Tough Biblical Question: Lex Talionis and Human Abortion

In Exodus 21:22-25 we find a passage where people have argued both sides of the abortion debate. It reads:

“If men who are fighting hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”

Abortion-rights advocates argue this passage actually demonstrates that the unborn child is not viewed as a full person, morally or legally. Their argument is that the fetus is treated like a piece of property. Namely, in the first scenario, “A,” where there is “no serious injury,” this refers to the woman’s estate after having been struck. A miscarriage has happened but she is okay. Thus a fine is levied as a payment for the loss of the fetus as with a property loss. In the second scenario, “B,” this is taken to mean a “serious injury” caused to the woman, thus the lex talionis, “the law of equal payment” is invoked to cover all possibilities. In this case the “life for life” phrase is applied to the woman, whereas the fetus in scenario “A” is treated as property. On this rationale, certain religious advocates for abortion-rights say that the woman’s life should take precedence, and that abortion is not a moral issue. Yes, the woman’s life should take precedence, for it is with her that the power to give resides toward the child; but no, even this interpretation cannot reduce the humanity of the unborn. To do so would be for this passage to be used to deny every other witness in the Scripture that undergirds the image of God status, the nephesh of the unborn. Neither the unborn, nor any image-bearers of God, are ever treated as property in Scripture. To do so equals classic eisegesis. To reify (treat as property) the unborn is a reactionary take before you are taken ethos, not the power to give.

To sum up the pro-abortion interpretation of the two scenarios in Exodus 21:22-25:

In scenario “A” there is “no serious injury” inflicted on the pregnant woman, but she miscarries. A fine is levied against the offender for the loss of the fetus, but the fetus is treated as property, not as a human being. In scenario “B” there is a “serious injury” caused to the woman. The fetus is already dead, and the lex talionis of “equal payment” of “life for life” applies to the woman as a human being, but not to the fetus.

But as Meredith Kline points out in an article “Lex Talionis and the Human Fetus” (Journal of the Evangelical Theological Society, September, 1977), this is not what the text says. In fact, he leads off his article with an opposite view:

“The most significant thing about abortion legislation in Biblical law is that there is none. It was so unthinkable that an Israelite woman should desire an abortion that there was no need to mention this offense in the criminal code …

“This law, found in Exodus 21:22-25, turns out to be perhaps the most decisive positive evidence in Scripture that the fetus is to be regarded as a living person.”

Kline designates the two scenarios as “A” and “B,” as I reflected above. And he points out that the hinge words are those (translated in the NIV) as “strike” and “injure.” When it says that the fighting men “strike” the woman, the Hebrew verb in use is nagap. It is not the ordinary term for hitting or striking someone, but its usual reference in other contexts means “to strike with death” or “to cause fatal divine judgments.” Context determines the appropriate translation in Hebrew, and the subject of scenario “A” is the miscarried or prematurely born child. The woman has been fatally struck – she is dead – and in the process she delivers a premature child due to the trauma. Thus the focus of this law is on the well-being of the untimely born child – one who should have still been unborn, awaiting the completion of the pregnancy.

In scenario “A” there is “no serious injury” (to the unborn). Kline points out that the Hebrew term here is ason. It is a rare term, only used in three other instances, located in Genesis 42 and 44 in reference to Jacob’s fear for the “injury” or “harm” that might have befallen his son Benjamin. Jacob feared a calamitous accident, not some normal occurrence. In this sense, it is parallel to the calamity of miscarriage, and as well, to the potential loss of a child. Thus, both the terms nagap and ason are unusual terms, and Moses uses them to describe with precision the subject of his concern – the prematurely born child. This is consistent with the Bible’s whole treatment of the unborn, and the parallel between the unborn and the prematurely born is as natural as the parallel language used often (at least 30 times that I have noted; cf. Isaiah 33:11) in Scripture between “conception” and “birth.”

Some abortion-rights advocates then say that this reduces the woman to property, because in scenario “A” the woman is dead, the child is fine, and the husband receives a payment for the loss of his wife’s life. However, this misreads the very nature of redemption and lex talionis. What is happening is that the husband is provided by law, in the case of unintentional manslaughter, for financial compensation due to the loss of his wife. Her life cannot be restored, and it was not premeditated murder, so the lex talionis is referred to specifically in view of this known outcome. Had the husband wanted to demand the life of the men who were fighting, and had the court allowed, they nonetheless would have had the option to flee to a city of refuge. The justice present here is something almost wholly absent today in the United States – compensation for the victims, a modicum of payment required of the offender to ease the suffering of the living victim, and to serve as a means of deterrence for future folly. And such lex talionis would also benefit a woman who lost her husband to an act of manslaughter.

In scenario “B,” the reference is thus to the possible outcomes of various forms of serious ason to the child, and the lex talionis is invoked to cover all contingencies. The purpose of lex talionis is to set the basis for the ransom price of the offender’s life – what economic levy they had to endure to make up for the loss to the victim – the unborn in this case, since scenario “A” already addressed the husband’s wife. Finally, when the text says “life for life,” the Hebrew is nephesh tahath nephesh. And as Chapter Three has given evidence, the unborn qualify fully as nephesh.

To sum up the proper exegesis and interpretation of Exodus 21:22-25:

In scenario “A” the woman is struck dead, but there is “no serious injury” to the prematurely born child. A fine is levied against the offender for the loss of the woman’s life, in view of lex talionis. In scenario “B” the prematurely born child also suffers “serious injury,” and the offender is fined according to the lex talionis nature of the injury caused.

In both cases, “life for life” is applied, nephesh for nephesh, as both mother and unborn child are full image-bearers of God, with equal protection under the law for an equal humanity. The Bible countenances no war between mother and child in competing definitions of the worth of human life based on a pagan “achievement ethic.”