5

If someone kills a fetus inside a woman, they have to pay a monetary payment for it (Shemos 21:22).

If someone blinds the eye of their fetal slave, the fetus does not thereby gain its freedom (unlike a regular slave who becomes free if his master knocks his eye out), due to a specific scriptural injunction (Kiddushin 24b). This would seem to possibly imply that the status quo assumption would be that they fetus should have gone free due to the damage to its eye.

If someone would blind a fetus, or injure a fetus in some non-fatal way, would they owe anything for the damage that they did to the fetus? If so, to whom would they owe the money?

  • I suspect, based on sources provided that due to the medical technology at the time of the gemara, one would not be able to prove that a congenital defect was due to external trauma sustained in utero and as such, at leas for Chazal, it would be under the passuk from Shemot as a nezek which is paid to the mother (or her owner) – Noach MiFrankfurt Jan 5 '16 at 2:25
1

I didn't see anyone addressing this explicitly, but it seems to me from the subject matter there would be no monetary compensation for a damage to the fetus which does not result in the termination of the pregnancy.

See Bava Kama 49a with Rashi. When the mishna said the value of the fetus, that encapsulated the monetary benefit (to the woman) of the fetus. As such, reparations are deduced by calculating the value of a woman who is pregnant against her value when not pregnant, imagining the value of this woman if she were sold as a slave. And as Rashi explains, being pregnant makes her seem bigger and healthier so she is worth more monetarily. The Tur brings a different method of assessing the mother's value. We assess her as having been weakened more through a violent termination of the pregnancy and therefore worth less than had she gone through a normal childbirth.

But what we see is that the payment concerning the fetus has nothing to do with the value of the actual fetus itself, but rather the value of the woman as concerns the fetus. It is that difference in value of the woman, not the fetus's value, that gets paid.

Being so, I will point out that a blind fetus still serves the purpose of making her look bigger and stronger due to her pregnancy, so there was no monetary loss as concerns the mother's value. She herself also did not become weaker from this act.

A related clarification once we're on this topic: The Aruch HaShulchan in Ch'M 423 2 asks why don't we in fact assess the value of the fetus themselves? He answers that since every pregnancy carries a risk of miscarriage, no buyer pays for a fetus what he would pay for an already born infant. Therefore all assessments are made only concerning the mother. A similar idea is found in the Perisha as well.

  • Would this not depend on actual market practices? In other words, in a time where pregnancy was very low risk and slaves are hard to come by (ie nowadays) she might be worth more pregnant given her potential to produce another slave. – Double AA Jan 5 '16 at 4:41
  • @Double that is quite possible. But assessing based on current slave free market value is a broader question as regards all damages, not just this case. As for the miscarriage statistics nowadays, I had that same thought while reading the A.H. a person nowadays is shocked after going through a miscarriage. The Perisha's slightly different reading alleviates this issue a bit, he doesn't focus on the buyers intentions, just the reality of a possibility of a miscarriage. But it is not completely absolved. – user6591 Jan 5 '16 at 11:34

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .