When a Baby Dies

by R. Gil Student

Few experiences hurt more than a child’s death. Parents naturally blame themselves at some point in the mourning process but they are not to blame. As we will see, even those few statement in the Talmud about parents’ responsibility (e.g. for failing to fulfill vows) are not taken by the commentators as literal culpability. God’s decision to take away a baby baffles us because parents are not at fault. But what about when they are at fault? For example, what if a father forgets his kids in the car who tragically die? Is he to blame for the children’s death? Should he be punished? Perhaps surprisingly, halakhic authorities have discussed this over the centuries.

When I read in the news about criminal charges against a parent who forgot a baby in a car, resulting in the baby’s death, I think to myself that this seems so unnecessary; the parents suffer enough without the court imposing additional punishment. In somewhat similar cases, leading rabbis disagreed with this sentiment and imposed punishments particularly in cases where halakhah exempts the parent.

I. Smothering While Asleep

Rav Binyamin Slonik (Masas Binyamin, no. 26) addresses the case of a woman who woke up in her bed to find her baby deceased in her arms. She remembers leaving the baby in its crib but the maid says that, during the night, the mother took the baby into bed with her. The mother asked Rav Slonik what she can do to repent for the possibility that she smothered her baby in her sleep.

Rav Slonik says that if a woman knowingly sleeps with a baby in her bed, she is carelessly risking the baby’s life. She may not intend to roll onto the baby but she puts herself in the situation where it is a real possibility (he quotes Rav Meir (Maharam) of Rothenberg as ruling this way). In such a case of negligence, we invoke the Talmudic rule (Bava Kamma 26a) that a person is always warned to prevent his actions from leading to damage or murder (adam mu’ad le-olam). Therefore, a mother bears some guilt even though she did not smother her baby intentionally.

In the case of the woman who came to him, Rav Slonik says that the baby may have died before the mother picked him up in her sleep. Additionally, even if she took the baby into her bed, she did so while asleep and therefore bears no guilt. This can compare to someone who is asleep, another person lies down next to him, and the first person in his sleep injures the second person. The first person is exempt from damages because everything was completely out of his control (Shulchan Arukh, Choshen Mishpat 421:4).

II. Broad Responsibility

However, Rav Slonik adds that whenever someone dies because of your actions, even if only remotely, you bear some guilt. He derives this from the biblical story of the priests of Nov who fed David without knowing that David was a fugitive from King Shaul. When Shaul learned of this, he had the entire city killed (1 Sam. 22). The Gemara (Sanhedrin 95a) says that David was guilty of a sin because the people of Nov were killed due to him, even though his involvement was highly indirect. If so, argues Rav Slonik, a mother who smothers her baby, even if unknowingly, bears some guilt because the death occurred due to her involvement. Perhaps surprisingly to modern ears, Rav Slonik agrees with the mother that she need to atone for her role in her baby’s death.

While Rav Slonik does not quote these sources, he could have pointed to Rav Ya’akov (Mahari) Weil’s discussion of a deceased messenger (Responsa Mahari Weil, no. 125). Mahari Weil invokes the above Gemara in Sanhedrin to recommend repentance for someone whose messenger dies. While the sender did not cause the messenger’s death, he was part of the process that led to the death. Therefore, he should fast for forty days (without the nights, of course) and give money to the deceased’s orphans.

Similarly, Rav Moshe Isserles (Rema; Responsa, no. 37) addresses a man who in a freak accident shot and killed his servant. Rema recommends wandering in exile for a year, fasting for an extended period and also every year on the anniversary of the death. Rema warns not to impose too strict a prescription of repentance so as not to discourage potential penitents. Apparently, fasting and wandering was not considered as harsh then as it would be today.

Rav Yechezkel Landau (Noda Bi-Yehudah, vol. 1, Orach Chaim 34) quotes the Tzemach Tzedek who disagrees with Mahari Weil’s approach of prescribing self-punishment for those whose actions led to someone’s death. According to the Tzemach Tzedek, David’s false information led to the deaths and therefore he bore some blame. In a regular case of a messenger, the sender does nothing wrong. However, the Tzemach Tzedek is not willing to depart from established precedent and still suggests fasting forty days. Rav Landau distinguishes based on who initiated the trip on which the messenger died. If the messenger requested to go on the trip, the sender need not fast. If the sender asked the messenger to go on this trip, then some small blame rests with him.

III. Self-Punishment

In the case above, Rav Slonik instructs the bereaved mother to fast for forty days and afterward to fast every Monday and Thursday for a year. Rav Gershon Ashkenazi (Avodas Ha-Gershuni, no. 69) disagrees with Rav Slonik on one point. He addresses a woman who fell asleep holding her baby in her bed and woke up to find the baby deceased. She does not know whether she smothered the baby but merely found him dead in her hands when she woke up. Out of concern that she may have caused the baby’s death, she asks how she can repent from the possible sin.

Rav Ashkenazi objects to Rav Slonik‘s argument that a woman who goes to sleep with a baby in her bed risks the baby’s life. If she was trying to stay awake but was overcome by sleep, she cannot be considered even remotely liable. There is no certainty that falling asleep will hurt the baby and the sleep itself is against her will. With no one else available to help, what is the mother supposed to do?

However, since Maharam Rothenburg prescribed punishment for repentance, Rav Ashkenazi cannot ignore his ruling. He suggests a mild repentance, which is what he considers Rav Slonik’s prescription of fasting for forty days and every Monday and Thursday for a year.

IV. Modern Times

Rav Yosef Shaul Nathanson (Sho’el U-Meishiv, series 1, vol. 1, nos. 173-174) argues that whenever someone dies due even remotely to your involvement, you bear some guilt. He references Makkos (11a) in which the high priest is held to blame for an accidental murder that occurs during his time in his position — the high priest should have prayed for mercy on his generation. The Gemara continues that a lion killed a person near the home of R. Yehoshua Ben Levi. Because of the sage’s small amount of guilt for having this occur in his neighborhood, Eliyahu refrained from visiting him for three days. These cases are even more remote than that of a messenger or a child that is accidentally smothered.

Rav Nathanson addresses a couple whose baby died in his crib while the exhausted parents, who had stayed up most of the night with him, slept. He notes that people in his day (mid-19th century) were too weak to fast for an extended time. He recommends giving to charity in memory of the baby. This family was too poor so instead he suggests giving what they can, refraining from wearing jewelry during the week, refraining from attending parties except for close relatives, and fasting annually on the baby’s yahrtzeit.

Rav Yosef Zechariah Stern (Responsa Zeikher Yehosef, Orach Chaim 212) surveys the topic in his characteristically encyclopedic way. He distinguishes between cases in which a parent actually causes the death, even if accidentally (e.g. smothering the baby while sleeping), and when a baby dies for other reasons (e.g. dying in its crib). The latter happened frequently in the ancient times and is discussed in the Talmud. Even when the parents are blamed for the death due to their sins (e.g. Shabbos 32b), rather than specific actions endangering the child, no one suggests that the parents need forgiveness. In the tragic case of the former, Rav Stern prescribes one day of fasting if possible, sleeping with fewer pillows for a year to reduce comfort, saying the viduy confession every day (as is standard in Nusach Sefard) and taking care to avoid vows and oaths.

V. Understanding the Responsa

In all the above cases, the person advised to self-punish is technically exempt from liability. But guilt in the eyes of the court differs from moral culpability. Sometimes we are guilty even when the court cannot convict us. In those cases, we still need atonement, which the self-punishment is intended to facilitate.

And yet, I struggle to understand how a rabbi can tell a grieving mother or father that they bear some of the guilt for their loss. In a sense, this is like a court that convicts a father who forgot his children in a car, leading to their death. Why add to the pain? Perhaps two factors can help us understand why this kind of response may have been appropriate in the past but no longer should be used broadly.

In the recent past, infant mortality was much higher. Historically, approximately one quarter of all newborns died in their first year. In 2017, the infant morality rate in the US was approximately 0.6%.

From a psychological and pastoral perspective, in the past people felt less grief over the loss of a baby. A mother expected to lose multiple babies in her life. Therefore, her search for meaning in those deaths left less room for personal devastation and overwhelming feelings of guilt. Bereaved parents were looking to improve their religious standing, not struggling to survive. Today, no one expects to lose a baby. Bereaved parents may feel consumed by guilt. Adding to that guilt with theological speculation can only devastate a bereaved parent, not make him stronger religiously.

Additionally, in all the responsa I have seen, the mother came to a rabbi asking for guidance. She adopted blame and asked her rabbi how to overcome it. If the rabbis had denied her request and freed her from blame, perhaps she would have continued struggling with her feelings of guilt. Instead, the rabbis gave her the tools to deal with her emotions, to rid herself of guilt. I am not a psychologist but maybe this path to repentance helped bereaved parents overcome their feelings of guilt and find a way to move on with their lives.

To the best of my knowledge, leading rabbis no longer prescribe self-punishment even when the parent reasonably bears some guilt. Whether we properly identify what caused this change, we need to align our behavior and thought with our teachers.