The Kiryat Gat Magistrate’s Court has ordered the Kiryat Malakhi burial society to pay 30,000 shekels ($7,680) to the family of a young woman who died of complications from AIDS, for not performing the ritual preparation of her body or allowing her relatives to identify her.
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The burial society responded that it did this because it had been warned there was a risk of infection.
Eighteen-year-old Y. of Kiryat Malakhi died in 2012. When family members came to confirm her identity before burial, the body was wrapped in a sealed bag with a sticker that said, “Caution, Risk of Infection.” The burial society said that the body was identified by a family representative who stood at the entrance to the purification room, and saw the body from afar when the burial society worker opened the zipper of the bag. Judge Or Adam said this did not constitute proper identification.
With regard to the tahara, the ritual washing and preparation of the body before burial, the burial society said it was done to protect the burial society workers from infection. Rafael Miara, the head of the Kiryat Malakhi religious council, said that when a body is received in a sealed bag with a warning sticker, the tahara is not performed. “The hospital said not to touch [the body]; I will not risk my life or those of the women who prepare the body.”
Asked if the family was told that the tahara had not been performed, Miara said, “One cannot say when a tahara isn’t performed, there is a halakha. Tahara is a private matter and [one doesn’t say when it isn’t done] so as not to offend the family.”
Earlier, in his deposition to the court, Miara said, “Whenever a deceased [person] comes from a hospital with a red sticker, the [burial society] does not open the plastic wrapping and does not perform either an identification or a tahara, given the warning against the risk of infection.” Miara added that as far as he knew, “All the burial societies in Israel conduct themselves this way, because the position of Jewish law is that one does not put the burial workers at risk with the body of the deceased.” He said he had not gotten any instructions from the Health Ministry on this issue.
In response to the family’s request, the court ordered the state to submit the guidelines for these cases, if there were any. In February 2015, nearly three years after Y.’s death, the state submitted a Health Ministry position paper that had been written the previous month. The paper differentiates between contagious diseases that are transmitted by airborne pathogens or by coming in physical contact with the dead or his bodily fluids, and diseases transmitted by sexual relations or blood transfusions, among them AIDS. In the latter case, in the absence of any other instructions from a competent medical authority, a tahara should be done while taking all necessary precautions, like using gloves and disinfectants.
But a source in the Kiryat Malakhi religious council told Haaretz that even after the position paper was issued, the procedures have not changed; the tahara is still not performed on bodies that arrive with a warning sticker. This source said that before procedures can be changed, there will need to be special courses given to the burial society workers and no such courses have taken place.
In his ruling, which was delivered last week, Adam noted that while the position paper distinguishes between levels of risk, “It doesn’t state how information about the classification of the risk is meant to reach the burial society.” He said the health ministry and religious services ministry should order hospitals and other medical services to make it clear when handing over bodies which type of risk it is.
The family had demanded 300,000 shekels in compensation.
Adam, as noted, said the burial society had failed to allow for proper identification of the body. As for the performance of the tahara, he said one could not expect the burial society of a small city to set policy for such cases. However, he wrote, “It would have behooved [the burial society] to talk to the family about why this incident was exceptional.” He said the lack of communication with the family and the fact that no alternatives were offered, like the possibility of a privately done tahara, “does not meet reasonable standards for a burial society.” He thus awarded the family 30,000 shekels.
Y.’s mother told Haaretz that the family plans to appeal. “To this day I don’t know who I buried.” She said she only learned two weeks after Y’s funeral that her daughter had not undergone tahara, and that the trauma would be with her all her life.