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Shemot/Exodus 21:22 And if men are fighting and they strike a pregant woman and her children come out ... he shall surely be fined
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The verb , a 3mp Nif'al prefix from the root , has the meanings "to quarrel or fight, to content with one another". It has specific intent: people do not quarrel or fight by accident in this way. Two or more men are involved in a deliberate fight or violent scuffle, longer than just a single blow or two. They therefore have responsibility for any third parties affected; for any collateral damage caused by being directly hit, thrown or bumped into by those who are fighting. The second verb makes that responsibility clear: , a 3mp Qal affix from the root with a vav-reversive, has a range of meanings, from "to smite or strike with the hand or a sword" to "to push or stumble against" - all very much within the scope of a fight in which an innocent bystander is unintentionally injured. The latter meaning can be seen in "On their hands they will bear you up, so that you will not dash your foot against a stone" (Psalm 91:12, NRSV), "Give glory to the L-RD your G-d before He brings darkness, and before your feet stumble on the mountains at twilight" (Jeremiah 13:16, NRSV) and "He will become a sanctuary, a stone one strikes against; for both houses of Israel He will become a rock one stumbles over" (Isaiah 8:14, NRSV).
The third verb , another 3mp Qal affix, this time from the root , "to come out", has a different subject: instead of the men who are fighting, the ones who may come out are the children of the innocent third party: a pregnant woman who has been jostled, pushed, struck or even struck by the fighters. Richard Elliott Friedman explains that "this can mean that the woman has a miscarriage, but there is no other physical damage to the woman herself. Or it can mean: if the woman goes into labour and the child is born without any physical damage". This ambiguity - caused in part by the unusual Hebrew vocabulary - is usually resolved by scholars in favour of the miscarriage option. It has, however, been used by those campaigning against abortion: the clinician performing the abortion effectively takes the role of the men fighting by causing the child or children of the pregnant woman to come out - although as a deliberate action and usually with her however reluctant permission - so is liable for punishment. With this debate in mind, Friedman goes on to add that "the issues in this case are different, and the wording is so complex, and its meaning is so uncertain, that one should be extremely hesitant to use this case for either side of that debate."
What is clear from the text is that those who cause an unwanted miscarriage or damage to the as-yet-unborn children of an expectant mother are liable to punishment. Nahum Sarna comments that "the legal consequences of causing a woman to miscarry are treated also in the Sumerian law fragments, in Hammurabi's collection, in the Middle Assyrian Laws and in the Hittite laws. While most call for varying degrees of vicarious punishment of the aggressor, all demand monetary compensation for the loss of the fetus, but in none of the parallels do the particulars correspond exactly to the details of the case presented in the Torah." Ancient Near East societies set a value on life, even life that has not yet reached full development and birth and the Torah, as in other cases of damage - from murder, manslaughter, being gored by an ox, down to an accidental injury - requires both compensation and punishment of the offender. The punishment may be minimal or taken as part of the payment itself, so that it appears that only one is necessary, but the principle of both remains.
The Ba'al HaTurim points out a masoretic note for the verb that connects this verse with "When men fight with one another and the wife of the one draws near to rescue her husband from the hand of him who is beating him and puts out her hand and seizes him by the private parts, then you shall cut off her hand" (D'varim 25:11-12, ESV) and says that "just as there the phrase 'you shall cut off her hand' is interpreted as financial payment, so also here what is required is financial payment." The agreement on financial rather than vicarious punishment is universal within the Jewish world, so the only question that remains is: How much?
Nachmanides offers one way in which the financial sum might be determined: "since the damage done is one that is not discernible in the unborn children themselves - for who could know their fortune - therefore Scripture said, that although he cannot be made to pay a precise monetary compensation, he should nevertheless be fined as a sort of penalty in the form of a sum of money which others (i.e. the judges) shall impose on him." Rashi, on the other hand, referring to the Sages' discussion in the Talmud (b. Sanhedrin 79a) says that the figure should be set at "the difference between the value of a female slave and that of a pregnant female slave in the market". The original verse, however, also says, "the one who hit her shall surely be fined, as the woman's husband shall impose on him" (Shemot 21:22, ESV), which is taken by the Sages to mean that the compensation money is assessed by and payable to the husband, not to the pregnant woman. Their reasoning, in a predominantly patriarchal age and society, is that since it is he who wanted the child and has suffered the loss of progeny, he should assess the value that the child would have had to him. At least on the surface, this sadly ignores the feelings of the poor mother-to-be who may already have had a relationship with her unborn child, felt it moving within her and desperately wanted to bring it alive into the world.
We know from modern research how much the loss of a child, through either miscarriage or abortion, can affect both parents, particularly the mother. Many women who have had abortions subsequently grieve over the children they have terminated, a number later finding themselves infertile and unable to have children when they want to as a result of the abortion process. Similarly, women who have had one or more miscarriages or still-births are frequently traumatised by their inability to carry the child to term; if past the earliest stages, these children are often named and subsequently mourned for substantial periods of time, sometimes years. Having a miscarriage can often bring a significant level of fear that it will happen again in another pregnancy; sometimes this inhibits parents from trying again to have a child. The Torah, in setting a value on the life that has been accidentally lost, tells us that G-d values life at any stage, from conception to birth to death - all life is in His hands.
Society today doesn't talk about death. In previous generations, death somehow became a splendid spectacle: matched black horses with black feathers in their plumes and muffled hooves pulling a glass-sided funeral carriage containing the shiny black coffin of the deceased, preceded at a slow walk by the chief undertaker with his black top hat and long tailed coat, carrying a black staff with shining silver decoration, followed by the weeping family, all dressed from head to foot in black and then by half the town who have turned out - even if they hated the deceased with a passion while still alive - to see the body decently buried. Funerals today retain some of the same ritual but are a pale imitation of the past; they attempt to give closure to the mourning family and friends but their shallow brevity, the conveyer-belt lines of hearses queuing up at the cemetery gates deny the gravity that would express the grief that the parents, spouse, siblings or children of the deceased are feeling.
In the Torah, G-d insists that life is always significant; it is to be valued and counted, there is to be an accounting for every life that is lost: naturally or otherwise. When He approached the city of Nain, Yeshua met the funeral procession of a young man: "the only son of his mother, and she was a widow, and a considerable crowd from the town was with her. And when the L-rd saw her, He had compassion on her and said to her, 'Do not weep.' Then He came up and touched the bier, and the bearers stood still. And He said, 'Young man, I say to you, arise.' And the dead man sat up and began to speak, and Yeshua gave him to his mother" (Luke 7:12-15, ESV). He broke through the normal conventions to touch the bier and restore life to the dead man; He had compassion on the grieving widow and brought her son back from death itself. Later, He died on the cross - a humiliating and agonising death - so that we might all have life in Him. He was counted for all those who would acknowledge Him and broke the power of death in the lives of all who would follow Him and proclaim Him their L-rd.
Further Study: Isaiah 61:1-3; Luke 7:22-23; John 11:21-17
Application: If you are a miscarriage or abortion survivor, then know that Yeshua's death covers all your sin and pain. He wants to bring new life to you if you will ask Him today. All you have to do is cry out and seek Him - why not do that now!
© Jonathan Allen, 2012
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