Conjoined twins: the conflict between parents and the courts over the medical treatment of children.

• Author: Tierney, Heather

1. INTRODUCTION

   The anomaly of conjoined twins fascinates and amazes people around the world. Conjoined twins are the subject of television documentaries and a source of curiosity and amazement. (1) With advances in medical treatment more conjoined twins survive birth. (2) Parents of conjoined twins immediately face life and death decisions concerning theft new babies. The most difficult of these decisions is whether or not to separate the twins. Medically, legally, and ethically the occurrence and survival of conjoined twins is an interesting and controversial topic. As Nancy Segal, an expert on twins and twinning, stated "[p]ublic debates on the physical and psychological treatment of conjoined twins have engaged physicians, families and reporters in triadic tangles over pregnancy termination, surgical separation, and postoperative management." (3)

   In August of 2000, the first legal case involving the surgical separation of conjoined twins arrived in a British courtroom. (4) The case involved a fundamental dispute about medical care and the separation of conjoined twins which divided the scientific, legal and religious sectors of society. (5) The doctors believed the twins should be separated giving the stronger, viable twin an opportunity to live. The devoutly religious parents believed that the decision regarding whether the children lived or died should be left in God's hands. In their view no one should intentionally cause the death of another person." (6)

   This comment explores how the courts in the United States might review a conjoined twins case such as the one of Jodie and Mary. As a starting point, this comment closely examines the facts and the judicial treatment by the Appeals Court in Britain of Jodie and Mary's case. This analysis examines the opinions of each Justice on the Court of Appeals as well as the Court's decision. The second part analyzes how courts in the United States treat medical cases where children either receive extraordinary medical treatment over the advice of their doctor. This comment explores the well known case of Baby K, a baby born without brain function in October, 1992. (7) This includes the judicial treatment by the trial court, as well as the court of appeals. Lastly, this comment address cases where parents refuse medical treatment for their minor children because of their religious beliefs.

   This comment analyzes both the differences and the similarities in cases where medical treatment is sought to save life and cases in which parents refuse medical treatment on religious grounds. In addition to the case analysis, this comment contemplates the effect of parent's constitutional rights under the free exercise clause, the rights of children in terms of child abuse and neglect, the parent's rights in terms of child abuse and neglect, as well as the state's right to intervene.

2. JODIE AND MARY--BACKGROUND

   Jodie and Mary were born on August 8, 2000. (8) The children were born to Michaelangelo and Rina Attard, devout Roman Catholics. (9) Jodie and Mary were ischiopagus tetrapus conjoined twins, (10) Thus, each had their own arms and legs, although they were joined at the pelvis and shared a linked spine. (11) The girls had their own internal organs, except for a shared bladder. (12) Jodie's heart and lungs performed all of the circulatory functions for both girls. (13) A common, shared artery enabled Jodie to circulate oxygenated blood for both of them. (14) The strain of supporting both girls would result in the death of both twins within a matter of weeks. (15) As the stronger twin, Jodie could survive on her own if separated from Mary but Mary would certainly die. (16)

   The parents believed that God, not doctors, should decide whether their daughters lived or died. (17) The parents declined St. Mary's Hospital's offer to perform the operation to separate the girls.(18) In their eyes, the twins were equal in the eyes of their parents, so they would not sacrifice one to save the other. (19) As a result, the twins' doctors turned to the court to order the surgery over the objections of the parents. (20)

3. IN RE A (CHILDREN)--THE DECISION OF THE BRITISH APPEALS PANEL

   In British courts, Lord Justices on an appeals panel customarily issue separate opinions. (21) The Lord Justices agreed with the trial court judge's decision to separate the girls. (22) The appeals panel justices did not agree with the Family Division's justices legal reasoning, as well as each other's legal reasoning as to the legality of the operation to separate the girls. (23) Interestingly, the Lord Justices quoted Justice Scalia in Cruzan v. Missouri Department of Health (24) where the United States (U.S.) Supreme Court Determined the legality of a parent's decision to end life sustaining treatment for their daughter. (25)

   According to the "welfare principle" the British court had the right to override the decision of the parents if it is in the best interests of the child to do so. (26) This principle puts the child's welfare above parental interest. (27) The judges decide if it is in the child's best interest to have "an independent and objective judgment. (28) This differs from the U.S., where the only way to override a decision by the parents is to convince a judge that it was a case of abuse or neglect. (29) The issue in this case was whether the parents could refuse medical treatment for their daughters. The Family Division court determined that the parents could refuse medical treatment, but the doctor's request to operate on the girls was in their best interest, therefore overriding the decision of the parents. (30)

   The Family Division judge concluded "that separation was not a case of killing Mary but one of passive euthanasia in which her food and hydration would be withdrawn (by clamping off her blood supply from Jodie)." (31) The parents and the official solicitor, appointed to represent Mary's interest, appealed the judgment of the Family Division Court. (32)

   A. Lord Justice Alan Ward

   British Appeals Court Justice Ward addressed the court's ability to hear the case. (33) The parents are entitled to consent or reject medical treatment on behalf of a minor child if it is in the child's best interest. (34) The hospital has the right to ask the court to overturn the parent's decision and give consent to the operation. (35)

   The fundamental principal of medical law allows people the opportunity to decide for themselves whether or not to receive medical treatment. (36) This principal is enforced regardless of the unreasonableness of the decision. (37) In the case of minor children, a safeguard exists allowing the court to override the parents' decision if it is in the child's best interest. (38) The parents have a right and duty to determine whether to consent or withhold medical treatment. (39)

   Family law dictated the test to determine whether the parents refusal can be overridden. (40) The Courts paramount consideration is the welfare of the child. (41) Lord Justice Ward addressed Jodie's best interest first and agreed with Justice Johnson in the Family Court that it was in Jodie's best interest to have the operation. (42) The operation would allow Jodie to have a normal life expectancy with little risk of brain damage of death. (43) He stated ..." it seems to me impossible to say that this operation does not offer infinitely greater benefit to Jodie than is offered to her by letting her die if the operation is not performed." (44)

   Determining Mary's best interest was more difficult for Lord Justice Ward? The critical distinction was whether the operation was viewed as a prolongation of Mary's life or a termination of her life. (46) The important consideration in respect to Mary was that her condition would never improve. (47) There was no determination as to whether or not she was in pain and that prolonging her life would be to her disadvantage. (48)

   In determining Mary's best interest, Lord Justice Ward recognized that there was no best health interest. (49) He determined that, "the operation is not capable of enduring any other improvement in her condition or preventing any deterioration in her present state of health." (50) He concluded that Mary's life has value even if she did not have the capacity to enjoy it. (51) The Lord Justice determined that the operation was not in Mary's best interest because it would end her life prematurely. (52) There was no advantage to her because the operation was in Jodie's but not Mary's best interest. (53) In cases considering the best interest of two children, the court must first balance the matter relevant to each child. (54) The wishes of the parents are considered in finding this balance. (55)

   The important distinction addressed by Lord Justice Ward is the withdrawl of care or treatment verses the ending of a patient's life by lethal injection. (56) He quoted Lord Goff, stating:

   The distinction appears, therefore, to be useful in the present context in that it can be invoked to explain how the discontinuance of life support can be differentiated from ending a patient's life by lethal injection. But in that end the reason for that difference is that, whereas law considers that discontinuance of life support may be consistent with the doctor's duty to care for his patient, it does not, for reasons of policy, consider that it forms any art of his duty to five his patient a lethal injection to put him out of his agony. (57) B. Lord Justice Brooke

   Lord Justice Brooke agreed with Lord Justice Ward's determination that when balancing the girls' interests against each other, Mary's interests should not outweigh the interests of Jodie. (58) He determined that the issues involving criminal law were the most difficult. The most important question was whether or not the operation to separate the girls was lawful. (59) He looked at the legal definition of murder, as well as the exceptions. (60) The Lord Justice focused on the words and phrases...