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…

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