(Ex. 21:22-23) Are fetuses human beings or not?

CLAIM: Abortion advocates argue that a miscarried baby results only in a fine, whereas the death of the mother results in capital punishment.

RESPONSE: A number of observations can be made:

First, the Hebrew term translated as “miscarriage” (NRSV) is a mistranslation. Literally, the Hebrew word (yatsa) means “to come out” or “to fall out.” Russell Fuller writes, “There are, however, no passages in the HB where yäsäd clearly refers to a premature birth.”[1] Moreover, Feinberg and Feinberg note, “Gen 25:26; 38:28–30; Job 3:11; 10:18; Jer 1:5; 20:18).”[2] Thus, other literal translations render this as “she gives birth prematurely” (NASB) or “her children come out” (ESV). This Hebrew word (yatsa) is used to refer to a live birth in the rest of the OT (Job 1:21; Jer. 1:5). If they were describing a miscarriage, they could have used the Hebrew words säköl or nephel, which both connote this.

Second, this is an example of case law. Case laws are not God’s perfect and final law. Instead, they were his first law. They were not meant for all cultures and all nations. Instead, they were meant for that culture and that nation. Since case laws are not universally perfect or binding for contemporary readers, we shouldn’t view them as such (for a complete explanation, “Tips for Interpreting OT Law”).

Third, this is different from abortion, in that it is unintentional—not intentional. This case law refers to unintentional acts against a pregnant woman. However, it should not be stretched to refer to intentionally terminating a pregnancy. Feinberg and Feinberg write, “Abortion is intentional intervention into pregnancy with the express purpose of terminating a life.”[3] If this referred to intentional homicide laws, it would have been placed in this section (vv.12-17). Moreover, the fact that this was met with a fine, rather than capital punishment, does not demonstrate the devaluing of the fetus. After all, this is an accidental death. Accidental deaths were not considered to be on par with intentional murder in the OT case law (cf. Exod. 21:13–14, 20–21; Num. 35:10–34; Deut. 19:1–13). Feinberg and Feinberg write, “The one who kills a slave unintentionally escapes without any penalty (Ex. 21:20–21). Surely, no one today would say that penalty stems from the slave’s reduced or lack of personhood.”[4] But they also note that “this is the only place in Scripture where the death penalty is required for accidental homicide!”[5]

Fourth, if a fetus isn’t a human being, then why is there any kind of punishment at all? Feinberg and Feinberg write, “The fact that a penalty is required shows that the death of the unborn is an evil. If the baby did not matter at all, why require any fine?”[6]

Fifth, the rest of the Bible refers to the fetus as a personal being—not merely a lump of biological tissue. David writes, “You formed my inward parts; You wove me in my mother’s womb” (Ps. 139:13; c.f. Eccl. 11:5; Job 10:8-12). Jeremiah received his calling before he was even born (Jer. 1:5). The angel told Joseph that “the Child who has been conceived in her is of the Holy Spirit” (Mt. 1:20)—not just flesh and tissue. The NT uses the same word (brephos) for an unborn infant, as it does for a born one (Lk. 1:41, 44).

[1] Fuller, Russell. “Exodus 21:22-23: The Miscarriage Interpretation and the Personhood of the Fetus.” JETS 37/2 (June 1994). 182.

[2] Feinberg, John. Feinberg, Paul. Ethics for a Brave new world. Wheaton, IL: Crossway Books. 1993. 65.

[3] Feinberg, John. Feinberg, Paul. Ethics for a Brave new world. Wheaton, IL: Crossway Books. 1993. 64.

[4] Feinberg, John. Feinberg, Paul. Ethics for a Brave new world. Wheaton, IL: Crossway Books. 1993. 64.

[5] Feinberg, John. Feinberg, Paul. Ethics for a Brave new world. Wheaton, IL: Crossway Books. 1993. 65.

[6] Feinberg, John. Feinberg, Paul. Ethics for a Brave new world. Wheaton, IL: Crossway Books. 1993. 64.