Philo and the Unborn in Special Laws III

A while back, I wrote a blog post, “Judaism, Abortion, and Joan,” in which I talked about ancient Jewish ideas about the unborn.  The post centered around different Jewish interpretations of Exodus 22:22-25.  This passage states (in the KJV):

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. And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe.

This passage has often been cited in current debates about abortion.  Is the passage saying that a person who causes a miscarriage should pay a mere fine, which seems to imply that an unborn child is not fully a person?  Or is the passage saying that lex talionis (i.e., eye for eye, life for life) comes into play if a person damages the unborn child, which arguably assumes humanity on the part of the unborn? Many pro-choicers have argued the former, whereas a number of pro-lifers have argued the latter.

I said in my post that the first century Hellenistic Jewish exegete Philo of Alexandria agreed with the latter interpretation.  He does, in a sense, but there is more to the story.

Philo addresses Exodus 22:22-25 in Special Laws III:108-109.  There, he states:

(108) But if any one has a contest with a woman who is pregnant, and strike her a blow on her belly, and she miscarry, if the child which was conceived within her is still unfashioned and unformed, he shall be punished by a fine, both for the assault which he committed and also because he has prevented nature, who was fashioning and preparing that most excellent of all creatures, a human being, from bringing him into existence. But if the child which was conceived had assumed a distinct shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; (109) for such a creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue lying in a sculptor’s workshop, requiring nothing more than to be released and sent out into the world.  (Yonge’s translation)

For Philo, Exodus 22:22-25 mandates a fine if a man causes a miscarriage when the unborn child is still unformed, but the death penalty if a man causes the miscarriage of a fully formed unborn child.  The penalty hinges on the stage of the unborn child’s development.  People could probably tell if the child was fully formed after it came out of the mother’s body.  For Philo, causing the miscarriage of an unborn child who is not fully formed is a serious matter, for it is interrupting nature’s creation of a human being.  At the same time, Philo does not appear to regard the unborn child at that stage as fully human, but rather as incomplete in its humanity.

By contrast, Philo does appear to believe that a fully formed unborn child is practically human: nature has finished making the child and has only to release the child into the world.  For Philo, causing the miscarriage of an unborn child at this stage deserves the death penalty, like killing any human being.

Another place where Philo talks about the unborn child is Special Laws III:117-118.  There, Philo says:

(117) Therefore, Moses has utterly prohibited the exposure of children, by a tacit prohibition, when he condemns to death, as I have said before, those who are the causes of a miscarriage to a woman whose child conceived within her is already formed. And yet those persons who have investigated the secrets of natural philosophy say that those children which are still within the belly, and while they are still contained in the womb, are a part of their mothers; and the most highly esteemed of the physicians who have examined into the formation of man, scrutinising both what is easily seen and what is kept concealed with great care, by means of anatomy, in order that, if there should be any need of their attention to any case, nothing may be disregarded through ignorance and so become the cause of serious mischief, agree with them and say the same thing. (118) But when the children are brought forth and are separated from that which is produced with them, and are set free and placed by themselves, they then become real living creatures, deficient in nothing which can contribute to the perfection of human nature, so that then, beyond all question, he who slays an infant is a homicide, and the law shows its indignation at such an action; not being guided by the age but by the species of the creature in whom its ordinances are violated.  (Yonge’s translation)

Philo is actually condemning infanticide, the murder of newborn infants that occurred in the Greco-Roman world.  But Philo believes that the unborn are relevant to his discussion.  Philo appears to agree with natural philosophers who maintain that an unborn child is part of its mother.  But a child who is born has become a real living creature and is a human being in his or her own right.  This child is independent of his or her mother, and thus to murder this child would be an act of homicide.  Philo seems to maintain that an unborn child is not fully human.  As we have seen, though, Philo thinks the child is more human once the child has been fully formed in the womb.

If alive today, Philo would conceivably disapprove of late-term abortions out of a belief that the unborn child at that stage is a human being.  But Philo would probably also disapprove of early-term abortions.  This would not be because he believes the unborn child is human at that stage, but because he would think that such an abortion would interrupt nature’s beautiful creation of a human being.



About jamesbradfordpate

My name is James Pate. This blog is about my journey. I read books. I watch movies and TV shows. I go to church. I try to find meaning. And, when I can’t do that, I just talk about stuff that I find interesting. I have degrees in fields of religious studies. I have an M.Phil. in the History of Biblical Interpretation from Hebrew Union College in Cincinnati, Ohio. I also have an M.A. in Hebrew Bible from Jewish Theological Seminary, an M.Div. from Harvard Divinity School, and a B.A. from DePauw University.
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