Can a man get death penalty for causing a miscarriage?

Question

According to this article yes:

And if men struggle with each other and strike a woman with child so that she has a miscarriage, yet there is no [further] injury, he shall surely be fined as the woman's husband may demand of him; and he shall pay as the judges decide. But if there is any [further] injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.1

If a man struggles and strikes a woman with child so she has a miscarriage, he is fined.

What about if the child (not the mom, or the other strugglers) is injured or death?

Does that mean "life for life" works here?

NB: This argument is used by "pro-life" Christians to argue that God considers an unborn baby a human being. So causing miscarriage means murder.

I found it quite unlikely that a primitive society can have a law that value an unborn child so highly. Also, I suspect, with the state of medical advance at that time, people would normally expect a baby that "came out" due to a fight prematurely to die.

However, the article argues:

Yatza 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?

I suppose the Jews should know more. After all, the Torah used to be a working law in ancient Israel. There should have been some records on how it's actually interpreted by their supreme court thingy.

So what's the story?

I want Judaism perspective and actual historical perspective. How was the verse actually interpreted by ancient Jewish judges?

Answer 1

Indeed, the classic Jewish understanding of this verse is that "Yatza [Yasa] Yeladeha" means the incitement of a miscarriage, which is only liable to a fine, not the death penalty.

This is evident from the Talmud in Kesubos 29b, that learns from this verse, the concept of "Kim Lei Bederaba Minei" - when a person is faced with multiple punishments for a single act - they only receive the worst of the punishments. It learns this from the implication that only if there is no Asone (tragedy, i.e. death of the mother) does one have to pay for the fetus, implying that if there is an Asone than one will no longer have to pay for the fetus, as they are now subject to the death penalty.

If Asone was referring to the death of the child as is suggested in that article, then the Talmudic derivation would make no sense, given that if they killed the child there would be no damages to pay for injuring the child. Therefore it is clear that the Talmudic understanding is that the Asone is referring to the death of the mother.

However, that said, it would incorrect to generalize from here that the Jewish perspective is that the fetus does not have the value of a human life, as there are other sources that may suggest otherwise. For Example: The Talmud Sanhedrin 57b that suggests that the verse in Genesis 9:6 prescribes the death penalty for killing a fetus (seemingly in contradiction to Exodus 21:22, see Rashi in Sanhedrin for a resolution).

Answer 2

Sanhedrin 57b:

אשכח ר' יעקב בר אחא דהוה כתיב בספר אגדתא דבי רב בן נח נהרג ... משום רבי ישמעאל אמרו אף על העוברין מנהני מילי אמר רב יהודה דאמר קרא ... משום רבי ישמעאל אמרו אף על העוברין מאי טעמיה דרבי ישמעאל דכתיב (בראשית ט) שופך דם האדם באדם דמו ישפך איזהו אדם שהוא באדם הוי אומר זה עובר שבמעי אמו

The Gemara says according to R Yishmael that a non Jew can get the death penalty if he kills a fetus. This is taught as an explanation of the verse in Genesis 9.5

וְאַ֨ךְ אֶת־דִּמְכֶ֤ם לְנַפְשֹֽׁתֵיכֶם֙ אֶדְרֹ֔שׁ מִיַּ֥ד כָּל־חַיָּ֖ה אֶדְרְשֶׁ֑נּוּ וּמִיַּ֣ד הָֽאָדָ֗ם מִיַּד֙ אִ֣ישׁ אָחִ֔יו אֶדְרֹ֖שׁ שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ כִּ֚י בְּצֶ֣לֶם אֱלֹהִ֔ים עָשָׂ֖ה אֶת־הָֽאָדָֽם׃‏

Whoever sheds man’s blood, by [inside] man shall his blood be shed; for in the image of God he made man.

Who is the man who is inside a man? A fetus.

The explanation of Rashi:

אף על העוברין - הכה את האשה ויצאו ילדיה נהרג עליהן ובישראל עד שיצא לאויר העולם כדתנן במס' [נדה] (דף מד.) תינוק בן יום אחד ההורגו חייב היכא דקים ליה בגוויה שכלו לו חדשיו ואינו נפל:‏

For the fetuses. He strikes a woman and she has an abortion. He get a death penalty. But for a Jewish man, he would not be punished until he kills a child who already born. We learn this from a Mishna (44a) in Masechet Nidda. If he kills a newborn who is born after the term of the pregnancy.

And the Gemara Nidda 44b explains the source of this rule for Jews:

דכתיב (ויקרא כד, יז) ואיש כי יכה כל נפש מ"מ: והרי הוא לאביו ולאמו ולכל קרוביו כחתן שלם:

From the verse (Leviticus 24.17)

וְאִ֕ישׁ כִּ֥י יַכֶּ֖ה כָּל־נֶ֣פֶשׁ אָדָ֑ם מ֖וֹת יוּמָֽת׃‏

And he who kills any (soul) man shall surely be put to death.

a soul - whatever it is. Indeed a newborn is very important (as a young married) for his parents and family members. (Rashi explains that this explanation emphasizes the difference between a newborn and a fetus.)

Answer 3

The verse tells us explicitly that the penalty for causing the death of a fetus (in a fight, at least) is monetary and not capital punishment. (Rashi explains how the amount is computed.) Even though the fetus will one day become a human if the pregnancy isn't interrupted, causing its death when it is a fetus is a matter of damages, not murder. Since the torah tells us this explicitly, it would be hard to argue for a stronger penalty. "Life for life" does not apply here.

The Christian source you quote tries to make the argument that yasa only refers to living things, therefore a fetus is alive, therefore "life for life" should apply. That is not a credible Jewish interpretation.

When the torah says "life for life" it means human life, which we can learn from the fact that if you cause the death of someone else's livestock, that too is a monetary case and not a capital case. If you had to give up your life because of an ox, that would not be "life for life"; it would be a disproportionate penalty. The same is true with regard to a fetus.

Finally, this interpretation is not about a "primitive society" not knowing better and thus not valuing a fetus. This is the halacha today (or would be if we had capital punishment so you could tell the difference), and ours is not a primitive society. It's not about not valuing the fetus; it's about priorities. Actual born humans have the status of "human"; a fetus does not yet have that status, but as a potential human it is still valuable and many poskim forbid abortion in most cases. We do not say that a fetus is unimportant and mere property; we say that a fetus has a different, lesser status than a human does, one for which only monetary damages apply.