Legal Talks: Re A (Children) Conjoined Twins: Surgical Separation (2000)

Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie's heart will eventually fail.

The parents cannot bring themselves to consent to the operation. The twins are equal in their eyes and they cannot agree to kill one even to save the other. As devout Roman Catholics, they sincerely believe that it is God's will that their children are afflicted as they are and they must be left in God's hands. The doctors are convinced they can carry out the operation so as to give Jodie a life which will be worthwhile. So the hospital sought a declaration that the operation may be lawfully carried out. Johnson J. granted it on 25th August 2000. The parents applied to the Royal Courts of Justice, London, for permission to appeal against his order.

The question, or rather questions, that arose out of this was:-

1. Does medical possibility entail legal and ethical necessity?
2. Are some lives more sacred than the other?

In deciding, the courts has relied on the defence of necessity as in Airedale NHS Trust v Bland (1993) where, as mentioned in bold above:- "Separation would require the clamping and then the severing of that common artery." where clamping of the blood supplies in Re A is similar to withdrawal of artificial feeding that was deemed as lawful in Airedale NHS as patient was in persistent vegetative state, and hence maintenance of life was only by artificial feeding.

In distinguishing, it has to be noted that in Airedale NHS, withdrawal of artificial feeding was fair as patient was only surviving due to the artificial feeding. Persistent vegetative state, although not recognized by statute as death, is a condition of patients with severe brain damage who were in a coma. In this case, Tony Bland sustained catastrophic and irreversible damage to the higher centres of the brain and several attempts were made by Dr Howe and his team, along with Bland's father, sister and mother, to try to elicit some response from him and for some signs of interaction. However, all attempts failed and he showed no sign of being aware of anything that took place around him.

Scans shows that whilst the brain stems remains intact, there was no cortical activity. The person who was Anthony Bland was gone and there was no reasonable possibility of recovery. With the support of his parents, the hospital applied for a court order allowing him to 'die with dignity'.

In stark contrast, while the case of Re A relied heavily on the defence of necessity as in Airedale NHS, it has to be noted that the clamping of blood supplies took place while Mary was still alive, albeit being less viable than Jodie. The act of clamping the blood supplies was an intentional act as laid down in R v Woolin where as long as the act results in reasonable foreseeable consequences, it is sufficient to satisfy the mens rea element for murder.

Also, while in Airedale NHS, the removal of the artificial feeding was with the approval of the family members, in Re A however, the act to sacrifice Mary in order to let Jodie live, was not agreeable by Jodie and Mary's parents, who were devout Roman Catholics.

In defence, Ward LJ has stated rather adamantly that courts are not court of morals.

Mary may have a right to life, but she has little right to be alive - she is killing Jodie. She sucks the lifeblood of Jodie. Mary will survive only so long as Jodie survives. Jodie will not survive long because constitutionally, she will not be able to cope. Mary's parasitic living will be the cause of Jodie's ceasing to live.

Ward LJ even went on further to say:

Prohibition of intentional killing was recognised as being "the cornerstone of law and social relationships" and is of "supreme moral value". However... this is not an absolute rule. Life must be protected from unjust attack and deliberate taking of life is prohibited unless in self defense or in the legitimate defense of others.

My question, is this: Are some life more sacred than the other?

Doctor's duty, in law, is to protect lives and it is widely known that an act by which a doctor's primary intention is to bring about a patient's death would be unlawful. Thus, can these decisions about the relative worth of life of an individual be legally made, when these decisions results in the loss of life that is considered to be less worthy.

The most crucial point to note in this debate would be the violation of the Human Rights Act 1998. Article 2 of the Act provides that everyone has a right to live and it is the positive duty on public authorities to protect the lives of individuals. Hence, by Re A being decided as such in year 2000, isn't it a clear violation of the HRA 1998? In another words, common law defence of necessity prevails over an Act of Parliament? Where then, is the Supremacy of British Parliament?