Shemot 21:21-22 are verses that present certain difficulties in translation and application. This paper seeks to discover their meaning and application in Halachah. Using the Hebrew text alone is insufficient for this purpose. The Talmud must be used in order to fully understand the Torah.
Shemot 21:21 in the original Hebrew says:
הידלי ואציו הרה השא ופגנו םישנא וצני-יכו"
וילע תישי רשאכ שנעי שונע ןוסא היהי אלו
."םיללפב ןתנו השאה לעב
The first task is a literal word for word translation of this verse. The same will be done
with verse 22. םישנא וצני-יכו means "when they strive (masculine,
plural, future tense) men". A more acceptable English rendering would be "when men
strive". הרה השא ופגנו can be translated "and smite/push a woman pregnant", however ופגנו
is in the past tense, so it may be that the vav is a reversing vav, turning it into the future
tense. Thus, the translation so far is "When men strive, smitting/pushing a pregnant
woman". הידלי ואציו means "and went out/was gone her children," or "will go out/be gone
her children,"1. The meaning of this phrase is a key to the entire analysis of these verses.
The next phrase is "ןוסא היהי אלו" it means "and there will not be
damage/hurt/harm;"2.
שנעי שונע can be rendred "a penalty/punishment/fine will be penalized/punished/fined", in
other words, "a fine will be fined" or "a punishment will be implemented" or "a penalty will
be imposed". לעב וילע תישי רשאכ means "which/that the wife's husband upon" םיללפב ןתנו
השאה "the man will give as the judges". The word "determine", "judge", "estimate", or
"assess" can be added to this last phrase, thus the phrase would read "the man will give as
the judges determine".
The literal translation of verse 22 is now determined as follows: "When men strive, smitting/pushing a pregnant woman will go out/be gone her children, and there will not be damage/hurt/harm; a penalty will be imposed which/that the woman's husband upon the man will give as the judges" or more smoothly, "When men strive, smitting a pregnant woman whose children will go out, and there will be no damage; a penalty will be imposted that will be given to the woman's husband by the man as the judges determine."
This translation gives raise to a number of questions. Does "will go out/be gone her children" mean that she gave birth, or that she miscarried? This will be decided later based on Talmudic texts. Another question is whether the "damage/hurt" means death and who is damaged/hurt/harmed, the fetus or the woman. Again, the Talmud is able to clearify this issue.
Shemot 21:23 says "שפת שפנ התתנו היהי ןוסא-םאו". This means "and if harm/hurt/damage will be;3 give life for life." This raises the question of who was damaged. It may, however solve the problem as to what the damage is--it may be death. Only in the case when a person takes a life, would a life be demanded as payment. What makes it less clear, is that the next verse continues with, after a selook indicating a period, "Eye for eye, tooth for tooth, hand for hand, foot for foot".
Now that the 2 verses have been translated literally, they can be analysed and the questions raised answered, through the use of the Talmud to fully understand what is meant here. The fact that it is unclear without the Talmud, by the way, seems to support the contention that both were reveiled at Sinai--the Written Law and the Oral explaination of that Law.
Talmud Bavli, Sanhedrin 79a in the ArtScroll translation, Rabbi Elazar expresses the opinion that that the phrase I have translated as "When men strive, smitting/pushing a pregnant woman..." refers to a "fight in which the parties are trying to kill each other". The footnote based on Rashi clearifies that Rabbi Elazar says that this passage teaches that if one combatant "accidentally missed his adversary and hit the woman instead and killed her, he is liable to execution. This proves that the one who accidentally collided with the woman was trying to kill his opponent at that time, for if he were not, he would not be executed for killing the woman." We now know that the men who were striving were trying to kill each other, as otherwise the death of one struck accidentally would have not resulted in execution. ArtScroll's translation clearly sees the death to be to the woman, and not the children who went out. While the verb היהי is singular (he/it was masculine, singular to be precise), and thus one person being damaged/hurt is being spoken of here, it is still unclear that the woman is being spoken of here. The Talmud (Sanhedrin 79a), when refering to the harm/damage, says "שפנ התתנו היהי ןוסא-םא". Here it is clear that a שפנ, a life is being lost. Again, ArtScroll says the fatality is to the woman.
Should there be no fatality (whether to the mother or the child is not yet certain based on Talmud and Torah alone), monetary compensation is to be is to be imposed upon the offender. This is because the word punishment, used in Deuteronomy 22:19 connected with silver: "And they shall punish him one hundred pieces of silver."4 Additionally, the Talmud makes it clear that eye for an eye means monetary compensation when no life is lost. Bava Kamma 84a lists the school of Hezekiah as teaching "eye for eye, life for life, but not 'life and eye for eye'. Now if you assume that actual retaliation is meant, it could sometimes happen that eye and life would be taken for eye, as while the offender is being blinded, his soul might depart from him"5 The Mishnah, as quoted in Bava Kama 83b says that monetary compensation for injuries must include compensation for "depreciation, for pain, for healing, for loss of time and for degradation."
It is known that if the woman does not die, and the fetus is born alive, there would be not thought of capital punishment, and monetary compensation for injuries and medical care would be indicated. If the women dies, this would most certainly become a capital case, monetary compensation being disallowed. "'It is stated: Moreover ye shall take no no ransom for the life of a murder that is guilty of death; but he shall surely be put to death,' implying that it was only 'for the life of a murderer' that you may not take ransom, whereas you may take ransom [even] for principal limbs though these cannot be restored"6 Thus, if payment alone is indicated, it cannot be that the woman was killed by man. But what if the fetus dies, the woman being alive?
The answer lies in the Talmud Bavli, Bava Kama 42b and 43a. There is a case there in which the verse currently underdiscussion is used. The additional verses make clear not only what it means by "will go out/be gone her children", but what sort of compensation is appropriate if the fetus dies. "Has it not been taught: If one hurt a woman so that her embryo departed from her, compensation for Depreciation and for Pain should be given to the woman, compensation for the value of the embryo to the husband....The Torah awarded the value of embryos to the husband even where the cohabitation had taken place not in a married state..."7 So, if the fetus dies, having gone out as a result of the blow to the woman, both she and her husband are compensated. Her for any injuries to herself, and her husband for the loss of the fetus, as the judges shall assess.
The fact that the death of a fetus is not punishable by death raises another quetion. What about abortions, when, if ever, are they permitted? Since this paper is about Shemot 21:21-22, I will only discuss this issue briefly. The issue of abortion and the halacha of abortions are based not on Shemot 21:21-22, as an abortion is not an accidental miscarriage. Instead, it is based on the that of the pursuer. The ArtScroll translation of Sanhedrin 72b says "Rav Chisda challenged Rav Huna from a Mishnah: Once [a baby's] head has left the mother's body, we may not touch, i.e. kill [the baby] to save his mother's life. For we do not push aside one person's life on account of another person's life. Rav Chisda explains his challenge: But why not kill the child if his birth threatens the mother's life? He is a pursuer!...The Gemara answers: Is is different there in the case of the baby's birth because [the mother] is being pursued by Heaven, i.e. the mother's life is being endangered by the natural phenomenon of childbirth. Thus, even if a pursuer who is a minor may be killed, as Rav Huna maintains, still a baby may not be killed during childbirth in order to save its mother." Thus, once a baby's head emerges, he or she may not be killed even to save the mother's life.
If the mother's life is engangered by the fetus she is carrying, the head of the fetus having not yet emerged, is dealt with in the Mishnah. Mishnah Oholos 7:6 says that if the woman's life is endanger, "they chop up the child in her womb and they remove it limb by limb, because her life takes precidence over his life."8 The only time an abortion is permitted, indeed mandated, is when the mother's life is in danger and the baby's head has not yet emerged. The Halachah of what constitutes a threat to the mother's life is beyond the scope of this paper.
Shemot 21:21-22 presented a challenge in both its translation and application. The Hebrew text of the Torah in this verse cannot be understood only by reading the Torah, as the phrasing and wording is ambiguous. This passage is understood only in light of the Talmud, without which it would remain confusing and impossible to understand fully.
1 I have placed a comma at the end of this phrase because the last Hebrew word in this
phrase has a zakef katon above it, indicating a pause equivelent to a comma. Special
thanks go to Rabbi Moshe Adler who helped me translate the word eאציו and checked the
rest of my translation for accuracy.
2 The etnachta under the word meaning to damage/harm/hurt indicates a semi-colon like
pause.
3 Again, the entachta indicates a semi-colon.
4 Harav Boruch Halevi Epstein, "Shemoth," The Essential Torah Temimah
(Jerusalem/New York: Feldheim Publishers, 1989) 159-160.
5 "Bava Kamma," Talmud Bavli (City: Soncino Press, Ltd., 1990) 84a.
6 "Bava Kamma," Talmud Bavli (City: Soncino Press, Ltd., 1990) 83b.
7 "Bava Kamma," Talmud Bavli (City: Soncino Press, Ltd., 1990) 42b-43a. Note:
Capitalization in the quote is Soncino's and not my own.
8 Jacob Neuser, The Mishnah: A New Translation (New Haven: Yale
University Press, 1988) 961.
Harav Boruch Halevi Epstein, "Shemoth," The Essential Torah Temimah (Jerusalem/New York: Feldheim Publishers, 1989).
Jacob Neuser, The Mishnah: A New Translation (New Haven: Yale University Press, 1988).
Talmud Bavli (City: Soncino Press, Ltd., 1990).
