In our entire journey through the Daf Yomi cycle so far, we haven’t seen the rabbis discuss abortion. But that doesn’t mean that the rabbis didn’t care about questions of fetal personhood. They spent a lot of time thinking about fetuses, just in other legal contexts. We get one such context today:
An (innocuous) ox that gored a cow, and the cow’s fetus was found dead at its side, and it is not known whether the cow calved before the ox gored it, or whether it calved after the ox gored it — he pays half the cost of the damage for the cow (see Exodus 21:35), and one-quarter for the offspring.
If there were no witnesses to the goring, we have no way of knowing if the dead fetus was miscarried before the pregnant cow was gored, or whether the miscarriage was caused by the goring attack. In either case, both the cow and its fetus are dead. But it still matters because determining the cause of death of the fetus is important to determining the scope of the ox’s owner’s liability.
The Talmud’s discussion assumes that the fetus has an independent financial value and its loss is deserving of compensation. But it is still not treated the same way as the cow that was gored. Because of the uncertainty over its cause of death, the ox’s owner reduces liability by half for an ox that is not a habitual gorer and half again for the uncertainty about how the fetus died. Hence, what is owed is only one-quarter of the value of the fetus.
But it seems unlikely that the cow miscarried and then, immediately afterward, was gored. It seems much more likely that the goring caused the miscarriage. The Talmud points out this problem:
But why? Let us say: Follow the majority of cows, and since the majority of cows become pregnant and calve live offspring, this cow certainly miscarried due to the ox goring it.
Since the majority of cows (according to the Talmud at least) successfully carry their pregnancies to term, if this cow’s pregnancy is interrupted, then clearly it was caused by the ox. Now the Talmud’s going to offer us a very fine distinction, because cause and fault are not the same thing. We can all agree that the ox caused the miscarriage in some way. But that doesn’t necessarily mean that the miscarriage was the ox’s fault.
There, that we are uncertain, as it is possible to say that the ox approached the cow from its front and it was due to the cow’s fright, that it miscarried; and it is also possible to say that the ox approached the cow from behind it and gored it, and she miscarried.
The loss of an otherwise healthy pregnancy is clearly caused by the ox. But it could be due to actual actions of the ox (fault), or due simply to the ox showing up at all, in all its terrifying ox-ness (cause). The Talmud thus concludes that this dead bovine fetus is treated as:
… property of uncertain ownership, and therefore divided.
The owner of the cow and the owner of the ox split the value of the fetus and the ox’s owner compensates the cow’s owner for his potential part in its damage.
Of course, the rabbis don’t think that the bovine fetus is a person — they don’t think cows in general are people. But they do think it has legal substance, and a financial value that needs to be reckoned with in order to justly compensate the cow’s owner for their loss.
Read all of Bava Batra 93 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 26, 2024. If you are interested in receiving the newsletter, sign up here.
Help us keep Jewish knowledge accessible to millions of people around the world.
Your donation to My Jewish Learning fuels endless journeys of Jewish discovery. With your help, My Jewish Learning can continue to provide nonstop opportunities for learning, connection and growth.
