Exodus 21:22-25 and the preborn baby

After a brief detour into Deuteronomy for a murder mystery, we’re back to refining the definition of murder in Exodus 21. As we’ve seen, not every killing of a human being is murder but every death of a human being is a serious matter with spiritual, physical, and social consequences.

If men fight, and hurt a woman with child, so that she gives birth prematurely, yet no harm follows, he shall surely be punished accordingly as the woman’s husband imposes on him; and he shall pay as the judges determine. But if any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. —Exodus 21:22-25

In Exodus 21:22-25, we learn what to do with death or injury surrounding premature birth. The setting is that of a fight—two or more men are in an angry brawl or a couple of guys are wrestling for sport. A pregnant woman comes between them and receives a blow intended for a combatant. Or perhaps she’s a spectator and one of the fighters collides with her, or an errant weapon strikes her. Whatever the situation, enough force is exerted to jostle the child within so that she goes into gives birth prematurely. 

There are several possible outcomes. The first scenario in verse 22 is described as “no harm follows.” She recovers from the incident, but perhaps has suffered trauma, required medical care, or was “confined to her bed” for a time, as described in Ex. 21:18-19. Some sort of restitution is in order. Her husband (whether one of the fighting men or not) can sue the fighter(s) responsible for damages, as he sees fit and as much as impartial judges will allow. Thus we see that women who are injured are cared for in the same way as men even though they do not typically participate in fights.

“No harm follows” also refers to the baby born prematurely as a result of the fracas. Perhaps the focus in this passage should principally be on the child. A premature baby requires special care: to be kept warm, given extra assistance feeding, and possibly helped to breathe. 

But “if harm follows,” on the other hand, verse 23 describes an outcome in which one of the innocent victims—most likely the baby prematurely born but also perhaps the mother—is permanently injured or dies. It could also be that the mother’s injuries cause the baby to die in her womb, thus a miscarriage. Or maybe the fear and excitement of the melee causes premature labor. Depending on how early in pregnancy this occurred, at the time this law was given it would have been highly unlikely for many children to survive premature birth. What then?

Verses 23b-25 describe what is known is Lex Talionis, Latin for “the law of retribution in kind.” Following verses (Ex.21:26-27) show that slaves are also granted consideration as human beings made in God's image. But what does it mean, “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe”?

Does “life for life” mean capital punishment? Drawing from what we’ve learned previously in Exodus 21:12-14, the death penalty hinges on intentionality. It would only apply if any of the combatants premeditatively conspired to cause the woman’s death and/or the death of her child. If perhaps they were known to hate her husband and intended to harm him by killing his wife or offspring, they would be guilty of murder. 

But the incident could have merely been a matter of the pregnant woman being in the wrong place at the wrong time. Based on the laws concerning manslaughter or accidental/neglectful death, we know that perpetrators would be able to escape the avenger by fleeing to a city of refuge.

What of a severely injured survivor? What if the baby is born with a vision problem or other permanent disability as a result of premature birth? What if the woman’s eye is permanently damaged or a tooth knocked out in the fracas? What if she lost use of a limb, was burned, wounded, or otherwise terribly scarred? 

Reading “eye for eye, tooth for tooth,” and so on, we imagine a rough sort of justice. If you cause me to lose an eye, one of yours is gouged out. If you cause me to lose the use of a hand or foot, one of yours is cut off. According to Hebrew scholars, however, this sort of recompense was never carried out. Instead, the guilty party paid a “ransom” to the victim for whatever the lost faculty was worth. 

Jesus cited this law and gave it a twist (Matthew 5:27-30; Mark 9:43-48). He said we should perform radical surgery on ourselves so as not to continue in sin. In saying this, however, Jesus knew that only His sacrifice could fully atone for sin and cleanse our consciences. He never intended our self-mutilation, but rather that we offer ourselves to Him as living sacrifices. Much as Lex Talionis had a way of bracing the mind, giving us a horror of causing harm, so these statements of our Savior radically demonstrate the severity of sin. 

If I were to gouge out an eye or lop off a hand in recompense for my crime, it would do nothing for the person I unintentionally blinded or maimed. I should rather give myself in service to that person—whether a grown woman or newborn child—so as to mitigate their losses.

This brings us to the real meaning of  of the Lex Talionis principle. The person who harms another person’s physical body should become the helper of that person. The victim should be compensated for his or her medical care and livelihood. That is what is due. 

Note that the Samaritan in Luke 10:30-37 was called a good neighbor because he took on the care of a victim who was someone else's obligation. Robbers had harmed the man, not the Samaritan. They had left him for dead, shirking responsibility and failing to make restitution. Like Christ, the Samaritan paid a debt he did not owe. 

Under Jesus’ law, we are commended for acting beyond obligation, for concerning ourselves with the needs of others even when we’re not responsible for their predicaments. No law of God stops us from contributing to the needs of others. That is neighborliness.

There is, however, no monetary value that can replace a human life. According to Numbers 35:21-32, there is no ransom to be paid for a murderer to avoid the death penalty or a manslayer to avoid "incarceration" in a city of refuge.

In Ex. 21:22-25, God has again demonstrated that the loss of, or injury to, human life is to be taken  seriously... any human life... including women and premature babies. Whatever we think the preborn human embryo or fetus is, this is a passage about children who are born, albeit too early. And yet this passage is not about abortion. 

Exodus 21 and abortion

Pro-choice advocates look for proof-text permission to abort but have not found it in Exodus 21:22-25. As we’ve said, this passage is not about the intentional, premeditated taking of life. For abortion to be the subject here, it would have to be talking about the intentional and premeditated killing of premature babies. 

Advocates of abortion or “choice” often insist that human beings are not persons until birth. In this passage, as we have seen, the baby meets that criteria because he or she has been born, albeit prematurely. Nevertheless pro-choice advocates try to make this passage relevant to abortion by landing heavily on the phrase "no harm follows." Is that its proper reading?

No. Exodus 21:22-25 is about accidental, unintended death. Elective abortion does not kill preborn babies by accident. 

Many women who have abortions don’t know that what they are aborting is a human life. Abortion ends a human life—whether at the embryonic or fetal stage—a life that God has created and that is made in His image. If the normal process leading to birth is deliberately halted, if the child within is in any manner purposely prevented from being born alive, it cannot be called accidental. Abortion is, therefore, hard to justify.

If people are going to attempt to use scripture to justify abortion, they must also take into account other relevant passages, such as the ones that say all human beings are made in God’s image and must not be killed (Genesis 1:27, 9:6).

►Should we abort for economic reasons? Nowhere in biblical law is the killing of a human being allowed because he or she doesn’t fit into a parent’s plans, or strains the family budget. That sort of vocabulary is unknown in the biblical text. 

►Should we abort a baby to cover-up sexual sin? Far be that idea from anyone who wants to be right with God! The solution to sexual sin is repentance and a return to right living, which includes confessing sin and humbly accepting the consequences of bad choices.

►Should we abort because the pregnancy is the result of rape or incest? Shouldn’t rather the perpetrator be punished? In biblical law, innocent people are never punished in place of the guilty. “The soul who sins shall die” (Ezekiel 18:20).

►Should we abort to protect the health of the mother? We find no justification anywhere in scripture for taking one person’s life in order to heal another. Mankind is granted stewardship over the resources of earth and all its creatures, but we are not given absolute rights over the lives of other humans. Furthermore, according to neonatologist Kendra Kolb, MD, delivering a baby early to save the life of the mother and making an effort to save both lives is not an abortion. 

►Should we abort the baby because of he or she has a health problem or will die shortly after birth? The Bible explicitly argues against harming the disabled (Leviticus 19:14; Deuteronomy 27:18). Instead we should help them live comfortably for as long as possible. 

►Are there any other reasons to premeditatively abort a person? The Bible does not allow us to prey upon the weak and small, kill the innocent, or ignore those who are unable to raise an objection to death or plead for their own live. Instead we're supposed to look out for the weak, take pity on them, have compassion on them, and speak up for them when they are slated for death because they have no voice (Ex. 23:7; Deut. 19:10, 27:25; Psalm 82:3-4, 106:38; Proverbs 6:16-17, 24:10-12).

All the reasons for abortion are disqualified. To be faithful to God’s word, we must treat the preborn baby at any stage the same as those who are born. This may be hard to do but is consistent with the rest of scripture.

Do you regret a past abortion? There is good news for you!

Scholarly resources: 

• “Lex Talionis and the Human Fetus,” by Meredith G. Kline (https://www.etsjets.org/files/JETS-PDFs/20/20-3/20-3-pp193-201_JETS.pdf, Journal of the Evangelical Theological Society, Volume 20, No. 3, September 1977, pp. 193-201); also available at https://meredithkline.com/klines-works/articles-and-essays/lex-talionis-and-the-human-fetus/.
• “Lex Talionis: Law and Ethics,” by Rabbi Ari Kahn, June 24, 2009, https://aish.com/48961051/.
• “The Misuse of Exodus 21 by Pro-Choice Advocates,” John Piper, https://www.desiringgod.org/articles/the-misuse-of-exodus-21-22-25-by-pro-choice-advocates. 
• “Miscarriage or Premature Birth: Additional Thoughts on Exodus 21:22-25,” by H. Wayne House, https://docslib.org/doc/9652104/miscarriage-or-premature-birth-additional-thoughts-on-exodus-21, Westminster Theological Journal 41.1 (1978) 108-23.
• “The Fetus in Biblical Law,” by Ron du Preez, https://www.ministrymagazine.org/archive/1992/09/the-fetus-in-biblical-law. 

Next: When we say “pro-life” or “sanctity of life” we mean HUMAN life

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Image credit: Preemie Pacifier, Sarah Hopkins, https://www.flickr.com/photos/sariehopkins/3297657033/in/photostream/.