Bava Kamma 49

More precious than rubies.

mishnah that began at the bottom of yesterday’s daf discusses a situation in which a pregnant woman is accidentally injured and then suffers a miscarriage: How are damages assessed, and to whom are they paid? 

The court appraises the value by calculating how much she would be worth if sold as a maidservant before giving birth, and how much she would be worth after giving birth. (He then pays the difference to the woman’s husband.)

Rabban Shimon ben Gamliel said: If so, the consequences would be absurd, as when a woman gives birth her value increases. Rather, the court appraises how much the offspring are worth, and the one liable for the damage gives that amount to the husband. And if she does not have a husband (e.g. her husband died), he gives the money to his heirs.

In order to assess damages, the mishnah rules that the court first needs to calculate the worth of the woman who has miscarried. They do this by determining what price that woman (if she were a maidservant rather than free) would fetch on the open market if she were pregnant and what price she would fetch following the birth of a child, and then calculating the difference between the two sums. Rabban Shimon ben Gamliel disagrees with this calculation, pointing out the woman might increase in value after giving birth, and instead rules that damages are assessed according to the potential worth of the miscarried fetus.

In the Gemara, Rava explains the statement of Rabban Gamaliel:

Rava said: This is what Rabban Shimon ben Gamliel is teaching: But isn’t the value of the woman higher only for the one for whom she gives birth (i.e. her husband), and she herself does not have any increase in value at all due to the offspring? Rather, the court appraises the value of the offspring and gives it to the husband. And in addition, the husband and wife divide the increase in her value due to the offspring.

The value of a woman is in the eye of a beholder — in this case, her husband. Therefore, rather than thinking of pregnancy loss in terms of a difference in her value, Rava teaches that we should consider the worth of the fetus.

In addition to the damages paid to the husband for the loss of the fetus, and despite Rabban Gamliel’s reservations that the woman’s value is not simple to calculate, Rava further reasons that the woman herself is due monetary damages for her own decrease in value, and that this additional payment is split between husband and wife. How exactly this is calculated is also a matter of debate. Further down the daf, the Gemara issues an alternate ruling about damages paid for the woman’s pain, repeating a point noted on Bava Kamma 42a:

If the assailant struck the woman and her offspring emerged due to miscarriage, he gives compensation for damage and pain to the woman and compensation for the miscarried offspring to the husband. 

According to Rashi, this additional compensation only covers the pain and suffering the woman experienced as a result of the miscarriage and not the loss of value between her worth as a robustly pregnant woman and her worth as a woman who has recently miscarried. The husband remains, in the eyes of the Gemara, “the one for whom she gave birth,” and therefore damages owed from the miscarriage (loss of value for his wife and loss of the fetus itself) are paid mostly to him.

For us moderns, it’s likely painful to learn that the Gemara would consider pregnancy loss more damaging to the father than the mother, though it makes sense according to the talmudic perspective that a wife is acquired by her husband (per her ketubah) along with their (prospective) offspring, who also belong to him. The bereaved mother receives damages for bodily pain and suffering, since that happened to her alone, along with — according to Rava’s understanding of Rabban Gamaliel’s ruling — half the value of her depreciation resulting from the miscarriage. 

Beyond all that, legal debates like this can leave us feeling cold. Reducing a woman or her unborn child to a price tag seems unfeeling. It can be helpful to remember that, though sometimes the Talmud displays great sensitivity about human feeling, today the Gemara does not have that aim. Instead, the rabbis are trying to find a legal solution to a painful situation. Ultimately, damages must be awarded and a sum must be determined, but this does not mean the Gemara thinks the woman or her unborn child are reducible to their monetary value. Let’s not forget that the rabbis also honored the sentiment of Proverbs 31, known as Eshet Hayil (A Woman of Valor) and sung in many Jewish homes on Friday night, which declares: “What a rare find is a capable wife! Her worth is far beyond that of rubies.”

Read all of Bava Kamma 49 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 21st, 2023. If you are interested in receiving the newsletter, sign up here.

Discover More

The Fetus in Jewish Law

Does a fetus have the same legal status as a person?

Kiddushin 46

Betrothal with dates.