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Siamese Twins, Jodie & Mary

posted on 14 September 2000

1. I am grateful to the Court for this opportunity to make a submission. My reason for doing so is to offer some reflections based on principles of morality which the Catholic Church holds in common with countless others who value the Judeo-Christian tradition. It is my hope that these reflections may be of some assistance to the Court of Appeal judges in deciding this tragic and heartrending case in which everyone involved is clearly trying to discern, and to do, what is for the best.

2. The arguments presented in this submission stem from the belief that God has given to humankind the gift of life, and as such it is to be revered and cherished. Christian beliefs about the special nature and value of human life lie at the root of the western humanist tradition which continues to influence the values held by many in our society and historically underpins our legal system.

3. There are five overarching moral considerations which govern this submission:
(a) Human life is sacred, that is inviolable, so that one should never aim to cause an innocent person's death by act or omission.(1)
(b) A person's bodily integrity should not be invaded when the consequences of doing so are of no benefit to that person; this is most particularly the case if the consequences are foreseeably lethal.
(c) Though the duty to preserve life is a serious duty, no such duty exists when the only available means of preserving life involves a grave injustice. In this case, if what is envisaged is the killing of, or a deliberate lethal assault on, one of the twins, 'Mary', in order to save the other, 'Jodie', there is a grave injustice involved. The good end would not justify the means. It would set a very dangerous precedent to enshrine in English case law that it was ever lawful to kill, or to commit a deliberate lethal assault on, an innocent person that good may come of it, even to preserve the life of another.
(d) There is no duty to adopt particular therapeutic measures to preserve life when these are likely to impose excessive burdens on the patient and the patients' carers. Would the operation that is involved in the separation involve such 'extraordinary means'? If so, then quite apart from its effect on Mary, there can be no moral obligation on doctors to carry out the operation to save Jodie, or on the parents to consent to it.
(e) Respect for the natural authority of parents requires that the courts override the rights of parents only when there is clear evidence that they are acting contrary to what is strictly owing to their children. In this case, the parents have simply adopted the only position they felt was consistent with their consciences and with their love for both children.

4. Against this background, this submission, on which I have received legal advice, now turns to the specific arguments adduced. It respectfully invites the Court to reverse the judgment of Johnson J. and not to grant a declaration that it would be lawful to separate the conjoined twins Mary and Jodie. It seeks to assist the Court by analysing the judgment of Johnson J. and by outlining the main considerations which, it is submitted, ought to govern the resolution of this case.

5. The following seem to be the case: 1) Mary is a distinct individual, giving some evidence of a distinct life, even if conjoined to another and with seriously defective organs. 2) The life that Mary has is, because of abnormal development, dependent on Jodie's blood supply.

6. The first consideration - implicitly and rightly accepted by Johnson J.(2) - is that each of the conjoined twins is a live-born human being or, in the ancient terminology of the common law, a 'reasonable creature in rerum natura'.(3) Mary and Jodie have been wholly born alive and enjoy an existence physically independent of their mother. Their parents and the hospital staff rightly consider them to be two individuals.(4)

7. Mary exists as a legal person in spite of the fact that her continued existence may depend on her sister's heart and lungs. Physical independence from the mother is not to be confused with an existence independent from anyone or anything else. Many live-born children are dependent on mechanical ventilators for their hope of survival: they are nevertheless legal persons.

8. As Mary is a legal person, she enjoys the same right to bodily integrity, and the same legal protection from assault and homicide, as other legal persons.

9. Although Mary and Jodie are two seriously abnormal human beings, they remain fully entitled to the protection of the law relating to assault and homicide. The law protects Mary from lethal conduct just as it would protect, say, an anencephalic infant. In Re J (A Minor), Lord Justice Taylor noted that the court's high respect for the sanctity of human life imposes a strong presumption in favour of taking all steps to preserve it, save in exceptional circumstances. He added: 'it cannot be too strongly emphasized that the court never sanctions steps to terminate life. That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death'.(5)

10. A child may not normally be subjected to medical treatment without the consent of her parents. As Lord Donaldson MR observed in Re J (A Minor), although the doctors owe a child patient a duty to care for it in accordance with good medical practice recognized as appropriate by a responsible body of medical opinion: 'This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment'.(6)

11. In Re F (Mental Patient: Sterilization), Lord Brandon stated that treatment would be in the best interests of incompetent (adult) patients 'if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health'.(7) The proposed operation would confer no benefit, therapeutic or otherwise, on Mary. It would serve only to accelerate Mary's death and, therefore, far from being in her interests, would be against her interests. It is the parents' right to withhold consent to such lethal conduct.

12. In Re T(8) the Court of Appeal held that it would not be in the best interests of a child to undergo a liver transplant operation, despite unanimous medical evidence that with the operation the boy would enjoy many years of normal life and that without the operation he would die. The Court held that the High Court judge had failed to assess the matter more broadly and had overlooked several factors including the relevance or the weight of the mother's concern as to the benefits to her child of the surgery and post-operative treatment, the dangers of failure both long term and short term, the possibility of the need for further transplants, and the likely length of life and the effect on her child of all those concerns.(9) As Butler-Sloss LJ observed, the practical considerations of the mother's ability to cope with supporting the child in the face of her belief that the operation was not right for him, the requirement to return from their distant Commonwealth country for further treatment, possibly leaving the father behind and losing his support, were not put by the judge into the balance. She added that the prolongation of life was not the sole objective of the court and that to require it at the expense of other considerations may not be in the child's best interests.(10) If the Court respects the parents' refusal of consent because they do not think that a life-sav
(1) Article 2 of the European Convention states that 'Everyone's right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.'
(2) His Lordship accepted that Mary was an individual, living being, albeit physically dependent on Jodie for survival: 'She lives only because of her attachment to Jodie. The blood and the oxygen that maintain her life come from Jodie'. Central Manchester Healthcare Trust v Mr and Mrs A and Re A Child (by her guardian ad litem, the Official Solicitor), judgment, p1. Hereafter 'judgment'. He continued that in determining Mary's future, 'the interests of that individual child' were paramount. (judgment, p2).
(3) 3 Co Inst 50. Sir James Stephen defined homicide as the killing of a human being by a human being, adding: 'A child becomes a human being within the meaning of this definition when it has completely proceeded in a living state from the body of its mother, whether it has or has not breathed, and whether the navel string has or has not been divided, and the killing of such a child is homicide whether it is killed by injuries inflicted before, during or after birth'. A Digest of the Criminal Law (9th edition, by Lewis Francis Sturge, 1950) pp 205-206.(Citations omitted) Smith and Hogan state: 'Coke's 'reasonable creature in Rerum natura' is simply the 'person' who is the victim of an offence in the modern law of offences against the person - i.e., any human being'. (Criminal Law, 8th edition, 1996, p338). The question, they add, is whether the child has ' 'an existence independent of its mother'', and that to have such an existence the child must have been wholly expelled from its mother and be alive'. (ibid). They point out that the tests of independent existence which the courts have accepted have been an independent circulation and breathing. (See also C v S [1987] 1 All ER 1230 interpreting the phrase 'capable of being born alive' in section 1 of the Infant Life Preservation Act 1929, a decision criticised by John Keown in 'The Scope of the Offence of Child Destruction' [1988] 104 LQR 120 as inconsistent with the law of homicide's historic prohibition of prenatal assault causing postnatal death even of infants too premature to breathe. See 3 Co Inst 50.) Johnson J. stated that Mary has no 'effective' (judgment, p1) or 'significant' (judgment p4) heart or lung function. Even if she has none, independent circulation and breathing are not, it is submitted, the only indicia of life. Not only can these functions be substituted in any living person by machines, but Mary's independent movement is no less proof that she is alive. It is reported that 'Mary has made some progress in her first four weeks. She has opened an eye and started to suck'. [The Times 6th September 2000, p6.] And Johnson J. noted that she has some, albeit very little, brain function. (judgment, p4), and that, when stroked her face contorts and when pinched there is some reflex. (judgment, p5). How, then, can Mary not be alive? According to The Times report of 6th September 2000, just after birth 'Mary ... gasped for breath as doctors struggled to resuscitate her, but her lungs failed completely.' The earliest medical notes on Mary taken on the evening of the day of her birth read: 'Spontaneous breathing effort on arrival from theatre. Face mask, oxygen given. Intubated. Very stiff to ventilate. No chest movement or breath sounds.' Relevantly, section 41 of the Births and Death Registration Act 1953 (as amended by the Still-Birth (Definition) Act 1992 section 1 (1)) defines 'still-born child' as 'a child which has issued forth from its mother after the twenty-fourth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any other signs of life...'. [emphasis added]
(4) The Times 6th September 2000.
(5) [1990] 2 Med LR 67 at 75.
(6) At 70.
(7) [1990] 2 AC 1 at 55.
(8) [1997] 1 All ER 906.
(9) At 914 per Butler-Sloss LJ.
(10) At 916.
(11) In Roman Catholic moral theology one consideration which grounds the judgement that treatment is 'extraordinary' (i.e. non-obligatory) is the reasonable belief that the prospective benefits of treatment do not clearly warrant the burdensome consequences it is likely to impose. Among the burdensome consequences of treatment which traditional teaching takes into account are: physical pain, psychological stress, social dislocation, and financial expenditure.
(12) Judgment, p2.
(13) See text at n4, supra.
(14) Judgment, p5.
(15) [1993] AC 789.
(16) Judgment, p8.
(17) Judgment, p8.
(18) He comments at p7: 'Sometimes cases similar to this give rise to the doctrine of double effect, as for example where the court authorises a particular course of treatment with a view to the alleviation of pain, even though as a secondary effect death may ensue. Applied to the circumstances of this case one might argue that the death of Mary was not the primary objective of the separation and that therefore the operation would be lawful. That argument was not addressed to me and I think rightly so.'
(19) It is regrettable that counsel for Mary appears, wrongly, to have conceded: 'I cannot suggest, on her behalf, that there is not a futility in her existence'. The Times 7th September 2000, p.6.
(20) A number of the Law Lords in Bland remarked on the incoherence introduced into the law of homicide by the case they constructed for permitting the withdrawal of tube-feeding from Tony Bland when they agreed that withdrawal was intended to bring about his death. Thus: Lord Mustill at [1993] 2 WLR 316 at 388-9: 'the distortions of a legal structure which is already both morally and intellectually misshapen'; (at 399): 'the morally and intellectually dubious distinction between acts and omissions'; Lord Browne-Wilkinson at 387: 'the conclusion I have reached will appear to some to be almost irrational... I find it difficult to find a moral answer...'; Lord Lowry at 379: 'a distinction without a difference...'.
(21) Bearing in mind the point made in (1) that it is not true that Mary's life is of negative value.
(22) Daily Telegraph 6th September 2000.
(23) The Times 7th September 2000, p.6.
(24) Quoted in the Daily Mail 6th September 2000.
(25) House of Lords, Session 1993-94. Report of the Select Committee on Medical Ethics Volume I - Report [HL Paper 21-I], para.237: '[the] prohibition [of intentional killing] is the cornerstone of law and social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished...'. A joint statement by Anglican and Roman Catholic bishops in the aftermath of the House of Lords judgement in Bland included the following passage: 'Those who become vulnerable through illness or disease deserve special care and protection. Adherence to this principle provides a fundamental test as to what constitutes a civilised society... Because human life is a gift from God to be preserved and cherished, the deliberate taking of human life is prohibited except in self-defence or the legitimate defence of others... a pattern of care should never be adopted with the intention, purpose or aim of terminating life or bringing about the death of a patient..'.
(26) This is not the doctrine of the sanctity of life but rather a position called 'vitalism'. For a lucid exposition of the precise implications of the doctrine of the sanctity of life, and how it differs from 'vitalism' on the one hand and, on the other, the position of those who consider that there are human beings whose lives lack value and as such may be intentionally killed, see John Keown, 'Restoring Moral and Intellectual Shape to the Law after Bland' (1997) 113 LQR 481.
(27) See n20, supra.
(28) The BBC website on the case somewhat crassly identifies it as one of 'Religion v Medicine'. In fact the parents' statement to the court [as reported in Johnson J's judgment] explains what they mean in saying that the doctors' proposal to separate the children, so causing the death of Mary, 'is not God's will' by immediately going on to state: 'Everyone has the right to life so why should we kill one of our daughters to enable the other one to survive'? In other words, it is the denial of Mary's basic right not to be intentionally killed, entailed, as they see it, by the doctors' proposal, which explains why they think that proposal contrary to God's will. Even if there is no intention to kill, but only assault lethal in its consequences for Mary, their refusal remains well founded in standard requirements of justice.
(29) It has been reported that the Archbishop Emeritus of Ravenna, Cardinal Tonnini, had offered free hospice care for the children together with free accommodation for their parents. Even if the Court were minded to think the operation might be lawful, it is at the very least the sort of 'highly problematic case' referred to by Waite LJ in Re T where there is 'genuine scope for a difference of view between parent and judge' and where the stronger the court's inclination should be to the view that 'in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature.' [1997] 1 All ER 906 at 917-18.

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posted on 14 September 2000

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