The answer is nothing directly. However, there are a few things that are quite suggestive.
There are three positions I’ve seen people argue from the Bible:
1. Personhood begins at conception.
2. Personhood begins at some point in the womb.
3. Personhood does not exist in the womb.
I’ve used the term “personhood” because there may be cases where the fetus was not treated as a “person” but was still considered valuable (maybe partially as valuable as a “life”) as we will see. First an overview of some verses:
A. Verses Implying Personhood in The Womb
8 Your hands fashioned and made me;
and now you turn and destroy me.
9 Remember that you fashioned me like clay;
and will you turn me to dust again?
10 Did you not pour me out like milk
and curdle me like cheese?
11 You clothed me with skin and flesh,
and knit me together with bones and sinews.
12 You have granted me life and steadfast love,
and your care has preserved my spirit.
13 Yet these things you hid in your heart;
I know that this was your purpose.
14 If I sin, you watch me,
and do not acquit me of my iniquity.
15 If I am wicked, woe to me!
If I am righteous, I cannot lift up my head,
for I am filled with disgrace
and look upon my affliction.
16 Bold as a lion you hunt me;
you repeat your exploits against me.
17 You renew your witnesses against me,
and increase your vexation toward me;
you bring fresh troops against me.
18 “Why did you bring me forth from the womb?(Job 10:8-22 NRSV)
Would that I had died before any eye had seen me,
19 and were as though I had not been,
carried from the womb to the grave.
20 Are not the days of my life few?
Let me alone, that I may find a little comfort
21 before I go, never to return,
to the land of gloom and deep darkness,
22 the land of gloom and chaos,
where light is like darkness.”
13 For it was you who formed my inward parts;
you knit me together in my mother’s womb.
14 I praise you, for I am fearfully and wonderfully made.
Wonderful are your works;
that I know very well.
15 My frame was not hidden from you,
when I was being made in secret,
intricately woven in the depths of the earth.
16 Your eyes beheld my unformed substance.
In your book were written
all the days that were formed for me,
when none of them as yet existed.
17 How weighty to me are your thoughts, O God!
How vast is the sum of them!
18 I try to count them—they are more than the sand;
I come to the end—I am still with you.
19 O that you would kill the wicked, O God,(Psalm 139:13-24 NRSV)
and that the bloodthirsty would depart from me—
20 those who speak of you maliciously,
and lift themselves up against you for evil!
21 Do I not hate those who hate you, O Lord?
And do I not loathe those who rise up against you?
22 I hate them with perfect hatred;
I count them my enemies.
23 Search me, O God, and know my heart;
test me and know my thoughts.
24 See if there is any wicked way in me,
and lead me in the way everlasting.
Thus says the Lord who made you,(Isaiah 44:2 NRSV)
who formed you in the womb and will help you:
Do not fear, O Jacob my servant,
Jeshurun whom I have chosen.
Thus says the Lord, your Redeemer,(Isaiah 44:24 NRSV)
who formed you in the womb:
I am the Lord, who made all things,
who alone stretched out the heavens,
who by myself spread out the earth;
When Elizabeth heard Mary’s greeting, the child leaped in her womb. And Elizabeth was filled with the Holy Spirit(Luke 1:41 NRSV)
For as soon as I heard the sound of your greeting, the child in my womb leaped for joy.(Luke 1:44 NRSV)
Did not he who made me in the womb make them?(Job 31:15 NRSV)
And did not one fashion us in the womb?
I’ve left out one that I don’t find as convincing. Jeremiah 1:5 seems to say that God knew Jeremiah before he was formed in the womb. This seems to be an argument for life starting before conception.
“Before I formed you in the womb I knew you,(Jeremiah 1:5)
and before you were born I consecrated you;
I appointed you a prophet to the nations.”
You might argue that Jeremiah 1:5 destroys the previous arguments since it implies life before conception which is not possible. However, I think it is used metaphorically and there are less metaphorical indications of personhood beginning in the womb just like the baby in Elizabeth’s womb jumped. (indicating he was already aware of the Holy Spirit) These verses overall count against position 3. “Personhood does not exist in the womb”
B. Torah Ignores Fetal Personhood in Punishments of Sexual Immorality
When the daughter of a priest profanes herself through prostitution, she profanes her father; she shall be burned to death.(Leviticus 21:9 NRSV)
No caveat is added to say “make sure she is not actually pregnant when you kill her.” Tamar’s father is assumed to be a priest since Judah declares this judgment on her and other than this case there is no other place where there is an example of this punishment:
About three months later Judah was told, “Your daughter-in-law Tamar has played the whore; moreover she is pregnant as a result of whoredom.” And Judah said, “Bring her out, and let her be burned.” 25 As she was being brought out, she sent word to her father-in-law, “It was the owner of these who made me pregnant.” And she said, “Take note, please, whose these are, the signet and the cord and the staff.” 26 Then Judah acknowledged them and said, “She is more in the right than I, since I did not give her to my son Shelah.” And he did not lie with her again.(Gen 38:24 NRSV emphasis mine)
The punishment is not executed but the context shows it would have been carried out while she was about three months into her pregnancy. There are other examples of laws that seem to make no provision for when the woman is pregnant:
13 Suppose a man marries a woman, but after going in to her, he dislikes her 14 and makes up charges against her, slandering her by saying, “I married this woman; but when I lay with her, I did not find evidence of her virginity.” 15 The father of the young woman and her mother shall then submit the evidence of the young woman’s virginity to the elders of the city at the gate. 16 The father of the young woman shall say to the elders: “I gave my daughter in marriage to this man but he dislikes her; 17 now he has made up charges against her, saying, ‘I did not find evidence of your daughter’s virginity.’ But here is the evidence of my daughter’s virginity.” Then they shall spread out the cloth before the elders of the town. 18 The elders of that town shall take the man and punish him; 19 they shall fine him one hundred shekels of silver (which they shall give to the young woman’s father) because he has slandered a virgin of Israel. She shall remain his wife; he shall not be permitted to divorce her as long as he lives.
20 If, however, this charge is true, that evidence of the young woman’s virginity was not found, 21 then they shall bring the young woman out to the entrance of her father’s house and the men of her town shall stone her to death, because she committed a disgraceful act in Israel by prostituting herself in her father’s house. So you shall purge the evil from your midst.(Deuteronomy 22:13-21 NRSV)
1 while Jesus went to the Mount of Olives. 2 Early in the morning he came again to the temple. All the people came to him and he sat down and began to teach them. 3 The scribes and the Pharisees brought a woman who had been caught in adultery; and making her stand before all of them, 4 they said to him, “Teacher, this woman was caught in the very act of committing adultery. 5 Now in the law Moses commanded us to stone such women. Now what do you say?” 6 They said this to test him, so that they might have some charge to bring against him. Jesus bent down and wrote with his finger on the ground. 7 When they kept on questioning him, he straightened up and said to them, “Let anyone among you who is without sin be the first to throw a stone at her.” 8 And once again he bent down and wrote on the ground. 9 When they heard it, they went away, one by one, beginning with the elders; and Jesus was left alone with the woman standing before him. 10 Jesus straightened up and said to her, “Woman, where are they? Has no one condemned you?” 11 She said, “No one, sir.” And Jesus said, “Neither do I condemn you. Go your way, and from now on do not sin again.”]](John 8:1-12 NRSV)
23 If there is a young woman, a virgin already engaged to be married, and a man meets her in the town and lies with her, 24 you shall bring both of them to the gate of that town and stone them to death, the young woman because she did not cry for help in the town and the man because he violated his neighbor’s wife. So you shall purge the evil from your midst.(Deuteronomy 22:23-24)
What if God assumed that every time the Israelites carried out an execution it was before an egg would be fertilized? However, it turns out that this is impossible:
Conception may take place as soon as three minutes after sexual intercourse, or it may take up to five days. Implantation occurs five to 10 days after fertilization, which means anywhere from five to 15 days after you had sex.https://www.verywellfamily.com/does-lying-on-your-back-after-sex-help-with-conception-1960291#:~:text=Conception%20may%20take%20place%20as,days%20after%20you%20had%20sex. (accessed 2020-06-07)
The short answer is that the egg and sperm can meet within minutes to up to 12 hours after ejaculation.https://www.healthline.com/health/pregnancy/how-long-does-it-take-to-get-pregnant-after-sex#fertilization (accessed 2020-06-07)
Here is another law that is interesting:
18 The priest shall set the woman before the Lord, dishevel the woman’s hair, and place in her hands the grain offering of remembrance, which is the grain offering of jealousy. In his own hand the priest shall have the water of bitterness that brings the curse. 19 Then the priest shall make her take an oath, saying, “If no man has lain with you, if you have not turned aside to uncleanness while under your husband’s authority, be immune to this water of bitterness that brings the curse. 20 But if you have gone astray while under your husband’s authority, if you have defiled yourself and some man other than your husband has had intercourse with you,” 21 —let the priest make the woman take the oath of the curse and say to the woman—“the Lord make you an execration and an oath among your people, when the Lord makes your uterus drop, your womb discharge; 22 now may this water that brings the curse enter your bowels and make your womb discharge, your uterus drop!” And the woman shall say, “Amen. Amen.”
23 Then the priest shall put these curses in writing, and wash them off into the water of bitterness. 24 He shall make the woman drink the water of bitterness that brings the curse, and the water that brings the curse shall enter her and cause bitter pain. 25 The priest shall take the grain offering of jealousy out of the woman’s hand, and shall elevate the grain offering before the Lord and bring it to the altar; 26 and the priest shall take a handful of the grain offering, as its memorial portion, and turn it into smoke on the altar, and afterward shall make the woman drink the water. 27 When he has made her drink the water, then, if she has defiled herself and has been unfaithful to her husband, the water that brings the curse shall enter into her and cause bitter pain, and her womb shall discharge, her uterus drop, and the woman shall become an execration among her people. 28 But if the woman has not defiled herself and is clean, then she shall be immune and be able to conceive children.(Numbers 5:18-28 NRSV)
This one has varied interpretations. Some commentators interpret this ritual to induce an abortion and others do not: http://www.apologeticspress.org/apPubPage.aspx?pub=1&issue=1291&article=2888 While it seems more likely to me that she is just made unable to have children, (which was indeed a curse in that culture) if she had a fertilized egg when she did the ritual then she would not be able to carry the pregnancy–hence the fetus would die regardless. If the wife could tell she was pregnant it would be unlikely for the husband (as suspicious as he was) to want to destroy his wife’s child since it could still be his even if she did commit adultery. I would also think this would be looked down upon given what we had discussed in A. but my point is she could still have a fertilized egg.
The issue that might make this inconclusive is that this is a punishment from God and God can abide by different rules, like when God killed David’s son as a result of his sin with Bathsheba right? True, but the timing of this ritual is dependant on man. God could have specified that they were to wait a month or so from the time of the alleged adultery to see if she was pregnant. Maybe God would take care not to kill an already fertilized egg but this would require waiting nine months and there’s nothing in the ritual to indicate to wait this long before you assumed she was innocent.
There is one decent argument I have thought of in response to the things I have put in B. It is that the Torah sometimes skimps on detail and the detail of not hurting a fetus may have been assumed just like I assumed that the husband wouldn’t want his fully pregnant wife to go through this ritual. Here are a few of examples of evidence for this idea:
- The punishment of “burning with fire” was actually “stoning then burning with fire” see 9. in https://hebrewroots.intentionalcommunities.world/2020/04/09/a-list-of-torah-misconceptions-in-short/
- Even the punishment of stoning has been interpreted with various details added: throwing someone off a cliff onto rocks and throwing rocks: https://hermeneutics.stackexchange.com/questions/1953/how-would-stoning-of-an-adulterer-actually-be-carried-out-under-the-law-of-moses It is argued in one paper that the Jews might have interpreted the Romans as “stoning” them at Masada with their Ballista:
https://hebrewroots.intentionalcommunities.world/wp-content/uploads/2020/06/Casting-Stones_-Ballista-Stones-as-Weapons-and-Death-by-Stoning.pdf In addition to this idea slingers were common to the Biblical era. The first mention of slingers is in Jdg 20:16 and David had access to this technology even as a young shepherd. “Slingers were common to all ancient Mediterranean nations including Israel.” (Lost Treasures of the Bible: Understanding the Bible Through Archaeological Artifacts in World Museum’s pg. 171 accessed 2020-06-27)
We can even imagine a scenario where an acceptable practice of stoning was slinging the stones at the criminal. This practice could have been forgotten during a period of exile. Indeed Exodus 19:13 groups archery and stoning together: “No hand shall touch them, but they shall be stoned or shot with arrows; whether animal or human being, they shall not live.’ When the trumpet sounds a long blast, they may go up on the mountain.”
- You can interpret the Torah in many ways without an instruction manual of how to interpret it. Even with the Talmud you can interpret it in different ways. This to me is not a problem and I think this shows that there is some flexibility in interpreting the Torah. However, it is just interesting how the Jewish tradition has insisted that the Torah needed an Oral Torah tradition to help in coming to more conformity:
The law given in Ex. xviii. 2 says that a Hebrew slave acquired by any person shall serve for six years; but it does not state why and how such a slave may be acquired. The law furthermore provides that if such a slave has served for six years, his wife, if he has one, shall go free with him; but it does not state that the wife of the slave accompanies him to his master’s house, nor does it define her relation to the master. The law in Deut. xxiv. 1 et seq. says that if a man dismisses his wife with a bill of divorce (“sefer keritut”), and she marries again but is dismissed with a bill of divorce by her second husband also, the first husband may not remarry her. The fact that a woman may be divorced by such a bill has not, however, been mentioned, nor is it stated how she is divorced by means of the “sefer keritut,” or what this document should contain, although it must have had a certain form and wording, though possibly not that of the later “geṭ.” These examples, to which many more might be added, are held to imply that in addition to and side by side with the written law there were other laws and statutes which served to define and supplement it, and that, assuming these to be known, the written law did not go into details. It appears from the other books of the Old Testament also that certain traditional laws were considered to have been given by God, although they are not mentioned in the Pentateuch. Jeremiah says to the people (Jer. xvii. 21-22): “Bear no burden on the Sabbath day, nor bring it in by the gates of Jerusalem; neither carry forth a burden out of your houses on the Sabbath day, neither do ye any work, but hallow ye the Sabbath day, as I commanded your fathers.” In the Pentateuch, on the other hand, there is only the interdiction against work in general (Ex. xx. 9-11); nor is it stated anywhere in the Torah that no burdens shall be carried on the Sabbath, while Jeremiah says that the bearing of burdens, as well as all other work, was forbidden to the fathers. It is clear, furthermore, from Amos viii. 5, that no business was done on the Sabbath, and in Neh. x. 30-32 this prohibition, like the interdiction against intermarrying with the heathen, is designated as a commandment of God, although only the latter is found in the Pentateuch (Deut. vii. 3), while there is no reference to the former. Since the interdictions against carrying burdens and doing business on the Sabbath were regarded as divine laws, although not mentioned in the Pentateuch, it is inferred that there was also a second code.http://www.jewishencyclopedia.com/articles/11750-oral-law
Given the evidence in A. that life was thought to start at some point in the womb we may argue that the Torah does not speak of executing women who are pregnant beyond the point life was thought to start. It would also be unusual for a woman far along in her pregnancy to commit adultery and since executions seem to happen immediately after someone is found guilty we don’t have evidence against 2. “Personhood begins at some point in the womb.” However, while we could try other explanations, Judah’s command to kill Tamar is given three months later but this is only one case and cannot be used to make sweeping generalizations. This coupled with the fact that there is no command or example in the Bible to delay an execution based on pregnancy provides evidence against point 1. “Personhood begins at conception.”
C. Argument From Nature
So admittedly this is the naturalistic fallacy: that because something happens in nature it is good. However, if we want to argue that humans are specifically designed by God and not completely the product of random mutation and evolution we would expect the body to avoid killing a person inside it:
Around half of all fertilized eggs die and are lost (aborted) spontaneously, usually before the woman knows she is pregnant. Among women who know they are pregnant, about 10% to 25% will have a miscarriage. Most miscarriages occur during the first 7 weeks of pregnancy. The rate of miscarriage drops after the baby’s heartbeat is detected.https://medlineplus.gov/ency/article/001488.htm#:~:text=Around%20half%20of%20all%20fertilized,first%207%20weeks%20of%20pregnancy.
Hence, maybe a fertilized egg is not a person after all. However, this is one of the weaker arguments in my opinion.
I don’t think this gets us anywhere but maybe it does for other people and I thought it was good to get the reader thinking on this subject.
D. The Infamous Verse About Two Men Fighting
We can use this verse to support almost all three positions depending on the translation. I will point out that since this is just talking about an accidental abortion and not an intentional one this verse is not conclusive either. In addition it is uncertain whether the damages refer to the woman or the child or both:
1. Personhood begins at (close to) conception:
22 “When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman’s husband shall impose on him, and he shall pay as the judges determine. 23 But if there is harm, then you shall pay life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.(Exodus 21:22-24 ESV)
She wouldn’t know she was pregnant till some time after conception and wouldn’t experience a miscarriage unless the pregnancy progressed further than conception (as we observed, around 50% of fertilized eggs don’t survive and the woman doesn’t notice this)
2. Personhood begins at some point in the womb.
22And if [3should do combat 1two 2men], and should strike a woman [2in 3the womb 1having one], and should come forth her child not completely formed, with a fine he shall be penalized, in so far as [5should put upon him 1the 2husband 3of the 4woman], and he shall give by means of what is fit. 23And if [2completely formed 1it should be], he shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burning for burning, wound for wound, stripe for stripe.(Exodus 21:22-25 ABP)
3. Personhood does not exist in the womb.
22 When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. 23 If any harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.(Exodus 21:22-24 NRSV)
The difference between the NRSV and the ESV is just translational (and ill explain that later) but the difference between the LXX and the MT are possibly a little more interesting.
There’s basically five positions in regard to this difference.
1. The LXX is not trying to be consistent with the Hebrew at all.
2. The LXX is a paraphrase clarifying the scenario of miscarriage
3. The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios)
4. The LXX is a paraphrase that only covers the scenarios the Hebrew does
5. The LXX is an accurate literal translation of the Hebrew.
In favor of 1. is Daniel Schiff citing Richard Freund.
1. The LXX is not trying to be consistent with the Hebrew at all.
How did the Septuagint arrive at this widely variant rendering? In each of the three Genesis occurrences of the Hebrew term ason, the Septuuagint employs a form of the Greek noun malakia, generally translated as “affliction,” for ason. Had the Septuagint utilized malakia in Exodus 21:22-25, it would have conveyed a sufficiently similar sense to the original Hebrew that it would have been highly unlikely to have become the cornerstone of a wholly divergent approach to the status of the fetus. But, in Exodus 21:22-25, instead of malakia, the Septuagint twice uses the Greek participle exeikonismenon to translate ason. A scholar of Hellenistic Judaism, Richard Freund, has made the case that the translator of these verses, who either deliberately bypassed or was ignorant of the translation used elsewhere, arrived at this version through a process of homophonic substitution. This technique was not uncommon in both Greek and rabbinic texts. According to this explanation, the translator probably transliterated ason into some form of the Greek word soma, meaning “human life,” and then replaced this Greek transliteration with a synonymous term that offered a more profound theological resonance. This resonance can be readily apprehended through the literal translation of exeikonismenon: “made from the image,” which evokes an immediate connection to the wording of Genesis 1:27, “In the image of God, God created man.” Freund posits that the usage of the verb exeikonizein in the Septuagint and Philo establishes a strong connection to the “made from the image” metaphor. This remarkable textual allusion led Freund to conclude that “[i]t is clear from the LXX use of exeikonizein in Exodus 21:22-23 that the transator had some idea, principle, or presupposition in mind, which made him deliberately violate a literal translation in favor of a more complex formulation.
It is possible, moreover, to conjecture why this “more complex formulation” was preferred by the translator. Using exeikonismenon, the tranlator’s literal rendering of verse 23 would be “If it be made in the image, he shall give life for life.” This implies that one who kills a fetus that is already “made from the image” deserves death. But the translator must have been aware of the fact that one of the Torah’s six references to being “made from the image” explicitly calls for capital punishment of a murderer on the grounds that he had destroyed a being “made from the image”: “Whoever sheds the blood of man, by man shall his blood be shed; for in God’s image did God make man.” It is, therefore, reasonable to deduce that the Septuagint translator, through the employment of exeikonismenon, intended to create a link between feticide and homicide by way of the “made from the image” formulation. As a result, “formation” became critical because it was only when the fetus had attained a form that could be considered to be recognizably “in God’s image” that it would be considered sufficiently human that its destruction would become the equivalent of homicide.
The nature of the impact of Hellenistic thought on this section of the Septuagint has been much discussed. The scholar Victor Aptowitzer contends that the Septuagint’s portrayal of the status of the fetus effectively compromised between two schools of Greek philosophy, Plato (the Academy) and the Stoics. While the Stoics saw the fetus as being an integral part of the mother’s womb, the Academy regarded it as an independent living being. Hence the compromise entailed viewing the fetus either as dependent or as independent, contingent upon formation. Others have pointed to the similarities between the Septuagint’s focus on the pivotal role of formation and the Aristotelian thought which held that full human status was conferred at formation, since it was at that juncture that the soul was thought to infuse the body.
But perhaps the most significant Hellenistic idea of all was to be found in the notion that the willful abortion of a formed fetus was to be considered one of the most serious transgressions imaginable, deserving of the death penalty. From a range pagan and Hellenistic sources, Moshe Weinfeld, a prominent thinker in a the field, has demonstrated that the Assyrian attitude of dermined opposition to the woman who self-aborted was generally dominant in the Hellenistic world. Thus, bringing about the loss of a fetus was cited regularly alongside witchcraft, murder adultery, and theft as principle societal crimes. In contrast to the strong stance against feticide, however, the Hellenistic world often legitimated a relaxed attitude of “complete lawlessness” to infanticide, especially for children who were in any way defective.Abortion in Judaism
By Daniel Schiff pages 13-15
accessed via https://books.google.com/books?id=xh9vy_dvO6YC&pg=PA12&lpg=PA12&dq=Exodus+21:22-25+septuagint+vs+dead+sea+scrolls&source=bl&ots=3yyXUAauED&sig=ACfU3U3UZvUn7zNSRepuS5MW6Zdk_Mnm5w&hl=en&sa=X&ved=2ahUKEwi8oPavuqPqAhV_mHIEHVk8DrkQ6AEwAXoECDIQAQ#v=onepage&q=Exodus%2021%3A22-25%20septuagint%20vs%20dead%20sea%20scrolls&f=false 2020-07-11
It’s would be a bit disturbing for people who hold both the Hebrew and Septuagint in high regard if this were true. However, this is not the only idea I can present about what is going on with the LXX’s translation. Also to my knowledge, Freund and Schiff present no direct evidence of Soma being the transliteration or of the LXX writers needing to compromise between Stoicism and Platonism. Even if the Hebrew is covering more scenarios than the LXX i.e. both live birth, miscarriage, and whether or not the woman was harmed, the transliteration would be unnecessary given that the LXX could by clarifying what the Hebrew meant by “no harm” in the case of miscarriage–that the child is not completely formed. (it wouldn’t be considering harm to the woman) This will be discussed in the next section.
2. The LXX is a paraphrase clarifying the scenario of miscarriage
If the Hebrew is ambiguous and refers to both “live birth” and “miscarriage” the Septuagint could be only trying to translate and clarify one of the scenarios covered–that of miscarriage. These two diverging interests in the course of their writings derive naturally from the different situations of the LXX translators and the writer of the Masoretic text. Chapter 21 of Exodus is near the beginning of the legal code given in the Hebrew Bible (having just started in chapter 19 at Sinai) The original author of the Hebrew text would not have a whole corpus of later law to draw on to explain the cases of live birth and cases of harm to the mother. However, the writer of the LXX already had the whole legal corpus of the Hebrew Torah to draw on. Therefore I speculate that the writer of the LXX didn’t feel the need to cover all the situations but instead chose to clarify one ambiguous one.
To outline an argument for the position that the Hebrew includes multiple scenarios (including live birth and harm to the mother) I will quote William H. C. Propp in his Bible commentary “Exodus 19-40 A New Translation With Introduction and Commentary” which states:
21:22. men fight. In a somewhat confusing and still comprehensible manner, 21:22-25 treats at least three ambiguities raised by the preceding laws (cf. Loewenstamm 1977; 246-57): What happens when a third party is injured in the course of a fight? If the third party is a pregnant woman who miscarries, is the abortion manslaughter? How does one redress non-deadly injuries? Rather than resort to textual dissection, as in most critical treatments, I regard this complexity as an original characteristic of the First Code. Unlike the cuneiform law collections, which delight in listing numerous eventualities, Israelite legal scholars proved their virtuosity by posing a small number of cases possessing broad implications.
Thus the basic question, that of the innocent bystander, is not answered directly. We are not told what happens should a male onlooker suffer such-and-such an injury. Rather, a pregnant woman is posited. From her case, we are presumably meant to extrapolate for all unintended harm (so Mek. nəzîqîn 8). Combatants who hurt a bystander are subject to punishment, depending upon the nature of the injury.
The second issue this law treats is more philosophical: is a fetus a person? Is a pregnant woman comparable to, say, a woman carrying her infant in her arms? Is the death of the fetus manslaughter, so that he who jostled the mother is subject to blood vengeance? Is he entitled to asylum?
The answer to the third question, what is the punishment for nonlethal injuries, is simple: “eye for eye, tooth for tooth,” etc. I will discuss the Torah’s famous lex talionis below.
Although many ancient Near Eastern law codes treat injury to a pregnant woman and her fetus (or even gravid livestock; see Hittite Laws §77, 84), this surely cannot have been a common occurrence. Paul (1970: 71 n. 1) infers that we have a case of literary interdependence among the codes and Finkelstein (1981: 19 n. 11) rather simplistically posits an origin in a single, real case of premature labor and miscarriage. But these suppositions do not answer the question: why among all crimes and accidents likely and unlikely should the codes have borrowed and shared legislation concerning miscarriage? The answer is that, like legal scholars everywhere, ancient legislators were attracted to the unusual and ambiguous (e.g., on Roman law, see Watson 1991: 12).
they stike. Either of the men, not both together (Luzzatto).
a pregnant woman. I assume that the woman is an innocent bystander, not a participant as in Deut 25:11-12. (I find unwarranted Daube’s [1947: 108] inference that she is wife to one of the parties, and that the blow is therefore deliberate.)
her child. My translation follows Sam, LXX, etc. wəlādād ‘her child’ (see TEXTUAL NOTE). MT, however, reads yəlāde(y)hā ‘her children.’ This must be taken as referring either to the potential for multiple pregnancies–“(all) her babies, (however many)”–or else to all the stuff of childbirth: water, blood, child(ren), afterbirth.
comes out. The minority view is that the verb yāṣā(‘) here connotes a successful abeit premature birth (Jackson 1975: 95, 99; Durham 1987: 323). The majority view is that yāṣā(‘) indicates a miscarriage (most recently Houtman 20000: 161. It is true that the ancient Near Eastern parallels (quoted below envision an aborted pregnancy, and it is true that the expression “come out” (yṣ’) is used apropos of abortion or the immediate death of a newborn in Num 12:12; Job 3:11 (Schwienhorst-Schönberger 1990: 94). But, as we shall observe, the cuneiform law codes have a different aim than the First Code. In fact, the Hebrew verb yāṣā(‘) more often refers to live births (e.g., Gen 25:25-26; 38:28-30).
The text seems deliberately ambiguous. Something comes out of the pregnant woman. There are four possible outcomes: healthy mother and child, dead-or-injured mother and healthy child, healthy mother and dead-or-injured child, and dead-or-injured mother and child. The following clauses attempt to address these eventualities.
injury. The disputed noun ‘a̅sôn otherwise appears only in Gen 42:4, 38; 44:29; Sir 31/34:22; 38:18; 41:9. Both the biblical context and the Arabic cognate ’asiya ’be distressed’ suggest the meaning “harm” (e.g., Baentsch 1903: 193). Some claim, however, that the meaning is more specifically “fatality” (e.g. Josephus Ant. 4.8.278). The Rabbis, for example, think that ’a̅sôn here refers to the woman’s death (Mek. nəzîqîn 8). (For more discussion of the history of interpretation, see Isser  and TEXTUAL NOTE.)
Even though the argument that ‘a̅sôn implies a fatality draws support from the ancient Near Eastern codes, which cosider only the death of mother or child, I think this approach is incorrect. As observed above, the First Code is in one important way not comparable to the cuneiform documents. The Hittite Laws contain 200 clauses and the Code of Hammurapi 282. treating all manner of torts. In contrast, the technique in Exodus 21 is to compress multiple legal issues into a small number of complex, paradigmatic cases. In my holistic reading, 21:22-25 is about all injuries caused to third parties, and indeed about all injuries. If the biblical writer wished clearly to describe the death of the woman or her offspring, he would have used the verb mwt ’die.’ On the contrary, he makes it explicit what constitutes ’a̅sôn: death; damage to an eye, a tooth, an arm, a leg; a burn, a wound or a stripe (Schwienhorst-Schönberger 1990: 93). Not all of these can occur during childbirth to either mother or offspring, but, again, the case is intended to have broad application.
It remains unclear whether “injury” applies only to the mother, or to mother and child. By the theory that v 22 describes a miscarriage, ‘a̅sôn can only connote the mother’s death or injury; the baby is already dead. But if, as I think, v22 describes premature labor, then the “injury” would be to either the mother or the infant. If the child is viable and the mother is unharmed, then the man who accidentally justled her owes the women’s husband a modest fine for endangerment and inconvenience (Durham 1987: 323).
3. The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios)
If I were to take this position I would have to argue that the Hebrew text really only speaks of miscarriage. More specifically we know that damages to a person are covered elsewhere in the Torah so the Septuagint is focusing on the situation of no harm being done to the mother. This position is made easier by the fact that the singular “child” is the lectio difficilior.
Propp says that the singular form of “child” is the lectio difficilior. This means “more difficult reading” and in textual criticism, this is called “lectio difficilior portior” or “the more difficult reading is stronger.” The theory is that it is more likely the original reading due to the scribes being more likely to change a text to an easier reading than to change it to a harder reading. “Child” in the singular is also the reading of the Samaritan Pentateuch. See Propp:
21:22. And if. Kenn 650 B lacks “And.”
men. See TEXTUAL NOTE to 21:18
her child comes out. Reading a singular verb and subject with Sam, LXX, Tg. Neofiti I and probably Vg: wyṣ’ wldh, vs. MT wyṣ’w yldyh ‘and her children come out.’ The alternation between wyṣ’ w- (Sam) and wyṣ’w y- (MT) may reflect the similarity of waw and yodh in Roman-period script (Cross 1961a; Qimron 1971). The plural subject of MT is hard to understand–unless it refers, not just to children, but to all that comes forth during parturition. More likely, however, yldyh has simply been copied from 21:4. The noun wālād used by Sam et al. is paralleled only in Gen 11:30 and 2 Sam 6:23 (Kethibh in many MSS), making it lectio difficilior. Syr appears to conflate the aforesaid variants: wnpqwn ‘wlh ‘and her fetus (sing.) come out (pl.).’pg. 121, “Exodus 19-40 A New Translation With Introduction and Commentary”
However, how do we get the following to be what is translated by the LXX? (see also LXX below)
22 When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine.(Exodus 21:22 NRSV)
22And if [3should do combat 1two 2men], and should strike a woman [2in 3the womb 1having one], and should come forth her child not completely formed, with a fine he shall be penalized, in so far as [5should put upon him 1the 2husband 3of the 4woman], and he shall give by means of what is fit.(Exodus 21:22 ABP)
The following lex talionis must in the Hebrew apply to both the woman and fetus and apply to the fetus on a sliding scale. Therefore, apply to stages of fetal development like in LXX:
23 If any harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.(Exodus 21:22-25 NRSV)
23And if [2completely formed 1it should be], he shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burning for burning, wound for wound, stripe for stripe.(Exodus 21:22-25 ABP)
Assuming that this law doesn’t cover a delayed miscarriage, there is also some medical evidence that a live birth in this situation would have been unheard of in the ancient setting.
First, it is important to note that injury to the fetus in utero may be direct or indirect. Direct injury is rare, mainly occurring late in pregnancy when the head is deep in the pelvis and major trauma causes fetal skull fracture. A recent review of the obstetric literature revealed only 19 such reported cases. The outcome was almost uni-versally fetal demise, except when cesarean section was performed. There is no report of that particular surgical procedure having been performed in the ancient Near East.
Indirect injury to the fetus occurs when there is disruption of the oxygen supply coming through the umbilical cord. Rarely trauma may result in uterine rupture with grave consequences for mother and infant without immediate surgical intervention. Such event occurs in less than one percent of trauma. More commonly, in six percent of blunt trauma during pregnancy there is an overt disruption of the normal connection between the placenta and the uterus. Fetal mortality in such cases, given the best obstetric and neonatal care available in the United States, is 34 percent. Another reference cites 30 to 68 percent fetal mortality. Without intravenous methods of fluid therapy for the mother and surgical intervention, it is obvious that the fetal outcome in the vast majority of these cases would be death. Timms states that “following uterine rupture or significant placental separation, rapid exploration [surgically] and fetal delivery provide the only chance for fetal survival.”
Less severe abdominal trauma may result in smaller disruptions of the placenta from the uterus, and less catastrophic outcomes. It is unknown how often an occult (self-limiting) placental separation takes place in these situations, but it may be the cause of common complaints such as “increased uterine activity” or slight cramping. Most of these cases progress to a normal outcome. In an excellent study of trauma in pregnancy Crosby suggests that if fetal oxygenation is impaired, labor or fetal death will occur within 48 hours.
Premature labor is a serious problem after trauma and is aggressively treated in appropriate cases these days with medication to stop uterine contractions. The lungs of the developing infant are not ready for life outside the womb until 33 to 34 weeks gestation (out of 40 weeks in a “full-term” pregnancy). In a nonhospital setting, the mortality rate of these infants is very high.
There are only a few instances, in a nontechnological era, in which blunt trauma serious enough to cause abortion of the fetus would result in a viable birth. If medical data has anything to say about Exodus 21:22, it indicates that the overwhelming probability for such a situation is an outcome of trauma-induced abortion with fetal demise.https://faculty.gordon.edu/hu/bi/ted_hildebrandt/otesources/02-exodus/text/articles/congdon-ex21-abortion-bsac.htm
4. The LXX is a paraphrase that only covers the scenarios the Hebrew does
This position is similar to the last one but here “harm” (ason) must only be applied to the fetus and the woman must be unharmed even in the Hebrew. ‘a̅sôn would have to be interpreted as only referring to a “death” (as Propp mentioned that some take this position based on the context of the word and of other law codes covering just the death of the fetus). The following paper assumes a contradiction between no harm (ason) and a miscarriage but this can be resolved by saying the fetus may only be described as having “died” when it was “fully formed” as it the Septuagint explains. The idea that the LXX covers all the scenarios the Hebrew does is made difficult because there isn’t direct evidence that “harm” only applies to the mother.
B. Is the Harm to the Woman or the Fetus?
The RSV renders the word אָסֹ֑ון in v 23 as kill and attributes it solely to the mother. Other translations render it as “mischief”, “serious injury” or “harm”.1 That אָסֹ֑ון means some form of harm is well attested. אָסֹ֑ון occurs only three other times in the Hebrew Bible.
3 Then ten of Joseph’s brothers went down to buy grain from Egypt. 4 But Jacob did not send Benjamin, Joseph’s brother, with the others, because he was afraid that harm might come to him.
38 But Jacob said, “My son will not go down there with you; his brother is dead and he is the only one left. If harm comes to him on the journey you are taking, you will bring my gray head down to the grave in sorrow.”
27 “Your servant my father said to us, ‘You know that my wife bore me two sons. 28 One of them went away from me, and I said, “He has surely been torn to pieces.” And I have not seen him since. 29 If you take this one from me too and harm comes to him, you will bring my gray head down to the grave in misery.’”
In each case it refers to Jacob’s fear that Benjamin will be harmed as his brother Joseph was. In the narrative, the harm that befell Joseph (or at least that Jacob thought had befallen him) was being killed by a wild animal. Moreover, its use later in the narrative is associated with the fear that he will be executed in prison.
The question is whether in this context it refers to harm to the mother. Some translations render the passage as “no further harm”. However, nothing in the Hebrew grammar demands this. In the Hebrew it is unspecified who the harm applies to and several arguments have been proposed suggesting that the harm is harm to the fetus and not the woman.
Westbrook argues that the word אָסֹ֑ון means “a disaster for which no one can be held responsible”. He then suggests אָסֹ֑ון is predicated of the child. Verse 22 deals with a case where one can assign responsibility and v 23 a case where one cannot. This interpretation has the added advantage of explaining the change from the third person “he shall pay” in v 22 to the first person “you shall pay” in v 23. In the first case the person responsible pays. In the second case, where the perpetrator is unknown, the whole community does.
The problem with this argument is that Westbrook’s claim that אָסֹ֑ון means “a disaster for which no one can be held responsible” is not well attested by the evidence. Moreover, as noted by Sprinkle several uses of אָסֹ֑וןin both the Hebrew Bible and in later Hebrew Apocrypha suggest the contrary. For example, the fear that Benjamin would be killed in Genesis does not have this feature. His brothers agreed to take responsibility and his execution by Egyptian officials is not an event in which one is unsure of who is responsible. In addition, Jacob believed a wild animal caused Joseph’s death so it is doubtful that אָסֹ֑ון carries the nuance that Westbrook suggests.
A second line of argument claims that the nuances of the word אָסֹ֑ון fit more naturally with the death of a fetus than the death of the mother. Kline argues,
A calamitous loss involving serious injury or even death is denoted by ason. In the only other Biblical context where ason is found it describes the grievous calamity that Jacob fears will befall Benjamin on the Journey to Egypt. (Gen 42:4, 38; 44:29). The choice of this unusual word in Ex 21:22 (problematic if the reference were to injury or death of the woman, for which the more common terminology would be expected) is readily explained if ason refers to the less everyday circumstance of the calamitous loss of offspring by violently induced miscarriage.
Similarly, Jackson argues,
[W]hy should an unusual word like aswn be used in Exod. xxi 23 to refer to death, when the ordinary verb mwt would appear to have served equally well? Fatal injuries are a common enough topic in the Misphatim, but on every other occasion the normal verb is used. There must be some reason why it is not used in Exod. xxi 22, 23. Part of the reason is that the word aswn, as is evident from the Jacob- Benjamin narrative, stresses the effect on the happening on some person other than the direct victim. Perhaps the best translation is “calamity”…
Later on in the same work he adds,
Had it [aswn] referred to the woman, it would be impossible to understand why the normal word for death was not used. But where a foetus is concerned, any hesitation to use the normal terminology of death is quite reasonable…We have seen that elsewhere it emphasizes the effect of the death or serious injury upon someone other than the victim himself.
Neither of these arguments is compelling. Jackson appeals to Gen 42:4, 38 and 44:29 where Jacob stresses that harm to Benjamin will cause him to die of grief and infers from this that אָסֹ֑ון means a harm that affects someone other than the direct victim but this does not follow. The fact that I note that the death of someone close to me will devastate me does not mean that the effect on a third person is written in to the meaning of the term ‘death’.
Moreover, both Kline’s and Jackson’s arguments suffer from the fact that the word אָסֹ֑ון is so rare in the Hebrew Bible that the samples they appeal to are too few to be decisive. The fact that the few references that occur have a special nuance is insufficient to ground an inference that this nuance is part of the meaning.
There is a more serious problem in attributing the harm as applicable to the fetus. The translation only makes sense if the passage refers to a premature birth and not a miscarriage. If the passage refers to a miscarriage then a miscarriage has occurred but the fetus did not die. This renders the text self-contradictory. I argued earlier that this text does refer to a miscarriage and that the premature-birth interpretation was subject to serious criticisms. In light of this, the argument ceases to be tenable. Once it is established that the text refers to a miscarriage the question of whom the mischief refers to is easily solved. If the blow has killed the fetus, it cannot be the fetus that is not killed in v 23. Further, if already dead, the fetus cannot be said to have undergone further harm.Feticide, the Masoretic Text and the Septuagint by Matthew Flannagan, accessed 2020-07-12 https://www.academia.edu/2243554/Feticide_the_Masoretic_Text_and_the_Septuagint
Another way to make this position is if the difference in punishment between verse 22 and 23 deals with a level of intent. “The Janus Face of Prenatal Diagnostics: A European Study Bridging Ethics, Psychoanalysis, and Medicine” says:
(When translating Exodus 21:22, the Septuagint, i.e., the early Greek translation of the Old Testament introduces a distinction between a “formed” and an “imperfectly formed” foetus, not present in the Hebrew original (Childress & Macquarrie, 1986). This difference has been interpreted as indicating a difference in the evaluation of the life of a foetus and a living human being (Ferngren, 1987). However, such an interpretation is not the only possible one. The different judgements can be explained by reference to the different kinds of act. The first act is a non-intended accident, while the second is a deliberate killing.https://www.google.com/books/edition/_/NOlgDwAAQBAJ?hl=en&gbpv=1&pg=PA291&dq=why+does+the+septuagint+translate+exodus+21+differently?
This is a view in the Talmud:
The Gemara asks: Granted, according to the Rabbis, who say that if one intended to kill this individual and he killed that individual he is liable, there is support for their opinion from that which is written: “If men struggle and they hurt a pregnant woman so that her child departs from her, and there is no tragedy, he shall be punished, as the husband of the woman shall impose upon him, and he shall give as the judges determine” (Exodus 21:22). It can be inferred form the verse that if there is a tragedy, i.e., if the woman dies, there is no payment of restitution. And Rabbi Elazar says: It is with regard to a quarrel that involves the intent of each to cause the death of the other that the verse is speaking, as it is written: “But if there shall be a tragedy then you shall give a life for a life” (Exodus 21:23). This is proof that in a case where one intended to kill one individual and he killed a pregnant woman instead, he is liable to be executed, which is why he does not pay restitution.https://www.sefaria.org/Sanhedrin.79a.10?lang=bi&with=all&lang2=en
I find it interesting that this view on the Hebrew and on the LXX can be unified (to some extent) with the idea of intent by speculating that it makes sense for the two men fighting to be held responsible for the fetus if the woman appeared pregnant. If she did not then it wouldn’t make sense to say that they were aware of this and hold them responsible for any negligence that they might be accused of in regards to the fetus itself.
5. The LXX is an accurate literal translation of the Hebrew.
This position is outlined below by Thomas F. McDaniel:
When Nina Collins (1993: 290) concluded with reference to
Exod 21:22 “Yet the verse as a whole fails to make sense” she
was referring to the Hebrew Masoretic text of this verse and its
many variant translation, not to the Hebrew Vorlage behind the
Greek translation in the Septuagint (250 B.C. to 132 B.C.), a
translation which makes perfect sense.
. . .
In addition to the well recognized אָסוֹן which was related to the (asaya) “he grieved, mourned,” there was, as noted above, also the word אסון which was related to the (sawaya) “he made it equal, he became full-grown in body” and “of regular build and growth.” This אסון is a perfect match for the Septuagint’s έξεικονισμένον, “to make like, to be perfectly fully formed.” Thus the אסון in the Vorlage of the Septuagint could have been read as אֶסְוֹן (eswon) or אֶסְוָן (eswan) from the stem סוה — with (a) a prosthetic א, (b) an affixed ן, and (c) the ו of the אסון being a consonant rather than a vowel letter. Contra the MT plural וְיָצְאוּ יְלָדֶיהָ “and her children come out,” the Septuagint has the singular καί έξέλθη τό παιδίον αύτῆϛ, “and her child came out,” which is in agreement with the Samaritan Pentateuch which has the singular ויצא ולדה. Once the singular ויצא ולדה “and her child came out” is in focus it becomes obvious that the subject of the masculine singular verb יהיה in the phrase ולא יהיה אסון (v. 22) and ואם אסון יהיה (v. 23) is the singular ולדה “her child,” permitting the following translation of these phrases: “. . . her child come out but HE is not fully formed, . . . but if HE is fully formed.” The masculine “child” is obviously gender inclusive like the אדם “man” in Gen 1:27 and 5:2.
Simply by substituting the antecedent noun child for the pronoun HE the Septuagint text in 21:22–23 stipulated: “And if two men strive and smite a woman with child, and her CHILD BE NOT FULLY FORMED, he shall be forced to pay a penalty as the woman’s husband may lay upon him, he TRANSLATION OF EXODUS 21:22–23 7 shall pay what seems fitting. But if the CHILD BE FULLY FORMED, he shall give life for life.” This law was so perfectly clear that Sprinkle (1993:247) well noted:
The penalty paid is assessed on the basis of the stage of the development of the dead fetus. The rationale for this view is that the later the stage of pregnancy, the more time has been lost to the woman, the greater the grief for the loss of a child, and the more difficult. This may have been the view of the LXX, which paraphrases וְלֹא יהְיֶה אָסוֹן as “imperfectly formed child” and translates בִּפְלִלִים “with valuation.” Furthermore, Speiser’s view gains credibility in that penalties for miscarriage actually do vary with the age of the dead fetus in the parallel ancient Hittite Law §17, which states, “If anyone causes a free woman to miscarry—if (it is) the 10th month, he shall give ten shekels of silver, if (it is) the 5th month, he shall give five shekels of silver and pledge his state as security.”
A fetus aborted in an accidental miscarriage which is not fully formed—nor equal to an infant born prematurely—was to be treated as property. 19 However, if the aborted fetus was fully formed—and equal to an infant born prematurely—it was to be treated as a person. A property which is accidentally destroyed called for a fine to be paid by the destroyer. But the lex talionis became applicable when a person—including a fully developed fetus—was accidentally injured or killed. Accordingly, in Mosaic law a woman’s fertilized egg or an imperfectly formed fetus was not considered to be a vp,n, a person. 20 Only a fetus that was אֶסְוָן / אֶסְוֹן (eswon / eswan) “fully formed” was recognized as a נפֶשׁ, a person.http://tmcdaniel.palmerseminary.edu/LXX_EXO_%2021_22-23.pdf
While I find Propp’s analysis interesting for point “2. The LXX is only trying to be partially consistent by clarifying part of the Hebrew” and McDaniel’s argument tempting for perfect harmony between the LXX and the Hebrew I have to disagree. Propp does not delve into the language used in the parallel legal codes he cites which also use generic terms for “go out” in reference to a miscarriage. I also tend to bias ancient consensus interpretations of a text against the later non-consensus of scholars which would make me more inclined to follow “3. The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios).” Russell Fuller deals with the premature birth interpretation in his article “EXODUS 21:22-23: THE MISCARRIAGE INTERPRETATION AND THE PERSONHOOD OF THE FETUS”
For the past thirty years most evangelicals have argued that Exod 21:22
does not refer to a miscarriage but to a premature birth. These evangelicals have offered the following points as evidence: (1) Biblical Hebrew has a technical word for “miscarriage” (sakol). If the author had intended to write about a miscarriage, he would have most likely used this word. Since, however, the author chose yasa, a word usually found with normal births, he probably envisioned a premature birth induced by the assault. Jack Cottrell affirms: “There is absolutely no linguistic justification for translating v. 22 to refer to a miscarriage.” (2) Biblical Hebrew has a technical word for “miscarried fetus” (nepel). Since the author chose yeled, he probably had live children—or at least the possibility of live children—in view.
Again, this suggests a premature birth. (3) Hebrew Däsön (“harm, damage”) is indefinite, and therefore should apply equally to both mother and fetus. Again, had the author intended to limit this word he could have inserted läh to clarify that the harm referred only to the mother and not to the fetus. (4) Although recognizing analogues between ancient Near Eastern literature and the Bible, adherents of the premature-birth view suggest that in Exod 21:22 the ancient Near Eastern legal tradition adds little or nothing to the understanding of the passage.
The first three points are actually one argument: the technical language argument. If Exod 21:22 refers to a miscarriage, why does the author employ such general language? Why not use more precise, technical terms? An author of course chooses a given word over another for his own reasons, leaving the interpreter only to speculate about the author’s decision. In Exod 21:22 the author chose yasa, a general term, meaning “to go/come out.” It specified normal births (Job 1:21; Jer 1:5) and a miscarriage (or perhaps a stillbirth, Num 12:12). There are, however, no passages in the HB where yäsäD clearly refers to a premature birth. Interestingly, the laws of Hammurapi and the Middle Assyrian laws described the miscarriage in general terms (nadû, “to cast down”; saläDu, “to cast, to drop”).
Hebrew säköl (like its cognates in Arabic, Ugaritic, Aramaic and Syriac), on the other hand, means “to bereave the loss of a child.” Although säköl is used in the context of miscarriages (or stillbirths, or perhaps even infant deaths) the word does not mean “to miscarry” or “miscarriage.” In Exod 21:22 the assailant is guilty of inducing the children (fetuses) to come out of the womb (a miscarriage, I believe), not of causing a mother “to bereave the loss of her child.” Why Moses chose yeled instead of nepel is more difficult to determine. Perhaps he desired a more euphemistic term, and he may have chosen yeled, at least indirectly, to indicate the personhood of the fetus. Similarly the laws of Hammurapi and the Middle Assyrian laws employed a euphemistic circumlocution, sa libbisa, “that of her womb,” instead of the technical words for fetus (izbu, kübu) or nid hbbi, a miscarried fetus. Why Moses did not further define Däsön by adding läh or lähem (läm) is uncertain. Perhaps he simply did not deem it necessary.
Although the “technical language argument” may, at first glance, seem to support the premature-birth view, upon further reflection the general language of Exod 21:22 actually favors the miscarriage interpretation. In fact the language is so general that there must have been a broader, cultural context to prevent doubt as to the law’s intent. The ancient Near Eastern analogues all supply that broader context. Indeed, in all Biblical and ancient Near Eastern legal literature and in almost all the general literature there are no references to premature births. It simply was not directly addressed. Therefore if Moses were introducing a new, unique law, previously unknown (at least from the sources we now possess) to the general society and culture, concerning a premature birth, he would have avoided ambiguity and misunderstanding by using precise language, especially if similar laws from the broader society, such as laws concerning miscarriage, might confuse the issue. Moses, on the contrary, by using general language in Exod 21:22, most likely intended his readers to understand this law according to the broader context of society. therefore he considered it unnecessary to insert läh after Däsön (or to write nepel instead of yeled) since that society and culture understood to whom the ason applied. Moreover the ancient Near Eastern law codes also employed general, nontechnical language. Thus the general language of Exod 21:22 actually supports the miscarriage interpretation rather than the premature-birth interpretation.
The interpretational history of Exod 21:22 also favors the miscarriage view. The miscarriage interpretation, despite its general language that could have misled later interpreters, held unanimous consent from the LXX to Martin Luther—some 1800 years. John Calvin was the first to suggest the premature birth view. He was later followed by the nineteenth-century German scholars such as Keil, Geiger and Dillmann. Yet none of these scholars had the complete picture. The ancient Near Eastern evidence was still underground. We cannot of course say whether this evidence would have changed their position. Nevertheless, they probably would have reexamined their opinions. Since the 1970s, the decade of the Roe v. Wade decision, the premature birth view has captured most of evangelicalism. But notwithstanding the recent ascendancy of the premature birth interpretation, at least among evangelicals, the miscarriage interpretation has the most impressive interpretational history and the securest exegetical foundation.https://pdfs.semanticscholar.org/50b2/064cf1d09be12389ecebc8c235b1bd3ec628.pdf
To me the LXX is merely trying to clarify part of the situations described: unharmed mother and miscarriage. Additional evidence for the LXX being consistent with the Hebrew might come from Josephus who knew both Hebrew and Greek and seems to have no problem following the Hebrew:
33. (277) If men strive together, and there be no instrument of iron, let him that is smitten be avenged immediately, by inflicting the same punishment on him that smote him: but if when he is carried home he lie sick many days, and then die, let him that smote him escape punishment; but if he that is smitten escape death, and yet be at great expense for his cure, the smiter shall pay for all that has been expended during the time of his sickness, and for all that he has paid the physician. (278) He that kicks a woman with child, so that the woman miscarry, let him pay a fine in money, as the judges shall determine, as having diminished the multitude by the destruction of what was in her womb; and let money also be given the woman’s husband by him that kicked her; but if she die of the stroke, let him also be put to death, the law judging it equitable that life should go for life.(Josephus, F., & Whiston, W. (1987). The works of Josephus: complete and unabridged (p. 122). Peabody: Hendrickson.)
Assertions range from the statement of Tachauer that Josephus employed only a Hebrew text to that of Schalit that Josephus used only the Greek Bible. The overwhelming majority of scholars, however, have taken an intermediate position, suggesting that Josephus used both, in addition to, perhaps, an Aramaic targum.(Chapter 13 Use, Authority and Exegesis of Mikra in the Writings of Josephus by Louis H. Feldma) http://media.sabda.org/alkitab-2/PDF%20Books/Working%20PDF/Mikra/Mikra%2005.pdf
However, this is also not certain since it also argued that the LXX wasn’t available to him at the time he wrote this summary of the law and he–like any other author–can be unreliable:
The general result of the study can be outlined briefly at the outset: as he stated himself( AJ 1:5 f., CAp 1:54) he did translate from much-used library books in Hebrew containing many learned corrections and glosses; this source will be termed H. The first library in which the scrolls were written, stored, corrected and used until the 70 war is most probably the Temple archive; the text-type is quite close to the Hebrew source of the Septuagint (hereafter) but, strangely enough, this supposedly well known Greek translation of the Pentateuch was not available to him, at least not before the last stages of his work, though he knew and quoted the Letter of Aristeas, which expounds at length the story of this translation and gives it all due authority.https://www.academia.edu/5229484/Josephus_and_the_Pentateuch
In many cases Josephus’ paraphrase is at odds with all the biblical witnesses we know, though he stresses his faithfulness to his sources (AJ 1:17): he adds speeches or omits whole chapters; he reshapes his material, not only by formal changes, but also by adducing many exegetical traditions, no less than laws and customs, which cannot have been extracted directly from the biblical letter. Moreover, the archetype of all the extant mss of the Antiquities is most probably two or three centuries later than the original scrolls, written by Josephus and/or his assistents. It has many alterations, either mistakes or learned corrections; the latter are more misleading, since they give way to granting Josephus pieces of information he never uttered. Of course, it is impossible to deal properly with Josephus’ Bible before an identification of all these alterations.https://www.academia.edu/5229484/Josephus_and_the_Pentateuch
There is one more thing we must address:
If a man intentionally struck a pregnant woman for the purpose of killing the fetus, the punishment would be most severe—probably death. Therefore to claim that the fetus is not a person and that the Bible permits abortion simply on the grounds of an unintentional but negligent assault on the mother and fetus in Exod 21:22 is reckless if not disingenuous.https://pdfs.semanticscholar.org/50b2/064cf1d09be12389ecebc8c235b1bd3ec628.pdf
In the footnote they point out :
Scholars have considered Josephus’ comments on Exod 21 22 and on abortion an ìnterpretational crux. On the one hand, Josephus held to the traditional Jewish interpretation in Ant4.278. “He that kicks a pregnant woman, so that the woman miscarry, let him be fined by the judges as for having destroyed in the womb (and) having diminished the multitude, and let money be given to the husband of the woman for it (ι.e. the fetus).” On the other hand, in Ap.2.202 he holds that intentional abortion is murder. “The law commands (us) to rear all (of our offspring), and forbids to abort the fetus, neither to destroy (it after birth), but she will appear to be a child killer (teknoktonos) if she destroyed a soul and diminished the race.” V Aptowitzer claims that these two statements are a “gross contradiction” and that “in the first case a law is reproduced, hence the language of the lawgiver, in the second case a moral valuation is involved, hence the language of the moralist.” “Observations on the Criminal Law of the Jews,” JQR.15 (1924) 87 η 117 This explanation, however, will not do Josephus clearly appeals to the law and indicts the one who commits an intentional abortion as a “child killer.” (Josephus used the cognate word teknoktonia to describe Herod when he murdered his sons Ant 16.392, J W 1 543 ) Perhaps he considered the Exodus case as an unintentional assault, although his loose paraphrase of Exod 21.22 does not directly indicate this since he considers intentional abortion as murder. If so, Josephus’ views are not contradictory. Indeed they parallel some of the ancient Near Eastern laws Josephus’ statement in Ap.2.202 curiously resembles Did 2.2 and Barn 19.5 “You shall not kill a child by abortion, neither will you kill (the child) after it is born ” Could these statements reflect a common axiom of both Jew and Christian concerning abortion in the late first and early second centuries?https://pdfs.semanticscholar.org/50b2/064cf1d09be12389ecebc8c235b1bd3ec628.pdf
However, as Propp points out on page 225:
For Exod 21:23, a question immediately arises. Is this not an accidental injury? It is, but evidently not one exempted by 21:13. In other words, we are to interpret 21:13 in the manner of Num 35:22-23; Deut 19:5: “acts of God” are true accidents like workplace injuries, not the unintended consequences of animosity. The same might be inferred from Exod 21:18: two men fight and one kills the other without previous intent. If the stricken party recovers, his assailant is cleared. The tacit assumption is that, if he does not recover, his adversary is a murderer, even in the absence of premeditation. In other words, what we reckon as manslaughter, the Bible considers murder. If people wish to brawl, they may, but they risk incurring capital charges if either participant or bystander dies.
Exodus 21:23 mandates execution should the pregnant woman die. But execution of whom, the male combatant or his wife? Strict talion in a patriarchal society would require the latter (Houtman 20000: 165). Hammurapi §§116, 210, 230 and Middle Assyrian Laws §55 offer examples of a man’s wife or children being mharmed for his offenses against another’s wife or children. Still, we cannot be certain.
On Propp’s last statements, it seems the Bible did not practice this type of retributive talion, it rather only punished the person responsible. It is uncertain if Josephus’ statements are indeed contradictory but maybe we could posit four levels of intentionality to reconcile them: 1. fully intentional, 2. negligent (partially intentional), 3 unintentional but directly following from your actions (go a city of refuge), 4. completely unintentional. (no need to go to a city of refuge) Maybe this verse then falls into covering “2. negligent (partially intentional)” they were fighting with the intent to hurt and ended up hurting someone nearby. Propp seems to not include item 2. or 4. as a possible category. The idea that these verses are addressing negligence (2.) is backed up by the context afterward. Contrary to Propp there is no evidence that Exod 21:18 would necessarily result in capital punishment if one man died. It could also be a case of negligence since the verse about a slave being monetarily compensated for his damages appears right after and negligence seemed to punished with equal retribution or equivalent monetary compensation that was laid on the perpetrator by a representative of the victim. An example of this idea occurs in the following context with an ox that is and is not known to gore where there seems to be 2. and 4. levels of intentionality covered i.e. 4. you are either killed or have to pay monetary compensation because of negligence when your ox is known to gore (no going to city of refuge), 2. there is no need to go to a city of refuge when your ox gores someone because the ox’s action is not your action:
22 When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. 23 If any harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.
26 When a slaveowner strikes the eye of a male or female slave, destroying it, the owner shall let the slave go, a free person, to compensate for the eye. 27 If the owner knocks out a tooth of a male or female slave, the slave shall be let go, a free person, to compensate for the tooth. 28 When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall not be liable. 29 If the ox has been accustomed to gore in the past, and its owner has been warned but has not restrained it, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death. 30 If a ransom is imposed on the owner, then the owner shall pay whatever is imposed for the redemption of the victim’s life. 31 If it gores a boy or a girl, the owner shall be dealt with according to this same rule. 32 If the ox gores a male or female slave, the owner shall pay to the slaveowner thirty shekels of silver, and the ox shall be stoned.(Ex 21:22-32 NRSV)
As can be seen from this and the context, negligence is repaid either with literal lex talionis retribution or with monetary compensation depending on what is laid on the perpetrator. However, another idea must be considered the term “life for life” or other such phrases in a lex talionis cannot be taken literally at all:
1. Is the Death of the Woman a Capital Offence?
One influential interpretation argues that this phrase merely expresses a legal formula which is expounded in proverbial form. The principle is that whatever punishment is imposed (and in this immediate case the punishment is a fine) must be proportionate to the harm inflicted on the victim. Sarna notes “[r]abbinic tradition understood the biblical formulation to mean monetary payment and not physical retaliation” and he defends this interpretation. Drazin notes that the Halacah in b. B.K 84a and Sanhedrin 79a and Mekach understand the phrase to refer to a principle of commensurate compensation. Plaut states that “few passages in the Torah have been so thoroughly misunderstood” and suggests the text is best understood as requiring “the value of an eye for the loss of an eye”, “the value of a limb for its loss and so on”. Rachels, Harrison, et al. do not engage with this tradition of exegesis. They appear merely to assume a literalistic reading without argument.
There are, I think, good reasons for accepting the traditional, rabbinic exegesis on this point. Here I will provide six. While none of them may be decisive in themselves, jointly, I believe, they provide a strong case for reading v 23 in the traditional fashion.
The first reason is how phraseology such as that found in v 23 functions in such a genre as Exodus is written in. As noted above, this section of the book of Exodus in terms of its structure, literary form and language parallels the structure and language of Ancient Near Eastern (A.N.E.) legal texts. Interestingly enough, the legal formulas such as ‘an eye for an eye or a tooth for a tooth’ are not uncommon in such codes. In Old Babylonian law the hand that assaults is severed, a man who kisses another’s wife has his lips cut off, a person who steals bees is to be stung by bees. A person who had thrown his victim into an oven was to be thrown into an oven. A man who raped another’s wife would be sentenced to having his own wife or daughter raped. A negligent builder whose house collapsed and killed another’s son would be sentenced to having his own son killed. In act, the Code of Hammurabi states that if a man knocks out the eye of one of the upper classes, his eye must be knocked out.
Westbrook notes that such laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts”. The method used in legal texts was “to set out principles by the use of often extreme examples”. He goes on to note “[s]ome law codes impose physical punishments and others payments for the same offenses, while some codes have a mixture of the two. There is not necessarily a contradiction.” He explains that “in highlighting one or the other alternative, the codes are making a statement as to their view of the gravity of the offence”. Westbrook argues that serious wrongs “gave rise to a dual right in the victim or his family, namely to take revenge on the culprit, or to make composition with the culprit and accept payment in lieu of revenge”. He goes on to note, “[t]his right was a legal right, determined and regulated by the court”. The courts could “fix the level of composition payment” making “revenge a contingent right, which was only revived if the culprit failed to pay”. When talionic legal formulae occur in A.N.E. legal texts they merely express that the punishment be proportional to the crime. This could involve punishment in kind (which would be proportional to the crime) but in most cases it would probably involve monetary compensation. The phraseology is compatible with either.
J Finkelstein makes a similar point reflecting on what appears to be very harsh capital (and sometimes vicarious) sentences in the code of Hammurabi and the absurdity and impossibility of putting them into practice. He states that Mesopotamian penalty prescriptions,
[W]ere not meant to be complied with literally even when they were first drawn up, [But rather they] serve an admonitory function. If one would be bold enough to restate Hammurabi’s 230 as a direct admonition it might run to this effect: “woe to the contractor who undertakes construction and in his greed cuts corners”.
There is evidence then to suggest that when talionic formulae occur in A.N.E. legal texts they do not necessarily function as commandments to inflict literal mutilation in kind. They rather function as a kind of hyperbolic, ironical way of denouncing the crime and expressing a principle of proportionality.https://www.academia.edu/2243554/Feticide_the_Masoretic_Text_and_the_Septuagint
The second reason for understanding the lex talionis in this fashion follows on from the first. A careful reading of the Hebrew Bible suggests that something like what Westbrook and Finkelstein argue is true of the Torah. Verses 29-32 deal with a case where an ox gores another person to death due to negligence on the part of the owner. This is a case of negligent homicide as opposed to premeditated killing; the penalty rendered is that the negligent person shall be put to death. However, immediately proceeding this, provision is made for a monetary fine to be paid instead of execution. This suggests that the command to execute was not considered incompatible with payment of monetary compensation proportional to the offence. The phrase “he shall be put to death” is not always to be taken literally.
This brings into question the very distinction of the lex talionis from the fine in verse 22, is one necessarily more serious than the other?
I would argue that the ox is a different situation because of the level of intent. In addition, I would argue that “life for life” is often used literally, although lesser punishments like “eye for eye” are not based on the servant who goes free based on any significant damage. Yet the servant who is killed is not covered by monetary compensation see misconception 8: https://hebrewroots.intentionalcommunities.world/2020/04/09/a-list-of-torah-misconceptions-in-short/ Also the death of someone “life for life” is demanded based on man being made in the image of God:
Whoever sheds the blood of a human,
by a human shall that person’s blood be shed;
for in his own image
God made humankind. (Gen 9:6 NRSV)
life for life. This NOTE and the following treat the Old Testament’s notorious lex talionis or “law of ritribution” (Exod 21:23-25; Lev 24:17-22; cf. Deut 19:19). In this context, “life for life” almost certainly prescribes a capital punishment (Luzzatto). (Hypothetically, nepes tahat nepes could also indicate giving the aggrieved part a child or a wife to replace the deceased–cf. Gen 4:25–but such recompense would be impossible with eyes, teeth etc., and so probably is not intended here, especially since no recipient is specified.)
The principle “life for life” appears also in nonjudicial contexts. Jehu admonishes his guard, 2Kgs 10:24, “The man who escapes from among the men I am about to bring upon your hands–his life for his life (napso tahat napso),” apparently meaning that anyone who lets a Baal-worshipper escape will forfeit his own life. And in 1 Kgs 20:39, a prisoner is entrusted to a soldier with the words, “Your life for his life (napseka tahat napso); or you must weigh out a talent of silver.”
. . .
Exodus 21:23 mandates execution should the pregnant woman die . . .
What if the pregnant woman merely miscarries? If fetal death counts under “injury,” then someone must die. But who? It must be either the assailant (cf. Middle Assyrian Laws A §50) or perhaps his youngest child, in the true spirit of talion. (One might argue that Deu 24:16 “Fathers shall not be put to death on account of sons; and sons, they shall not be put to death on account of fathers,” attacks this very practice, but, more likely, the subject is vicarious punishment; e.g., if a murderer fled abroad, his son was executed in his stead.)
“Life for life” raises one other question: the term nepes technically refers to both human and animal life. Obviously, one cannot compound a murder or manslaughter just by killing a sheep. But if I kill your sheep, is my punishment to kill one of my own? Or do I owe you a sheep? Lev 24:17-18, 21 explicity addresses these issues:
And a man, should he strike (dead) any human’s life (nepes), must be put to death, death. And should one strike (dead) an animals’s life, he must repay it, life for life (nepes tahat nepes). . . . And whoever strikes (dead) a beast must repay it, but whoever strikes a human must be put to death.page 225-226
I think you see by now that the interpretation of the text is uncertain enough that we may not be able to make any definite conclusions about it with regard to the ethical nature of abortion. You may also notice that none of these ideas help us get to where exactly conception begins. Philo does have some commentary on it:
(135) Thus the souls which are already pregnant are naturally likely to bring forth children, rather than those which are now receiving the seed. But as the eyes of the body do oftentimes see obscurely, and often on the other hand see clearly, so in the same manner does the eye of the soul, at times, receive the particular impressions conveyed to it by things in a most confused and indistinct manner, and at other times it beholds them with the greatest purity and clearness; (136) therefore an indistinct and not clearly manifested conception resembles an embryo which has not yet received any distinct character or similitude within the womb: but that which is clear and distinctly visible, is like one which is completely formed, and which is already fashioned in an artistic manner as to both its inward and its outward parts, and which has already received its suitable character. (137) And with respect to these matters 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 muleted 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 of the mind, nor is what is only likened by a figure similar to what is really comprehended, nor is what is only hoped for similar to what really exists. (138) On this account, in one case, an uncertain penalty is affixed to an uncertain action; in another, a definite punishment is enacted by law against an act which is perfected, but which is perfected not with respect to virtue, but with reference to what is done in an irreproachable manner, according to some act. For it is not she who has just received the seed, but she who has been for some time pregnant, who brings forth this offspring, professing boasting rather than modesty. For it is impossible that she who has been pregnant some time should miscarry, since it is fitting that the plant should be conducted to perfection by him who sowed it; but it is not strange if some mishap should befall the woman who was pregnant, since she was afflicted with a disease beyond the art of the physician. (Yonge, C. D. with Philo of Alexandria. (1995). The works of Philo: complete and unabridged (p. 316). Peabody, MA: Hendrickson.)
(108) But if any one has a contest with a woman who is pregnant, and strike her a blow on her belly, and she miscarry, if the child which was conceived within her is still unfashioned and unformed, he shall be punished by a fine, both for the assault which he committed and also because he has prevented nature, who was fashioning and preparing that most excellent of all creatures, a human being, from bringing him into existence. But if the child which was conceived had assumed a distinct shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; (109) for such a creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue lying in a sculptor’s workshop, requiring nothing more than to be released and sent out into the world. (Yonge, C. D. with Philo of Alexandria. (1995). The works of Philo: complete and unabridged (p. 605). Peabody, MA: Hendrickson.)
This should be interpreted in light of this information (note Flannigan follows a non-literal lex talionis interpretation unlike me in the case of death)
The LXX’s teaching about an assault upon a woman does not contradict the MT’s teaching on this question. While the LXX does not mention harm to the mother in this passage, causing harm to the mother falls readily under the other laws dealing with assault where an assailant is required to compensate his victim for damages suffered. Hence, its teaching on this question is essentially the same as the MT’s even if the presentation of it differs.
Nor does the teaching of the LXX regarding feticide contradict the teaching of the MT. The MT states that if a person kills a fetus he or she must pay a fine based upon an assessment. While the mode of assessment is not specified, evidence suggests that there existed a practice that based it upon the age of the fetus. The LXX does not contradict this. It states that if a person kills a fetus he or she must pay an assessment and it bases the assessment upon the age of the fetus.
The difference between the two is that the LXX specifies exactly how this assessment is to be carried out. It claims that when the conceptus is formed the payment must be a payment for homicide. The Hebrew is silent as to how the assessment is to be carried out so it does not deny that this is the correct way to carry out the assessment. Hence, the LXX is entirely compatible with the Hebrew here. As Scott notes, “This Greek interpretation of the passage reveals how the law had come to be applied over centuries of use, at least in the Alexandrian, Jewish community”.
The distinction made between a formed and unformed conceptus strengthens this conclusion. The distinction appears to be drawn from Greek natural philosophy. Kapparis notes, “Formation was a crucial concept in connection with the human identity of the unborn in Hippocratic medicine”. He adds,
In the understanding of many, [Hippocratic doctors] the acquisition of human identity was not something that happened at birth but well before that, when the foetus was sufficiently formed to be considered a human being.
Kapparis draws attention to numerous examples of the formed/unformed distinction in numerous, ancient, embryological writings. Galen for example noted that two contemporary studies, The Commentaries on the Demonstration and On the views of Hippocrates and Plato, defended the view “[t]hat what is in the womb is already a living being when it is formed in all its members”. Similarly, the Hippocratic study On the Nature of the Child, affirms that a conceptus “becomes a child” when it attains form. A similar view appears to be expressed by Socrates in Platonic dialogues.
The formed/unformed distinction appears in numerous other works. Soranus mentions the distinction and suggests that abortions should be performed only when the conceptus is unformed.
Interestingly, authors who mentioned the formed/unformed distinction tended to place its occurrence at roughly the same time, though they differed on the precise details. Diogenes Laertius informs us of the Pythagorean view.
This first creation [the conceptus] is formed in forty days, and then, in accordance with the law of harmony, the baby is perfected and born after seven, or nine, or maximum ten months.
Empedocles similarly argued that formation started on the 39th day and was completed on the 49th. Asclepiades noted the formed/unformed distinction and suggested that for males formation occurred between the 26th and 50th days and females were formed around 60 days. The tract, On the Nature of the Child, states a male fetus is formed
after 30 days and female fetuses were formed on the 42nd day. The author of On Seven Months Child, states a male conceptus is formed at 40 days while a female is formed after this.
Perhaps the most influential of Greek biologists was Aristotle. Aristotle developed the Hippocratic views with more sophistication. He argued that the soul was the life principle of the body. A conceptus began with a vegetative soul and then gradually acquired a sensitive soul. It became fully human when it achieved form, which occurred 40 days after conception for a boy or 90 for a girl. Aristotle’s views were based on empirical investigations. Other biologists from the period also based their views on empirical observation either from miscarriages and abortions that had occurred in humans or on analogy with the embryological development with animals.
There appeared then to be an established distinction in ancient Greek embryology between a formed and unformed fetus. The similarity between the Hippocratic/Aristotelian position and the LXX can hardly be a coincidence. It appears Alexandrian Jews utilised the biological information of their day, concluded that a formed conceptus was a human being and hence applied the law accordingly. In many ways this is unsurprising because even with Palestinian Rabbinical Judaism, Aristotelian embryology was often appealed to by Jewish scholars. Several examples bear this out.
The first comes from Nid. 3:2-7. Here the question arises about how the cleanliness laws recorded in Leviticus 12 apply to a woman who has miscarried. The law prescribes that a woman who has given birth to a child is unclean for forty days if the child born is a boy and eighty days if it is a girl. The question raised is when does miscarrying a fetus constitute giving birth to a child?
The answer given is that a miscarriage qualifies as the birth of a child if the conceptus has the form of a human being. It is stated that this happens on the forty-first day after conception. The justification provided for this ruling is precisely the kind of empirical studies that Greek biologists had appealed to.
A second example occurs in Ker. 1:3-5. The law requires that after a woman has undergone her post-birth period of uncleanness she is required to make a sacrifice. The question is asked, does this apply if she miscarries a fetus? The answer is the same as in the previous case, after forty-one days the conceptus has form. At this stage, a miscarriage is considered the birth of a child.
The third example comes from Bek. 8:1. Here the issue is the application of Exodus 13:12 where it states that a woman must redeem her first-born son with an offering. The question arises as to whether a child born to a woman who had miscarried previously is considered the first-born son. The answer is yes but only if the miscarried conceptus had not been formed which occurs at forty-one days after conception.
Four things then are evident. Firstly, in translating the LXX Alexandrian scholars aimed at “a gloss or commentary rather than a literal rendering of the Hebrew text”. They were “attempting to embody — in a widely accessible form — then-current applications of the Scriptures”. Secondly, it was common practice even in Rabbinical Judaism to utilise Greek natural philosophy in applying the Torah to various issues. Thirdly, the dominant, Greek, natural philosophy placed an important stress upon form in determining the human status of a conceptus. Fourthly, the LXX appears to utilise this distinction in applying the Torah to the question of feticide.
The best explanation appears to be that Alexandrian Jews utilised Greek embryology in an effort to apply the Torah to the question of feticide. The law told them that if a person killed a fetus they had to be punished based on an assessment of the maturity of the fetus. The science of the day taught them that a conceptus was human when it attained human form around 40 days post-conception. Hence, they concluded that if a person killed a formed conceptus this was homicide.
Consequently, the LXX is perhaps best seen as simply complementing the MT and offering an interpretation as to how to apply the law that it prescribes. The scribes behind the LXX did not so much attempt accurate translation of the text but rather faithful interpretation of it to explain its requirements to others. The Hebrew text taught that if a man killed a fetus one was to base the punishment upon an assessment based upon its level of development. This is precisely what the Alexandrian Jews did. Utilising the empirical information of the day they made such an assessment and concluded that early in the pregnancy it constituted homicide. In order to determine if their conclusion were mistaken or correct, the time of hominisation must be assessed. It is not determined by examining the text. The text simply demands that the assessment be made. The question is whether it was made correctly. Are there good grounds for holding that a formed conceptus is a human being? If there are then the LXX does propose a faithful application of the law.https://www.academia.edu/2243554/Feticide_the_Masoretic_Text_and_the_Septuagint
I take position 3. “The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios)” so harm could apply to the woman. The LXX only addresses a scenario where the woman isn’t harmed. I take lex talionis as an additional punishment to the fine and I take it literally in the case of “life for Iife” and non-literally in the case of lesser mutilations. I take Exodus 21:22-25 as speaking to “negligence” where a literal “life for life” or monetary compensation can be applied to the offender based on what the husband of the woman demands.
While we can see some implications with regards to fetal personhood in the case of miscarriage in Ex 21:22-25 they do not appear certain to me especially given that the uncertain nature of the lex talionis and intent in this case. Josephus interestingly was against intentional abortion and yet interpreted the passage as a miscarriage along with all the other commentaries of his time. Hence, I prefer to weight the evidence in sections A and B more heavily.
The conclusion I can come to is that fetal personhood happens at some point during pregnancy. Josephus interestingly elevates an intentional abortion of any type to be punished with death but this is not consistent with the evidence in section B. The only way to make it consistent is to say that the timing of justice is paramount and invalidates fetal personhood in executing perpetrators of sexual immorality. However, I think that exceptions were made for pregnancies if the fetus was thought to be “fully formed” or similar based on my tentative understanding of the lex talionis in Ex 21:22-25. I think this is possible because many details on how to carry out punishments could be left out of the Torah and fetal personhood is elsewhere supported in the Bible. Fetal personhood is also supported by the extra-biblical sources which indicate that believers did value fetal personhood: https://glanier.wordpress.com/2014/01/26/abortion-in-the-scrolls-and-the-didache/
The value of the fetus before being “fully formed” would then be up for debate at different stages. A newly fertilized egg seems to not be considered valuable but later stages seem to be since a fine is imposed in Ex 21:22 even before it was called “fully formed” (even this is not certain if it were only about compensation for trauma but is itself made complicated by the fact that this may have been an unintentional act). What I have drawn from all this is that these topics are nowhere near as easy to decide as I had once thought. This does not suggest there isn’t value in the fetus before it attains a status of personhood so abortion (after the time of conception and before it is “fully formed”) is difficult to comment on with certainty.