On the Status of Missing Persons

by Rabbi Isidoro Aizenberg, 1987; Edited by Rabbi Robert Binder

Question (Sh’eilah)

What is the status of missing persons according to Jewish law?

Answer (Teshuvah)

The first missing child whose photograph was printed on the sides of milk cartons was Etan Patz, a six-year-old who disappeared from the streets of lower Manhattan in 1979 while walking to his school bus. Despite massive publicity efforts and a suspect who was imprisoned on charges unrelated to the Patz case, Etan was never found. The most distressful questions remain: Is he to be presumed dead? Are his parents to observe shiva?

Much halakhic literature exists on the status of people who have disappeared, particularly in reference to the problem of the agunah, a wife who is “chained” to a missing husband and thus unable to remarry. When there is evidence of a person’s death, even if there is not a body – for example, someone killed or drowned on a trip, a soldier killed in action, or a person lost in the Holocaust -- that missing person is assumed to be dead.

Missing children, however, are not so presumed; on the contrary, they are considered to be still alive, even though they have not returned home, contacted relatives, or otherwise made their existence known, despite modern means of communication that are readily available, and despite the work of police authorities.

Regardless of the extremely painful tragedy involved, we cannot assume that a missing child is dead, even if he or she has been missing for a long period of time; the safek hayim (possibility that he or she is alive) is always there. We thus cannot sanction observance of shiva and mourning rites until death is unquestionably determined. Parents are encouraged not give up hope of finding their missing children, particularly when they did not disappear during wartime or in an accident. Such children, upon maturing, may yet seek their parents.

The issue is compounded when dealing with missing married adults, since in their case the halakha must determine the spouse’s marital status. In the case of missing adults, the Shakh’s commentary on the Shulchan Arukh [Yoreh De’ah 397] says, “If the testimony is not adequate to allow his wife to remarry, the mourning ritual is not permitted, lest it be misinterpreted and she will mistakenly be permitted to remarry.”

Parents of missing children are therefore not permitted to sit shiva until the death of the child has been absolutely determined, and spouses of missing adults are not permitted to observe mourning rites until the death of the missing spouse has been absolutely determined.