Sometimes Exodus 21:22-25 is used by pro-choice advocates to show that the Bible does not regard the unborn as persons just as worthy of protection as an adult. Some translations do in fact make this a plausible opinion. But I want to try to show that the opposite is the case. The text really supports the worth and rights of the unborn.
This passage of Scripture is part of a list of laws about fighting and quarreling. It pictures a situation in which two men are fighting and the wife of one of them intervenes to make peace. She is struck, and the blow results in a miscarriage or pre-mature birth. Pro-choice reasoning assumes that a miscarriage occurs. But this is not likely.
The RSV is one translation that supports the pro-choice conclusion. It says,
When men strive together, and hurt a woman with child, so that there is a miscarriage, and yet no harm follows, the one who hurt her shall be fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine. If any 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.
The RSV assumes that a "miscarriage" happens, and the fetus is born dead. This implies that the loss of the unborn is no "harm," because it says, "If there is a miscarriage and yet no harm follows . . ." It is possible for the blow to cause a miscarriage and yet not count as "harm" which would have to be recompensed life for life, eye for eye, etc.
This translation seems to put the unborn in the category of a non-person with little value. The fine which must be paid may be for the loss of the child. Money suffices. Whereas if "harm follows" (to the woman!) then more than money must be given. In that case it is life for life, etc.
But is this the right translation? The NIV does not assume that a miscarriage happened. The NIV translates the text like this:
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 . . .
What the NIV implies is that the child is born alive and that the penalty of life for life, eye for eye, etc. applies to the child as well as the mother. If injury comes to the child or the mother there will not just be a fine but life for life, eye for eye, etc.
I agree with this translation. Here is my own literal rendering from the original Hebrew:
And when men fight and strike a pregnant woman ('ishah harah) and her children (yeladeyha) go forth (weyatse'u), and there is no injury, he shall surely be fined as the husband of the woman may put upon him; and he shall give by the judges. But if there is injury, 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.
The key phrase is "and the children go forth." The RSV translates this as a miscarriage. The NIV translates it as a premature live birth. In the former case the unborn is not treated with the same rights as the mother, because the miscarriage is not counted as serious loss to be recompensed life for life. In the latter case the unborn is treated the same as the mother because the child is included in the stipulation that if injury comes there shall be life for life. Which of these interpretations is correct?
In favor of the NIV translation are the following arguments:
1. There is a Hebrew verb for miscarry or lose by abortion or be bereaved of the fruit of the womb, namely, shakal. It is used nearby in Exodus 23:26, "None shall miscarry (meshakelah) or be barren in your land." But this word is NOT used here in Exodus 21:22-25.
2. Rather the word for birth here is "go forth" (ytsa'). "And if her children go forth . . ." This verb never refers to a miscarriage or abortion. When it refers to a birth it refers to live children "going forth" or "coming out" from the womb. For example, Genesis 25:25, "And the first came out (wyetse') red, all of him like a hairy robe; and they called his name Esau." (See also v. 26 and Genesis 38:28-30.)
So the word for miscarry is not used but a word is used that elsewhere does not mean miscarry but ordinary live birth.
3. There are words in the Old Testament that designate the embryo (golem, Psalm 139:16) or the untimely birth that dies (nephel, Job 3:16; Psalm 58:8; Ecclesiastes 6:3). But these words are not used here.
4. Rather an ordinary word for children is used in Exodus 21:22 (yeladeyha). It regularly refers to children who are born and never to one miscarried. "Yeled only denotes a child, as a fully developed human being, and not the fruit of the womb before it has assumed a human form" (Keil and Delitzsch, Pentateuch, vol. 2, p. 135).
5. Verse 22 says, "[If] her children go forth and there is no injury . . ." It does not say, "[If] her children go forth and there is no further injury . . ." (NASB, 1972 edition; corrected in the 1995 update). The word "further" is not in the original text.
The natural way to take this is to say that the child goes forth and there is no injury TO THE CHILD or to the mother. The writer could very easily have inserted the Hebrew lah to specify the woman ("If her children go forth and there is no injury to her . . ."). But it is left general. There is no reason to exclude the children.
Likewise in verse 23 when it says, "But if there was injury . . ." it does not say "to the woman," as though the child were not in view. Again it is general and most naturally means, "If there was injury (to the child or to the mother)."
Many scholars have come to this same conclusion. For example, in the last century before the present debate over abortion was in sway, Keil and Delitzsch (Pentateuch, vol. 2, pp. 134f.) say,
If men strove and thrust against a woman with child, who had come near or between them for the purpose of making peace, so that her children come out (come into the world), and no injury was done either to the woman or the child that was born, a pecuniary compensation was to be paid, such as the husband of the woman laid upon him, and he was to give it by arbitrators. . . But if injury occur (to the mother or the child), thou shalt give soul for soul, eye for eye . . .
George Bush (Notes on Exodus, vol. 2, p. 19) also writing in the last century said,
If the consequence were only the premature birth of the child, the aggressor was obliged to give her husband a recompense in money, according to his demand; but in order that his demand might not be unreasonable, it was subject to the final decision of the judges. On the other hand, if either the woman or her child was any way hurt or maimed, the law of retaliation at once took effect
The contextual evidence supports this conclusion best. There is no miscarriage in this text. The child is born pre-maturely and is protected with the same sanctions as the mother. If the child is injured there is to be recompense as with the injury of the mother.
Therefore this text cannot be used by the pro-choice advocates to show that the Bible regards the unborn as less human or less worthy of protection than those who are born.
- Keil and Delitzsch (Pentateuch, vol. 2, p. 135) suggest that the reason for the plural in Hebrew is "for the purpose of speaking indefinitely, because there might possibly be more than one child in the womb."
- Besides those quoted I would mention Jack W. Cottrell, "Abortion and the Mosaic Law," Christianity Today 17, 12 (March 16, 1973): 6-9; Wayne H. House, "Miscarriage or Premature Birth: Additional Thoughts on Exodus 21:22-25," Westminster Theological Journal 41 (1978): 108-123; Bernard S. Jackson, "The Problem of Exodus 21:22-25 (Ius Talionis)," Vetus Testamentum 23 (1973): 273-304.