Does Exodus 21 Provide Legal Protection for the Unborn Child?

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Apr 13, 2011 4 Comments ›› John Eidsmoe

Does Exodus 21 Provide Legal Protection for the Unborn Child?

Today, 13 April 2011, the Health Committee of the Alabama House of Representatives held a hearing on the Alabama Personhood Amendment (http://personhoodalabama NULL.com/), a proposed amendment to the Alabama Constitution that would recognize the personhood of the unborn child from the moment of fertilization and at all times thereafter until death.

A rabbi spoke in opposition to the amendment, arguing that the Mosaic Law does not recognize an unborn child as a person. To prove his point he cited Exodus 21:22-25, in which a man who causes a pregnant mother to deliver a child prematurely is liable only for damages, not murder or manslaughter for causing the death of the child.

I respectfully disagree. I make no claim to be a Hebrew scholar, although I did study Hebrew in seminary. But my study of this passage convinces me that the rabbi’s interpretation of this passage is mistaken.

The passage reads,

If men fight, and hurt a woman with child, so that she gives birth prematurely, yet no lasting harm follows, he shall surely be punished accordingly as the woman’s husband imposes on him; and he shall pay as the judges determine. But if any lasting harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe (NKJV).

The passage presupposes that the pregnant woman’s husband is in the right and that the other man is the aggressor. As the men fight, the pregnant wife is struck (possibly she had entered the fray to help her husband, or they rolled in her direction), and “she gives birth prematurely,” or as the King James says, “her fruit depart from her.” Some have interpreted this passage to mean that the woman has a miscarriage, but I’m convinced that is not what the text says or means.

The term that the KJV translates “depart from her” and that the NKJV and other translations render “gives birth prematurely” is yatsah. In every other Old Testament passage in which yatsah is used in connection with childbirth, it refers to a normal and healthy childbirth with the possible exception of Numbers 12:12 which may refer to a stillbirth but not a miscarriage. If the author of the Book of Exodus (whom I believe to have been Moses) had wanted to speak of a miscarriage, there are at least two distinctive words for miscarriage that he could have used: shakol, which he used two chapters later in Exodus 23:26, and nephel, which is found Job 3:16, Psalm 58:8, and Ecclesiastes 6:3. But Moses did not use shakol or nephel in Exodus 21:22. He used the normal word for childbirth, yatsah. I believe Moses, writing under the inspiration of the Holy Spirit, said exactly what he meant and meant exactly what he said.

Some confusion over this passage resulted from an early version of the New American Standard translation which rendered the passage “miscarriage.” But the 1995 edition of the New American Standard corrects that mistake and renders the passage “so that she gives birth prematurely.” Thus the New American Standard is now in harmony with most other translations. Brown, Driver & Briggs, the most authoritative Hebrew lexicon, lists the passage as “untimely birth.”

The term the KJV translates “fruit” and that other versions render “child” or “children” is yehled. This word is found 89 times in the Old Testament, and in every other passage in which it is used in relation to humans, it is translated as a child, children, a boy, or a young man.
The picture this passage presents, then, is that of a pregnant woman who is struck by an aggressor and who as a result gives birth to a child prematurely. Now let’s look at the result.

If “no lasting harm follows” (the word ahsohn translated harm is a broad term meaning harm in general), meaning there is no injury to the mother or to the child, then “he shall surely be punished accordingly as the woman’s husband imposes on him; and he shall pay as the judges determine.” Again, the text presupposes that the other man is the aggressor and at fault. He is to be punished for starting the fight, and he is to pay restitution for any damage he has caused to the husband.

The text continues, “But if any lasting harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.” If there is harm – and nothing in the passage limits the harm to injury to the mother only – then the offender is to be punished according to the lex talionis or law of like punishment: life for life, eye for eye, tooth for tooth, etc. If the offender causes the death of the unborn child, the crime is to be treated as murder, “life for life.”

Correctly translated and interpreted, the passage cited by the rabbi strongly supports the personhood position by providing legal protection for the life of the unborn child.

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Comments

  1. Rebecca YeHyung Lee says:

    Dear Professor Eidsmoe

    Thank you for pointing out that. I was at the hearing with the Bible with me, but could not think about the points. Blessings, Rebecca

  2. Carl G. Oehling (http://www NULL.michigandersforlife NULL.com) says:

    Dr. Eidsmoe, I read of the examples of men of God like Nathan, Elijah, Jonas, John, etc. who spoke God’s words with the meaning (Neh. 8:8) so the people could understand. They spoke against the sins of the day. John spoke of repentance of the sins of the day and little of the coming payment for those sins. What is wrong with “Go and do thou likewise”?

  3. john (http://www NULL.obamasucks NULL.tv) says:

    I had looked this up myself a while ago, being anti-abortion, and it refers to the woman as property, not the child, following along the lines of the Hambricki (sp?) code. imho, The Rabbi is 100% correct in that it is about property damage and not manslaughter or 1st degree murder. It is what it is, sorry.

    People use to beg God for children, abortion is so Satanic it simply was not covered because it never entered people’s minds. Just like God chastising them for burning their children to Molech, he basically says it was something so horrible it never entered his mind to forbid it, never mind ask for it.

    As we come to the end of our probation period of 40 years for Roe vs. Wade, what we should worry about is Luke 1:36-55 and Proverbs 6:16-17.

  4. Edward Davignon says:

    I would ignore the Rabbinic tradition and go straight for the written word of God. The last sentence of that passage clearly defines lasting harm in terms of life and other forms of bodily injury. Nowhere in this passage, or any other scripture, does it limit this to exclude the mother or the child. Scripture always protects the life of the mother, the child, and the father.

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