CRIMINAL LAW JOURNAL SIAMESE TWINS CASE PRESENTS SERIOUS LEGAL DOUBTS Justice Michael Kirby

 

Surgery to separate the Siamese (or "conjoined") twins in England, Jodie and Mary, was performed at the end of 2000. As expected, Jodie survived. Mary is dead. Mary's remains were returned for burial on the Maltese Island of Gozo. Her parents, now known to be Mr and Mrs Attard, mourn. The choices they faced were terrible. In the end, they could not bring themselves to consent to the operation whose outcome would kill Mary. They preferred to let nature take its course. It was "God's will", they said.

 

In many countries this is what would have happened. The parents' wishes would have been upheld. But because they had gone to England to get the best medical advice, the dilemmas concerning Jodie and Mary came under the jurisdiction of the English courts. The English doctors felt that they could not stand by and let both babies die when, in their view, one could certainly be saved. Because the parents would not give consent to the operation, the hospital sought orders from the English High Court. They wanted a judicial declaration that the planned surgery would not be murder.

 

Spare a thought for poor Justice Johnson who had to resolve this application, effectively on the run and without any direct precedents to guide him.1

 

His solution to the problem involved reliance on a decision of England's highest court, the House of Lords.2 In 1993, the Law Lords had held that it was not unlawful to withdraw mechanical support (ventilators) from a profoundly injured person, although the doctors involved knew that the inevitable result of doing so would be the death of that person. Justice Johnson thought that this was an applicable precedent. He drew an analogy between the life support offered by technology and the life support provided to the weaker twin, Mary, by her connection to the organs of the stronger twin, Jodie. Separating Mary from this "natural" life support would therefore be permissible. It would not be murder.

 

The parents appealed to the English Court of Appeal. None of the three appeal judges agreed with Justice Johnson's explanation of the law. They pointed to the critical difference between allowing a separate life, unsustainable without technology, to ebb away when the technology was withdrawn and surgical action that would positively terminate life. The operation needed to separate Jodie from Mary was radical. It involved severing the babies at the pelvis and donating to Jodie the entirety of the single bladder, sex organs and anus which the twins shared. This, the Appeal Court held, was not equivalent to merely switching off a ventilator.

 

How then did the appeal judges come to the same conclusion as Justice Johnson that the operation could go ahead? It is here that puzzling legal issues are presented. They will be debated for years to come. The reasons each judge gave could not have been more different.

 

Lord Justice Ward, the presiding judge, considered that the case was to be looked at as analogous to one of self-defence. To explain his view, dramatically, he had Jodie speak for herself: "If Jodie could speak, she would surely protest 'stop it, Mary, you're killing me'3". In such circumstances, he held, the law would intervene. It would permit surgery in order to terminate the fatal burden which Mary was placing on Jodie's chances of survival.

 

Lord Justice Brooke took a different view. For him, the defence of "necessity" was available4. Surgery was "necessary" to avoid inevitable and irreparable harm. If carried out, avoiding harm to others as far as was possible, and if the result was not disproportionate to the harm done, the law would condone it.

 

Lord Justice Walker thought that the solution lay in analysis of the purpose or intention of the surgery5. According to him, it was possible to classify the surgeons' intentions as being to save Jodie's life. There was no "intention", as such, to kill Mary, even though that would necessarily follow. None of these explanations is wholly satisfying from a legal point of view.

 

Self-defence, by definition, is normally concerned with one person defending himself or herself. Exceptionally, at common law, the defence can be available to excuse actions done in protecting others- particularly family members6. But usually this exceptional case is confined to emergency situations7. It does not normally extend to a highly planned surgical procedure where the "assailant", whose conduct is said to justify the self-defence, is an innocent baby.

 

The suggestion that "necessity" affords a defence is at first blush more appealing. But for more than a hundred years the common law has rejected the notion that this defence is available in the case of homicide8. Once it is held "necessary" in law to condone the killing of another person, the fear exists that the law is on a slippery slope. The old absolute of defending human life has been compromised9. Critics of the invocation of this defence of "necessity" will say: "Hard cases make bad law".

 

Nor is the fine classification of the surgeons' "intent" or "purpose" very convincing. A year before the conjoint twin case, the House of Lords had pointed out that "where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen"10. The doctors may not have desired to kill Mary. But normally, in England, the law would attribute that intent to them if her death was the natural and inevitable consequence of their actions.

 

Theologians and ethicists will, like lawyers, debate the conjoint twin case, and cases like it11. Upon the outcome, citizens too are entitled to their opinions. One can understand the ultimate result to which the surgeons and the judges felt themselves driven. Given that the law upholds human life, a result that saves one human life, where otherwise both would have been lost, seems a moral and certainly a defensible one.

 

On the other hand, the critics complain that for the first time, judges of our legal tradition have condoned positive acts to terminate an "innocent" life in being12. Has the law thereby diminished its uncompromising attitude to the sacredness of human life?

 

The very fact that four judges, of great ability and obvious sensitivity, came to four different conclusions as to why the surgery on the twins was permissible in law, highlights the untrodden territory upon which the judges were venturing. In previous generations, it would have been beyond our technical skills to perform such surgery. It is the advance of human knowledge and technology that present the law today with so many hard problems.

 

To the complaint that judges and lawyers should keep out of such cases, Lord Justice Ward replied: "We do not ask for work, but have a duty to decide what parties with a proper interest ask us to decide".13

 

Jodie will grow up. One day she will understand the miracles of surgery that saved her life. Perhaps also she will come to know the acute dilemmas that her case, and that of her twin Mary, presented to the law. It is a symbol of the new century we have entered that it should have begun with such a case. There will be many more of them. The demands on the judiciary of the future will be even greater than in the past. When their powers are invoked, judges do not normally have the privilege to walk away because the problem is heart-rending and the solutions are uncertain.

 

This is an edited version of the Third Gerard Brennan Lecture delivered by Justice Kirby at Bond University, Gold Coast, Queensland on Saturday, 3 March 2001 at 6 p.m. The full lecture will be published in the Bond Law Review.

 

Justice of the High Court of Australia.

 

1 Judgment of the English High Court (JohnsonJ) noted [2000] 4 All ER 961 at 1061.

 

2 Airdale NHS Trust v Bland [1993] AC 789 at 865 per Lord Goff of Chieveley.

 

3 Re A (Children) (conjoined twins: surgical separation) [2000] 4 All ER 961 at 980.

 

4 Ibid, at 1052.

 

5 Ibid, at 1070.

 

6 cf R v Duffy [1967] 1 QB 63 (defence of sister). See SBronnitt and BMcSherry, Principles of Criminal Law (2001) 295-296.

 

7 cf Zedevic v DPP (Vic) (1987) 162 CLR 645 at 663.

 

8 The Queen v Dudley and Stephens (1884) 14 QBD 273; cf Rv Perka (1985) CCC (3d) 395 at 386.

 

9 cf Palmer v The Queen [1971] AC 814; R v Howe [1987] 1 AC 417 at 429; cElliot, Comment, "Murder and Necessity following the Siamese Twins Litigation" (2001) 65 Journal of Criminal Law 66 at 75.

 

10 R v Wallin [1999] 1 AC 82 at 90-93.

 

11 See eg Simon Lee's article "Babies lives in the judges' scales" in The Tablet, 30 September 2000. For legal comment see MBagaric, "The Jodie and Mary (Siamese Twins) Case: The Problem with Rights" (2001) 8 Journal of Law and Medicine 311.

 

12 cf B Tobin, "An Ethical Perspective on the British Conjoined Twins Case", republished paper, Health Law Seminar Series 2000, University of Sydney, 15 November 2000, p 9.

 

13 Re A (Children) (conjoined twins: surgical separation) [2000] 4 All ER 961 at 987.