(Photo Wikimedia Creative Commons 2.0)
As I mentioned in a previous post, one of the major ethical questions surrounding abortion is that of when life begins, or better, when a developing embryo or fetus acquires the right to life. In the last one, I showed how biblical descriptions of pregnancy—metaphorical though they are—tend to frame the formation of a new child as a process rather than an instantaneous event. But does this processual understanding extend to ethical considerations and the right to life as well?
There aren’t many relevant biblical texts to consult—again, there’s no biblical passage that comes right out with a direct statement on fetal personhood—but what little evidence there is suggests that it was also treated as something that develops over time.
For this discussion, I’m indebted to the work of Tracy Lemos in her recent book Violence and Personhood in Ancient Israel and Comparative Contexts. Lemos examines the practice and punishment of violence as it relates to the social status of individuals. In particular, who is viewed as a person and who a non-person? To her, being recognized as a person in society means being recognized “as having value, not as a commodity but as a participant in social relations.” Importantly for this post, personhood is characterized by “the attribution of agency, rights, or protections—particularly protection from physical harm—and/or by public rituals that convey or reaffirm that individual’s value.” In other words, being seen as a person protects an individual from violence or makes violence a more serious crime.
Lemos conducts a holistic study, dealing in turn with personhood as it relates to gender, nationality, enslavement, and childhood. You can (and should!) read the whole chapter on children, “Visiting the Iniquity of the Father on the Son: Violence and the Personhood of Children in Ancient Israel,” at her academia.edu page. It deals mostly with children post birth, but discusses also the status of fetuses in Israelite society.
We can learn a lot by comparing legal penalties for violent acts, because these often link life and health directly with monetary payments and/or other punishments. The most relevant law relating to fetal personhood (and the most relevant biblical text, period) comes from a legal collection in Exodus 20–23 known as the Covenant Collection. Before we get to it , though, I’ll illustrate the point with reference to a few other laws. Since the Bible contains multiple collections of laws that don’t always agree with one another, choosing laws from the same collection has benefits as well as drawbacks. It allows us to expect some degree of internal consistency that does not characterize the Bible as a whole, but it also limits the discussion to just one of the Bible’s many and varied voices. We also know that the Covenant collection was not wholly a native Israelite creation, since it seems to have been based in large part upon the Code of Hammurabi for its overall structure and the content of many of its laws (there is A good book by my dissertation advisor on just that topic!).
Personhood and the Valuation of Life in the Covenant Collection
The Covenant Collection contains laws on a lot of different topics. It’s far from comprehensive, but its laws touch on altars, sacrifice, property, enslavement, liability, legal procedure, sexuality, and violence.
Often it presents illuminating variations on a legal scenario. Consider the Ten Commandments’ prohibition against murder:
You shall not murder. (Exodus 20:13)
Sweet. Good start. But what does that mean in practice. A little bit later, we get more legal detail:
Someone who strikes a man so that he dies shall be put to death. (Exodus 21:12)
This sets the standard penalty for taking a life as losing your own, according to the talionic principle (that is, an eye for an eye, etc.). But this doesn’t apply to every case. What if the killing wasn’t on purpose? What if it was in self defense or defense of property?
In the case of accidental manslaughter, the killer can flee to a place of refuge to avoid punishment (Ex. 21:13). Similarly, if someone beats a thief to death during a break-in, they incur no guilt or legal penalty (Ex. 22:1).
Punishments can also vary based on the identity of the victim. So, for example, if someone killed a person they had enslaved. If the victim died immediately from the wounds, the law prescribes that נקום ינקם “it shall be punished” (Ex. 21:20). This is different wording from the original law regarding murder: מות יומת “he shall be put to death.” Though of course punishment could be imagined to refer to the death penalty, that does not seem to be the intent. If the purpose of writing a separate law for the murder of enslaved people was to underscore that the punishment was identical to the murder of a free citizen, why choose a looser and more general word? More likely, laws concerning violence against enslaved people were written separately because they were conceived of differently.
The difference is even clearer when the enslaved person lives a few days after the attack, and then dies. In this case, the attacker incurs no penalty, because כספו הוא “he (the enslaved) was his (the enslaver’s) property” (Ex. 21:21).
Thus, it seems that an individual’s personhood could be mitigated by their enslavement, and that a crime against an enslaved person was not viewed in the same way as a crime against a free citizen.
This distinction between the free and the enslaved appears throughout the Covenant Collection. For example, the owner of a habitually aggressive ox that gores a free person—no matter their age or gender—is put to death (Ex. 21:29–31). If that same ox, with the same negligent owner, kills someone who has been enslaved, the owner must only pay a fine to the victim’s owner—remuneration for lost property rather than for lost life )Ex. 21:32).
In the same way, the law of “an eye for an eye” only applies to free citizens. If an enslaver puts out the eye or tooth of someone they enslave, they are not subject to the loss of their own eyes or teeth. Rather, they have to free their victim from slavery.
This case is especially striking. In the case of free-on-free violence, the appropriate restitution for one harm is an equivalent harm enacted upon the perpetrator. In free-on-enslaved violence, the injustice is rectified by conveying a benefit upon—or, more accurately, removing an oppression from—the victim.
While enslaved people were not treated as complete non-persons in all biblical texts, as Lemos argues elsewhere, it is clear from these laws and others that they were not treated as persons in the same way or as consistently as free people. Their position allowed for mitigation of their rights in ways that were truly brutal and dehumanizing. Morally abhorrent as they are, these laws illustrate the principle that levels of personhood can be embedded in legal discourse, particularly in the permissibility and punishment of violence. This sets us up for the main event:
The Case of Collateral Miscarriage
After all that intro, here it is at last: the closest thing we get to a biblical pronouncement on fetal personhood, in the context of a law about collateral damage during a brawl.
“When people who are fighting injure a pregnant woman so that there is a miscarriage and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine.
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)
Here we have two variations on a common scenario: in both cases the brawl causes the end of a pregnancy, but the penalties differ based on whether “harm” (Hebrew אסון) occurs or not. There has been some debate over the nature of this harm and who experiences it, but the general consensus is that the pregnancy is terminated and the fetus is lost, and the harm that may or may not occur refers to the mother. In this case, the first variation imagines a situation where the blow causes a miscarriage but the woman remains healthy. The second a scenario in which the pregnant woman experiences physical harm beyond the loss of her pregnancy.
A minority position holds that the additional harm is done to the infant—that is, that the scenario describes an early birth rather than a miscarriage, and the additional penalties result from further injury to the child. The earliest Greek translation actually misunderstood the term for “harm” entirely and translated it “if the fetus is not fully formed” vs. “if the fetus is fully formed.” Due to our better understanding of biblical Hebrew and our knowledge of Hammurabi, however, most scholars find the first interpretation much more likely.
In the first scenario, where the pregnancy is terminated but the woman is unhurt, the penalty characterizes it as a property crime against the father. As such, it does not seem that the fetus was understood to be a person with social and legal standing of its own. Further, it characterizes the loss of the potential child primarily as a loss of the father rather than the expectant mother.
As Lemos writes, “In Exod 21:22–5, a hierarchy is thus established in which a fetus has much lower standing than its mother, harms against whom require talionic punishment rather than monetary compensation, but who also has less legal standing than her husband.19 If we examine these different sections of Exodus 21 together, then, children’s standing appears to be higher than that of either slaves or fetuses… While slaves are offered some legal protections, the fetus occupies an extremely subordinated position and has no apparent legal standing separate from its father.” Fellow biblical scholar Naomi Steinberg states it plainly: “The fetus is a nonperson.””
This is scant evidence, and perhaps it is unwarranted to discover a universal cultural belief about fetal non-personhood in one group of laws among several within a literary anthology of many voices and perspectives, but this conclusion does align with the processual view of fetal development implied in pregnancy texts and with the subordination of fetal and maternal rights under the father in texts I will discuss later.
And again, there is the question for those who see opposition to abortion as an eternal, God-given absolute: if an omniscient deity were using a sacred text to communicate abhorrence for abortion, why would this be all we get?