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The fetus in biblical law

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Archives / 1992 / September

 

 

The fetus in biblical law

Ron du Preez

Ron du Preez, D.Min., is an associate professor of religion at Southern College, Collegedale, Tennessee.

 

Only one passage in Scripture deals with the legal responsibility for terminating pregnancy. Interestingly, Exodus 21:22- 25 is cited as support by both those favoring of abortion and those opposing it. How is this possible?

Conflicting translations

In preparing this article I examined 48 available English versions of the Bible to see how Exodus 21:22-25 is translated. Essentially, the translators interpreted the passage in one of two ways.1 Twenty-two of them, from the Douay Version of 1610 to the New Revised Standard Version of 1989, render the text so that the fetus can be viewed as of less value than a human being. Consider for instance, the Revised English Bible, published in 1989: "When, in the course of a brawl, a man knocks against a pregnant woman so that she has a miscarriage but suffers no further injury, then the offender must pay whatever fine the woman's husband demands after assessment. But where injury ensues, you are to give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, bruise for bruise, wound for wound."

Here the Revised English Bible implies that the death of the fetus can be compensated for by a fine, while the mother's death invokes the "life for life" legislation. This is seen by many as tacit approval of abortion, for the fetus is not treated as a human being but rather as a personal possession of the father.

In contrast to 22 Bible versions, 14 others are ambiguous enough to support either position. Twelve versions, dating from the 1560 Geneva Bible to the 1987 English Version for the Deaf, imply that the fetus can be viewed as of equal value to its mother. Notice, for example, the 1978 New International Version: "If men who are fighting hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman's husband demands and the court allows. But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise." 2

So according to the NIV, the fine is for the premature birth itself, and any serious injury to either mother or fetus requires equivalent punishment. Thus the fetus is treated as a real human being and not merely as a matter of material loss deserving only monetary compensation.

Which opposing viewpoint is correct? How have linguists managed to interpret this passage in such contradictory ways?

Status of mother and fetus

My analysis of available English language reference works indicates that most commentators see Exodus 21:22 as dealing with a miscarried fetus, a stillborn child. From the 1844 commentary of Thomas Scott 3 through the 1986 work of Everett Fox,4 dozens of biblical scholars have held this view. Most suggest that the passage reveals three facts: the miscarriage results from an injury incurred; the offender should pay a fine to compensate for the loss of the fetus; and only if the woman herself suffers serious, permanent injury or death does the lex talionis (the law of retribution) apply.

Assuming that only a fine is required as compensation for the loss of the child, two Roman Catholic commentaries5 conclude: "The fetus is not regarded as a person, but if the woman dies the lex talionis is applied." 6 Paul D. Simmons, a Protestant, says: "The woman has full standing as a person under the covenant, the fetus has only a relative standing, certainly inferior to that of the woman." 7 This view is not merely a modern notion.

David M. Feldman in his Birth Control in Jewish Law argues that, based on this passage, the ancient Talmudic commentators clearly distinguished between the miscarriage of a fetus and the death of its mother.8 Even though at birth a child is considered to be a living soul, if it dies during the first 30 days no funeral services are held because the infant is not considered to have existed.9

Analysis of the traditional perspective

This "miscarried fetus" interpretation has both strengths and weaknesses that deserve critical analysis. To begin, we will examine the strengths. First, as Jack W. Cottrell confirms, most translations favor this interpretation. 10 Second, this has been the dominant view of commentators and theologians. And third, the Jewish Talmudic commentators have from ancient times uniformly understood the passage as referring to a miscarriage.

The case for the miscarried fetus may seem strong, but serious doubts are raised by the opposing viewpoint:

Translations of the Bible. Is it always safe to concur with the majority of translations? Consider Luke 23:43, regarding Christ's statement on the cross to the repentant thief. Of the 63 English Bible translations investigated, 58 are in harmony with the Revised Standard Version: "Truly, I say to you, today you will be with me in Paradise." By placing the comma before the word "today," an over whelming 92 percent of translators imply that Jesus and the thief went to Paradise the day of their death. Many see this text as proof that humankind has an immortal soul. In reality, however, punctuation marks were added to the Greek text in the ninth century A.D. Thus Seventh-day Adventists and others, demonstrating that the rest of Scripture indicates that humans do not possess immortal souls, have shown that the comma should be placed after "today" even though only 3 out of 63 Bibles have it so. Thus a majority opinion is not necessarily valid.

Bible commentators and theologians. The second argument in favor of the miscarried fetus theory is the support of the majority of commentators and scholars. However, a careful check of English language commentaries reveals that almost all of them base their observations on English translations rather than on the original biblical languages. More than half of these reference works use the Revised Standard Version, which translates the text as a miscarriage, and the King James Version, which because of its imprecise rendition is sometimes interpreted to make it support the miscarried fetus theory. Because these commentaries for the most part are based on English Bible translations, it seems unwise to unquestioningly accept their view, even though it represents a majority position.

Interpretation of Talmudic commentators. The third argument, based on the uniform interpretation of Talmudic commentators, is undermined by the realization that even though the Jewish law taught that a fetus becomes a living soul at birth, it also stated that the infant is not considered to have lived at all up to 30 days after birth.

Since few if any Christians would support the Talmud's teaching about life after birth, why should we endorse its position on life before birth? Exegetical shortcomings. There are other problems with the miscarried fetus theory. Without exception, of the dozens of scholars who favor it, not one has provided any significant exegesis of the Hebrew text of Exodus 21. None of the 33 commentaries supporting this position do any etymological, contextual, or comparative study of the most crucial words in this text the nouns yeled and ason, and the verb yatsa. Six commentaries actually change the wording of the He brew text to artificially reinforce the miscarried fetus view.

Law codes of the ancient Near East. Eleven of these reference works apparently base their interpretation partly on a comparison with other contemporary lo cal laws. Laws dealing with miscarriages were found in most Mesopotamian legal collections, such as the Sumerian Laws 1, 2; the Code of Hammurabi 209-214; the Middle Assyrian Laws A 21, 50-52; and the Hittite Law Code 17, 18. For ex ample, the Code of Hammurabi specified that if someone struck someone else's daughter and "caused her to have a miscarriage, he shall pay ten shekels of silver for her fetus. If that woman has died, they shall put his daughter to death." 11

While most of these law codes required only a fine for the destruction of the fetus, at least two Middle Assyrian laws apparently treated the fetus as fully human. One of these laws stated that if even a prostitute were caused to have a miscarriage, "he shall compensate with a life." 12 These regulations that differed from the majority of the legal codes cast doubt upon the wisdom of basing our interpretation of Scripture on a comparison with other local laws. While ancient codes should not be ignored, it is safer to compare scripture with scripture than to depend on extrabiblical sources. This is especially true in connection with the passage being studied, because this entire legal section, Exodus 20:22-23:33, was spoken directly by God to Moses.

Words inserted into English translations. Yet another flaw becomes evident when we realize that almost all the translations that support the miscarried fetus view insert words that are neither present nor implied in the original Hebrew text. For example, The Bible in Basic English says: "If men, while fighting, do damage to a woman with child, causing the loss of the child, but no other evil comes to her, the man will have to make payment up to the amount fixed by her husband, in agreement with the decision of the judges. But if damage comes to her, let life be given in payment for life" (Ex. 21:22, 23).

This translation, apparently assuming that the fetus was miscarried, inserts the words "to her," implying that the word "evil" or "harm" (Hebrew ason) refers to the mother and not to the fetus. However, a closer look at the Hebrew original reveals two problems: first, that the words "to her" (lah in Hebrew) are not in the text; and second, that the position of the word "evil" in the sentence structure compels us to relate it to either the fetus only or to both the fetus and its mother.

Besides the unwarranted insertion of the words "she," "herself," or "to her" by several translations, 16 of them add the words "other," "further," or "otherwise" in front of the word "harm" in verses 22 and 23. This implies that some harm already has been done, namely the alleged miscarriage, which is then judged to be relatively insignificant because it draws only a fine. The original text for bids such translation, indicating that even though the offspring comes out as the result of a blow to the woman's body, both baby and mother are alive and well.

Only in verse 23 is the possibility of harm introduced. It reads literally, "and if harm occurs." The text does not say that this is "further" harm or that it applies only to the mother. Rather, it makes absolutely no distinction between offspring and mother, thus applying the life-for-life legislation to both.

When one analyzes the evidence, it seems reasonable to conclude with Jack Cottrell that "there is absolutely no linguistic justification for translating verse 22 to refer to a miscarriage." 13

Legal standing of the fetus

Although only seven of the reference works I reviewed support the view that Exodus 21:22 deals with a premature birth,14 this concept has been held for centuries from the sixteenth-century Reformer John Calvin to the 1987 work of John Durham. There is a basic consensus of opinion regarding four facts: that as a result of being struck, the pregnant woman gives birth to a live premature baby; that in verse 22 neither injury nor death happens to either the woman or the fetus; that the fine is levied for the hurt and trauma associated with the premature birth itself; that according to verse 23 if either mother or fetus suffers injury or death, the principle of life for life applies equally.

Of the seven commentators who con cur with this position, only John Calvin explicitly verbalizes the natural conclusion that "the foetus, though enclosed in the womb of its mother, is already a human being."15 And of the 20 books and articles I investigated that emphasize ethics, 17 go beyond acknowledging that ason (harm) refers to both mother and child, concluding that the fetus is actually on a par with the mother. Among them, Brace K. Waltke states: "The fetus is human and therefore to be accorded the same protection to life granted every other human being. Indeed feticide is murder, an attack against a fellow man who owes his life to God, and a violation of the commandment, 'You shall not kill' " (Ex. 20:13, RSV).16

Exegesis of the Hebrew text

Most writers who support the premature birth concept offer a thorough exegesis of Exodus 21. They pay the most attention to the Hebrew words yeled, yatsa, and ason. 17

The noun yeled. Gesenius' well-respected Hebrew lexicon says that yeled means "child, son, boy, youth." 18 No distinction is made between an unborn child and a child after birth in the Pentateuch or in the entire Old Testament.19 Furthermore, yeled is not the usual Hebrew noun for the product of a miscarriage, but rather, nephel, meaning "one untimely born" (see Job 3:16; Ps. 58:8; Eccl. 6:3).20

The verb yatsa. According to the Hebrew dictionary, its basic meaning is to "go or come out." 21 The Hebrew Bible consistently bears out this meaning. The word yatsa when used alone to describe human reproduction usually refers to a normal birth (see Gen. 25:25, 26; 38:27- 30; Jer. 1:5; 20:18). Whenever yatsa refers to a stillbirth, it is always accompanied by some form of muth (to die), as in Numbers 12:12 and Job 3:11. Because yatsa appears without any form of muth in Exodus 21:22, we must conclude that the passage indicates a live birth.

Further evidence is that the Old Testament verb normally used for miscarriage, or spontaneous abortion, is not yatsa but shakol.22 Indeed, Moses used shakol to describe miscarriage in a later passage (see Ex. 23:26). Because he used yatsa in Exodus 21, we infer that he was referring to a live birth.

The noun ason. Lexicographers translate ason as anything from "hurt, damage, mischance" 23 to "mortal accident." 24 Outside of the two times ason is mentioned in Exodus 21, it occurs only three more times in the Old Testament all in connection with the story of Joseph. There it refers to a mishap befalling one's off spring, causing an apparently permanent separation between parent and child.

To whom does ason apply in the passage we are considering? The text mentions a woman being struck so that her offspring comes out "and no ason occurs." The Hebrew expression lah (to her) which would restrict the harm to the woman as opposed to the child is absent in the text. Most scholars who offer an exegesis of this passage suggest that ason refers to both mother and child.25 Others, apparently because ason follows directly upon "her children come out," conclude that harm originally referred exclusively to the offspring.26 But whether ason refers to only the offspring or to both offspring and mother, there is no doubt that our passage grants to the fetus the status of full humanity.

So Exodus 21:22 does not concern an induced abortion or a miscarriage. Furthermore, there is absolutely no distinction between mother and fetus: both have equal status according to the law. As Meredith Kline puts it: "The life-for-life formula is applied to the destruction of a fetus, with no qualification as to how young the fetus might be. The fetus, at any stage of development, is in the eyes of this law a living being." 27

Analysis of the textual perspective

The premature birth interpretation of Exodus 21:22 finds strength in the fact that most scholars who support it provide a careful exegesis of the original Hebrew text. These sources also interpret the text essentially as it stands, without adding or changing any words. Moreover, this interpretation appears to be most consistent with the overall biblical concept of the sanctity of life.

This perspective, however, is not without difficulties. Basically, two problems still need resolution. First, we must admit that the plural of the word yeled (child) has been interpreted in different ways, either as a generic plural or as an indefinite singular. Second, there is no consensus about the precise definition of ason. Some say it means merely harm or injury, others that it can refer to serious injury as well as a fatal accident. The context seems to imply that it means a mishap that results in permanent separation of parent and fetus.

Even though views may vary as to the meaning of certain terms, not one of the interpretations suggested here conflicts with the position that Exodus 21:22-25 treats the fetus as equal in value to the mother.

Summary and conclusions

A textual analysis of our passage suggests that it discusses a live premature birth for which a fine is to be paid. If harm or death comes to either mother or fetus, the lex talionis is to be invoked. Because the fetus is regarded on a par with its mother, this passage protects the sanctity of life for the unborn and gives no support whatever for the practice of abortion.

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1. Besides these two main views, there is a variant view, unsupported by the Hebrew text, that states that if the miscarried fetus is not fully formed, it is to be compensated for by a fine; but if it is fully formed, it is to be treated on par with its mother.

2. Admittedly, the NIV does add a footnote to the word "prematurely," saying "or she has a miscarriage" a distinction in translation that is the topic of this discussion.

3. Thomas Scott, The Holy Bible, Containing the Old and New Testaments (London: C. Baldwin, 1844), p. 217.

4. Everett Fox, Now These Are the Names: A New English Rendition of the Book of Exodus (New York: Schocken Books, 1986), pp. 120, 121.

5. Dom Bernard Orchard, ed., A Catholic Commentary on Holy Scripture (London: Thomas Nelson and Sons, 1951), p. 220; Reginal C. Fuller, ed., A New Catholic Commentary on Holy Scripture (London: Thomas Nelson and Sons, 1969), p. 218.

6. Orchard.

7. Paul D. Simmons, Birth and Death: Bioethical Decision-making, Biblical Perspectives on Current Issues Series, ed. Howard Clark Kee (Philadelphia: Westminster Press, 1983), p. 84.

8. David M. Feldman, Birth Control in Jewish Law (New York: New York University Press, 1968), p. 255.

9. John W. Klotz, A Christian View of Abortion (St. Louis: Concordia Pub. House, 1973), p. 47.

10. Jack W. Cottrell, "Abortion and the Mosaic Law," Christianity Today, Mar. 16,1973, p. 7.

11. James B. Pritchard, ed., Ancient Near Eastern Texts Relating to the Old Testament, 2nd ed., (Princeton,N.J.: Princeton University Press, 1955), p. 175.

12. Ibid., p. 185.

13. Cottrell, p. 8.

14. John Calvin, Commentaries on the Four Last Books of Moses, trans. Charles W. Bingham (Grand Rapids: William B. Eerdmans, 1950), vol. 3, pp. 41, 42; Christopher Wordsworth, The Holy Bible in the Authorized Version; With Notes and Introductions (London: Rivingtons, 1869), vol. 1, p. 278; C. F. Keil and F. Delitzsch, Commentary on the Old Testament, trans. James Martin (Grand Rapids: William B. Eerdmans, 1978), vol. 2, pp. 134,135; Umberton Cassuto, A Commentary on the Book of Exodus, trans. Israel Abrahams (Jerusalem: Magnes Press, 1967), pp. 275, 277; John H. Dobson, A Guide to Exodus (London: S.P.C.K., 1977), p. 123; R. Laird Harris, Gleason L. Archer, and Bruce K. Waltke, eds., Theological Wordbook of the Old Testament (Chicago: Moody Press, 1980), vol. 2, p. 552; John I. Durham, Exodus: Word Biblical Commentary, eds. David A. Hubbard and Glenn W. Barker (Waco, Tex.: Word Books, 1987), pp. 308-324.

15. Calvin.

16. Bruce K. Waltke, "Reflections From the Old Testament on Abortion," Journal of the Evangelical Theological Society 19, No. 1 (Winter 1976): 13.

17. The lex talionis is also often discussed. While some understand it to mean full compensation, others believe the law must be applied literally. However, regardless of the interpretation, the law is perceived as referring equally to both mother and fetus.

18. Francis Brown et al., A Hebrew and English Lexicon of the Old Testament (Oxford: Clarendon Press, 1906), p. 409.

19. H. Wayne House, "Miscarriage or Premature Birth: Additional Thoughts on Exodus 21:22-25," The Westminster Theological Journal 41, No. 1 (1978): 112.

20. KJV and RSV translate nephel as "untimely birth," NIV as "stillborn child," and NASB as "miscarriage," as do Brown et al., p. 658.

21. Ibid., p. 422.

22. William L. Holladay, A Concise Hebrew and Aramaic Lexicon of the Old Testament (Grand Rapids: William B. Eerdmans, 1971), p. 369.

23. Julius Fuerst, A Hebrew and Chaldee Lexicon to the Old Testament, trans. Samuel Davidson (London: Williams and Norgate, 1867), p. 126.

24. Holladay, p. 23.

25. See Cottrell, pp. 8, 9; House, p. 118; Kaiser, pp. 103,172; Cassuto, p. 275; Keil and Delitzsch, p. 135.

26. See Bernard S. Jackson, "The Problem of Exodus 21:22-25 (lus Talionis)," Vetus Testamentum 23 (1973): 292,293.

27. Meredith G. Kline, "Lex Talionis and the Human Fetus," Journal of the Evangelical Theological Society 20, No. 3 (September 1977): 200.

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