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A Modern Crime from the Bible

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My daughter-in-law’s mother teaches orchestra at a local public school. One day, as she was going down the stairs, she slipped and fell and received a sever shoulder injury that required surgery. She could have been killed. It turns out that a student had squirted baby oil on the steps. The administration did very little to track down the culprits. No one was ever charged. My daughter-in-law’s mother had to pay for all the medical expenses. These types of incidents happen in public schools all across the United States. Recently a story appeared that could have come straight from the Bible.

A Bronx teacher suffered a miscarriage after breaking up a fight between two students over a chair, school officials said Thursday. Lissedia Batista, 27, was elbowed in the stomach, pushed, and fell to the floor as she tried to get in the middle of a fight between two students. The fight happened in a Spanish class in Exploration Academy. Batista was four months pregnant and was taken by ambulance to North Central Bronx Hospital, where she miscarried her baby. . . . The two students involved in the fight have been suspended.

The comments posted about the story were interesting. Here’s one example: “Suspended?!?!?!? They should be charged and tried for manslaughter! Kids today have NO FEAR of repercussions. Congratulations, Liberals and Socialists. Your chickens—in the form of the erosion of traditional values by the media, the academic system, and Hollywood—are coming home to roost.” A post on Facebook was more direct: “Arrest the two students and try them for murder.” A later story reported that “Batista is not expected to press charges against the two teens, because she said she didn’t want them to end up in the criminal justice system, a person close to the teacher told WABC-TV.”

As I mentioned, there is biblical background to the story. You will find it in Exodus 21:22–23. The passage deals with a particular judicial case where two men struggle (fight) with one another. A pregnant woman is standing near enough that she is affected by the altercation. She goes into premature labor. This particular case law covers all the “cases,” everything from no harm to the mother and her prematurely born children to harm resulting in death to the mother and one or more of her children. The text is clear that she is not carrying around a mass of undefined tissue that only becomes a human being when he exits the sanctuary of the womb and can live on her own.

The Bible attributes self-consciousness to preborn babies. Jacob and Esau are said to have “struggled together within” their mother’s womb (Gen. 25:22). The New Testament offers a similar glimpse into prenatal consciousness: “And it came about that when Elizabeth heard Mary’s greeting, the baby leaped in her womb” (Luke 1:41). “Struggling” and “leaping” are pieces of information that indicate consciousness.

Some commentators, using Exodus 21:22, claim that the death of an unborn “fetus” is nothing more than a property crime rather than the killing of a human being. This is absurd. Their operating premise is that a preborn baby is not defined as a person. The Bible teaches otherwise. The original Hebrew reads: “And if men struggle with each other and strike a pregnant woman so that her children [yeled] come out. . . .” Notice that the text uses the word “children,” not “products of conception.” The Hebrew word for “children” in this verse is used in other contexts to designate a child already born. For example, in Exodus 2:6 we read: “When Pharaoh’s daughter opened [the basket], she saw the child [yeled], and behold, the boy was crying. And she had pity on him and said, ‘This is one of the Hebrews’ children [yeled].’” Since in the Exodus case these are “children that come out,” they are persons, not body parts like an appendix or a kidney.

If there is no injury to these individuals—the mother and her prematurely delivered child or children—then there is no penalty. If there is injury, then the judges must decide on an appropriate penalty based on the extent of the injury either to the mother and/or her children because both are persons in terms of biblical law.

Some translations have “so that she has a miscarriage.” The 1977 edition of the New American Standard Version translated the text using “miscarriage.” The 1995 translation is better (“she gives birth prematurely”), but it still does not capture the literal rendering. In a marginal note, the NASB translators recognize that the literal rendering of the text is “her children come out.”It’s frustrating to read translations that include marginal notes telling us what it really says literally. Translate it literally, and then use the margin to offer an explanation if needed. Other translations have a more word-for-word translation. Here’s one example:

“When men get in a fight and hit a pregnant woman so that her children are born [prematurely] but there is no injury, the one who hit her must be fined as the woman’s husband demands from him, and he must pay according to judicial assessment” (Holman Christian Standard Bible).

Notice that it’s “so that her children are born.” Here’s another from Young’s Literal Translation (1898):

“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.”

There are two Hebrew words that fit the circumstances of miscarriage or premature birth: “There shall be no one miscarrying [shakal] or barren in your land” (Ex. 23:26; also Hosea 9:14). The Hebrew word for “miscarriage” was available to Moses since it appears just two chapters later. Another example is found in Job: “Or like a miscarriage [nefel] which is discarded, I would not be” (Job 3:16). Meredith G. Kline offers a helpful summary of the passage:

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…. No matter whether one interprets the first or second penalty to have reference to a miscarriage, there is no difference in the treatments according to the fetus and the woman. Either way the fetus is regarded as a living person, so that to be criminally responsible for the destruction of the fetus is to forfeit one’s life…. The fetus, at any stage of development, is, in the eyes of this law, a living being, for life (nephesh) is attributed to it…. Consistently in the relevant data of Scripture a continuum of identity is evident between the fetus and the person subsequently born and Exodus 21:22–25 makes it clear that this prenatal human being is to be regarded as a separate and distinct human life. [1]

Umberto Cassuto, also known as Moshe David Cassuto (1883–1951), was a Jewish rabbi and biblical scholar born in Florence, Italy. In his commentary on Exodus, he presents an accurate translation of the passage based on the nuances of the Hebrew:

When men strive together and they hurt unintentionally a woman with child, and her children come forth but no mischief happens—that is, the woman and the children do not die—the one who hurts her shall surely be punished by a fine. But if any mischief happens, that is, if the woman dies or the children, then you shall give life for life. [2]

The King James Version takes a different translation approach, but it is consistent with the text that “children” are “coming out.” The KJV reads, “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” (Ex. 21:22). The use of the word “fruit” is a descriptive euphemism for a born child in the Old Testament (Gen. 30:2) and the New Testament (Luke 1:42).

“Life for life” does not necessarily mean the death penalty, although it could be mandated. The husband could ask for a monetary payment that would be a life-long punishment, compensation to the husband for the loss of his wife who managed the household as well as punitive monetary damages for the seriousness of the act.

  1. Meredith G. Kline, “Lex Talionis and the Human Fetus,” The Simon Greenleaf Law Review, 5 (1985–1986), 75, 83, 88–89. This article originally appeared in Journal of the Evangelical Theological Society (September 1977). Also see H. Wayne House, “Miscarriage or Premature Birth: Additional Thoughts on Exodus 21:22-25,” Westminster Theological Journal, Vol. 41, No. 1 (Fall 1978), 108–123.[]
  2. Umberto Cassuto, Commentary on the Book of Exodus (Jerusalem: Magnes Press, The Hebrew University, 1967), 275.[]

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