Posted by: mattcolvin | June 1, 2019

On Exodus 21:22-23


Above: a human embryo at 8 weeks.

Philo writes:

… the following law has been enacted with great beauty and propriety: “If while two men are fighting one should strike a woman who is great with child, and her child should come from her before it is completely formed, he shall be mulcted in a fine, according to what the husband of the woman shall impose on him, and he shall pay the fine deservedly. But if the child be fully formed, he shall pay life for life.” For it was not the same thing, to destroy a perfect and an imperfect work . . . .” (Congressu Quaerendae Eruditionis Gratia, xxiv 137, 23)

The law which Philo quotes is Exodus 21:22-23. Astute readers will recognize that his translation differs from most English versions. Moreover, the LXX of this verse differs markedly from the Masoretic Hebrew.

How are these discrepancies to be explained?

This article by Thomas McDaniel is superb. The author is discussing the law about two men fighting who accidentally strike a pregnant woman and cause her to miscarry. In a masterstroke of comparative philology, McDaniel identifies a hitherto undetected Hebrew homograph אסון in Exodus 21:22-23 and confirms it by a cognate in Arabic, sawaya. There are two words spelled אסון: one means “harm” or “calamity”; the other means “fully formed”, and it is this latter that is at work in Exodus 21. Second, he shows that the LXX understood this word correctly, rendering it with ἐξεικονίσμενον, and that Philo echoes this understanding: thus, bilingual Jews from the second Temple period disagree with the later Masoretic tradition of interpretation. Finally, he also shows that the legal distinction between different stages of embryonic development is known from parallel Hittite laws. It’s thoroughly convincing and impressive on a similar level to David Daube. It also has implications for the ethics of very early abortion and for contraceptive methods that prevent implantation.

The result of this reading is to refute both the pro-abortion reading of Exodus 21:22-23 (as though it imposed only fines for harm to the unborn child, but death for the death of the mother) and another extreme reading by pro-lifers (that all accidentally inflicted miscarriage is homicide). This law is neither about penalties only for loss of the mother’s life (the pro-abortion reading) nor does it treat all induced miscarriage as homicide.

Instead, the law distinguishes two scenarios: it applies lesser penalties if the offspring is destroyed before it is “formed” and the full lex talionis penalty if it is killed after it is “formed.” The mother’s life is not in view; there are already laws in the Torah against homicide; but this law is treating only of harm to her offspring.

The result is that prolifers should temper their language about contraceptive methods that allow fertilization but prevent implantation. In Exodus 21:22, the accidental destruction of the woman’s unformed “fruit” is clearly a wrong, but it is not treated as murder or homicide. Rather, it is a sort of tort, to be punished by an indemnity.

At the same time, the law endorses the treatment of a “formed” fetus as a full human person entitled to lex talionis retribution under the law. It is homicide, or if intentional, murder. So this reading of the law would still be utterly anathema to the pro-abortion side.

When does “formation” occur? Job 10:10 uses the metaphor of “congealing” or curdling cheese to describe how God makes a human being in the womb. It is an apt metaphor for the production of an articulated human body out of a gelatinous and seemingly inarticulate mass. Early miscarriage may not present identifiable limbs or body parts; later ones do. (An embryo’s fingers are formed by 8 weeks.) Psalm 139:13 likewise uses a physical metaphor, weaving or knitting, for God’s marvellous creation of the human body in the womb. In light of these metaphors, it is fitting to discover that the Torah’s law on accidentally inflicted abortion says nothing about “ensoulment,” but is concerned with the development of the body.

I would suggest that if there is any identifiable embryo or fetus, then we are dealing with the law’s second scenario: it is destruction of a “formed” human being, and life for life applies. Blastocysts, on the other hand, will not be recognizable or “formed”.

Note, however, that this law does not condone accidentally inflicted abortion: it still penalizes it as a tort, just not as homicide. And the law does penalize as homicide all accidentally inflicted abortion of a “formed” embryo or fetus. But this distinction, though softening the hardline “full human rights from conception” stance of many pro-lifers, still does not leave any room for deliberately inflicted abortion of any sort. Such wickedness is condemned a fortiori.

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