Business Law: Report on Siamese Twins

Name: Khushboo. P. Chandiramani & Bharath anil

Id no.: 6875 & 6727

Assignment: Report on Siamese twins (Jodie and Mary)

Word count: 2000 words

Course: Business Law

Submission on: 25th April, 2010

Professor: Mrs. S. Sultana

Introduction

Much of the history of humankind has been taken up with the advancement of the possible, and the present day is no exception. What is novel is that the extensions of what it is possible to do, from more efficient ways of killing people to the cloning of humans, have fast outstripped the ability of society to come to a consensus on what is permissible or right. Some of these novel questions on the cutting edge of ethics are addressed by committees of specialists and experts, such as the Human Fertilization and Embryology Authority in relation to assisted reproduction, but in many cases the issues fall to be decided by the courts. One current and particularly poignant debate is that of the separation of conjoined twins where both children will die unless one child is sacrificed to save the other.

Conjoined twins exist on the margins of our notions of embodiment and individuality. They challenge the boundaries of medical, ethical and legal possibility and their existence poses a threat to entrenched social values about the worth of lives that differ from the norm of one individual, one body. High profile instances of the sacrificial separation of conjoined twins, from twins in Philadelphia in 1977 (conjoined twins: surgical separation), have highlighted the fact that separation decisions seem to be reached on a case-by-case basis on their perceived merits, which does nothing for the internal coherence of the reasoning in the case – judges may agree on outcomes but for different reasons, which presents a problem in the application of precedents – or for the case's coherence within the law – a deserving outcome in one case may cause tensions in related law. As is often said, 'hard cases make bad law'.

When separation is considered, for example on the grounds of medical necessity, we accept that a choice has to be made between competing arguments. The leading UK case on separation, made such a choice. The determining factor of that case was the court's interpretation and application of the welfare principle. In this article, we argue that the welfare principle was inappropriate for the determination of issues of this kind: neither the content of 'welfare' nor the application of welfare arguments in competition situations has been settled or fully explored. We contend that the judgments in leave much to be desired, and do not even begin to approach the decisive status to which they aspire. We maintain that it is possible to attempt an answer to the dilemma of separation of incompetent children, but only by employing a rigorous, comprehensive and coherent argument that explores the relationship between law and morality, and operates from the starting-point of an objective moral theory. The relationship between law and morality must be explored because rival conceptions of law have different relationships with morality, and thus may result in different outcomes on a given question. Whatever moral theory is employed needs to be objectively justified if it is to establish its mandatory applicability to a question. We cannot claim to offer a solution that will streamline the law, but suggest that it is important first of all to focus on the substantively right decision before being concerned with uniformity of the case-law.

The motives driving this argument may be exemplary – twins may be separated in order to enjoy a conventional life and to avoid discrimination against their difference – but we are unconvinced that fears for twins' welfare justify such a step.

In centuries past women have suffered serious discrimination on the grounds of their sex, but we think no one would argue sincerely that women ought to have been killed, or to have been surgically altered in order to pass as men, to spare them this trauma. Where there is discrimination, this must be knocked down rather than shored up. Separation is never without risk, whether medical or psychological, and prejudice, albeit well-meaning prejudice, must not play a part in the decision. We query the urge to make conjoined twins conform to societal norms. For societal norms to be adequate criteria of moral permissibility, an argument must be adduced that establishes them as such. We are not convinced that this is possible.

The impetus for judicial consideration of separation tends to be perceived medical necessity. The court's dilemma is most acute when the rights or best interests of one twin are perceived to be in conflict with those of the other (of which more below). The paradigm of the separation dilemma is, where both twins were expected to die within a few months (a few years at most) if remaining conjoined. One had a very good chance of independent ('normal') life if the twins were surgically separated, which operation would cause the death of the other twin. We examine in more detail in section three below. We cannot hope to address all the questions implicated in separation, and we restrict to the rights and wrongs of the separation of conjoined twins where the survival of one twin by separation is an alternative to proximate death for both.

Does conjoined make a difference?

If a person has rights by virtue of being a person, then a person who is conjoined will also have rights. Is conjoined twins one entity with one bundle of rights, or are they two distinct persons? If they are distinct persons, may there be an important difference in the rights that it is intelligible for a conjoined person to exercise? Physical possibilities that exist for singletons – such as privacy – become much more problematic for conjoined twins, as it is not possible to be conjoined and physically alone. For example, if we accept that a right to privacy exists, to speak of a right to privacy in the sense of a right not to be with or observable by another person against one's will is nonsense in the case of individual conjoined twins. Other rights might have to be reconsidered also.

It is important to note that even if the content of a conjoined right changes – by this we mean the particular instantiation of a right in specific circumstances – this does not affect the weight of the right in question. We are used to variety in the instantiations of a right to autonomy but may need to remind ourselves that variety obtains with respect to other rights whose content usually seems fixed.

If answers to separation questions have any pretensions to definitive status (and answers to separation questions ought to have pretensions to definitive status, as persons' well-being and lives may be radically altered by them), it should immediately be evident that they must seek moral and legal justification.

Morality and moral principles in general, are to be understood as being located in a particular place within practical reason (reasons for action). Moral principles have the following characteristics: they are justificatory, that is, they provide reasons for action rather than excuses; they are aimed at guiding the actions of the recipients of the principle; they are addressed to persons other than the originator of the principle; they are concerned with the rights or interests of those other than the originator of the principle, and they are categorical, that is, obligatory irrespective of the desires of the recipient of the precept, and having a force that overrides non-moral principles. A moral justification will provide a reason why a course of action ought or ought not to be followed. We contend that whether or not a proposition is labeled 'moral' is irrelevant: if it aims to be justificatory, action-guiding, other-addressing, other-regarding and categorical, then it is a moral proposition.

With regard to law, for the moment it will be enough to define law as 'the enterprise of subjecting human conduct to the governance of rules.' What precisely this entails will hinge upon the nature of the connection between law and morality. Legal positivists will deny that there is anything other than a contingent connection between law and morality, whilst legal idealists will be committed to the view that there is a conceptually necessary connection between law and morality. For the moment we do not enquire what, if anything is required by that enterprise. In the limited present sense of 'law', an answer to questions of separation must be justified in law because the law consists of the rules that regulate our lives.

Whose moral theory, and why?

The question of separation, where one conjoined twin is killed to save another, is a moral as well as a legal question. Whether one takes the view that a judge must make a (moral) decision when the law runs out, or that the law cannot run out and is based around a moral principle or set of principles, one must inevitably inquire as to whose (moral) principle should determine the outcome, and why should this particular theory be used. If there is no way of adjudicating between competing (moral) principles, there can be no right answer or even preferable answer when asked should we separate conjoined twins.

The case concerned conjoined twins identified as Jodie and Mary (real names respectively Gracie and Rosie) who were born in August 2000. Their parents, Michelangelo and Rina Attard, lived on the Maltese island of Gozo and had come to the UK, to St Mary's Hospital in Manchester, for medical expertise that was not available in their home country. The twins were joined at the pelvis but had separate vital organs, with the main exception of the liver and bladder. Due to the nature of the join between them it was relatively easy to regard each child as possessing a separate heart, lungs, two arms, two legs etc, but the twins shared a circulatory system. Their circulation was joined at the main artery, and crucially, Mary's heart and lungs were not functional. The shared artery meant that the heart attributed to Jodie was supplying oxygenated blood to both babies. The court (and most writers) had no difficulty in allocating body parts between the twins and throughout the judgments (and commentaries on them) the organs are referred to as belonging to one or other baby. The functioning heart is thus described as Jodie's, rather than as a shared organ. The ways in which the twins are described and the consequences of such description are significant.

The medical evidence was clear. Mary's heart and lungs were not functioning: she had not been able to breathe for herself and had she been born a singleton, she would not have survived birth and could not have been resuscitated. In addition, her brain function was significantly impaired. Jodie's heart was sustaining Mary, but it could not do so infinitely. As the twins grew, the strain of supporting the conjoined body would lead to heart failure, and would cause other complications before death. It was anticipated that when Jodie's heart failed, she would die first, followed shortly by Mary. If the twins remained joined, then both would die, within a period of time estimated as between six months to a few years. If the twins were separated, medical opinion was that there was an excellent chance that Jodie would survive, and, with reconstructive surgery, could lead a relatively 'normal' life. However, separation would mean clamping and severing the shared circulatory system and as a result Mary would die. Although the question of placing Mary on life support was raised at an earlier stage, none of the doctors or judges involved treated this as a realistic possibility, undoubtedly influenced by the degree of brain damage present.

Separating the twins from each other would preserve Jodie's continued life, but would prematurely end Mary's. On the other hand, leaving the twins conjoined would cause the proximate deaths of both. The other possible option of separating if an emergency situation developed was discounted as posing too high a risk to Jodie and diminishing the likelihood of a successful outcome for her. The case therefore starkly encapsulates the ethical and legal dilemmas involved in sacrificial separation, and the questions outlined earlier.

The Court of Appeal judgments

The Court of Appeal, consisting of Ward, Brooke and Robert Walker LJJ, delivered more considered judgments, which all concluded that separation would be lawful, albeit for different reasons.

The judges took the view that they must first ask whether they could override the parents' refusal of consent, a question which they sought to answer by the use of existing principles on consent and the welfare principle. They then considered whether Mary's death would be an unlawful killing, i.e. whether it would be intended and whether there would be any applicable defence. The case thus ranged across a number of principles central to issues in medical, family and criminal law, but the judgments are not unimpeachable.

All three judges agreed that they were bound by the welfare principle in s 1(1) of the Children Act 1989 and the idea of best interests: that the court's paramount consideration was the welfare of the children. Ward and Brooke LJJ held that the best interests of Jodie and Mary were in direct conflict, but that this could be resolved by balancing the benefit to Jodie against the harm done to Mary. They held that the benefit to Jodie outweighed the harm to Mary, who would die in any event when Jodie's heart failed, and thereby overruled the parents' refusal to consent. By contrast, Robert Walker LJ agreed with Johnson J at first instance, holding that the separation was in the interests of both children.

As to whether Mary's death would amount to an unlawful killing, there was less agreement. Ward LJ held that her death would be intended but would not be murder because of quasi-self-defense. Brooke LJ held that Mary's death would not be murder because there was a defense of necessity. Robert Walker LJ held that Mary's death would not be intended.

We consider all three judgments to be flawed. We make the following criticisms, which we will support in detail in the sections that follow. Not only are the judgments mutually contradictory, but they are also internally inconsistent in many places. They are clearly based upon a range of values (particularly values about conjoined or separated life) which were neither argued nor properly justified. Their treatment and application of established principles of law can be strongly criticised and in their ostensible hope to justify their desired outcome, they overturn established principles of criminal law without sufficient argument or reason. They claim that there is no place for moral reasoning in the resolution of this complex (and undeniably moral) dilemma, but the judgments make clear use of certain moral arguments, in the absence of a properly reasoned framework.

It is clear that, at the first level of enquiry, there are no rules which specifically relate to conjoined twins or to the killing of one to save another. At the second level of enquiry, there are rules that relate to the medical treatment of non-conjoined children, and to the killing of non-conjoined persons. Could these rules and principles be used to resolve the issue before the court, namely the treatment or killing of conjoined children? The court quite clearly claimed that this was the level of inquiry with which it was engaged: 'This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply the relevant principles of law to the situation before us - a situation which is quite unique'.

The welfare principle

Our discussion from hereon will focus on welfare and the balancing of the twins' best interests. The Court of Appeal began its search for applicable rules and principles by turning to the principle which underpins the modern law relating to children: the paramount or welfare principle. When the court's inherent jurisdiction is invoked, its first and paramount consideration is the well-being, welfare or interest of the child. In addition, the Children Act 1989 contains the statutory formulation that 'when a court determines any question in respect to (a) the upbringing of a child .... the child's welfare shall be the court's paramount consideration' (s1(1) Children Act 1989). This essentially means that this is the court's only consideration (Freeman 2001, p 276). The rhetoric of welfare has thus become the touchstone of almost all areas of the law dealing with children. However, we argue that the application of the welfare principle fails to resolve the dilemma of whether sacrificial separation is morally and legally permissible. The welfare test is not an appropriate or sufficient mechanism for resolving competing rights to life; nor should the right to life be subordinated to a subjective principle of welfare.

The application of the welfare principle to Jodie and Mary

Jodie's best interests

The application of the welfare principle to Jodie seems relatively unproblematic. Jodie's life expectancy, joined to her twin, was short, between a few months or a few years. An elective separation held a high chance of survival for Jodie (around 94%), and a good prognosis for Jodie's post-operative life, although it was possible that she would need further surgery. A life along the lines of the worst outcome would have inconveniences and unpleasantness, particularly in view of the remote situation of the parents' home. There was no indication that her intellectual development would be other than normal and it was anticipated that there would be no adverse psychological consequences resulting from the separation. By contrast, an emergency separation would carry much greater risks for Jodie. If the twins remained conjoined, the strain of providing a blood supply for both herself and her sister would ultimately cause Jodie's death through heart failure: Jodie would predecease Mary, thereby bringing about Mary's death. Postponing any separation in the hope of Mary's death occurring first and an emergency separation taking place at that point was therefore not felt to be a viable option.

Mary's best interests

It was accepted by all the judges in the case that the outcome of the operation to separate would be Mary's death, although there was some uncertainty about whether that outcome would be 'intended' in the context of criminal culpability.

The medical witnesses could not be certain of the extent to which Mary registered either pleasure or pain. Despite this, and despite evidence that Jodie would be unable to learn to move around while attached to Mary, Johnson J was influenced by the prospect of Mary being in pain as Jodie began to gain mobility and dragged her around. He concluded 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... To prolong Mary's life for these few months would in my judgment be very seriously to her disadvantage' (ibid., 988).

He therefore held that separation would be in Mary's best interests.

Does 'morality' equate to religion?

This claim by Ward LJ that the court is a court of law and not of morals, seems in many ways an odd statement to make. Discussion of causing the death of a person seems to be one of the clearest instances of moral discussion. Perhaps though, the word 'moral' has restricted connotations for Ward LJ. Perhaps by 'morals' he really meant 'religion'. If this is the case, then we find no fault with his declaration that the court is not a religious court and that the case should not be decided by reference to specifically religious principles.

A controversial moral decision

It may be that Ward LJ did not intend to make a claim about the concept of law, but instead wished to present the court's deliberations as musings on a (non-moral) legal question in order to avoid controversy about whether the court reached the substantively correct moral position. This reading seems to be in conflict with his express conviction of having made the right decision, that we characterize as a moral rather than non-moral conviction. However, it may be that Ward LJ meant simply that this was the right legal decision on a moral issue. This position is a) unconvincing, and b) reduces to a stand for legal positivism when carried to its logical conclusion.

Moral convictions and moral principles habitually are regarded by those who possess them as self-evident unproblematic truths, until there is conflict between rival positions. For the majority of people, it is simply obvious that murder is morally wrong, and since no mainstream moral principle opposes this view, the grounds for its claim to veracity remain unchallenged. But when one moves from almost universal convictions to more intractable moral problems, the issue of why a particular principle ought to be accepted comes to the fore. The case of the conjoined twins is one such instance of moral controversy, because of the inevitable death of Mary resulting from separation, and the inevitable (yet preventable) proximate death of Jodie without separation.

It may be that the parent's right to autonomy will be violated by separation. If the parent of J did not want to spend her life caring for a potentially disabled child, the parent might prefer J to die instead. The basic rights of an ostensible agent would be in conflict with the precautionary basic rights of the child. The ramifications of such a wish are complex and cannot be considered exhaustively here – this would include consideration of the nature of the parent-child relationship and whether a child can be said to be the property of the parent, and the question of whether a parent is stopped from rejecting a child freely conceived – but we must remind our self that the right to autonomy is subject to the qualification of respecting other agents' rights. A desire not to look after a child does not translate unavoidably into the death of the child.

The procedural question: who decides?

What role should the parents have in making a decision on separation? Should the decision rest with the parents or the state, or both?

Agents have duties to themselves and to all other agents. They also have duties to non-ostensible agents which in practice will result in the protection of these precautionary 'rights' (life and physical and mental well-being and development) unless there arises a direct conflict with the rights of ostensible agents. Agents have these duties themselves, and communities of agents have these duties also. In a sophisticated society such as our own, the state can be regarded as the ultimate community in which these duties reside (see below for discussion of communities and legal systems). The state has a duty to protect the precautionary rights of less-than-ostensible agents (direct conflicts with ostensible agents' rights excepting).

If the state has a duty to prevent the unjustified taking of a child's life, then the state cannot allow separation decisions – or other decisions that threaten life – to take place without some scrutiny or guidance. This is not to say that all such decisions must be made by the court, though in practice decisions concerning incompetent children would need some kind of reasoned and consistent scrutiny by a state official.

Conclusion

As medicine drives us past the limits of our settled moral deliberations, it becomes increasingly important to take stock of the rules and principles by which our lives, and those of others, are ordered. We should be painstaking in our attempts to resolve moral and legal dilemmas that threaten the most basic rights of individuals, such as the separation of conjoined twins. We do not deny that the leading UK case on the separation of conjoined twins contained sincere and thoughtful judgments that at least attempted to resolve the legal dilemma. We maintain, however, that Re A cannot be the last word on separation. A proper attempt to resolve this issue must involve a consideration of embodiment and individuality; a (reasoned) conclusion to the concept of law debate, including a resolution of which moral theory is the basis of a legal idealist conception, and an application of a theory of adjudication that follows from this conception. In our case, we conclude that the correct conception of law is a legal idealism with Alan Gewirth's Principle of Generic Consistency at its heart. We concur with the Court of Appeal with regard to the outcome of Re A, but suggest that the means used to arrive to the Court's decision can be improved upon. Debates on the separation of conjoined twins exist at the cutting edge of law, morality, and individuality. At least let our reasoning be as sharp as the scalpel.