Abortion in the Old Testament

[Purgation_Road]

I was having a conversation with some family members today and the subject of abortion came up. One cousin said he had a rabbi as a teacher and the rabbi told him that the old testament specified a penalty for somone who accidently caused a woman to lose her baby. The specified penalty was different than for murder.

I told him that the one obvious difference is that murder is an intentional killing but he said the penalty for causing a woman to lose her baby was also different from the penalty for those who cause the accidental death of a born person.

I told him I knew a forum where I could get answers so I’m counting on you all. Help with verses and interpretation would be appreciated.

 

[Atreyu]

I was having a conversation with some family members today and the subject of abortion came up. One cousin said he had a rabbi as a teacher and the rabbi told him that the old testament specified a penalty for somone who accidently caused a woman to lose her baby. The specified penalty was different than for murder.

I told him that the one obvious difference is that murder is an intentional killing but he said the penalty for causing a woman to lose her baby was also different from the penalty for those who cause the accidental death of a born person.

I told him I knew a forum where I could get answers so I’m counting on you all. Help with verses and interpretation would be appreciated.

I will quote from this page (the rest of the page has examples of writings of the early church fathers on abortion):

As the early Christian writer Tertullian pointed out, the law of Moses ordered strict penalties for causing an abortion. We read, “If men who are fighting hit a pregnant woman and she gives birth prematurely [Hebrew: “so that her child comes out”], 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” (Ex. 21:22–24).

This applies the lex talionis or “law of retribution” to abortion. The lex talionis establishes the just punishment for an injury (eye for eye, tooth for tooth, life for life, compared to the much greater retributions that had been common before, such as life for eye, life for tooth, lives of the offender’s family for one life).

The lex talionis would already have been applied to a woman who was injured in a fight. The distinguishing point in this passage is that a pregnant woman is hurt “so that her child comes out”; the child is the focus of the lex talionis in this passage. Aborted babies must have justice, too.

 

[Purgation_Road]

Would lex talionis have applied to someone who hurt a woman accidentally?

 

[Valke2]

I’m not sure what that post was meant to convey. Exodus 21:22gives and example of two men fighting and a woman accidently being injured during the fight. If the injury resulted in a miscarriage, the man would be fined. The “other damage” that was referred to above means the death of another, in which the “eye for an eye” remedy would be applied.

From this we learn that the unborn child does not have the same rights as the mother. It is from this that we learn it is permissbile to take the unborn child’s life in order to save the mother. Catholics obviously disagree. I’m not sure how they reconcile their beliefs with the language of Exodus.

ALl this is not to say that the fetus does not have vale or should be protected under Jewish law. The Law makes it clear that it does.

 

[Purgation_Road]

My understanding is the word that is often translated as miscarriage is not the usual word used for miscarriage, instead, the term commonly used for a normal birth is used. Second, the text doesn’t specify to whom the injury was refering to. In Hebrew if it were to be used in the restricted sense it would have used a pronoun to denote she, which it does not.

Here are two competing translations:

22"When men have a fight and hurt a pregnant woman, so that she suffers a miscarriage, but no further injury, the guilty one shall be fined as much as the woman’s husband demands of him, and he shall pay in the presence of the judges. 23 But if injury ensues, you shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burn for burn, wound for wound, stripe for stripe.

NAB

 22"When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman's husband shall impose on him, and he shall pay as the judges determine. 23But if there is harm, a] then you shall pay life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burn for burn, wound for wound, stripe for stripe.

English Standard Version

 

[Valke2]

My understanding is the word that is often translated as miscarriage is not the usual word used for miscarriage, instead, the term commonly used for a normal birth is used. Second, the text doesn’t specify to whom the injury was refering to. In Hebrew if it were to be used in the restricted sense it would have used a pronoun to denote she, which it does not.

Here are two competing translations:

22"When men have a fight and hurt a pregnant woman, so that she suffers a miscarriage, but no further injury, the guilty one shall be fined as much as the woman’s husband demands of him, and he shall pay in the presence of the judges. 23 But if injury ensues, you shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burn for burn, wound for wound, stripe for stripe.

NAB

 22"When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman's husband shall impose on him, and he shall pay as the judges determine. 23But if there is harm, a] then you shall pay life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burn for burn, wound for wound, stripe for stripe.

English Standard Version

My prior post is based on how Judaism, the religion that is actually responsible for the verse/tractate that we are discussing, understands it. To assume that it is saying one has to pay a fine for an early birth that does not result in harm to child or mother makes no sense.

 

[Atreyu]

My prior post is based on how Judaism, the religion that is actually responsible for the verse/tractate that we are discussing, understands it.

Considering the question was asked in a Catholic apologetics forum, I am guessing the OP thinks Catholics would be better suited to answer this question in this situation. On a side note, is this belief universal in Judaism? Anyway,I was hoping that some others would jump in and answer, but as they have not so far, I will attempt a bit more of an explanation.

To assume that it is saying one has to pay a fine for an early birth that does not result in harm to child or mother makes no sense.

To me, it makes no sense to include a lex talionis punishment for a woman who has been injured in a fight between two men. The lex talionis would have been in effect for the mother anyway, and so you are rendering the verses completely redundant; why specify it for this particular situation? Verse 22 can be explained that causing a woman to go into birth prematurely should be punished by a fine. You said this doesn’t make any sense - why does it not? You’ve put the baby’s life at serious risk; therefore you deserve punishment. The lack of a pronoun can be explained if the punishment is to be applied for serious injury that happens to either the mother or the child.

 

[Valke2]

Considering the question was asked in a Catholic apologetics forum, I am guessing the OP thinks Catholics would be better suited to answer this question in this situation. On a side note, is this belief universal in Judaism? Anyway,I was hoping that some others would jump in and answer, but as they have not so far, I will attempt a bit more of an explanation.

To me, it makes no sense to include a lex talionis punishment for a woman who has been injured in a fight between two men. The lex talionis would have been in effect for the mother anyway, and so you are rendering the verses completely redundant; why specify it for this particular situation? Verse 22 can be explained that causing a woman to go into birth prematurely should be punished by a fine. You said this doesn’t make any sense - why does it not? You’ve put the baby’s life at serious risk; therefore you deserve punishment. The lack of a pronoun can be explained if the punishment is to be applied for serious injury that happens to either the mother or the child.

How is the verse redundant??? In one example the woman is not injured and so “an eye for an eye” does not apply. The miscarriage is equated essentailly with a civil action. One in which a fine is appropriate. As opposed to the woman being injured or killed, which would be a criminal act and result in an eye for an eye remedy.

It doesn’t make sense because it clearly provides for a fine in the event of miscarriage. So why would a miscarriage result in a fine but an injury to the baby (which lives as oppsed to one that is miscarried) would result in a greater punishment? Makes no sense. The interpetation/intent of the verse is pretty stgraight forwards.

 

[Atreyu]

How is the verse redundant??? In one example the woman is not injured and so “an eye for an eye” does not apply. The miscarriage is equated essentailly with a civil action. One in which a fine is appropriate. As opposed to the woman being injured or killed, which would be a criminal act and result in an eye for an eye remedy.

I believe the Hebrew says literally something like “the baby comes out”. Are you telling me this means it’s a miscarriage? Now everyone knows what the punishment is for injuring or killing a woman: lex talionis. So why would we need to specify that injury or death of a pregnant woman who has a miscarriage is still punishable under lex talionis? She is still a woman, is she not? This is why I said you make the verse redundant; the punishment is already known.

It doesn’t make sense because it clearly provides for a fine in the event of miscarriage. So why would a miscarriage result in a fine but an injury to the baby (which lives as oppsed to one that is miscarried) would result in a greater punishment?

Because the fine results from risking the life of the baby - it is NOT a miscarriage! Therefore if you injure or kill the baby - if there is a miscarriage - lex talionis applies.

Makes no sense.

It makes perfect sense.

The interpetation/intent of the verse is pretty stgraight forwards.

Obviously not.

 

[Atreyu]

Purgation I think you might find this page a helpful read.

 

[Valke2]

I believe the Hebrew says literally something like “the baby comes out”. Are you telling me this means it’s a miscarriage? Now everyone knows what the punishment is for injuring or killing a woman: lex talionis. So why would we need to specify that injury or death of a pregnant woman who has a miscarriage is still punishable under lex talionis? She is still a woman, is she not? This is why I said you make the verse redundant; the punishment is already known.

Because the fine results from risking the life of the baby - it is NOT a miscarriage! Therefore if you injure or kill the baby - if there is a miscarriage - lex talionis applies.

It makes perfect sense.

Obviously not.

No. The fine is not for an early delivery. “When the baby comes out” is a miscarriage. It has been perfectly clear (to Jews) for the last 2000 years and more that this verse was saying that a miscarriage under those circumstances results in a fine and that injury to the mother (and the mother only) results in eye for an eye. This verse it discussed in the Talmud and is the underlying basis for the Jewish halacha (law) which states that the mother’s life takes precedence over the unborn child’s if the unborn child poses a direct threat to the mother’s life.

the NIV uses language like “premature birth” in its translation. But even there the footnote says this refers to a miscarriage. They used “premature birth” because of pressure from the anti-choice movement.

The New American Standard Bible says “miscarriage”
The Revised Standard Bible says “miscarriage”
There are a mulititude of Jewish commentaries that state “miscarriage”

Theologian Millar Erickson states that “life for life” is applied only if the mother is harmed.

The Hebrew word for baby or infant IS NOT used in the verse. If it were considered a life equal to the mother’s, we would expect the word Tinoch to be used for baby. Jews have always, always, always, translated the verse in Exodus to mean miscarriage.

 

[Atreyu]

No. The fine is not for an early delivery. “When the baby comes out” is a miscarriage. It has been perfectly clear (to Jews) for the last 2000 years and more that this verse was saying that a miscarriage under those circumstances results in a fine and that injury to the mother (and the mother only) results in eye for an eye. This verse it discussed in the Talmud and is the underlying basis for the Jewish halacha (law) which states that the mother’s life takes precedence over the unborn child’s if the unborn child poses a direct threat to the mother’s life.

the NIV uses language like “premature birth” in its translation. But even there the footnote says this refers to a miscarriage. They used “premature birth” because of pressure from the anti-choice movement.

The New American Standard Bible says “miscarriage”
The Revised Standard Bible says “miscarriage”
There are a mulititude of Jewish commentaries that state “miscarriage”

Theologian Millar Erickson states that “life for life” is applied only if the mother is harmed.

The Hebrew word for baby or infant IS NOT used in the verse. If it were considered a life equal to the mother’s, we would expect the word Tinoch to be used for baby. Jews have always, always, always, translated the verse in Exodus to mean miscarriage.

The page I linked to in my previous post discusses the words used. Have a read of it, and then tell me if you still believe that the word should be rendered “miscarriage” in English. Post a counter-link if you want.

 

[Valke2]

The meaning of the verse has been accepted since at least the time of Josephus:

“He that kicketh a woman with child, if the woman miscarry, shall be fined by the judges of having, by the destruction of the fruit of her womb, diminished the population, and a further sum shall be presented by him to the woman’s husband. If she die of the blow, he also shall die, thelaw claiming as its due thesacrifice of life for life.” (Antinquities of the Jews 4:278)

A literal word for word translation does not always mean an accurate translation. But let’s get a literal one for starters.

When men strive, smitting/pushing a pregnant woman will go out/be gone her children, and there will not be damage/hurt/harm; a penalty will be imposed which/that the woman’s husband upon the man will give as the judges" or more smoothly, “When men strive, smitting a pregnant woman whose children will go out, and there will be no damage; a penalty will be imposted that will be given to the woman’s husband by the man as the judges determine.”

One has to go to the Talmud to determine if “go out” means premature birth or miscarriage. As well as to determine if damaged/hurt means injured or death. Without the Talmud, it is unclear. But that’s exaclty what the Talmud and the Mishna were for. To clarify what is in Torah.

Sanhedrin 79a (ArtScroll translation) Rabbi Elazar expresses the opinion that that the phrase I have translated as “When men strive, smitting/pushing a pregnant woman…” refers to a “fight in which the parties are trying to kill each other”. The footnote based on Rashi clearifies that Rabbi Elazar says that this passage teaches that if one combatant “accidentally missed his adversary and hit the woman instead and killed her, he is liable to execution. This proves that the one who accidentally collided with the woman was trying to kill his opponent at that time, for if he were not, he would not be executed for killing the woman.” We now know that the men who were striving were trying to kill each other, as otherwise the death of one struck accidentally would have not resulted in execution. ArtScroll’s translation clearly sees the death to be to the woman, and not the children who went out.

The Talmud when refering to the harm/damage, makes it clear that a life is being lost. And the life lost is to the woman.

Should there be no fatality monetary compensation only is imposed upon the offender. The Talmud makes it clear that eye for an eye means monetary compensation when no life is lost. Bava Kamma 84a lists the school of Hezekiah as teaching "eye for eye, life for life, but not ‘life and eye for eye’.

Clearly, if the woman does not die, and the fetus is born alive, there’s no capital punishment. Clearly, if the women dies, this becomes a capital case. “‘It is stated: Moreover ye shall take no no ransom for the life of a murder that is guilty of death; but he shall surely be put to death,’ implying that it was only ‘for the life of a murderer’ that you may not take ransom, whereas you may take ransom [even] for principal limbs though these cannot be restored” So: if payment alone is indicated, it cannot be that the woman was killed by the man. But what if the fetus dies, the woman being alive?

The answer is in Talmud Bavli, Bava Kama 42b and 43a. There is a case there in which the verse currently underdiscussion is used. The additional verses make clear not only what it means by “will go out/be gone her children”, but what sort of compensation is appropriate if the fetus dies. “Has it not been taught: If one hurt a woman so that her embryo departed from her, compensation for Depreciation and for Pain should be given to the woman, compensation for the value of the embryo to the husband…The Torah awarded the value of embryos to the husband even where the cohabitation had taken place not in a married state…” So, if the fetus dies, having gone out as a result of the blow to the woman, both she and her husband are compensated. Her for any injuries to herself, and her husband for the loss of the fetus, as the judges shall assess.

The article discussing this: geocities.com/~Alyza/Jewish/menfight.html

 

[Texas_Roofer]

My prior post is based on how Judaism, the religion that is actually responsible for the verse/tractate that we are discussing, understands it. To assume that it is saying one has to pay a fine for an early birth that does not result in harm to child or mother makes no sense.

In the earlier quotes it seems clear the penalties for various degrees of manslaughter are being discussed. If the result is serious then eye for eye, but even if there is no “harm” a penalty exists- for what? Why would Jew’s penalize a man for the unintended acts which result in no harm? Similarly if the unborn has “rights” but not included is a right to life - then what right could they possibly have?

 

[Valke2]

In the earlier quotes it seems clear the penalties for various degrees of manslaughter are being discussed. If the result is serious then eye for eye, but even if there is no “harm” a penalty exists- for what? Why would Jew’s penalize a man for the unintended acts which result in no harm? Similarly if the unborn has “rights” but not included is a right to life - then what right could they possibly have?

There are two situations going on in the verse. Neither of which result in no harm. One results in a miscarriage, in which event the women is compensated for any harm done to her and the man is compensated for the loss of the fetus (it’s a property thing). The other is when the woman dies as a result of the act, in which case, life for a life comes into play.

There are other verses and teachings in Talmud that make it clear the unborn child has plenty of rights, although its right to live is subordinate to the mother’s.

 

[vernet1]

All this controversy as to whether or not the word translates into ‘premature birth’ or ‘miscarriage’ is somewhat irrelevant. A baby born prematurely at the time would have surely died.

 

[Valke2]

All this controversy as to whether or not the word translates into ‘premature birth’ or ‘miscarriage’ is somewhat irrelevant. A baby born prematurely at the time would have surely died.

Not necessarily. you could argue that it was taking into account the situation where the woman goes into labor as a reulst of being assaulted. It it could “premature” by a matter of days. However, I think it is clear that the verse contemplates a miscarriage. But there are obviously christians who disagree. I never knew there was anything about this verse that was in dispute.

 

[Texas_Roofer]

There are two situations going on in the verse. Neither of which result in no harm. One results in a miscarriage, in which event the women is **compensated **for any harm done to her and the **man is compensated for the loss of the fetus (it’s a property thing). **The other is when the woman dies as a result of the act, in which case, life for a life comes into play.

There are other verses and teachings in Talmud that make it clear the unborn child has plenty of rights, although its right to live is subordinate to the mother’s.

But if the women died thus the offending man is killed, what is the compensation to the widower? If the higher valued life was valued at eye for eye the widower received zero, so the lower value must be valued below zero?

Maybe compensation is not the objective?

 

[Valke2]

But if the women died thus the offending man is killed, what is the compensation to the widower? If the higher valued life was valued at eye for eye the widower received zero, so the lower value must be valued below zero?

Maybe compensation is not the objective?

If the woman died, then it becomes a criminal as opposed to a civil matter. Life for life comes into play. ALthough it seems you are right and that the spouse would be denied compensation for the loss of the fetus, whereas had the woman lived, he would have received compensation. I’m sure there’s an answer for this but I don’t know what it is. I’ll try to do some more research and get back to you on it.

 

[Atreyu]

The meaning of the verse has been accepted since at least the time of Josephus:

“He that kicketh a woman with child, if the woman miscarry, shall be fined by the judges of having, by the destruction of the fruit of her womb, diminished the population, and a further sum shall be presented by him to the woman’s husband. If she die of the blow, he also shall die, thelaw claiming as its due thesacrifice of life for life.” (Antinquities of the Jews 4:278)

A literal word for word translation does not always mean an accurate translation. But let’s get a literal one for starters.

When men strive, smitting/pushing a pregnant woman will go out/be gone her children, and there will not be damage/hurt/harm; a penalty will be imposed which/that the woman’s husband upon the man will give as the judges" or more smoothly, “When men strive, smitting a pregnant woman whose children will go out, and there will be no damage; a penalty will be imposted that will be given to the woman’s husband by the man as the judges determine.”

One has to go to the Talmud to determine if “go out” means premature birth or miscarriage. As well as to determine if damaged/hurt means injured or death. Without the Talmud, it is unclear. But that’s exaclty what the Talmud and the Mishna were for. To clarify what is in Torah.

Sanhedrin 79a (ArtScroll translation) Rabbi Elazar expresses the opinion that that the phrase I have translated as “When men strive, smitting/pushing a pregnant woman…” refers to a “fight in which the parties are trying to kill each other”. The footnote based on Rashi clearifies that Rabbi Elazar says that this passage teaches that if one combatant “accidentally missed his adversary and hit the woman instead and killed her, he is liable to execution. This proves that the one who accidentally collided with the woman was trying to kill his opponent at that time, for if he were not, he would not be executed for killing the woman.” We now know that the men who were striving were trying to kill each other, as otherwise the death of one struck accidentally would have not resulted in execution. ArtScroll’s translation clearly sees the death to be to the woman, and not the children who went out.

The Talmud when refering to the harm/damage, makes it clear that a life is being lost. And the life lost is to the woman.

Should there be no fatality monetary compensation only is imposed upon the offender. The Talmud makes it clear that eye for an eye means monetary compensation when no life is lost. Bava Kamma 84a lists the school of Hezekiah as teaching "eye for eye, life for life, but not ‘life and eye for eye’.

Clearly, if the woman does not die, and the fetus is born alive, there’s no capital punishment. Clearly, if the women dies, this becomes a capital case. “‘It is stated: Moreover ye shall take no no ransom for the life of a murder that is guilty of death; but he shall surely be put to death,’ implying that it was only ‘for the life of a murderer’ that you may not take ransom, whereas you may take ransom [even] for principal limbs though these cannot be restored” So: if payment alone is indicated, it cannot be that the woman was killed by the man. But what if the fetus dies, the woman being alive?

The answer is in Talmud Bavli, Bava Kama 42b and 43a. There is a case there in which the verse currently underdiscussion is used. The additional verses make clear not only what it means by “will go out/be gone her children”, but what sort of compensation is appropriate if the fetus dies. “Has it not been taught: If one hurt a woman so that her embryo departed from her, compensation for Depreciation and for Pain should be given to the woman, compensation for the value of the embryo to the husband…The Torah awarded the value of embryos to the husband even where the cohabitation had taken place not in a married state…” So, if the fetus dies, having gone out as a result of the blow to the woman, both she and her husband are compensated. Her for any injuries to herself, and her husband for the loss of the fetus, as the judges shall assess.

The article discussing this: geocities.com/~Alyza/Jewish/menfight.html

I think I see what’s going on now. The rabbi’s have this interpretation of the particular passage of the Old Testament due to the explanations given in the Talmud. But you must know Valke, that Christians don’t really care too much for the Talmud. What we are more interested in is the passage itself. Like the page I linked to explains, there is nothing in the context of the passage - taken alone - that suggests the foetus dies in the first situation (when it “comes out”). Your post Valke has given us insight into why Jews think that the foetus does die in this situation. However, this is coming from a tradition that Christians do not accept as binding, and therefore we can reject it.