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The tragic case of the conjoined twins received plenty of media coverage. When the news of this case broke on August 26th 2000, many instinctively thought that the Court judgement was correct, reasoning that it was better to save the life of one twin than allow both twins to die. This article will examine some of the legal, medical and moral arguments relating to the case and the potential consequences of the unique legal judgement which was made.
From a doctor's perspective very few medical details were published by the High Court, but let me give you some details of what was published. Mr Justice Johnson described the medical scene in these terms “Jodie is a bright alert baby, sparkling, sucking on her dummy, moving her arms as babies do and, in the words of one of the doctors, 'very much a with–it sort of baby'. She has a functioning heart and lungs. Her legs are set wide apart but that can be rectified by surgery and the probability, so I find, is that separated from Mary, Jodie would be able to lead a relatively normal life, probably walking unaided, probably attending school and probably being able to have children. For Mary, things are very different. Her face is deformed but more importantly she has no effective heart or lung function. She lives only because of her physical attachment to Jodie...... For Jodie, separation means the expectation of a normal life; for Mary it means death.”
It was on this basis that the media reported that Mary had no heart or lungs. In the subsequent Appeal Court hearing, held in public, many facts emerged which showed that the original impression given to the press was incorrect in many important respects. The court eventually allowed publication of a drawing which showed Jodie and Mary joined at the pelvis forming a straight elongated cylinder with a head at each end and four legs at the midpoint [The medical classification of the type of conjoined twins in this case is Ischiopagus tetrapus — with this form there is fusion at the pelvic level often with sharing of genitourinary structures, rectum and occasionally liver]. Mary had a heart, albeit enlarged and poorly functioning. Mary also had lungs that were poorly functioning and were very stiff when attempts were made to ventilate her. It was also revealed that the spines were fused and they shared a bladder possibly with abnormal bowel, although exact details were not revealed ⁄ known. It was obvious that complex reconstructive surgery over a prolonged period would be required.
The High Court judgement quotes at length from the written evidence given by the parents. Part of their statement reads:
“We cannot begin to accept or contemplate that one of our children should die to enable the other one to survive. That is not God's will. Everyone has the right to life so why should we kill one of our daughters to enable the other to survive. That is not what we want and that is what we have told the doctors treating Jodie and Mary. ... We certainly do not want separation surgery to go ahead as we know and have been told very clearly that it will result in the death of our daughter Mary. We cannot possibly agree to any surgery being undertaken that will kill one of our daughters. We have faith in God and we are quite happy for God's will to decide what happens to our two daughters.”
A fundamental principle of the sanctity of human life is that it can never be morally permissible to take one innocent life for the benefit of another. This is the understanding that the parents had of their situation, and hence their adherence to that principle and refusal to consent to the surgery proposed. Some argued that in this case the argument of “double effect” should apply, whereby the death of Mary was not the primary objective of the separation, but a foreseeable side effect. However Mr Justice Johnson stated in his judgement “That argument was not addressed to me and I think rightly so.”
So on what grounds did the judge reached his decision? He used the Bland judgement, which allowed for the withdrawal of food and fluids (argued to be medical treatment) to bring about the death of Tony Bland. (The Bland judgement is one that we have always opposed) The judge reasoned that Mary's death will be caused by the “interruption or withdrawal of the supply of blood which she receives from Jodie” and therefore in accordance with Bland was lawful.
There were other worrying aspects to the judge's ruling. He stated: “During the course of the hearing I raised with counsel and with one of the paediatricians the question of pain. Mary cannot cry. She has not the lungs to cry with ... In pain but not able to cry. One very experienced doctor said she thought it was an horrendous scenario, as she put it, being dragged around and not been able to do anything about it... I conclude that the few months of Mary's life if not separated from her twin would not simply be worth nothing to her, they would be hurtful... In medical and physical terms to prolong Mary's life for those few months would, in my judgement, be very seriously to her disadvantage.” [my emphasis] This aspect of the judgement was never commented on by the general media but in effect the judge was arguing that Mary should be dead for merciful reasons. This is euthanasia. [In the subsequent appeal court hearing a paediatric neurologist could not agree that Mary was in pain, nor that the issue of pain was a relevant consideration in this case. I will return to what the appeal court said about this aspect later]
Let us re–examine the “double effect” argument which some used to justify this surgery. I approach this as a Catholic and mindful of the Church's teaching on “ordinary” and “extraordinary” treatment. By any criteria the separation of identical twins is 'extraordinary treatment'. Although each operation is unique it is high–risk. Since 1985 the Great Ormond Street team has received 16 referrals. 12 of the 32 babies have survived. In the past 20 years only four sets of conjoined twins had been successfully separated without a fatality. It is accepted that extraordinary treatment is morally optional, and factors like the risk of death and the burdens of treatment are legitimate considerations to be made. According to a published series from the Children's Hospital of Philadelphia “The most complicated form of conjoined twins is ischiopagus twinning.” We felt that the parents should be crucial participants to such a decision. The parental bond is extremely strong, and is an example of true altruistic love. Most parents will be prepared to make supreme sacrifices for their children. We believe that they are in a unique position and are probably best at discerning the correct course of action to be taken in this most difficult and complex situation. Dr James O'Neill, from Philadelphia Children's Hospital writes in his textbook on paediatric surgery: — “Although we have held the view that it is preferable to intervene to save one life if possible rather than to permit the loss of both, it is important to emphasise that the parents have the ultimate right to accept or refuse surgical separation. Every case is different and must be approached with utmost sensitivity for the rights and feelings of the parents and their children.”
Another surprising fact also became known. The Manchester team, with no record of successful separation of Siamese twins, went to court to overturn the parents' refusal, without first seeking a second medical opinion from the experienced Great Ormond Street team. Surely in the current era of clinical governance, and particularly in such complex cases, referral to Great Ormond Street should have been automatic.
Furthermore the family are foreign nationals who had come to this country seeking the best medical advice. It had already been publicly announced that a Catholic hospital in Italy would provide care in accordance with the parents' wishes. There are other almost identical cases around the world where surgical teams have refused to operate because they could not morally accept the killing of one of the conjoined twins for the benefit of another. For example the Loyola University Medical Centre in Chicago, refused to operate on twins who shared a single heart, and separation was done at Philadelphia where one twin died at surgery (as planned) and the other died ten weeks later. Professor Ignazio Marino, from Italy refused to operate on a similar case earlier last year for identical reasons. Although the medical judgement, that without separation both twins will die within six months may be correct, there are many examples of conjoined twins who have not been separated and lead fulfilled lives.
However, whatever the arguments, as a doctor I cannot find any justifiable reason why the parents wishes should have been over–ruled. Even the legal judgements were “permissive” — i.e. they did not order the doctors to perform an operation, the only gave them permission to do so against the parents' wishes. Why did the doctors go against the parents' decision? The Appeal Court ruling unequivocally stated: — ?.... it would ... have been a perfectly acceptable response for the hospital to bow to the weight of the parental wish however fundamentally the medical team disagreed with it. Other medical teams may well have accepted the parents' decision. Had St. Mary's done so, there could not have been the slightest criticism of them for letting nature take its course in accordance with the parents' wishes.”
Let us look in more detail at the Appeal Court judgement. The first comment I want to make is that I find it hard to believe why, with such a unique case, it was not taken to the House of Lords, particularly as it has set dangerous legal precedents which I think have sinister implications for the future.
After thanking the Archbishop of Westminster for explaining the religious foundation to the Church's objection to the surgery they continued: — “This is not a court of morals but a court of law and our decision has to be taken from a solid base of legal principle.” My interpretation of what that says is that the law is no longer interested in what is right or wrong, but only interested in what is legal and illegal. Although it may be unpopular to say so let us not forget that much of what was done in World War II Germany was legal, but as the Nuremberg trials showed us clearly immoral.
When I first started reading the appeal court judgement I did think there was some hope as the Appeal Court judges found that the High Court judge was wrong in the legal arguments he used to make his ruling — although this important fact was not reported in the general press. As I have already quoted the high court judge had originally argued that Mary's life would be worth nothing to her; it would be hurtful, which led him to conclude that “to prolong Mary's life for these few months would be very seriously to her disadvantage”. The Appeal Court said that the High Court Judge “was wrong to find it [Mary's life] was worth nothing”. They also said that he “erred in his finding that to prolong Mary's life would be seriously to her disadvantage.” They also dismissed his argument about calling the operation 'treatment' for Mary and so dismissed his use of the Tony Bland judgement to state that cutting the aorta (supplying Mary) would be the same as removing 'treatment' — i.e. food and fluids in Tony Bland's case.
So having effectively destroyed each one of the arguments which the original High Court judge had used to justify carrying out the operation against the parents' wishes, how did the Appeal Court manage to then arrive at the same conclusion and in essence support the original judgement?
Let us look at Lord Justice Ward's thinking. He went through the motions of arguing for the sanctity of life but then concluded: — “Though Mary has a right to life, she has little right to be alive. She is alive because and only because to put it bluntly but nonetheless accurately she sucks the lifeblood of Jodie and her parasitic living will soon be the cause of Jodie ceasing to live. Jodie is entitled to protest that Mary is killing her. Nobody but the doctors can help Jodie. Mary sadly is beyond any help... I am wholly satisfied that the least detrimental choice is to permit separation to take place.” Then he poses the crucial question: — “But it remains subject to the analysis of whether the operation is lawful.” He stated that they had trawled through texts, ancient and modern [including Aristotle and Cicero], to find the answer.
Amazingly he turns to the Bland judgement for help and essentially argued that in the Bland case the doctors were certain that death would result from their actions, but that the House of Lords had ruled that in the circumstances that was legal. What I found chilling was that — and here I quote directly from the summary: — “If so the doctors intend in law to kill even though they may not have any desire to achieve that result. On the basis of that test the ingredient of intention as an element of murder is established.” .... “Thus the appeal turns upon the crucial and difficult question of whether the doctors would be able in law to justify or excuse their conduct.” ... “The reality here, harsh as it is to state it and unnatural as it is that it should be happening, is that Mary is killing Jodie.” Although he did not like the American term “unjust aggressor” he drew an analogy to a six–year–old boy on a shooting spree in a school playground. Although in law that 6–year–old was innocent it would be lawful to kill that child in self–defence. He argued that the same situation applied here and that the doctors were acting in 'self–defence' for Jodie against Mary.
Lord Justice Brooke was a little more blunt. He posed the questions “Is Mary a human being in the eyes of the law? The answer is yes. Would the proposed operation amount to the positive act of killing Mary? The answer is Yes. Would the doctors be held to have the intention of killing Mary, however little they desire that outcome? The answer is again yes. The doctrine of double effect, which permits a doctor, acting in good faith, to administer pain–killing drugs to her dying patient, has no relevance in this case. This leaves open the single question? Would the killing be unlawful?" ... “In the present case Mary's brain, heart and lungs are for all practical purposes useless. She is already 'designated for death'. It is not a case in which both children have the chance of living.” ... “Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the interests of Mary, I consider that all these requirements [three requirement for the arguments of necessity] are satisfied in this case.” ...... “The proposed operation would give these children's bodies the integrity which nature denied them. The proposed operation would therefore not be unlawful. I, too, would dismiss this appeal.”
Lord Walker's conclusions also give cause for concern. He states: — “Mary's death would not be the purpose of the operation, although it would be its inevitable consequence. ... She would die, not because she was intentionally killed, but because her own body cannot sustain her life.”
ConclusionThere remains the question of what the Court's decision means for the future? It seems likely that there are three consequences.
I believe that this last point is crucially important in organ transplant programmes. Although it may seem extreme, the appeal court judgement has ruled that as Mary was in essence 'designated for death', her vital blood supply could be removed. What is the logical difference between that scenario and the situation where an individual is dying and doctors can do nothing to save that persons life, but he has some good organs. Would it be legitimate to take those good organs — e.g. the heart — for the benefit of another individual who could be saved by a heart transplant? There obviously are differences between the two situations, but sadly I think we are already sufficiently down the slippery slope for the case I suggested for organ transplantation of becoming a legal reality.