Sometimes not knowing what you cannot do is a dangerous thing, sometimes it is a blessing. The recent stories of families unable to bury and mourn their children - highlighted in the JC - tear at the heart strings and seem, at this perspective, unbelievably lacking in empathy.
And yet, when I first began in the rabbinate in 1982, awareness of the need to mark the death of a child of less than 30 days was simply not on the horizon. Jewish practice had not kept up with the changes in medicine that had led to a very different expectation for parents of a live and healthy child. And it was not just Jewish practice that was not in tune with the parents; the prevailing medical advice to young mothers who miscarried or had a stillbirth was generally to forget about it and move on by having another child.
Burial societies and their rabbinic advisers followed the custom enshrined in Maimonides's Mishneh Torah (Hilchot Avelut 1:6) "We do not mourn for those who do not live for 30 days" - a ruling which derived from the talmudic idea that the viability of a child is inferred from the ceremony of pidyon haben which takes place at 30 days.
Until that point, while recognised as fully a human person, the child was given the status as being as if not yet fully in the world. No doubt this practice was formed with compassionate intent. In a world of high infant mortality, many families would find themselves immersed in mourning for years so to relieve them of the burden of the obligations on a mourner was to help them.
But Jewish law is not monolithic, and the lack of obligation to fulfil a mitzvah is not the same as denial of the opportunity. Plenty of texts make it clear that a child who does not survive 30 days has an existence and an impact both on their families and on society; the Mishnah even tells us that a child "even one day old counts to his father, to his mother and to all his relatives as a fully grown person" (Niddah 44a).
In 1987 I entered my first rabbinic pulpit in time for the High Holy Days. I had a six-month-old baby. On the day of Kol Nidre, I was told that a member of my community had endured an unexplained stillbirth. I would like to think it was my deep reading of the many texts that run counter to the tradition of not requiring mourning for a child under 30 days that meant that I asked the Jewish Joint Burial Society to organise a full funeral for the day after Yom Kippur; but I know it came out of my deep understanding of what it was to be a very recent - still breast-feeding - mother, and knowing what I would have wanted had I been in the position of my congregant.
While I knew the teaching about a child under 30 days, I did not know that it had led to almost universal habit of offering nothing to the bereaved parents in terms of ritual. Both the JJBS and the cemetery supervisor were surprised at my request for a funeral service, but very helpful in the organisation, setting aside a portion of the cemetery for the interment of babies, so that the family would have a place to visit in the future.
I visited the family, took the Yom Kippur services, went home to prepare for the next day - and only then discovered that there was nothing in the liturgy to address this situation. The prayers of the funeral service described lives that had been fully lived. So I spent the night combing through texts and typing up a service I would find helpful on my battered manual typewriter, photocopying at the local library early the next morning. And I held my own baby close.
Much of Jewish tradition comes from recognition of how the world was when the custom was formed and, I firmly believe, was never meant to stop other ways of expressing meaning. There is, for example, a talmudic rule of thumb that women are not obligated to positive timebound mitzvot (though the "rule" can easily be challenged) but that does not mean that women are forbidden from doing them: it probably also derives from a compassion for the vulnerability of lone women at a certain time, protecting them from having to leave their homes in order to fulfil an obligation.
There is a statement that one does not mourn a child of less than 30 days' existence in the world, but one can find talmudic stories of rabbis who did just that when their own child died - even though one was challenged with the prevailing rule of the lack of need for mourning (see tractate Shabbat 136a).
The Reform and Liberal movements have for many years now held an annual service for the remembrance of lost children, where parents have come to mourn who had no chance to do so before. The liturgy was created in a joint partnership with women study groups and the rabbis.
Sometimes, not knowing that "you can't do that" is the most helpful place to be, for instead of reading a code of law to reinforce a position created for a different time, we go back to what the original rabbis relied on - a compassionate response to the needs of the community, the empathy to think through what we might want in such a circumstance and the courage to create something different
