“Ones Who Have Fallen Out” (Nefel): Spontaneous, Accidental, and Intentional: Miscarriage Laws in Ancient Israel

Miscarriages,¹ whether spontaneous, accidental, or intentional (i.e., abortion), were a topic of comments, actions taken, and laws in ancient Israel.² As a subject of historical inquiry, miscarriages in ancient Israel present specific challenges that have resulted in a limited body of scholarship. Most of the extant sources are textual traditions composed by men and may be far removed from the actual experiences of women. The dearth of sources produced by women also makes it difficult to reconstruct how women understood and dealt with pregnancy loss.

Spontaneous Miscarriages

The Bible refers to spontaneous miscarriages as “ones who have fallen out” (nefel).³ An indirect biblical reference to a spontaneous miscarriage is Miriam’s skin disease, described in striking terms: “Let her not be like one dead, who emerges from his mother’s womb with half his flesh eaten away”.⁴

Accidentally Causing a Miscarriage

Biblical law requires payment for a fetus lost due to an accident (i.e., two people fight and one of them accidentally pushes a pregnant woman and she miscarries).⁵ The text describes two situations: in one case, no harm (ason) results from the physical blow dealt to the pregnant woman and the perpetrator is fined; in the other case, harm does result from the injury and the perpetrator receives capital punishment: When men fight, and one of them pushes a pregnant woman and her children emerge, but no other damage ensues, he shall be fined according as the woman’s husband may exact from him, the payment to be as the judges determine. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise (Ex. 21:22-25).

Biblical scholars have discussed some of the difficulties in this text. First, it is not clear why the phrase expressing expulsion of the fetus should speak of “children” in the plural.

Second, the text does not make it clear whether the object of the potential harm being discussed is the fetus or the pregnant woman. There are two distinct interpretive traditions of Exodus 21:22-23 that reflect differing views on the degrees of personhood attributed to a fetus. On the one hand, the reading suggested in the Septuagint and explicitly found in Philo of Alexandria’s writing understands the biblical cases as discussing harm caused to the embryo or fetus. The first scenario describes a case of miscarriage during the early stage of pregnancy. Since the fetus or embryo is not fully formed and does not have the legal status of a person, the text views that “no harm” occurred and the perpetrator only pays a monetary fine for the harm caused to the embryo or fetus. In the second scenario, the fetus is fully formed and thus the harm to the fetus is legally comparable to harm caused to a person; the perpetrator receives capital punishment for having destroyed a life.⁶

On the other hand, Josephus and the rabbinic tradition consider the pregnant woman as the object of harm in the text. The first case where “no harm” occurred refers to a situation where the pregnant woman was unharmed, even though she miscarried. The perpetrator pays monetary damages to compensate for the loss of the pregnancy. The second case where “harm” occurred refers to a situation where the woman miscarried and died; thus, the perpetrator receives capital punishment for the death of the woman. According to this reading, the text does not ascribe embryos or fetuses the status of personhood. Furthermore, a rabbinic halakhic midrash explicitly rejects the interpretive tradition found in Philo.⁷ This act of physical violence was caused by a prior intent on the part of each antagonist to cause bodily harm to the other, and thus their activity was intrinsically hazardous. Since the possibility of indirect damage was foreseeable, the antagonists are liable for an injury to an innocent bystander, in this case, a pregnant woman. Restitution is to be made, but there is no retaliation if death of the mother does not ensue.

Third (and contrary to the other ancient Near East laws), the Bible does not specify the amount of the financial compensation to be negotiated with the woman’s husband, specifying only the restriction that the transaction should be done b’plilim. The term plilim is often translated as “judges”⁸ but it also means “estimation” or “assessment,”⁹ the idea being that the husband makes a claim based on some recognized system. Rabbinic interpretation takes pelilim to mean “the judges,” that is, those who are to approve the sum demanded by the husband.¹⁰ In any case, this provision at the end of v. 22 imposes a certain regulation on the transaction in order to prevent abuse, but without determining specifically the amount to be paid.

With regard to “other damage” in verse 23 (presumably, the death of the mother), the principle of life for life is invoked, as opposed to a monetary fine. This accords with the rule that the killing of a human being cannot be compensated for by the payment of money.¹¹

Practices Associated With Miscarriage

Outside of the Jewish legal tradition, Jewish medical, magical, and liturgical traditions describe practices associated with the prevention of pregnancy loss.¹² The magical and liturgical traditions are especially significant historical sources, as these texts and objects were produced or used by women. In the Middle Ages, the extensive collection of Hebrew medical manuscripts that focus on gynecology, including references to the prevention of miscarriage and the treatment of a woman who miscarried, suggests a widespread interest in this field.¹³ There is also a longstanding Jewish magical tradition associated with preventing miscarriage, including the production of protective amulets dating back to the 8th century BCE. The archaeological discovery of such amulets in the City of David excavations attests to these practices in antiquity, but these traditions have a long afterlife. Karel Toorn describes women who wore a jeweled birthstone guarded by magic.¹⁴ Within this tradition, certain verses, especially Psalm 116:6, are associated with protecting a fetus.¹⁵

Prayer is also an important way to protect a pregnant woman and her fetus. Within the Bible, many of the women who struggle with infertility pray to God. While there are indications of a longstanding tradition of women praying for issues relating to pregnancy, the earliest evidence of a women’s liturgical tradition is the early modern collections of tkhines, prayers written in Yiddish for women, some of which were authored by women. One seventeenth-century collection is entirely dedicated to different daily prayers for a pregnant woman to recite in order to ensure her and her fetus’s safety.¹⁶ These prayers provide insight into the daily lives of women, including their concerns relating to pregnancy.

Although biblical purity laws governing menstruation and birth outlined in Leviticus do not address the case of miscarriage,¹⁷ the Qumranic Temple Scroll does briefly address the case of a woman who has miscarried but has not yet expelled the fetus.¹⁸ Moreover, rabbinic literature pays significant attention to the purity laws of miscarriage. It prescribes techniques for examining parturient tissue and miscarried fetuses in order to determine whether a miscarriage has occurred and, if so, the sex of the fetus.¹⁹ Additionally, the texts design a system for classifying the shapes of miscarried embryos and fetuses.²⁰ After the fetus is inspected, it is buried, although there is a debate²¹ as to the stage in a fetus’s development at which it is required to be buried. Yet, no official ritual mourning practices are observed.

Abortion

The Bible says next to nothing about mothers intentionally aborting their fetuses.²² Meredith Kline’s perspective on the lack of abortion legislation in biblical law is: “It was so unthinkable that an Israelite woman should desire an abortion that there was no need to mention this offense in the criminal code.”²³ Although Jeremiah’s lament that he wished he had never been born²⁴ might indicate abortion was known in ancient Israel, it could also mean he wished he had been spontaneously aborted.

During the Talmudic period, abortion was not considered a transgression.²⁵ According to Oholot 7:6: “If a woman is in hard labor, one dismembers the fetus within her, removing it limb by limb, because her life takes precedence over its life”.²⁶ Arakhin 1:7 rules that a pregnant woman who is liable to capital punishment for some transgression is to be executed prior to giving birth unless she has begun to give birth. The mode of execution guaranteed that the fetus was killed in utero before the mother (i.e. the first stone was to be dropped on her abdominal area). Thus abortion did not constitute murder.²⁷

Conclusion

In conclusion, Israel was an agrarian society during the biblical period (1200-600 BCE). Bearing children was valued highly and a woman’s primary role was that of mother. Giving birth and raising children, however, were difficult, given the high rate of maternal death in childbirth and of infant mortality. Unfortunately, as many as a third of children born in the Middle Bronze Age (2000-1550 BCE) Levant died before reaching age five.²⁸

There were many laws and perspectives concerning spontaneous, accidental, and intentional miscarriages during the biblical period. With regard to the status of the fetus, the overwhelming view was that until the actual birth, the fetus was considered a part of the mother’s body and not a separate person.

Many of the issues and laws raised relating to miscarriages in ancient Israel are still relevant and being debated. Biblical scholars and rabbinic organizations are concerned about laws and the effect of the “ones who have fallen out” on their families.

Works Cited

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