Is Exodus 21:22 about a premature birth or a miscarriage?

Question

Exodus 21:22-25 reads (emphasis added):

If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe. (KJV)

Discussion about this passage abounds. I'm asking specifically about the statement on the woman's fruit departing from her. What does it mean? Here are two other translations of Exodus 21:22 (emphasis added):

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. (NKJV)

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. (NRSV, updated edition)

Is Exodus 21:22's reference to a woman's fruit departing (KJV) addressing a woman's premature birth (NKJV) or miscarriage (NRSV, updated edition)? Answers that use references are preferred. For example, is the Hebrew phrase about a woman's fruit departing used elsewhere, whether in the Bible or in other literature? Do we have evidence of how those close to the time understood this phrase?

Update

It appears that ילד‎ means "children," while יצא‎ means going/coming out, suggesting that Young's Literal Translation provides the best framework for this discussion (emphasis added):

And when men strive, and have smitten a pregnant woman, and her children have come out, and there is no mischief, he is certainly fined, as the husband of the woman doth lay upon him, and he hath given through the judges (YLT)

Would the idea of children "coming out" of a pregnant woman (excluding Dottard's [apparently] novel view that the children may include already-born children) better support the premature-birth view? Do children coming out of their mother seem to better fit birth than a miscarriage (e.g., Genesis 15:4)? Or would departing suggest death?

Answer 1

Because human rights prior to birth is such a politically-charged topic, the general trend is that people will read their own political views into this text.

I suggest that, if we consider the text authoritative, this is backwards, our views should derive from the meaning of the text, the meaning of the text should not derive from our views. However, human nature being what it is, there are two common, very different contemporary interpretations of this passage (and a variety of sub-interpretations) that broadly align with modern political debates on abortion.

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Interpretation 1

The verse describes a woman going into labor due to injury, which does not necessarily imply a miscarriage. The phrase "so that her fruit depart from her" does not tell us one way or the other whether the child has survived or died. Thus, the "mischief" that follows applies to the woman or the child. The following circumstances are possible:

• The woman goes into labor and mom and baby are healthy. The perpetrator is fined and nothing more.
• The woman goes into labor and delivers an unhealthy baby. Mom recovers, but the baby is injured and/or dies. The perpetrator pays life for life, injury for injury, for harming the baby.
• The woman goes into labor and delivers a healthy baby, but the woman has complications and is injured and/or dies. The perpetrator pays life for life, injury for injury, for harming the mother.
• The woman goes into labor and both mom & baby suffer injury and/or death. The perpetrator pays life for life, injury for injury, for harming the mother and for harming the baby.

On this interpretation, the baby is being treated as a human person, and injury to the baby is treated as injury to any other human would be under the Law of Moses.

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Interpretation 2

The phrase "so that her fruit depart from her" describes a miscarriage--the baby dies. The subsequent "mischief" focuses specifically on harm to the mother. Let us consider the same 4 possibilities, and their outcomes, on this interpretation:

• The woman goes into labor and mom and baby are healthy. The penalties described in this passage are not enacted, because there was no miscarriage.
• The woman goes into labor and delivers an unhealthy baby. Mom recovers, but the baby is injured and/or dies. If the baby dies, the perpetrator is fined and nothing more. If the baby is injured but lives, there is no penalty because there was no miscarriage.
• The woman goes into labor and delivers a healthy baby, but the woman has complications and is injured and/or dies. The perpetrator pays life for life, injury for injury, for harming the mother.
• The woman goes into labor and both mom & baby suffer injury and/or death. The perpetrator pays life for life, injury for injury, for harming the mother, but not for harming the baby.

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Key Hebrew words involved

As noted by Greg Koukl here:

The Hebrew noun translated “child” in this passage is yeled (yeladim in the plural), and means “child, son, boy, or youth.” It comes from the primary root word yalad, meaning “to bear, bring forth, or beget.” In the NASB yalad is translated “childbirth” 10 times, some form of “gave birth” over 50 times, and either “bore,” “born,” or “borne” 180 times.

The verb yasa is a primary, primitive root that means “to go or come out.” It is used over a thousand times in the Hebrew Scriptures and has been translated 165 different ways in the NASB—escape, exported, go forth, proceed, take out, to name a few....

What’s most interesting is to see how frequently yasa refers to the emergence of a living thing:

...[examples cited inclue Genesis 1:24, Genesis 8:17, Genesis 15:4, Genesis 25:26, 1 Kings 8:9, 2 Kings 20:18, Jeremiah 1:5]...

As you can see, it’s common for yasa to describe the “coming forth” of something living, frequently a child. There is only one time yasa is clearly used for a dead child. Numbers 12:12 says, “Oh, do not let her be like one dead, whose flesh is half eaten away when he comes from his mother’s womb!”

Note here, that we don’t infer the child’s death from the word yasa, but from explicit statements in the context. This is a still-birth, not a miscarriage. The child is dead before the birth (“whose flesh is half eaten away”), and doesn’t die as a result of the untimely delivery, as in a miscarriage.

Yasa is used 1,061 times in the Hebrew Bible. It is never translated “miscarriage” in any other case. Why should the Exodus passage be any different?

The verb does not require the translation miscarriage, which would be odd, unclear from context, and over-specified. As already noted by Dottard, Hebrew had other words to describe a more specific outcome; the verb in "so that her fruit depart from her" merely indicates that the woman delivered a child (or children).

Child or children?

With respect to child vs. children, I believe the Keil and Delitzsch Commentary is straightforward:

The plural ילדיה is employed for the purpose of speaking indefinitely, because there might possibly be more than one child in the womb.

This then would not be a description of injury to one of the woman's other, older children--the Torah already has rules to specify punishment for injuring them--but this is very specifically in the context of giving birth--the only children in scope in this verse are those that are in the womb.

"Further"

As noted by John Piper here:

Verse 22 says, "[If] her children go forth and there is no injury . . ." It does not say, "[If] her children go forth and there is no further injury . . ." (NASB, 1972 edition; corrected in the 1995 update). The word "further" is not in the original text.

Thus, the Hebrew text is not describing a) miscarriage + b) any further injury. It is describing a) the deliver of the baby + b) any injury associated with it.

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How this was understood by other writers

The only substantial, near-contemporary writings we have from this culture are the other texts of the Old Testament. As noted above by Koukl, in just over a thousand uses in the Old Testament, יָצָא refers to miscarriage once - and in order to indicate that this is what is meant in this singular usage, the word מוּת ("to die") is included in the same sentence so that it is clear that the baby has died. Unless clearly specified by referring unambiguously to death, the Old Testament writings do not use יָצָא to describe a miscarriage.

If we incorporate writings from many centuries later, by those familiar with the Old Testament, I see 3 sources that should be noted:

• The Septuagint: as already noted by Dottard, the Septuagint translators appear to understand a difference between an unborn child who has "developed into a human form" versus one who has not, and the penalty envisioned differs based on the level of the child's development (as further discussed in the aforementioned Keil and Delitzsch Commentary). This is not dissimilar to the belief in "quickening", the idea that there comes a point in pregnancy when the spirit enters the body. However, the Septuagint is not explicit on this matter.
• Rabbinic writings: Gill's Exposition notes that the Targum of Jonathan, the Targum of Onkelos, Jarchi, and Aben Ezra understand the "mischief" to refer only to injury to the woman, not the child, while also acknowledging the variation of interpretations that exist for this passage.
• The Didache: this early Christian text (written circa AD 100) is heavily influenced by Old & New Testament writings. It takes an unambiguous position against abortion, indicating that the unborn child is a person who can be wronged:

you shall not murder a child by abortion nor kill that which is begotten. (Didache chapter 2)

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Summary

I respectfully suggest that no amount of argumentation will convince anyone with entrenched views on the rights of the unborn to interpret this passage as a prooftext that disagrees with what they already believe. Efforts to compel the Biblical text to say what we want it to say are neither new nor surprising--we see a clear awareness of and warning against this natural, human tendency in the Bible itself (e.g. 2 Peter 3:16).

I will offer 3 reasons for concluding that, in context, Interpretation 1 (described above) is the most viable meaning of this passage:

1. יָצָא does not specifically describe a miscarriage in which the baby dies. Contemporary writings--including hundreds of examples in the Torah itself--do not understand the word in this way. In fact, the verb is used 93 additional times in just the book of Exodus, and none of them describe a miscarriage.

2. If there is no physical punishment for physically harming the baby, what is the point of this passage in the first place? That an injury to a woman--pregnant or not--dictated the "eye for an eye" consequence is already covered elsewhere in the Torah. The only purpose this passage would serve, if not to punish injury to an unborn child, would be to specify a reason for a fine. This would make the passage vague, and all discussion of penalties for harming the mother redundant. In the context of this chapter, penalties are laid out for numerous crimes. Capital punishment is declared for inflicting fatal injury to a human; fines are declared for inflicting non-fatal injury to a human and for certain fatal injuries to animals. Death of an unborn child is clearly fatal...so either a) the passage lays out physical punishment for injury to an unborn child or b) the punishment for the death of an unborn human is of the same form as the punishment for accidentally killing on ox.

3. The four scenarios laid out above under Interpretation 1 and Interpretation 2 demonstrate a glaring inconsistency in Interpretation 2. Interpretation 1 clearly specifies what to do if the baby dies, if the baby is injured but lives, or if the baby lives and is just fine. Interpretation 2 does not do this! Under interpretation 2, if the baby suffers injury but lives, there is no penalty to the perpetrator. That a human being may suffer life-long consequences from a birth defect, and there is no consequence to the one who inflicted the injury, is glaringly inconsistent with the lex talonis (law of retaliation) described in the Torah. Furthermore, this interpretation would mean that there was no penalty to a man for striking a woman unless the woman suffered notable injury. That striking a woman was "okay" as long as the blow wasn't hard enough to cause severe injury, is an idea clearly rejected by Jewish sages (source).

Interpretation 2 requires that the Torah does not forbid harming an unborn child to any degree as long as the child does not die, and that the Torah prescribes no punishment for a man striking a woman unless the woman is visibly wounded. However we may feel about lex talonis, it is clearly the policy of the Torah. On this basis, I suggest Interpretation 2 is much weaker than Interpretation 1; Interpretation 1 is to be preferred:

Is Exodus 21:22 about a premature birth or a miscarriage?

Premature birth. The Torah applies lex talonis to injury inflicted on the unborn.

Answer 2

Very similar questions on this passage have been asked here a few times. The following is a collection of relevant citations that others have provided. Unsurprisingly, different views exist with scholarly and (arguably) ancient support. I have not reviewed most of the following sources, but I have the impression that that most (but not all) of these sources support, or lean toward supporting, the view that "וְיָצְאוּ יְלָדֶיהָ" would apply to a premature birth as well as to a miscarriage. I also have the impression that Judaism has traditionally recognized a significance to different stages of development when applying this law.

• M. G. Kline, “Lex Talionis and the Human Fetus,” JETS 20 (1977): 193-201
• Wayne H. House, "Miscarriage or Premature Birth: Additional Thoughts on Exodus 21:22-25," Westminster Theological Journal 41 (1978): 108-123
• S. E. Loewenstamm, “Exodus XXI 22-25,” VT 27 (1977): 352-60
• Russel Fuller, "Exodus 21:22-23: The Miscarriage Interpretation and the Personhood of the Fetus," JETS 37/2 (June 1994) 169-184
• J. Calvin, "Harmony of the Law," Volume 3 (esp. vs 22)
• J. Piper, "The Misuse of Exodus 21:22–25 by Pro-Choice Advocates"
• Jack W. Cottrell, "Abortion and the Mosaic Law," Christianity Today 17, 12 (March 16, 1973): 6-9
• Bernard S. Jackson, "The Problem of Exodus 21:22-25 (Ius Talionis)," Vetus Testamentum 23 (1973): 273-304
• The Code of Hammurabi (esp. #209-210)
• Keil, C. F., & Delitzsch, F. (2006). Commentary on the Old Testament (Vol. 1). Peabody: Hendrickson, 409
• Thomas F. McDaniel, "The Septuagint has the Correct Translation of Exodus 21:22-23"
• What's behind the difference between the Greek and Hebrew of Exodus 21?

Answer 3

Ex 21:22 contains a series of subtleties that many translations and commentaries either miss or ignore. Here is my attempt to render the verse literally:

And if men fight and hurt a pregnant woman, and her children come out, and yet no harm becomes, surely he shall be punished ...

Two things should be observed:

• "pregnant" and "woman" here are both definitely singular
• the word for "children" here is יְלָדֶ֔יהָ is plural
• the verb to "come out" is וְיָצְא֣וּ is also plural and denotes anything that comes forth such as in Gen 1:2, 24, 2:10, 4:16, 8:7, 9:10, 10:11, 11:31, 12:5, 14:8, 17, 17:6, etc.

Thus, the meaning of the text could be any of the following:

• this only applies to a woman who is pregnant with twins or triplets (this is unlikely)
• this applies to a pregnant woman and her other children who also try to intervene in the fight between men

That is, the law applies both to the unborn child AND the existing children previously born to the woman.

Miscarriage or Premature Birth?

As to whether this law applies to miscarriage or premature birth is a rather modern question. The Hebrew had other words for this type of thing such as:

• נֶפֶל (nephel) as only in Job 3:16, Ps 58:8, Eccl 6:3 = an untimely birth, either by miscarriage or abortion, or still birth
• שָׁכֹל (shakol) is often translated miscarry (or better, bereaved) in Gen 31:38, Ex 23:26, Job 21;10, or sometimes "barren" as in 1 Sam 15:33, 2 Kings 2:19, 21, etc.

However, Moses chooses a very general term for "come out" so as to presumably include both the unborn children and those toddlers and youngsters born earlier.

Concerning whether the term applies to miscarriage, still birth, or premature birth depends on the attitude of the ancient Hebrews to the life of a child. This is a vexed subject that has been much debated with almost hysterical assertions on all sides. Suffice to say here that the ancient Hebrews did not have the understanding about pregnancy (either politically or physiologically) that moderns do so it is very difficult to make a final conclusion.

However, it appears that they regarded an nonviable very early birth as a miscarriage, and late, potentially viable birth as a still birth in quite different light. However, I would not be dogmatic about this as individual responses varied then as now.

Nevertheless, the important point about Ex 21:22 is that it appears to include harm to all of the following people:

• the pregnant woman
• the unborn child and premature birth resulting in either miscarriage or still birth or simple early birth but still a living child
• other children of the woman born earlier.

Note the helpful remarks and observations of the Keil and Delitzsch Biblical Commentary on the Old Testament

Note: The words ילדיה ויצאוּ are rendered by the lxx καὶ ἐξέλθη τὸ παιδίον αὐτῆς μὴ ἐξεικονισμένον and the corresponding clause יהיה אסון ואם by ἐὰν δὲ ἐξεικονισμένον ᾖ; consequently the translators have understood the words as meaning that the fruit, the premature birth of which was caused by the blow, if not yet developed into a human form, was not to be regarded as in any sense a human being, so that the giver of the blow was only required to pay a pecuniary compensation, - as Philo expresses it, "on account of the injury done to the woman, and because he prevented nature, which forms and shapes a man into the most beautiful being, from bringing him forth alive." But the arbitrary character of this explanation is apparent at once; for ילד only denotes a child, as a fully developed human being, and not the fruit of the womb before it has assumed a human form. In a manner no less arbitrary אסון has been rendered by Onkelos and the Rabbins מותא, death, and the clause is made to refer to the death of the mother alone, in opposition to the penal sentence in Exodus 21:23, Exodus 21:24, which not only demands life for life, but eye for eye, etc., and therefore presupposes not death alone, but injury done to particular members. The omission of להּ, also, apparently renders it impracticable to refer the words to injury done to the woman alone.)

Answer 4

This law was meant for the very advanced to judge: i.e. the Judge, but written for even the commoner to think its meaning thru. A child could be already dead in the womb, and seen so, upon birth. Would a Judge sentence the fighters to death?
The beauty of this verse in its complexity lights an old and modern world together: that the unborn are fruit, just that. Then abortion can be viewed as legal under both common sense and later enactions of law, based on the Mosiac parable of two men fighting and falling into a pregnant women causing a miscarriage. Develop the other theory against whether a child could sue his parent for abandoment and then separating? Also could a child sue their parent for being a bad parent for actions during the pregnancy and later in life? The ambiquity of whether abortion should be legal rests on the welfare of the child with its birth decided by its parents, the law enacted by its people, and the reality of life, its value and its environment and future. GOD doesn't give you a free right that you won't starve to death either, but the choices to create a society that ensures it has the best odds not to. You now have 345 million marching towards starvation as part of this debate also.