Kaddish, one can elevate the child to a higher level in Gan Eden. (Siman 344:4. A 93, 288)

Minors

A minor boy or girl below the age of mitzvot whose father or mother died does not observe any mourning laws whatsoever. Therefore, they are permitted to wear leather shoes, cut nails, have haircuts, study Torah, and participate in celebrations throughout the year. (Siman 396:3. B 113, 214) They only tear their garments due to grief. (As mentioned above on page 146)

Minor Who Reaches Majority

Even a minor who becomes Bar Mitzvah during the year, even during the seven days of mourning, does not observe any mourning practices at all, neither the seven days, nor thirty days, nor twelve months. He should be encouraged to make extra effort during the twelve months to be diligent in Torah study for the repose of the deceased. (B 116, 118)

Convert

A gentile who converted along with his parents, they do not observe mourning for each other, because a convert who converts is like a newborn person and the family relationship between them is severed (374:5). Nevertheless, he should tear his garment and recite the blessing "Dayan HaEmet" [the True Judge] with God's name, as is the law for one who hears bad news, since he is still distressed. (A 552)

If the convert wishes to observe the seven and thirty days of mourning, he may do so, provided he does not neglect Torah study or tefillin. It is good for him to say Kaddish and Hashkavah, and perform mitzvot and give charity for the elevation of their souls. (B 119) For the reason behind this, see below (page 254).

Intention to Divorce

One who was in conflict with his wife and intended to divorce her, such as having opened a divorce file in the rabbinical court or if they were living separately, and before they divorced the wife died, he need not mourn for her. (B 120) The same applies in reverse—if the husband died, the wife need not mourn, since they do not grieve for each other. (Ma'ayan Omer 196)

Adopted Child

An adopted child is exempt from observing the seven and thirty days of mourning upon the death of his adoptive parents, but it is good for him to mourn somewhat for them, out of gratitude for raising him to this point. However, he does not observe the laws of aninut and is obligated to wear tefillin. If he wishes, he may sit shiva for them, and study Torah when mourners are not present. It is a mitzvah for him to say Kaddish for the elevation of their souls, as he is obligated to honor them in their lives and deaths. (A 551)

Close Family Members

Close family members need not observe any mourning laws together with their mourning relatives. For example: a husband with his wife who is mourning for her father-in-law and mother-in-law, or a wife with her husband mourning for his father-in-law and mother-in-law, or a grandson with his father mourning for his grandfather and grandmother. One who is strict about this is merely acting strangely. (Maharam, Ramban, Rosh, Rema, Maharikash, Shulchan Gavoah, Beit Oved, Misgeret HaShulchan and others. A 242)