Locating the Problem in Law
The Conjoined Twins Case, Re A
The conjoined twins Jodie and Mary were born in August 2000 to Michelangelo and Rina Attard who lived on the Maltese island of Gozo but had arrived at St Mary’s Hospital, Manchester, seeking medical assistance unavailable in their home country. Joined at the pelvis, the twins had mainly separate vital organs. Their circulatory system, however, was shared, being joined at the main artery through which Jodie’s heart supplied oxygenated blood to both babies. Critically, Mary’s heart and lungs did not work and her brain function was significantly impaired; indeed, had she been born a singleton she would not have survived birth and could not have been resuscitated. After examination by the doctors various options were established, with widely varying consequences: leaving the twins conjoined would result in the death of both; performing surgery to separate them would preserve Jodie’s life but prematurely end Mary’s; separating only in an emergency would diminish significantly the likelihood of a successful outcome for Jodie. Crucially, although both parents were keen to take advantage of the best medical assistance available they opposed surgery, arguing that they could not accept or contemplate that one of their children should die to enable the other one to survive.
In many jurisdictions that would have been the end of the matter, and an operation to separate the twins would never have taken place since the parents’ wishes would have prevailed. But the Manchester medical experts felt they could not simply stand by while both babies died; especially, since in their opinion they could certainly save one of them. So, unable to secure the necessary parental consent for the operation, the hospital applied to the High Court for a declaration that surgery to separate the twins would be lawful.
In the High Court, with no legal precedent to guide and with very little time available to form a carefully reasoned and researched judgement, Justice Johnson decided to allow the separation. Unhappy with this decision, the parents appealed; however, in the Appellate Court all their appeals were dismissed, each of the judges, though for vastly differing reasons, finding in favour of lawful separation. In November 2000, surgery to separate the conjoined twins, Jodie and Mary, was performed at St Mary’s Hospital, Manchester, England. As expected, Jodie survived, but Mary died.
No doubt, many people would agree that the ‘least worst’ option was to perform the surgery to separate the twins, to save one at the cost of the other; somewhat less would have sought to impose that view on parents who resolutely chose the alternate view, refusing to kill one to save the other; few indeed would argue to enforce that solution in a situation where parental responsibility was deemed paramount and where the particular parental choice in question had already been declared legitimate. Yet this was effectively the solution which prevailed in Re A (Children) (Conjoined Twins: Surgical Separation)  4 All E.R. 961. So how did the presiding judges in this case reason that the twins not only could and should but must be separated?
Having first established that under the Children Act 1989 the court had authority to override a decision by the parents that was not in the best interests of their child, Lord Justice Ward went on to question where, in relation to the proposed surgery, each of the twins’ best interests lay. In respect of Jodie, this seemed obvious: separation would offer infinitely greater benefit to her than letting her die; but what about Mary? Could surgery be in her best interest? He suggested that the operation could only be in Mary’s best interests if, and only if, it were carried out either to save her life or to ensure improvement or prevent deterioration in her physical or mental health. However, since the only perceivable gain for Mary was the dignity of an independent existence which would be short-lived at best, and result in her demise, then the operation could not be seen to be in her best interests.
Constructing the problem in this way immediately gave rise to a further problem; namely, since the interests of Jodie were in conflict with the interests of Mary, how were those interests to be balanced? (Re A at 1004). And, since established law dealt only with the interests of a single child, not comparatively with the interests of two, whose interests were paramount? Lord Justice Ward responded by arguing that although Mary had always been ‘designated for death’ the consequences for Jodie of not acting were extremely grave, since Mary ‘sucks the lifeblood out of Jodie’. In these particular circumstances, the best course of action was to sanction the operation that would provide the only viable twin, Jodie, with the best chance of life; it was not the court’s business to engage in a comparative exercise over the worth of each life. Even so, the separation of Jodie from Mary would still involve clamping the main shared artery, severing the twins at the pelvis and donating to Jodie the whole of the shared single bladder, sex organs and anus; in other words, killing Mary. As a result, a deeper legal conflict, between these medical and family law issues and others from a criminal law perspective, began to emerge.
In a nutshell, this was a typical catch-22 situation. On the one hand, in carrying out the operation to separate the twins the doctors would have the intention to kill Mary, which even if it did not imply any desire for Mary’s death would, nonetheless, be murder; on the other hand, failing to carry out the operation might just as easily attract an allegation of the murder of Jodie since both the doctors and Jodie’s parents could be seen to be under a duty to save her life. Each of the judges responded in a different way. Lord Justice Ward considered two criminal law defences: a version of self-defence and necessity. Engaging the full drama of the courtroom representation of the twins’ dilemma, he suggested that Mary was effectively killing Jodie: ‘If Jodie could speak’, he proclaimed, ‘she would surely protest “stop it, Mary, you’re killing me”’. Besides, he felt that there were significant factors present here that could bring into operation the defence of necessity; therefore, the doctors and the court must, in this case, choose the lesser of two evils, allowing Jodie to live by killing Mary. But could one of the twins be sacrificed to save the other? Lord Justice Brooke certainly thought so. For him, it was not a question of choosing Mary to die but of asking whether Jodie must also die with her. Lord Justice Walker, on the other hand, argued that what was at stake here was not the question of valuing one life over another; actually, not separating the twins would violate both girls’ rights.
Giving judgement, Lord Justice Ward outlined the court’s responsibilities: