This article appears in the November 2000 edition of the Catholic Medical Quarterly
The Conjoint Twins I
Submission to the Court of Appeal
by the Archbishop of Westminster
A Submission by Archbishop Cormac Murphy_O'Connor, Archbishop of Westminster, to the Court of Appeal in the Case of Central Manchester Healthcare Trust v Mr and Mrs A and Re A Child (By Her Guardian Ad Litem, the Official Solicitor) 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.
(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. _ 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'. 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.
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'.
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'.
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'. 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 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. 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. If the Court respects the parents' refusal of consent because they do not think that a life_saving operation is in their child's best interests, then the Court should a fortiori respect parents' refusal of consent because they think a life_taking operation would not be in the best interests of one of their children, Mary, as being a grave injustice to her.
13. I understand that the primary reason for the parents' refusal of consent to the procedure for separating the twins is that it will cause Mary's death. But there is also the question whether, were Jodie to survive separation, subsequent surgical and other care for her would impose excessive burdens both on Jodie and on the parents. When prospective burdens likely to be caused by a therapeutic procedure are reasonably judged to be considerable and the benefits very uncertain, one is justified in declining that procedure. So, though the Court should recognise the lethal consequence for Mary of separation surgery as a decisive reason for respecting parental refusal of consent to it, weight should also be given to the likely burdensome consequences of surgery for Jodie and her parents.
14. Johnson J. stated that 'In considering the consequence for Mary of what is proposed, I must, and I do, focus only upon the interests of Mary herself'. His Lordship proceeded to reason that it was in Mary's interests for her life to be intentionally terminated and to find a basis upon which that termination could lawfully be justified. In other words, His Lordship declared the operation lawful precisely on the ground that it was 'a course aimed at terminating life or accelerating death'.
15. His Lordship stated: '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' and that 'to prolong Mary's life for those few months would, in my judgment, be very seriously to her disadvantage'. He invoked the distinction drawn by the House of Lords in Airedale NHS Trust v Bland _ to justify the withdrawal of tube_feeding from a patient in persistent vegetative state _ between intentionally terminating life by an act and by an omission. Drawing an analogy between the withdrawal of tube_feeding and the proposed operation, Johnson J. ruled that the operation causing Mary's death would also be an omission: 'I have concluded that the operation which is proposed will be lawful because it represents the withdrawal of Mary's blood supply'.
16. His Lordship construed the 'interests' of Mary in such a way that the bringing about of her death is justified precisely as a desirable objective. The implications of such a line of reasoning are alarming, and in no way mitigated by the penultimate sentence of his judgment: 'It is of course plain that the consequence for Mary is one that most certainly does not represent the primary objective of the operation.' For his reasoning sought to show not that the 'consequence for Mary' would be, say, a tolerable side_effect but rather an appropriate objective of the procedure envisaged. And that is why he thought it necessary to invoke Bland.
17. Johnson J.'s reasoning invites several criticisms:
1) It is seriously unreasonable to seek to justify the ending of someone's life on the grounds that that human being's life lacks value or worth, so that he or she would be better off dead. Judgements of that kind should not be admitted as justifications of intentional killing since they are both arbitrary and admit of no principled way of containing their extension to a variety of other conditions, and so are incompatible with the justice which the law should uphold. The indispensable foundation of justice is the basic equality in worth of every human being.
2) The distinction drawn in Bland between deliberately ending someone's life by a positive intervention (held to be impermissible) and by a course of conduct classifiable as an omission (held to be permissible) should not be relied on. To aim at ending an innocent person's life is just as wrong when one does it by omission as when one does it by a positive act.
3) In any event, the analogy between the proposed operation and ceasing tube_feeding is strained and unpersuasive. While it is reasonable to classify the latter as an omission, the former is clearly a major surgical intervention.
18. There are those _ including no doubt many Catholics _ who would argue that one might embark on such an operation without having Mary's death as part of one's aim, and that her death would then be a foreseen but unintended consequence of a morally justifiable operation aimed at saving Jodie. But what is not possible is that one could embark on such an operation without foreseeing that it would do Mary no good but only lethal harm. And even if her death were merely foreseen, the invasion of her bodily integrity is nevertheless intended. The process of separation cannot be thought of with any plausibility as one of cutting into Jodie's body alone; Mary's body is necessarily cut into. And that violation of her bodily integrity is in the nature of the case lethal for her. It therefore cannot be justified.
19. It is submitted that Ward LJ was right to observe: 'The moment the knife goes into the united body, it touches the body of unhappy little Mary. It is in that second an assault. You fiddle about, rearrange the plumbing. An hour later you put a clamp on the aorta. You cannot pretend that is not actively engaged in assaulting her integrity. For what justification? None of hers.'
20. It is also submitted that the further comment reportedly made by Ward LJ is right:
'If what you propose is the murder of Mary, I cannot see how you can trade off one against the other. My conclusions in the middle of the night were, if the court comes to the view that the operation is contrary to the interest of Mary, there is no jurisdiction to say that the parental refusal was wrong _ and the parental refusal bites.'
21. The considerations which, it is submitted, should govern a just resolution of the case are:
(1) Mary should be acknowledged to be an individual human being with, as the parents have asserted, a right to life. It is clear that those who have dealt with Mary apart from her parents _ the doctors and nursing staff _ see Mary as an individual human being. The fact of her dependence should not be allowed to count against her right to life.
2) Mary's right to life should be respected because (a) she possesses the same basic worth and dignity which belongs to every human being, and (b) she has done nothing which could justify killing her. Any attempt (as in Johnson J.'s judgement) to justify intentionally ending her life on the ground that her life is without any value _ indeed, has negative value _ should be rejected as incompatible with the truth which should govern all our dealings with each other, viz. the basic equality in worth of every human being. So the argument advanced before the Court of Appeal by counsel for Jodie that Mary's life is 'futile' should be rejected. The right not to be unjustly killed is the core of the doctrine of the sanctity of life, which the criminal law has historically upheld, and which it is essential that the law should continue to uphold.
3) The doctrine of the sanctity of life does not entail any absolute requirement that human life is to be preserved wherever and whenever this may seem physically possible. There can, moreover, be no obligation to prolong a person's life when doing so involves something which should be regarded as morally wrong. Thus in the case of Jodie, if what is required to prolong her life involves doing grave wrong to Mary then one is obliged to refrain from that attempt to prolong life. Even if the attempt to save Jodie's life does not require that one has as part of one's aim (as recommended by Johnson J. and, at least implicitly, by counsel for Jodie) ending Mary's life, it will nonetheless amount to an invasion of her body which will in no wise benefit her and do her nothing but lethal harm. It will therefore amount to an unjust invasion of Mary's bodily integrity. So the attempt to save Jodie's life at the expense of Mary's should be regarded as morally impermissible.
4) The law should not stretch the concept of an 'unjust aggressor' to include human beings incapable of entertaining aggressive intentions. Dependence which has resulted from developmental processes, however abnormal, is not aggression.
5) No part of the judgement should rely on the distinction drawn in Bland between, on the one hand, deliberately ending someone's life by a positive intervention (held to be impermissible) and, on the other, by a course of conduct classifiable as an omission (held to be permissible). To aim at ending an innocent person's life is just as wrong by omission as by a positive act.
6) Respect for the natural authority of parents requires that the courts override the rights of parents in the care of their children only when there is clear evidence that the parents are acting contrary to what is owing to their children. The refusal by the parents of Jodie and Mary to consent to surgery to separate them involves no injustice towards either of their children and is indeed wholly reasonable on the grounds they have advanced. In particular, respect for the rights of both their children makes any other choice on their part morally impossible. The Court should respect their refusal and allow the parents to take up, if they wish, the offer of care in Italy, which seems to be the type of care that is consistent with the moral principles they rightly uphold.
Cormac Murphy O'Connor, Archbishop of Westminster
14th September
2000
This document, of great value to our profession, has been re-printed here with the Archbishop's expressed consent.