Exodus 21:1-24:18

A Case of Abortion

This week’s reading contains numerous laws governing various aspects of daily life. At first, some of these might seem far removed from our own daily lives. You’re probably not going to pay anyone compensating for your goring ox. But one of the laws has an immediate and obvious relevance for many people today, since it concerns a question that is still much debated: At what point is it forbidden to take the life of a fetus in its mother’s womb? From the moment of conception? In the third trimester? Or any time before the actual birth? Here is the Torah’s answer:

 

When men are fighting and they [accidentally] strike a pregnant woman so that her baby comes out—if there is no mishap, he [the one who struck her] will be fined in keeping with what the woman’s husband demands and is approved by the court. But if there is a mishap, then the penalty is a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot. (Exod 21:22-24)

 

According to this passage, one of two fighting men strikes a pregnant woman in such a way as to cause her baby to come out. “If there is no mishap,” the Torah says, then the man who struck her is to be fined. One might well wonder why. After all, it was apparently an accident, and if the baby is all right and the mother is all right, what harm was done?

But in fact the baby is not all right. All ancient interpreters concluded that the woman miscarried as a result of the blow she received and that the baby died—otherwise, indeed, the Torah might have stipulated leniency for this unintentional act. But if so, then what is the difference between the two possibilities described, “if there is no mishap” and “if there is a mishap”? On this, ancient interpreters disagreed.

One school of thought is well represented by the translation of this verse in the Septuagint (the Old Greek translation of the Torah, completed sometime in the third century BCE). Instead of “if there is no mishap,” it reads, “if her baby comes out not fully formed.” By this the translators were offering their own interpretation of what “no mishap” meant: the incident took place relatively early in her pregnancy, so that the miscarried fetus was not yet identifiable as a human being with arms and legs and fingers and toes. The person who caused her to miscarry was certainly guilty of something and ought to be fined, but he did not, by this interpretation, cause the death of another human being.

If, however, the baby did come out fully formed—say, at some point late in the third trimester of the pregnancy—then the baby could already be considered a human being in all respects. If so, the man who struck the woman will have thereby caused the death of another human being and must pay the ultimate penalty, “a life for a life.”

The opposing school of interpreters (who would eventually include the founders of rabbinic Judaism) agreed that the woman miscarried and that the fetus died. But the “mishap” involved, they said, was not the death of the fetus, but the death of the mother. The baby, in their view, was still a “limb of the mother” until its head came out during labor. Thus, even if the incident took place in her ninth month of pregnancy, if the mother survived the miscarriage, the man who struck her was to be fined. But if she died, then he was to pay “a life for a life.”

In ancient times, the differing interpretations had potentially vital consequences. For example, it often happened in ancient times that a woman’s life would be in danger because her baby could not be delivered (as was sometimes the case with a breech baby). The first school of interpreters—which apparently included the Dead Sea Scrolls community—argued that, since a full-term baby was considered a human being even in its mother’s womb, the baby could not be killed to save the life of the mother. The opposing school argued that, until the baby’s head came out, the fetus was considered a “limb of the mother” and could be sacrificed to save her life.

Nowadays, fortunately, modern medicine has dramatically reduced the need for such desperate decisions. But ending the life of a fetus remains a serious issue (and, it should be added, the above passage is merely one element contributing to the positions adopted by various religious denominations on the matter of abortion—including Judaism).

Shabbat shalom!