Does the Case Deal with a Miscarriage?
The RSV interprets the passage as involving a miscarriage. Verse 22 is rendered; “When men strive together and hurt a woman with child, so that there is a miscarriage”. This reading has been challenged. Calvin argued that it refers not to a miscarriage but to a premature birth. Cassuto, who held the same view, summarises this reading as,
The statute commences, And when men strive together, etc., in order to give an example of accidental injury to a pregnant woman and . . . the law presents the case realistically. Details follow: and they hurt unintentionally a woman with child—the sense is, that one of the combatants, whichever of them it be (for this reason the verb translated “and they hurt” is in the plural) is responsible—and her children come forth (i.e., there is a miscarriage) on account of the hurt she suffers (irrespective of the nature of the fetus, be it male or female, one or two; hence here, too, there is a generic plural as in the case of the verb ‘they hurt), but no mischief happens—that is, the woman and the children do not die—the one who hurt her shall surely be punished by a fine, according as the woman’s husband shall lay—impost—upon him, having regard to the extent of the injuries and the special circumstances of the accident; and he who caused the hurt shall pay the amount of the fine to the woman’s husband with judges . . . But if any mischief happens, that is, if the woman dies or the children die, then you shall give life for life, eye for eye, etc. [Emphasis original]
This response is erroneous for two reasons. The claim itself is simply false. It is untrue that Cottrell is “virtually alone” amongst interpreters in reading the text this way; nor is his interpretation novel. Numerous, significant commentators, in fact, defended this interpretation. Calvin adopted it and scholars such as Keil, Geiger and Dillman followed it. In the 20th Century exegetes as diverse as Wayne House, Bernard Jackson, Meredith Kline, Walter Kaiser, J Ellington, J Weingreen, Cassuto, Gleason Archer, K Hoffmeier and Norman Geisler have defended it. The New International Version (N.I.V) adopts this interpretation. In light of these facts, it is plausible to contend that the “solid consensus” Harrison refers to does not exist. Secondly, one does not ascertain the correct meaning of a text by counting heads. One does so by examining arguments in favour of the interpretation and establishing whether they are sound or not.
Simmons offers several other criticisms of Cottrell, all of which fail for similar reasons. He notes that some “fundamentalist” scholars disagree with Cottrell. This response hardly constitutes a rebuttal, as numerous scholars do not agree with Simmons, including many whom Simmons would call fundamentalists, yet that alone does not entail that Simmons is mistaken. Moreover, the specific scholar Simmons mentions is Bruce Waltke. Interestingly, it was Waltke whom Cottrell was criticising in the article cited and Waltke promptly changed his opinion after reflecting upon Cottrell’s critique.
Simmons goes on to note that the Talmud interprets this passage as a miscarriage and then states, “Although tradition does not establish truth, one would think that ancient interpretations would be helpful in dealing with awkward textual materials”.
In making this last point, Simmons undercuts his own argument. After all, is not the Septuagint itself an ancient interpretation? Parity of reasoning would lead us to conclude it was correct. Moreover, the Talmud argues that feticide violates the Noahic law against homicide, a position Simmons is specifically criticising. In addition, the dominant, Christian interpretation of the text in question has been to understand it as prohibiting feticide, again the appeal to traditional interpretation undercuts itself.
Whatever can be said of Cottrell’s interpretation, it cannot be dismissed by appeals to a false consensus or by noting that not everyone shares his position. The arguments in favour of it need to be examined.
Arguments for the Premature Birth Interpretation
Those who argue that the text deals with a premature birth as opposed to a miscarriage base their conclusions on three, lexicographical concerns. Firstly, they note that the Hebrew word that the RSV translates as miscarriage is not the normal Hebrew word for miscarriage, which is shakol. Shakol does not occur in the MT rendition of this text; instead, yatsa is used. Yatsa is a far more general verb that means ‘to come out.’
Secondly, defenders of the premature-birth view point out that the normal Hebrew noun for a miscarried fetus, nefel, is not present either. Instead, what is said to come out is yeledium, a term that means children.
Thirdly, defenders of this interpretation note that when yatsa modifies children in utero in the context of pregnancy the phrase nearly always refers to giving birth. This is evident from other passages in the Pentateuch.
When the time came for her to give birth, there were twin boys in her womb. The first to come out (yatsa) was red, and his whole body was like a hairy garment; so they named him Esau. After this, his brother came out (yatsa), with his hand grasping Esau’s heel; so he was named Jacob. Isaac was sixty years old when Rebekah gave birth to them.
When the time came for her to give birth, there were twin boys in her womb. As she was giving birth, one of them put out his hand; so the midwife took a scarlet thread and tied it on his wrist and said, “This one came out (yatsa) first”. But when he drew back his hand, his brother came out, (yatsa) and she said, “So this is how you have broken out!” And he was named Perez. Then his brother, who had the scarlet thread on his wrist, came out and he was given the name Zerah.
Cursed be the day I was born! May the day my mother bore me not be blessed! Cursed be the man who brought my father the news, who made him very glad, saying, “A child is born to you-a son!” May that man be like the towns the LORD overthrew without pity. May he hear wailing in the morning, a battle cry at noon. For he did not kill me in the womb, with my mother as my grave, her womb enlarged forever. Why did I ever come out (yatsa) of the womb to see trouble and sorrow and to end my days in shame?
Initially this argument appears compelling and it is repeated many times in the literature. However, Russell Fuller has refuted it in a 1994 article. Fuller examines various Ancient Near Eastern (A.N.E.) legal codes from roughly the same period as the Pentateuch and notes three important facts.
Firstly, he notes that these codes enacted laws to deal with a case where a pregnant woman was struck by a man and miscarried as a result. The Code of Hammurabi, the Middle Assyrian Laws, the Hittite Laws and the Persian Laws all deal with this contingency. It appears to be a standard case in A.N.E. jurisprudence. Secondly, no legal literature of the period ever referred to or dealt with a case where a woman gave birth prematurely. Finally, those laws that do deal with an induced miscarriage use equivalent phraseology to the phraseology in the book of Exodus. A miscarriage is described as “her child drops out” instead of the standard technical terms for miscarriage. In some cases, the laws dealing with miscarriage use phraseology that is almost word for word identical with the text of Exodus 21:22 if they were transliterated into Hebrew. Fuller notes the implications of this.
[I]n 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 have confused the issue. Moses, on the contrary, by using general language in Ex 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 lah after ason (or to write nepel instead of yeled) since that society and culture understood to whom ason applied
The Premature-Birth Interpretation Refuted
The arguments in favour of the premature birth interpretation fail. Further, the interpretation itself is very unlikely for several reasons.
Firstly, the absence of contemporary, medical technology in the period when the A.N.E. texts were written would mean that the fetus surviving a premature, live birth would almost never happen. R N Congdon notes that only in the last six weeks of pregnancy would an infant’s lungs be sufficient to live outside the womb. He notes further that only a severe blow could cause a miscarriage at this stage. Such a blow would, in the majority of cases, cause injuries such as a fractured skull, uterine rupture or damage to the oxygen supply that would result in death. In a typical case, a child born prematurely because of such a blow would die within 48 hours. In a non-technological era it is highly improbable that a situation would arise where a woman is struck so she goes into labour, gives birth and there is no harm to the child.
Secondly, the law in Exodus in terms of its structure, literary form and language, parallels A.N.E. laws dealing with miscarriage. The Code of Hammurabi and the Middle Assyrian Laws all deal with cases where a man strikes a woman and she miscarries, but is not hurt herself, and a case where she is hurt. All use the same language and phraseology as Exodus does. In fact, the description of an induced miscarriage in the protasis of a contemporary Hittite Law parallels the Exodus “down to the minute details of phraseology”.
Thirdly, in the Exodus law, the word yeledium (children) is plural; this makes sense if the text refers to a miscarriage. Sprinkle notes that a miscarriage would probably be described with a plural of abstraction so that yeled (child) was rendered “fruit” or “product of her womb”. A similar way of referring to miscarried infants occurs in A.N.E. law. Conversely, if the word yeledium is simply a normal reference to children then the case law must envisage multiple births, a rare phenomenon. Surviving a premature birth in such a society would be extremely rare and the rarity of a premature, multiple birth compounds these improbabilities. A case where a woman was struck and had surviving, premature twins or triplets would be so improbable that it would hardly require specific legislation.
Taken together; these factors provide a compelling case that Exodus 21:22 does not refer to a premature birth. If the text did refer to a premature birth, then one must conclude that the law introduces a case nowhere discussed before, which is almost never going to happen and the occurrence of which would be practically impossible, all the while utilising the same literary form that was normally used to refer to a miscarriage in the legal texts and case law of the period.
Therefore, miscarriage makes significantly better sense in the context. If the text deals with a miscarriage it is not surprising that it uses the same language as other miscarriage cases in other A.N.E. legal codes or that it is set out in similar form to such laws. A miscarriage was a likely event and the plural language is readily explicable. The first of Harrison’s interpretive judgements is therefore defensible.
In my next post I will address the question, is the harm to the woman or the fetus?
 See the quote from Calvin that I reference in Part I.
 Umberto Cassuto, Commentary on the Book of Exodus, trans. by Israel Abrahams (Jerusalem: Magnes Press, 1974), 275.
 Jack Cottrell, “Abortion and the Mosaic Law” Christianity Today (March 16): 1973.
 Paul Simmons, “Personhood, The Bible, and The Abortion Debate” (1990).
 C Keil & Franz Delitzsch, Commentary on the Old Testament: The Pentateuch (Grand Rapids, MI: Eerdmans, 1976), 1.135.
 Wayne House, “Miscarriage or Premature Birth: Additional thoughts on Exodus 21:22-25,” Westminster Theological Journal 41 (1978): 108-123.
 Bernard Jackson. “The Problems of Exodus 21:22-25 (Ius Talionis),” Vetus Testamentum 23 (1973): 271-303.
 Meredith Kline, “Lex Talionis and the Human Fetus,” Journal of the Evangelical Theological Society 20 (1977): 193-201.
 Walter Kaiser, Towards Old Testament Ethics (Grand Rapids, MI: Zondervan Publishing, 1983), 102-104 and 168-172.
 John Ellington, “Miscarriage or Premature Birth,” Bible Translator 37:3 (1986): 334-337.
 J. Weingreen, “The Concepts of Retaliation and Compensation in Biblical law,” Proceedings of the Royal Irish Academy 76 (1976): 1-11.
 Cassuto, Commentary on the Book of Exodus, 275.
 Gleason Archer, An Encyclopaedia of Bible Difficulties (Grand Rapids MI: Zondervan, 1982), 247-249.
 James K Hoffmeier, “Abortion and the Old Testament Law,” in Abortion, ed. James K. Hoffmeier (Grand Rapids, MI: Baker Books, 1987), 57.
 Norman Geisler, Christian Ethics: Issues and Options (Grand Rapids, MI: Baker Books, 1989), 145.
 Simmons, “Personhood, The Bible, and The Abortion Debate.”
 Gen. 25:24-26, N.I.V.
 Gen. 38:28-30, N.I.V.
 Job 20: 14-18, N.I.V.
 Russell Fuller, “Exodus 21:22-23: The Miscarriage Interpretation And the Personhood of the Fetus.” Journal of the Evangelical Theological Society 37: 2 (1994): 169-184.
 Ibid., 183.
 Madeleine Flannagan and Glenn Peoples suggest that the fact that the A.N.E. law uses similar phraseology to the Mosaic Law could be seen as evidence that all these laws referred to a premature birth and none referred to a miscarriage. I doubt this; first, no commentator of the laws in question, that I know of, has suggested such an interpretation. Second, a common paradigm in some of these laws is between a blow that causes a miscarriage and a blow that kills or harms a woman. In light of this, I suggest that the miscarriage interpretation is more likely.
 Robert N. Congdon, “Exodus 21:22-25 and the Abortion Debate,” Biblio Sacra 146 (1989): 140-142.
 Fuller, “Exodus 21:22-23:,” 182.
 E.A. Speiser, “The Stem Pll in Hebrew,” Journal of Biblical Literature LXXXII (1963): 303.  Joe M. Sprinkle, “The Interpretation of Exodus 21:22-25 Lex Talionis and Abortion,” Westminister Theological Journal 55.2 (1993): 7-8.
The Foundations of the Alexandrian Argument against Feticide Part I
The Foundations of the Alexandrian Argument against Feticide Part III
The Foundations of the Alexandrian Argument against Feticide Part IV
The Foundations of the Alexandrian Argument against Feticide Part V
The Foundations of the Alexandrian Argument against Feticide Part VI