Adv. Hagai Kalai
Decisions that relate to burial and funeral ceremonies are certainly some of the most complex decisions that can be made by the dying and their families. Often, a quick decision is required at the peak of a mourning period. Until the 1990s, in Israel almost no complexity arose concerning burial options. Most of the public was assisted by the burial services provided by religious burial corporations, according to the religion of the deceased. A small minority held civil burials in private cemeteries. From 1996, with the passing of the Alternative Civil Burial Right Law, there has been some revolution in the duties imposed on the state with regard to burial, and it has been determined that the state must allow every person to have a civil burial. In practice, most individuals buried in a public civil ceremony are those who are not entitled to a religious burial, many of whom are immigrants from the Former Soviet Union1. It is therefore important to separate the rights of the individual concerning burial as prescribed in the law from de facto rights. Alongside this, some disputes have also arisen on the question of whether a religious burial corporation is allowed to force religious norms on persons requesting their services, and to what extent. Finally, Questions have also arisen in Israel on other ways of laying to rest, such as cremation, organ donation and donation of the body to science.
Image courtesy of the national photo collection state of israel
Must the state provide civil burial services to citizens of Israel?
According to the Alternative Civil Burial Right Law, “a person is entitled to be buried according to his beliefs in an alternative civil cemetery if he has chosen to do so; the choice may be made in a will or in any other way”. The State assumes the duty of establishing civil ceremonies throughout the country, at reasonable distances from population concentrations. In practice, most of the population has no access to civil ceremonies, and the State is hesitant in establishing civil cemeteries, which has been harshly criticized by the Supreme Court and the State Comptroller.2
As of 2013, only three cemeteries have been run as regional civil ceremonies – Menucha Nechona in Be’er Sheva, Menucha Mechubedet in Givat Brenner and the cemetery in Emek Hefer – Mesila. As a result, many citizens of the State of Israel had no chance of being buried in a public civil ceremony, but only in a private civil ceremony.
In light of this shortcoming on the part of the conduct of the State, which has not acted to establish civil cemeteries, or to inform the families of the deceased properly about the opportunities open to them, the court has recently ruled that the State has been negligent in the discharge of its duties towards the public interested in civil burial, and has ordered the State to compensate plaintiffs who have buried their loved ones in private civil ceremonies due to the cost of burial (NIS 15,000-18,000). In other words, in cases in which the State does not provide proper information in real time to the families of the deceased on the possibility for civil burial, or when it is not practically possible to hold a civil burial as required by law, families of the deceased are entitled to compensation for the cost of private civil burial. 3
May payment be charged for burial?
No payment may be charged by the burial corporation for burial, except for regulated amounts that are prescribed in the National Insurance Regulations (Burial Fee), 5736-1976.4 However, in practice, many burial corporations ask for additional payments, often without documentation and records. As a rule, the only case in which a burial corporation is allowed to demand additional payment is for services that are not part of its duties. In this context, it is allowed to charge payment for accompanying the body only if the accompaniment is outside the premises of the burial corporation or if extraordinary services that are not mandatory are provided (such as the provision of a particularly expensive coffin at the request of the family). The burden to prove that services have been provided for which charging payment is prohibited is not assumed by the burial corporation.5
A separate issue is payment restrictions for the purchase of a grave by a living person and the purchase of an adjacent grave. As a rule, the payment for a grave that is purchased by a living person, as well as an adjacent grave, is prescribed in the First Addendum to the Jewish Religious Services Law [Consolidated Version], 5731-1971 and varies with geographic region in Israel. In any case of a service of this type being provided at a charge rate that is not prescribed in the law (such as a grave in a closed cemetery), the prescribed corporation must show that the price is systematic, proportionate and uniform.6 In this context, it is not possible to circumvent the provisions of the law by selling graves to a third party for trading purposes.7
Is a religious burial corporation allowed to compel the family of the deceased to practice religious norms concerning the burial?
Despite religious burial in Israel being carried out by a private corporation (usually Hevra Kadisha), the corporation assumes public duties and is not allowed to force religious norms, and in particular religious norms that are not accepted by the religious public at large, upon persons who are not interested in them. For instance, the burial corporation is not allowed to prevent an inscription on a headstone (for example an inscription of the deceased’s Gregorian dates of birth and death).8 Similarly, the burial corporation is not allowed to force the holding of a religious ceremony with segregation and is not allowed to prevent women from mourning the deceased.9 It would seem that in the spirit of case law, a burial company will not be allowed to force the use of any particular religious service or prescribe any practice whose nature does not contravene the religious ceremony or offend public feelings.
However, the Courts in Israel have never prescribed the exact dos and don’ts in this context. While there is no dispute on the one hand that inscriptions in languages other than Hebrew is permitted on headstones, and on the other hand, ceremonies and customs that offend public feelings are prohibited, the Courts have never ruled on the question of the exact identity of the religious ceremony that the Hevra Kadisha is allowed to force on consumers of its services, and elements that are not in the core of the ceremony, the decision on which is delegated to the family of the deceased. In this context, it would seem that the courts are to consider the question of whether it is a local or general norm (and they tend to allow the family not to hold a local norm that is not applied nationwide); whether it is an addition to the religious ceremony or a reduction in the religious ceremony; and whether there is an alternative to public civil burial for the deceased and more.
May bodies be cremated in Israel?
There is no impediment in Israel to cremation. The underlying principle by which the manner of dealing with the body of the deceased will be decided on is the principle of the wishes of the deceased, which may be learned from the last will or in any other way (including testimonies concerning oral statements made by the deceased).10
When there is a dispute between relatives of the deceased concerning the manner of attending to the body, and the wishes of the deceased are unclear, the wishes of the spouse will first be respected, followed by the wishes of children and after that the wishes of the parents of the deceased.
Unlike civil burial, because the law in Israel does not deal directly with cremation, as of today, the State has no duty to fund the cremation procedure itself, although if relatives ask to bury the ashes, the State will assume a general duty of providing burial services for the deceased (whether in a religious cemetery or a civil one).11 It is noted in this context that case law has not been uniform in the arguments for cremation not being funded by the State, and the issue has yet to be adjudicated by appellate instances or by the Supreme Court.
What of organ donation, donating the body to science and other options for the deceased and his or her family?
According to the Anatomy and Pathology Law, 5713-1951 [sic], a person is allowed to donate his body to science, and is allowed to order the donation of organs after his death, which provision will take precedence over any objections of his family members. However, in practice, ADI organ donor cards are not considered today to be consent for donation, and therefore the consent of family members is required, except in extraordinary circumstances. After ending the use of the body, the academic institution assumes the duty of having it buried according to the wishes of the ceased, unless it has asked for certain organs to be preserved.
Alongside this, a person may ask to hold a different ceremony. For example, a person may ask to have the body buried at sea or cast as carrion. The Supreme Court has ruled that as these actions are not prohibited by law, the question of whether they are to be permitted is to be decided based on two considerations – whether they inherently contravene the dignity of the dead, even if the person has asked for them to be performed while alive, and whether they infringe upon public welfare (for example due to the formation of sanitary hazards).12 In practice, until now there are no alternatives in the State of Israel to burial and cremation. However, subject to absence of damage to the environment and to others, the body of the deceased may be cast into the sea, according to his wishes.13
* The foregoing constitutes a general description of the law and cannot serve as an alternative to receiving a legal expert opinion.
1 Naomi Ben Ami “implementation of the Alternative Civil Burial Law in Israel”, Knesset Research Institute (2007) – http://www.knesset.gov.il/mmm/data/pdf/m01963.pdf; Flora Koch-Davidovich “Alternative civil burial for non-Jewish in immigrant families” , Knesset Research Institute (2010) – http://www.knesset.gov.il/mmm/data/pdf/m02536.pdf; Oriana Almasi “Civil Burial in Israel”, , Knesset Research Institute (2013) – http://www.knesset.gov.il/mmm/data/pdf/m03297.pdf
2 Civil Appeal 6024/97 Shavit v. Hevra Kadisha Rishon le Zion, Supreme Court Verdict 53(2) 600 (1999); High Court of Justice Menucha Nechona Be’er Sheva and Region Society v. the Minister of Religious Affairs (July 10, 2006)
3 Summary Civil Case (Kfar Saba) 29187-05-12 Ginsburg v. State of Israel, the Ministry of Religious Affairs (September 4, 2014).
4 Section 268 of the National Insurance Law [Consolidated Version], 5755-1985 [sic] states that: “Any entity that is authorized under Section 13 of the Jewish Religious Services Law [Consolidated Version], 5731-1971 and the regulations promulgated thereunder (hereinafter – the Religious Services Law) to deal with the burial of deceased will not charge for the burial any payment, including service fees under the Religious Services Law, in addition to the burial fee under this article, unless the payment has been permitted under the conditions and tests prescribed pursuant to Section 266”.
5 Small Claim (Safed) 40110-10-10 Duvrubin v. Avichen – Assistance Services Ltd. (July 28, 2011).
6 Small Claim (Tel Aviv) 60116-07-13 Kariheli v. Hevra Kadisha Tel Aviv Yaffo and District (September 3, 2014)
7 Administrative Petition (Haifa) 44670-04-13 Avior v. Ministry of Religious Services (December 25, 2013); Summary Civil Case (Krayot) 3453-09-08 Ginsberg v. Hevra Kadisha Haifa (May 8, 2012).
8 Civil Appeal 6024/97 Shavit v. Hevra Kadisha Rishon le Zion, Supreme Court Verdict 53(2) 600 (1999)
9 See circular of Director General of Ministry of Religious Services of February 27, 2013 dealing with “the funeral ceremony” - http://www.dat.gov.il/NR/rdonlyres/AA25B3DA-4CF5-4C22-A11B-EE6AC7ABFED6/0/022013sp.pdf.
10 Misc. Civil Motions 4230/06 Mirela v. Rosen (December 28, 2006); Civil Case (Haifa) 26568-12-10 A.S. v. L.B. (December 19, 2010).
11 National Insurance (Tel Aviv) 7726/05 Regina v. the National Insurance Institute (January 1, 2008); National Insurance Appeal 160/05 Zander v. the National Insurance Institute (February 20, 2006); National Insurance 7354/05 Raudor v. the National Insurance Institute (January 1, 2007).
12 High Court of Justice 6167/09 Avni v. State of Israel (November 18, 2009); Civil Appeal 1835/11 Avni v. State of Israel (November 17, 2011).
13 Originating Summons (Tel Aviv) 39654-09-10 Avni v. State of Israel (January 16, 2014).