By Samuel M. Frost, Th. D.
Although much appeal is made to the verses in the Torah concerning the death of a child in the womb of the mother in Exodus 21.22 (we will cover that), there are other terms used in Scripture that denote “human life” while in the womb. For example, 2 Kings 8.12 speaks of the terror of what Israel’s enemies would do: “dash their little ones in pieces, and rip open their pregnant women.” The term here for “pregnant” (harah) means “conceived”, “with child”. Isaiah used the term for the “conception” of thought: “conceiving and uttering from the heart words of falsehood” (59.13). Thus, it’s an “inner” idea, or “conception”. It can be translated as “devise a scheme.” In Job 3.3 we read, “Let the day perish in which I am born, And the night that hath said: ‘A man-child hath been conceived.’” (3.3). The parallelism (reverse) from “born” to “conceived” denotes that conception of the ‘man’ proceeds the ‘birth day’ (or, more literally, the “coming out” – yalad). That this term, harah, is often translated “pregnant woman” strongly implies that she is carrying human life. Job, a person, is cursing the day, not only of his (a person) birth, but of his (a person) being conceived. In 3.7, in poetical terms, Job wished that his mother was “barren” so that he never existed.
Our second term, often translated ‘miscarriage’ (shakal) is never a good thing. It is “unproductive”, either of animals, women, or the “unfruitfulness of the land.” ‘Miscarrying’ is a curse (Exodus 23.26). In the case of Exodus 21.22, the Hebrew reads, ‘and her child came out’: ‘if a man smite a pregnant (harah) woman, so that her child (yeled) came out (yatsar – the LXX is the same rendering in Greek, literally). This is, simply, what a ‘miscarriage’ of a ‘conception’ (harah) “looks like.” A dead child prematurely is aborted. The word for ‘child’ is common enough in what it means.
The problem is the following clause, “and there is no harm”. The term, harm (ason) is used only five times, and those in the Pentateuch exclusively. In Genesis 42.4, 38; 44.29 the ‘harm’ means death. The other two times it is used is here in Exodus 21.22-23. It is plain that ‘death’ is meant, too, since the clause in verse 23, “but if there be harm, he shall render life for life.” A life was “harmed” (killed), therefore a “life” must be given (Genesis 6.9-ff). Here, the term ‘life’ (nephesh) is not the “soul”, but more defined as “person” – the life ended since it “came out” of the womb as dead due to being violently struck.
What textual analysis has centered in on is whether the ‘death’ is of the mother, or the infant child, or both. A fine (anash) is given if there is ‘no harm.’ This has to be weighed against the term “if two men are fighting and strike a woman with child…’ Isn’t a punch in the face, or the gut while breaking up two fighting men, “harm”? No. This is often what is missed. The lex talionis that follows states, “eye for eye, tooth for tooth, foot for foot..,bruise for bruise” (21.24-25). Doesn’t striking a person cause a bruise? However, if there is no harm cannot mean, if there is no bruise. A fine is suffice when there is no wound, or bruise. Could have been a mere slap. This brings us to consider the use of the noun, harm (ason). There is no ‘harm for harm’ in the text as a phrase. There is, however, life for life. It is very hard to imagine a wife breaking up a fight, or two men fighting and somehow a pregnant woman got hit from a wild swing meant for the man that this would kill her! That is not the common sense reading of the passage. “If there is no harm” means, then, “if there is no death” – and this would be related to the action: “if her child comes out”; the woman who has conceived.
There is no denial from any interpreters that a ‘miscarriage’ is in view here. If we consult the modern day medical entries on miscarriage, it involves a woman who wants the child. Thus, miscarriages are traumatic. Here, the pregnancy is going along well, but its loss is caused by a fight. A wanted, healthy pregnancy is aborted due to no medical or health issue of the mother. This point is often not brought out, either. For Judaism, the ‘fruit of the womb’, the excitement of having conceived a child, to have a family is of the highest forms of existence. To lose such over a mere brawl would be devastating. A fine will make up for that? “Sorry for your loss. Here’s some cash.” I am sorry, but that’s not torah.
Rather, if we follow what many Hebraists have noted, is that the term “harm” covers the phrase that follows it: “If there is no harm, then a fine is to be given (nathan), but if there is harm, then it shall be given (nathan) life in the place of life. If there is the loss of an eye, then it shall be given in the place of an eye…etc.” The syntax of “equivalence” is seen here: Harm = life for life; Eye = Eye; Tooth = Tooth; etc. The woman, if she lost a tooth, or an eye would not be the ‘harm’. A fine would not remedy a wound. A wound remedies a wound. A harm is remedied by another life. Thus, in the proposed hypothetical situation of two men fighting, and a pregnant woman gets punched so that her child comes out of her womb because of such a punch (this has been known to happen; even self afflicted), then if there is harm to the child (death), there is only one remedy to be “given” to the one who punched her: death. If the child comes out and lives (which has also been known to happen in late term pregnancies), that is, if there is no harm to the child (yeled) – then the one who threw the punch is fined for causing a premature birth (quite a trauma), but the child is delivered and alive. Miscarriages can happen from two to twenty weeks. Placental abruption, uterine rupture and the like can occur with a severe abdominal blow. This has happened, and late term birthed children have nonetheless survived.
All in all, it is very difficult to see that kidnappers and rapists are put to death in the Torah, but someone who violently causes a “child to come out” is merely “fined” when the Torah in general praises the virtue of having conceived a child. Second, the term used for such expulsion is “child.” One would expect another term more neutral, which Hebrew is able to express. Her “flow” to come out, or even more fitting, “seed”. But here, “child” is used. A “child” is harmed. A fine won’t cover this. If the child lives, however, “costs” are in order in terms of inconvenience, getting proper care, duress and the like. It is often hours after such a blow would cause expulsion, but the damage of the insides is almost readily known by blood loss. Women then, and their bodies, are exactly the same today, with the same brains, concerns, emotions, and feelings. The joyful feeling of a mother is the same then, as is now. The same for the expectant father. The loss of a son or daughter through the mere blow of someone’s else’s fist demands justice. A fine won’t cover it. A fine would be an insult, a lessening of the dignity of being enabled by God to conceive in the first place (a blessing). It is extremely difficult to see the Torah putting such minor value on a child, born or not.
Thus, the law here expresses the loss of a child due to involuntary manslaughter. One last point must be made, often not brought out. If this is the case with a mother who wants their unborn child, and who would have had such a birth, what does it say to those who deliberately “cause a child to come out”? Here we would appeal to the classic qal vahomer argument in Jewish rhetoric. How much more? What would the penalty be for self-inflicted, or to one who, with permission of the parents, caused “a child to come out” with harm? A fine? If we saw this law as having no reference to the child, but only harm to the mother (not only a punch to the body, but a loss of a child), but even death to the mother, then would “life for life” be applied? That is, if “harm” is only in reference to the mother dying, is the Torah suggesting that the child is not “alive” while in the womb? Again, to side step the issue of such an explicit mention of “her child coming out” (not the usual expression, “gave birth” or “begat”), why bother mentioning this at all if the mother dies? Obviously, if the mother is killed by a punch, then the baby in utero dies with her. The penalty: life for life. The syntax here, however, makes no such distinction. If the child comes out (late term) and there is no death (harm) to the infant, then a fine is applicable (a lawsuit). If there is no death to the infant, but the mother received a wound from the strike of the fist, then wound for wound. But, how in the light of this text is the loss of a child remedied by a fine, when a wound is remedied by a wound? Isn’t the spilling of blood that always follows a miscarriage a wound for crying out loud? If a tooth takes the place of a tooth, and wound for a wound; then what takes the place of a “child coming out”? A fine? Sorry. But such reasoning is beyond common sense and plain meaning.
Thus, if the death of the child is not in view here, then what we are being told is that a child coming out of the womb through an act of violence is merely worthy of being punished by a fine. If the tooth of the mother was knocked out, the striker’s tooth would be knocked out. If the mother lost her life (the child does as well), thus life for life. But, if the mother received a bruise, and lost her baby, a bruise would cover the bruise, and a fine would cover the loss of a baby. Make sense? Hardly. If the mother was merely slapped, no bruise, no loss of teeth, but she lost the baby – a fine will do. Here, the loss of a tooth is more valuable in equivalence to the loss of a “child”! At least the tooth of the other gets knocked out. The “value” of the bloody, and often painful loss of a child (a miscarriage) is rendered for mere cash. So much for the woman, and the child. Cash will do.
(transliterations are mine, from the Hebrew texts I have translated, and do not follow the SBL transliteration standard).
Vigilate et Orate 