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

CLAIM: Advocates of abortion argue that a miscarried baby results only in a fine, whereas the death of the mother results in capital punishment. Does this demonstrate that the unborn are less valuable than other human beings?

RESPONSE: No. A number of observations can be made:

First, the Hebrew term translated as “miscarriage” (NRSV) is an older mistranslation that has not been followed by more modern translations. The words translated “gave birth prematurely” (NASB, weyāseʾú yelādeyāh) literally mean “to come out” or “to fall out.” This word typically refers to birth. Indeed, Russell Fuller writes that there are “no passages in the [Hebrew Bible] where yäsäd clearly refers to a premature birth.”[1] This Hebrew word is used to refer to a live birth in the rest of the OT (Job 1:21; Jer. 1:5). In context, it seems that the word refers to a live premature birth, not an abortive death. Thus, other translations render this as “she gives birth prematurely” (NASB) or “her children come out” (ESV). If this was describing miscarriage or abortion, they could have used the Hebrew words säköl or nephel, which both connote this.

To support this reading, the text states that the young baby is unharmed. Regarding the child, we read that “there is no injury” (welōʾ yihyeh ʾāsôn). Consequently, Archer writes, “There is no ambiguity here whatever. What is required is that if there should be an injury either to the mother or to her children, the injury shall be avenged by a like injury to the assailant. If it involves the life (ne-p̱eš) of the premature baby, then the assailant shall pay for it with his life. There is no second-class status attached to the fetus under this rule; he is avenged just as if he were a normally delivered child or an older person: life for life.”[2]

Second, 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. If the act of Exodus 21:22 referred to the intentional taking of a human life, it would have been placed in the section referring to homicide laws (vv.12-17).

Moreover, the fact that this was met with a fine, rather than capital punishment, does not demonstrate the devaluing of the unborn. After all, this is an accidental death. Accidental deaths were not considered to be on par with intentional murder in the OT case law—even in the same chapter (Ex. 21:13-14, 20-21; cf. Num. 35:10-34; Deut. 19:1-13). Yet, we can push this argument further: Feinberg and Feinberg write that “this is the only place in Scripture where the death penalty is required for accidental homicide!”[3] Far from showing the devaluing of the unborn, it shows their great and wonderful value: even an accidental death could result in capital punishment.

Third, if the unborn 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?”[4]

Fourth, the rest of the Bible refers to the unborn as human beings—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 merely subhuman flesh and tissue. Indeed, the NT uses the same word (brephos) for an unborn infant, as it does for a born one (Lk. 1:41, 44).

Fifth, this is an example of OT case law, which is neither permanent nor universally binding. Case laws are not God’s perfect and final law. Instead, they were his first law, given to the historical nation of Israel. These 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. It’s odd, therefore, that we would appeal to case laws as our ethical foundation for abortion, rather than the timeless and transcendent laws of the Ten Commandments such as, “You shall not murder” (Ex. 20:13). For more on the subject of interpreting OT case laws, see our earlier article, “Tips for Interpreting OT Law.”

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

[2] Gleason L. Archer, New International Encyclopedia of Bible Difficulties, Zondervan’s Understand the Bible Reference Series (Grand Rapids, MI: Zondervan Publishing House, 1982), 248.

[3] John S. Feinberg and Paul D. Feinberg, Ethics for a Brave New World (Wheaton, IL: Crossway Books, 1993), 65.

[4] John S. Feinberg and Paul D. Feinberg, Ethics for a Brave New World (Wheaton, IL: Crossway Books, 1993), 64.